RUM Group Inc 8-K/A, filed Nov 12, 2025
RUM Group Inc. (RUM)
About this 8-K/A
RUM Group Inc filed this 8-K/A on November 12, 2025, reporting on events of November 10, 2025.
Items reported
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
(Amendment No. 1)
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation) |
(Commission File Number) | (I.R.S. Employer Identification Number) |
(Address of principal executive offices, including zip code)
Registrant’s telephone number, including
area code:
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| The Global Market | ||||
| The Global Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act.
Explanatory Note
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| * | Previously filed or furnished, as applicable. |
| ** | Portions of this exhibit have been redacted in compliance with Regulation S-K Item 601(b)(10). |
| † | Certain schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted schedule will be furnished supplementally to the U.S. Securities and Exchange Commission upon request; provided, however, that the Company may request confidential treatment pursuant to Rule 24b-2 of the Exchange Act for any document so furnished. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Rumble Inc. | ||
| Date: November 12, 2025 | By: | /s/ Brandon Alexandroff |
| Name: | Brandon Alexandroff | |
| Title: | Chief Financial Officer | |
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Exhibit 10.1
Execution Version
Transaction Support Agreement
by and between
Tether Investments, S.A. de C.V.
and
Rumble Inc.
Dated as of November 10, 2025
TABLE OF CONTENTS
| Page | ||||
| Article I. DEFINITIONS AND TERMS | 3 | |||
| Section 1.1 | Certain Definitions | 3 | ||
| Article II. SALE AND PURCHASE OF THE SOLD SHARES | 3 | |||
| Section 2.1 | Sale and Purchase of the Sold Shares | 3 | ||
| Section 2.2 | Transfer of the Sold Shares | 3 | ||
| Section 2.3 | Consideration. | 3 | ||
| Section 2.4 | Rumble Share Consideration | 4 | ||
| Section 2.5 | Existing Transaction Agreement | 4 | ||
| Section 2.6 | Cash Payment | 5 | ||
| Article III. CONDITIONS TO CLOSING | 5 | |||
| Section 3.1 | Conditions to Closing | 5 | ||
| Section 3.2 | Waiver of Conditions to Closing. | 6 | ||
| Article IV. CLOSING | 6 | |||
| Section 4.1 | Closing Time | 6 | ||
| Section 4.2 | Closing Actions | 6 | ||
| Section 4.3 | Holdback Rumble Share Consideration | 7 | ||
| Article V. REPRESENTATIONS AND WARRANTIES OF SELLER WITH RESPECT TO SELLER | 8 | |||
| Section 5.1 | Organization, Authorization, Enforceability, Non-Contravention | 8 | ||
| Section 5.2 | Governmental Authorization | 9 | ||
| Section 5.3 | Title to Sold Shares | 9 | ||
| Section 5.4 | Litigation or Government Order | 10 | ||
| Section 5.5 | Securities Law Compliance | 10 | ||
| Section 5.6 | Financing | 10 | ||
| Section 5.7 | Stock Ownership | 10 | ||
| Section 5.8 | Purpose of Investment | 10 | ||
| Section 5.9 | Independent Investment Decision | 11 | ||
| Article VI. REPRESENTATIONS AND WARRANTIES OF SELLER WITH RESPECT TO PARENT | 11 | |||
| Section 6.1 | Organization, Authorization, Enforceability, Non-Contravention | 11 | ||
| Section 6.2 | Capital Structure; Subsidiaries | 12 | ||
| Section 6.3 | Financial Statements; Controls | 14 | ||
| Section 6.4 | No Undisclosed Liabilities; Indebtedness | 15 | ||
| Section 6.5 | Absence of Changes | 15 | ||
| Section 6.6 | No Litigation or Government Orders. | 18 | ||
| Section 6.7 | Governmental and Third-Party Approvals, Consents and Notices | 18 | ||
| Section 6.8 | Taxes | 18 | ||
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| Section 6.9 | Employee Benefit Plans | 20 | ||
| Section 6.10 | Labor Matters | 22 | ||
| Section 6.11 | No Violation of Law; Regulatory Matters; Required Licenses and Permits | 23 | ||
| Section 6.12 | Real Property | 25 | ||
| Section 6.13 | Intellectual Property | 27 | ||
| Section 6.14 | Information Security; Data Privacy | 30 | ||
| Section 6.15 | Specified Contracts | 31 | ||
| Section 6.16 | Assets | 33 | ||
| Section 6.17 | Insurance | 33 | ||
| Section 6.18 | Environmental Matters | 33 | ||
| Section 6.19 | Data Centers | 34 | ||
| Section 6.20 | Purchase Orders and Commitments | 36 | ||
| Section 6.21 | Relationships with Related Persons. | 36 | ||
| Section 6.22 | Peak Mining Purchase Agreement; Legacy Liabilities | 36 | ||
| Section 6.23 | Finder’s Fees; Brokerage. | 37 | ||
| Section 6.24 | No Other Representations or Warranties | 37 | ||
| Article VII. LIMITATIONS OF LIABILITY | 38 | |||
| Section 7.1 | Limited Scope of Representations. | 38 | ||
| Section 7.2 | RWI Policy. | 39 | ||
| Section 7.3 | Exclusion of other Remedies. | 40 | ||
| Article VIII. REPRESENTATIONS AND WARRANTIES OF PURCHASER | 41 | |||
| Section 8.1 | Organization, Authorization, Enforceability, Non-Contravention | 41 | ||
| Section 8.2 | Capitalization | 43 | ||
| Section 8.3 | Available Funds | 45 | ||
| Section 8.4 | Governmental and Third-Party Approvals, Consents and Notices | 45 | ||
| Section 8.5 | No Litigation or Governmental Orders | 45 | ||
| Section 8.6 | Purchaser Reports; Financial Statements | 46 | ||
| Section 8.7 | Controls | 47 | ||
| Section 8.8 | No Violation of Law; Regulatory Matters; Required Licenses and Permits | 48 | ||
| Section 8.9 | Securities Law Compliance | 49 | ||
| Section 8.10 | Due Diligence by Purchaser | 50 | ||
| Section 8.11 | Solvency | 50 | ||
| Section 8.12 | Absence of Changes | 50 | ||
| Section 8.13 | Taxes | 50 | ||
| Section 8.14 | Investment Company | 51 | ||
| Section 8.15 | Properties | 51 | ||
| Section 8.16 | Form S-3 | 51 | ||
| Section 8.17 | Finder’s Fees; Brokerage | 51 | ||
| Section 8.18 | Intellectual Property | 52 | ||
| Section 8.19 | Employee Benefits Plans | 52 | ||
| Section 8.20 | Labor Matters | 52 | ||
| Section 8.21 | Environmental Matters | 52 | ||
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| Section 8.22 | Material Contracts | 52 | ||
| Section 8.23 | Sale of Securities | 53 | ||
| Section 8.24 | Antitakeover Statutes and Rights Agreement | 53 | ||
| Section 8.25 | Written Consent | 53 | ||
| Section 8.26 | No Other Representations or Warranties | 53 | ||
| Article IX. COVENANTS | 54 | |||
| Section 9.1 | Conduct of Business | 54 | ||
| Section 9.2 | Notice of Certain Events | 57 | ||
| Section 9.3 | Peak Mining Sale | 58 | ||
| Section 9.4 | Lock-Up | 58 | ||
| Section 9.5 | Top-Up Shares | 58 | ||
| Section 9.6 | No Solicitation; Other Offers | 59 | ||
| Section 9.7 | Confidentiality | 59 | ||
| Section 9.8 | Announcements | 59 | ||
| Section 9.9 | Shareholder Loan Agreement | 60 | ||
| Section 9.10 | Tender Offer | 60 | ||
| Section 9.11 | Cooperation | 61 | ||
| Section 9.12 | Other Purchase Agreements | 62 | ||
| Section 9.13 | Squeeze-Out | 62 | ||
| Section 9.14 | Information Undertaking | 63 | ||
| Section 9.15 | Stock Exchange Listing | 63 | ||
| Section 9.16 | Takeover Statutes | 63 | ||
| Section 9.17 | Written Consent | 63 | ||
| Section 9.18 | Reporting Status | 64 | ||
| Section 9.19 | No Deregistration | 64 | ||
| Section 9.20 | Affiliate Transfers | 64 | ||
| Section 9.21 | Release of Seller Protected Person | 64 | ||
| Section 9.22 | Release of Purchaser Protected Person | 65 | ||
| Section 9.23 | Title Insurance Policy; Survey | 65 | ||
| Section 9.24 | Amendment to Peak Mining Purchase Agreement | 65 | ||
| Article X. TAX MATTERS | 65 | |||
| Section 10.1 | VAT | 65 | ||
| Section 10.2 | Other Tax Matters. | 66 | ||
| Article XI. SURVIVAL; INDEMNIFICATION | 66 | |||
| Section 11.1 | Survival. | 66 | ||
| Section 11.2 | Indemnification of Purchaser Indemnitees | 67 | ||
| Section 11.3 | Indemnification of the Seller Indemnitees | 67 | ||
| Section 11.4 | Limitation on Indemnification Obligations | 68 | ||
| Section 11.5 | Determination of Damages | 69 | ||
| Section 11.6 | Claim Procedures | 69 | ||
| Section 11.7 | No Double Recovery | 72 | ||
| Section 11.8 | Mitigation of Losses | 72 | ||
| Section 11.9 | Tax Treatment of Indemnification Claims | 72 | ||
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| Article XII. TERMINATION | 72 | |||
| Section 12.1 | Termination | 72 | ||
| Section 12.2 | Notice of Termination | 73 | ||
| Section 12.3 | Effect of Termination | 73 | ||
| Article XIII. MISCELLANEOUS | 73 | |||
| Section 13.1 | Notices. | 73 | ||
| Section 13.2 | Assignment | 75 | ||
| Section 13.3 | No Third-Party Beneficiaries; No Recourse Against Non-Parties. | 75 | ||
| Section 13.4 | Whole Agreement; Conflict with Other Transaction Documents | 75 | ||
| Section 13.5 | Costs | 76 | ||
| Section 13.6 | Governing Law; Consent to Jurisdiction; Specific Performance. | 76 | ||
| Section 13.7 | Counterparts | 76 | ||
| Section 13.8 | Severability | 76 | ||
| Section 13.9 | Amendments; Waiver | 77 | ||
| Section 13.10 | Payments. | 77 | ||
| Section 13.11 | No Admission. | 77 | ||
| Section 13.12 | Interpretation | 77 | ||
Schedules and Exhibits
| Schedule A | Definitions and Terms |
| Schedule 3.1(d) | Regulatory Approvals |
| Exhibit A | CEO Purchase Agreement |
| Exhibit B | Apeiron Purchase Agreement |
| Exhibit C | Peak Mining Purchase Agreement |
| Exhibit D | Business Combination Agreement |
| Exhibit E | Form of Pre-Funded Warrant |
| Exhibit F | Form of Written Consent |
| Exhibit G | Form of Customer Agreement |
| Exhibit H | Form of Registration Rights Agreement |
| Exhibit I | Shareholder Loan Amendment Agreement |
| Exhibit J | Form of Transaction Agreement Amendment |
| Exhibit K | Form of Parent Equity Commitment Agreement |
| Exhibit L | Form of Rumble Equity Commitment Agreement |
Disclosure Letters
Seller’s Disclosure Letter
Purchaser’s Disclosure Letter
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TRANSACTION SUPPORT AGREEMENT
This TRANSACTION SUPPORT AGREEMENT, dated as of November 10, 2025 (this “Agreement”), is made by and among Tether Investments, S.A. de C.V., a Salvadoran Sociedad Anónima de Capital Variable (“Seller”), and Rumble Inc., a corporation incorporated under the laws of the State of Delaware (“Purchaser”).
RECITALS
WHEREAS, Northern Data AG is a German stock corporation (Aktiengesellschaft) with its registered seat at An der Welle 3, 60322 Frankfurt am Main, Germany, registered with the commercial register of the local court (Amtsgericht) of Frankfurt am Main, Germany, under HRB 106465 (“Parent”), and has an outstanding share capital of EUR 64,196,677.00 comprising 64,196,677 no par-value bearer shares, each with a nominal amount of EUR 1.00 (the “Shares”). The Shares are securitized in one or more permanent global certificate(s) (Dauerglobalurkunde(n)) held in collective safe custody (Girosammelverwahrung) at Clearstream Banking Aktiengesellschaft, Frankfurt am Main, Germany (“Clearstream”);
WHEREAS, as of the date hereof, Seller owns 41,887,766 Shares, corresponding to approximately 65.2% of the outstanding share capital of the Parent. Seller’s ownership of the Shares is recorded as co-ownership in fractions (Miteigentum nach Bruchteilen) in the permanent global share certificate(s);
WHEREAS, concurrent with the execution of this Agreement, Purchaser has entered into (i) that certain Transaction Support Agreement, dated as of the date hereof, by and among ART Holding GmbH, Switzerland and Aroosh Thillainathan, and Purchaser in the form attached hereto as Exhibit A (as may be amended in accordance with the terms thereof and hereof, the “CEO Purchase Agreement”), pursuant to which, subject to the terms and conditions set forth therein, at the closing of the transactions contemplated thereby, Purchaser will acquire 744,150 Shares from ART Holding GmbH in exchange for the consideration set forth therein and (ii) that certain Transaction Support Agreement, dated as of the date hereof, by and between Apeiron Investment Group Ltd., Malta (“Apeiron”), and Purchaser in the form attached hereto as Exhibit B (as may be amended in accordance with the terms thereof and hereof, the “Apeiron Purchase Agreement”), pursuant to which, subject to the terms and conditions set forth therein, at the closing of the transactions contemplated thereby, Purchaser will acquire 2,246,399 Shares from Apeiron in exchange for the consideration set forth therein;
WHEREAS, on November 3, 2025, Parent sold its Bitcoin mining business (the “Peak Mining Business”) pursuant to that certain merger and equity purchase agreement, dated as of November 3, 2025, by and among Highland Group Mining Inc., a British Virgin Islands business company (“Buyer Parent”), Appalachian Energy LLC, a Delaware limited liability company and a direct, wholly owned subsidiary of Buyer Parent (“Merger Sub”), 2750418 Alberta ULC, an Alberta unlimited liability corporation, (“CA Buyer”, and together with Buyer Parent, “Buyers”), Northern Data US, Inc., a Delaware corporation (“ND US”) and Parent, attached hereto as Exhibit C (the “Peak Mining Purchase Agreement”), pursuant to which (i) CA Buyer purchased certain Canadian subsidiaries of Parent and (ii) Merger Sub merged with and into ND US whereupon the separate corporate existence of Merger Sub ceased and ND US continued as the surviving corporation with US Buyer as the sole shareholder, as set forth in the Peak Mining Purchase Agreement in exchange for the consideration set forth therein;
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WHEREAS, concurrent with the execution of this Agreement, Purchaser has entered into that certain Business Combination Agreement, dated as of the date hereof, by and between Parent and Purchaser in the form attached hereto as Exhibit D (as may be amended in accordance with the terms thereof and hereof, the “Business Combination Agreement”), pursuant to which, subject to the terms and conditions set forth therein, Purchaser will launch a tender offer to acquire all outstanding Shares (the “Tender Offer”) other than those Shares to be purchased pursuant to the terms of this Agreement, the CEO Purchase Agreement and the Apeiron Purchase Agreement and/or any other Shares that Purchaser may acquire from other shareholders outside the Tender Offer;
WHEREAS, concurrent with the execution of this Agreement, Purchaser and Seller have entered into that certain Equity Commitment Agreement, dated as of the date hereof, by and between Purchaser, Seller and Parent in the form attached hereto as Exhibit K (as may be amended in accordance with the terms thereof and hereof, the “Parent Equity Commitment Agreement”), pursuant to which, subject to the terms and conditions set forth therein, Seller has agreed to provide a financing commitment to fund Covered Taxes (as defined therein) to the extent due and owing or otherwise accrued at or prior to the closing of the Tender Offer;
WHEREAS, concurrent with the execution of this Agreement, Purchaser and Seller have entered into that certain Equity Commitment Agreement, dated as of the date hereof, by and between Purchaser and Seller in the form attached hereto as Exhibit L (as may be amended in accordance with the terms thereof and hereof, the “Rumble Equity Commitment Agreement”), pursuant to which, subject to the terms and conditions set forth therein, Seller has agreed to provide a financing commitment to fund Covered Taxes (as defined therein) at or after the closing of the Tender Offer;
WHEREAS, by entering into this Agreement, the Parties, inter alia, wish to support, strategically and financially, the current business strategy of Purchaser and Parent, in particular to strengthen their market positions, and to further raise the long-term, sustained growth and the value of Purchaser and Parent;
WHEREAS, on the terms and subject to the conditions set forth herein, Seller desires to sell to Purchaser, and Purchaser desires to purchase from Seller, all of the Shares owned by Seller as of immediately prior to the Closing, which, for the avoidance of doubt, shall include the 41,887,766 Shares owned by Seller as of the date hereof (collectively, the “Sold Shares”) and the Parties desire that such Shares shall be transferred at Closing; and
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NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and undertakings contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
Article
I.
DEFINITIONS AND TERMS
Section 1.1 Certain Definitions. Capitalized terms used in this Agreement shall have the meanings set forth on Schedule A.
Article
II.
SALE AND PURCHASE OF THE SOLD SHARES
Section 2.1 Sale and Purchase of the Sold Shares.
(a) On the terms and subject to the conditions set forth herein, Seller hereby sells to Purchaser, and Purchaser hereby accepts such sale and purchases from Seller, the Sold Shares.
(b) The Sold Shares are sold to Purchaser with economic effect as of the Closing Date, with all rights and obligations pertaining thereto, including the right to receive dividends for any fiscal year of the Parent that is not yet completed on the Closing Date as well as for previous financial years of the Parent to the extent such dividends are not yet distributed prior to or on the date hereof. To the extent the Parent pays any dividends or makes any other distributions between the date hereof and Closing, Seller shall pass on such dividends to Purchaser for no additional compensation at Closing.
Section 2.2 Transfer of the Sold Shares. At Closing, Seller shall deliver the Sold Shares to Purchaser as set forth in Section 4.2.
Section 2.3 Consideration.
(a) The consideration payable by Purchaser for each Sold Share sold hereunder shall be a number of Purchaser Common Shares equal to the Offer Ratio, subject to adjustment pursuant to Section 9.10(e) (the total number of Purchaser Common Shares issued hereunder, including any Purchaser Common Shares underlying the Pre-Funded Warrants issued pursuant to Section 2.4(b), being the “Rumble Share Consideration”); provided that Purchaser shall be entitled to withhold the Holdback Rumble Share Consideration from the Rumble Share Consideration issued to Seller on the Closing Date, as contemplated by Section 4.3.
(b) Notwithstanding the foregoing, only to the extent the issuance of Purchaser Common Shares in an amount equal to the Rumble Share Consideration would result in Seller and its Affiliates owning in excess of 9.9% of the outstanding voting power of the capital stock of Purchaser after giving effect to such issuance (the “Ownership Limitation”), in lieu of delivering to Seller such number of Purchaser Common Shares in excess of the Ownership Limitation, Purchaser shall deliver to Seller a pre-funded warrant in the form attached hereto as Exhibit E (the “Pre-Funded Warrant”) exercisable on a cashless basis into such number of Purchaser Common Shares so that Seller and its Affiliates do not own in excess of the Ownership Limitation after giving effect to issuance of the Rumble Share Consideration. No later than five (5) Business Days prior to Closing, Seller shall inform Purchaser of the number of Purchaser Common Shares held by Seller and Purchaser shall inform Seller of the number of Purchaser Common Shares for purposes of calculating the number of Purchaser Common Shares to be issued at Closing and the number of Purchaser Common Shares to be included in the Pre-Funded Warrant.
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Section 2.4 Rumble Share Consideration.
(a) By reason of a specific exemption from the registration provisions of the Securities Act, Seller understands that the Rumble Share Consideration has not been, and prior to the Closing will not be, registered under the Securities Act. Seller understands that the Rumble Share Consideration will consist of “restricted securities” under applicable U.S. federal and state securities Laws and that, pursuant to these Laws, Seller may dispose of the Rumble Share Consideration only pursuant to an effective registration statement with the Securities and Exchange Commission and in compliance with applicable requirements of state authorities, or an exemption from such registration and requirements. Seller acknowledges that, other than as set forth in the Registration Rights Agreement, Purchaser has no obligation to register or qualify the Rumble Share Consideration.
(b) Any certificate(s) representing the Rumble Share Consideration will be imprinted, and any Rumble Share Consideration issued in non-certificated book-entry form will have a notation in Purchaser’s stock ledger and other appropriate books and records, with a legend in substantially the following form (in the case of Rumble Share Consideration issued in non-certificated book-entry form, reflecting conforming changes consistent with the non-certificated book-entry form):
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A PRIVATE PLACEMENT, WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION UNDER THE ACT COVERING SUCH SALE, ASSIGNMENT OR TRANSFER OR AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE ISSUER, THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED.”
(c) Notwithstanding anything to the contrary set forth in this Agreement, if, between the date hereof and the earlier of the Closing and the termination of this Agreement in accordance with its terms, the issued and outstanding Purchaser Common Shares or securities convertible or exchangeable into or exercisable for Purchaser Common Shares, as applicable, shall have been changed into a different number of shares or a different class (including by reason of any reclassification, recapitalization, stock split (including reverse stock split) or combination, exchange or readjustment of shares, or stock dividend thereon with a record date during such period or otherwise, but excluding any change that results from any issuance of shares permitted by Section 9.1(c)), then the Rumble Share Consideration shall be appropriately adjusted; provided, however, that nothing in this Section 2.4(c) shall be construed to permit Purchaser or any other Person to take any action to the extent such action is limited or prohibited by the terms and conditions of this Agreement.
Section 2.5 Existing Transaction Agreement. Effective as of the date hereof, the Purchaser waives the application of Section 6.07(a) of that certain transaction agreement, dated as of December 20, 2024, by and between Purchaser and Seller solely to the extent such provisions would, but for this waiver, prohibit Seller’s or its Affiliates’ execution, delivery and performance of this Agreement or any other Transaction Document to which Seller or any such Affiliate is a party, or the consummation by Seller or any such Affiliate of the transactions contemplated hereby or thereby.
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Section 2.6 Cash Payment. If a Cash Consideration Amount (as defined in the Business Combination Agreement) is to be paid to shareholders of the Parent who have accepted the Tender Offer pursuant to Section 3.8 of the Business Combination Agreement, the Purchaser shall make a corresponding cash payment per Sold Share to the Seller. Such cash payment shall be due and payable at Closing.
Article
III.
CONDITIONS TO CLOSING
Section 3.1 Conditions to Closing. The obligations of each of the Parties to consummate (vollziehen) the transactions contemplated by this Agreement are subject to the satisfaction (or valid written waiver) of each of the following conditions to Closing (Vollzugsbedingungen):
(a) HSR Act Clearance. All waiting periods (and any extensions thereof) applicable to the transactions contemplated by this Agreement under the HSR Act, and any commitment to, or agreement (including any timing agreement) with, any Government Authority to delay the consummation of, or not to consummate before a certain date, the transactions contemplated by this Agreement, shall have expired or been terminated.
(b) No Prohibition. There shall be no Government Order or other Law in any jurisdiction in which either the Purchaser, Seller or Parent has material business operations in effect enjoining, restraining, or otherwise prohibiting or making illegal the consummation of the transactions contemplated by this Agreement.
(c) Exchange Authorization. The Rumble Share Consideration to be issued pursuant to this Agreement shall be duly authorized for listing by NASDAQ, subject to official notice of issuance, to the extent required by the rules of NASDAQ.
(d) Regulatory Approvals. The consents, clearances, authorizations and approvals, in each case that are required to be obtained in connection with the consummation of the Closing from any Government Authorities set forth on Schedule 3.1(d) shall have been obtained.
(e) Tender Offer. All Offer Conditions shall have been satisfied or waived and the Acceptance Period and Additional Acceptance Period shall each have expired.
(f) Shareholder Loan Amendment Agreement. Parent and Seller shall have entered into the Shareholder Loan Amendment Agreement.
(g) Written Consent. Purchaser shall have delivered to Seller a true and correct copy of the Written Consent in accordance with the terms of this Agreement.
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(h) Ownership of Shares. The Sold Shares are owned of record and beneficially by Seller, free and clear of all Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents).
Section 3.2 Waiver of Conditions to Closing.
(a) Seller may in its sole discretion decide to waive the condition to Closing pursuant to Section 3.1(c) in writing in full or in part, and, as a result thereof, such conditions shall be waived.
(b) Purchaser may in its sole discretion decide to waive the condition to Closing pursuant to Section 3.1(h) in writing in full or in part, and, as a result thereof, such condition shall be waived.
(c) All other conditions to Closing may only be waived by mutual written agreement in full or in part.
Article
IV.
CLOSING
Section 4.1 Closing Time. The transfer of the Sold Shares against provision of the Rumble Share Consideration contemplated hereby (the “Closing”) will take place electronically through the exchange of documents via e-mail or facsimile, at 9:00 a.m., New York City time, on the Business Day immediately preceding the anticipated closing date of the Tender Offer, provided that the last of the conditions set forth in Section 3.1 has been satisfied or waived prior to such date, or on such other date or at such other time and place as Seller and Purchaser may mutually agree in writing.
Section 4.2 Closing Actions.
(a) At the Closing, the Parties shall take the following actions (“Closing Actions”) in the order set forth below:
(i) Seller shall deliver to Purchaser a customary bring-down certificate, dated the Closing Date and signed by a duly authorized officer of Seller, in which Seller declares whether it has (after the date hereof) become aware of any breaches of the representations and warranties of Sellers that are given as of the date hereof and the Closing Date, and without personal liability of the persons signing/delivering such certificate (the “Bring-Down Certificate”). Purchaser acknowledges and agrees that the Bring-Down Certificate will only be given to the Knowledge of Seller. To the extent any facts, matters or circumstances are disclosed in the Bring-Down Certificate, Seller shall not be liable for any representations and warranties being untrue as a result of such disclosure of facts, matters or circumstances. This shall not affect Seller’s liability for any breaches of representations and warranties given as of the date hereof;
(ii) Purchaser shall deliver to Seller evidence of the issuance of Purchaser Common Shares equal to the Rumble Share Consideration (less Purchaser Common Shares underlying the Pre-Funded Warrant and the Holdback Rumble Share Consideration) in Direct Registration System (DRS) non-certificated book-entry form by Purchaser’s transfer agent and registered in the name of Seller, in form and substance reasonably satisfactory;
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(iii) Purchaser shall deliver to Seller a duly executed Pre-Funded Warrant registered in the name of Seller to purchase up to such number of Purchaser Common Shares as determined pursuant to Section 2.3(b);
(iv) Purchaser and Seller shall execute the Registration Rights Agreement;
(v) Purchaser and Seller shall execute the Customer Agreement;
(vi) Purchaser and Seller shall execute the Transaction Agreement Amendment;
(vii) Purchaser shall deliver to Seller a certificate, dated the Closing Date and duly executed by the Secretary of Purchaser (or a comparable officer of Purchaser), in form and substance reasonably satisfactory to Seller, as to: (A) the certificate of incorporation of Purchaser, certified as of a recent date by the Secretary of State of the State of Delaware, and that there have been no amendments to the certificate of incorporation of Purchaser since such certification; and (B) the bylaws of Purchaser in effect as of the Closing Date;
(viii) Purchaser shall pay to Seller the aggregate earnout payment pursuant to Section 2.6, if any; and
(ix) Seller shall deliver to Purchaser a copy of the duly executed irrevocable instruction of Seller to the Seller Custodian Bank to transfer the Sold Shares to the securities account of Purchaser Custodian Bank via Clearstream.
(b) The Closing Actions may only be waived by mutual written agreement of the Parties.
(c) After all Closing Actions have been taken or duly waived, the Parties shall confirm in a written document that (i) if true, all conditions to Closing pursuant to Section 3.1 have been duly fulfilled or waived, (ii) all Closing Actions have been duly taken or waived, and (iii) Closing has occurred (“Closing Protocol”). The execution of the Closing Protocol shall not limit or prejudice the rights of a Party under this Agreement or Law.
Section 4.3 Holdback Rumble Share Consideration. Without limitation to the rights and remedies of Purchaser, Purchaser shall have the right, upon compliance with the procedures and other requirements set forth in this Article IV to satisfy the amount of any Damages that Seller is obligated to indemnify Purchaser for pursuant to Section 11.2 by deducting from the Holdback Rumble Share Consideration a number of Purchaser Common Shares equal in value (based on the Purchaser Common Stock Price) to such Damages; provided, however, that Seller may, at its sole discretion, elect to satisfy the amount of any Damages in cash rather than a deduction from the Holdback Rumble Share Consideration pursuant to this Section 4.3. In the event any Purchaser Common Shares have not been deducted from the Holdback Rumble Share Consideration (if any) on or prior to the later of (i) the Holdback Release Date and (ii) the resolution of all claims made by the Purchaser in accordance with the notice provisions of Section 11.6 prior to the Holdback Release Date that remain pending as of such date, then Purchaser shall promptly issue and release to Seller such remaining Holdback Rumble Share Consideration and deliver to Seller evidence of such issuance in DRS non-certificated book-entry form by Purchaser’s transfer agent and registered in the name of Seller, in form and substance reasonably satisfactory to Seller; provided, however, on the Holdback Release Date, Purchaser shall promptly issue and release to Seller such portion of the Holdback Rumble Share Consideration that is not subject to any pending indemnification claim made on or prior to the Holdback Release Date.
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Article
V.
REPRESENTATIONS AND WARRANTIES OF SELLER WITH RESPECT TO SELLER
Seller hereby represents and warrants to Purchaser in the form of an independent guarantee (selbstständiges Garantieversprechen) pursuant to Section 311 para. 1 BGB and irrespective of fault that the following statements are true and correct as of the date hereof and as of the Closing Date (except to the extent any such representation and warranty is expressly made as of a specific date, in which case Seller hereby makes to Purchaser such representation and warranty only as of such date), provided that for the avoidance of doubt, Parent and its Subsidiaries shall not be considered Affiliates of Seller for purposes of this Agreement:
Section 5.1 Organization, Authorization, Enforceability, Non-Contravention.
(a) Organization. Seller is a Salvadoran Sociedad Anónima de Capital Variable, duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all corporate powers and all Permits necessary to enable it to use its legal or other business name, to own, lease or otherwise hold and operate its properties and other assets and to carry on its business as presently conducted.
(b) Authorization. The execution, delivery and performance by Seller of this Agreement, and the execution, delivery and performance by Seller and its Affiliates of each other Transaction Document to which Seller or any of such Affiliates is a party, and the consummation by Seller and such Affiliates of the transactions contemplated hereby and thereby, are within the corporate or other organizational powers of each of Seller and such Affiliates and have been duly and validly authorized by all necessary corporate action. This Agreement and each other Transaction Document to which Seller or any such Affiliate is a party constitutes a valid and binding agreement of Seller or such Affiliate, as applicable, enforceable against Seller or such Affiliate in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity).
(c) Non-Contravention. The execution, delivery and performance by Seller of this Agreement, and the execution, delivery and performance by Seller and its Affiliates of each other Transaction Document to which Seller or any such Affiliate is a party, and the consummation by Seller and such Affiliates of the transactions contemplated hereby and thereby, do not and will not (i) contravene, conflict with, or result in any violation or breach of any provision of the organizational documents of Seller or its Affiliates, (ii) contravene, conflict with or result in a violation or breach of any provision of any applicable Law, (iii) require any consent or other action by any Person under, constitute a default (or constitute an event that, with or without notice or lapse of time or both, would constitute a default) under, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which Seller or any of its Affiliates is entitled under any provision of any Contract binding upon, or any Permit of, Seller or any of its Affiliates (or any Contract to which any of their respective assets is subject) or (iv) result in the creation or imposition of any Encumbrance on any asset of Seller or any of its Affiliates (including the Sold Shares), with only such exceptions, in the case of clauses (ii) through (iv), as would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect.
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(d) Not Fraudulent Conveyance. Seller is not entering into this Agreement or the other Transaction Documents to which it is a party or consummating the transactions contemplated hereby or thereby with the intent to hinder, delay or defraud any creditor. The consideration received by Seller in connection with the transactions contemplated by this Agreement and the other Transaction Documents to which it is a party constitutes reasonably equivalent value and fair consideration for the securities or other assets being transferred. Seller transferring securities pursuant to this Agreement or the other Transaction Documents is Solvent as of the Closing Date and will not be rendered insolvent as a result of the transactions contemplated by this Agreement or the other Transaction Documents. No transfer of securities or other assets pursuant to this Agreement or any of the other Transaction Documents to which Seller is a party is or may be subject to avoidance under any applicable Laws relating to fraudulent transfers, fraudulent conveyance and similar doctrines, whether under state or federal Law.
Section 5.2 Governmental Authorization. Except as set forth on Section 6.7 of Seller’s Disclosure Letter, the execution, delivery and performance by Seller of this Agreement, and the execution, delivery and performance by Seller and its Affiliates of each other Transaction Document to which Seller or any of such Affiliates is a party, and the consummation by Seller and such Affiliates of the transactions contemplated hereby and thereby, require no action by or in respect of, or filing with, any Government Authority, other than (i) compliance with any applicable requirements of the Securities Act, the Exchange Act and any other U.S. state or federal securities Laws or AktG, any (ii) such actions and filings specifically contemplated under this Agreement or any other Transaction Document, and (iii) any actions or filings the absence of which would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect.
Section 5.3 Title to Sold Shares. As of the date hereof, Seller owns and has good and valid title to 41,887,766 Shares, in each case, free and clear of any Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents). As of the Closing, Seller will own and have good and valid title to all the Sold Shares, in each case, free and clear of any Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents). Upon the consummation of the transactions contemplated hereby, good and valid title to all the Sold Shares will pass to Purchaser free and clear of any Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents). There are no outstanding options, warrants, rights of conversion, pledges, exchange or purchase or any similar rights under which Seller is or may become obligated to sell, or giving any Person a right to acquire, or in any way dispose of, the Sold Shares.
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Section 5.4 Litigation or Government Order. There is no Action pending or threatened in writing against Seller, any of their its Affiliates or Subsidiaries, any of their respective assets or properties, any of their respective present or former officers, directors or employees in their capacities as such, or any Person for whom Seller or any of their respective Affiliates or Subsidiaries may be liable before (or, in the case of threatened Actions, would be before) or by any Government Authority or arbitrator that, assuming such Actions were determined or resolved adversely in accordance with the opposing party’s demands, would reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect. Seller is not a party to or subject to the provisions of any Government Order that has or would reasonably be expected to, individually or in the aggregate, (i) materially and adversely affect the legality, validity or enforceability of this Agreement or any other Transaction Document to which Seller is a party, (ii) prevent or materially impair the ability of Seller to consummate the transactions contemplated by this Agreement and the other Transaction Documents to which Seller is a party or (iii) have a Seller Material Adverse Effect.
Section 5.5 Securities Law Compliance. Seller is financially sophisticated and is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act. Seller understands that the Rumble Share Consideration has not been registered under the securities laws of any jurisdiction, including the Securities Act, and may only be transferred pursuant to registration or an applicable exemption under all applicable Laws. Pursuant to this Agreement, Seller is acquiring the Rumble Share Consideration for its own account, for the purpose of investment only and not with a view to, or for sale in connection with, any distribution thereof in violation of applicable Law. Seller has not, directly or indirectly, offered the Rumble Share Consideration to anyone or solicited any offer to buy the Rumble Share Consideration from anyone, in each case that would have the effect of bringing to such offer and sale of the Rumble Share Consideration by Seller within the registration requirements of the Securities Act or the securities Laws of any other jurisdiction.
Section 5.6 Financing. Seller has, and will continue to have through the applicable date of such obligation, sufficient cash or other sources of immediately available funds to enable it to (i) consummate the purchase of the maximum amount of Top-Up Shares and Additional Top-Up Shares in accordance with Section 9.5 and (ii) fund all amounts necessary pursuant to Section 9.13 (Squeeze-Out).
Section 5.7 Stock Ownership. As of the date hereof, Seller does not own, beneficially or legally, any Purchaser Common Shares (or any securities convertible, exercisable or exchangeable for, or rights to purchase or acquire, any Purchaser Common Shares) other than as set forth in its Schedule 13D amendment filed by Seller with the SEC on August 11, 2025.
Section 5.8 Purpose of Investment. Seller intends to hold the Rumble Share Consideration, together with any Purchaser Common Shares held by Seller as of the date hereof, “solely for purposes of investment” as such term is defined by 16 C.F.R. Section 801.1(i), and interpreted under 16 C.F.R. Section 802.9.
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Section 5.9 Independent Investment Decision. Seller has independently evaluated the merits of its decision to acquire the Rumble Share Consideration pursuant hereto. Seller understands that nothing in this Agreement or any other materials presented by or on behalf of Purchaser to Seller in connection with the acquisition of the Rumble Share Consideration constitutes legal, tax or investment advice. Seller has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its acquisition of the Rumble Share Consideration.
Article
VI.
REPRESENTATIONS AND WARRANTIES OF SELLER WITH RESPECT TO PARENT
Seller hereby represents and warrants to Purchaser in the form of an independent guarantee (selbstständiges Garantieversprechen) pursuant to Section 311 para. 1 BGB and irrespective of fault that except as set forth in Seller’s Disclosure Letter, the following statements are true and correct, as of the date hereof and as of the Closing Date (except to the extent any such representation and warranty is expressly made as of a specific date, in which case Seller hereby makes to Purchaser such representation and warranty only as of such date):
Section 6.1 Organization, Authorization, Enforceability, Non-Contravention.
(a) Organization. Parent is a German stock corporation (Aktiengesellschaft) duly incorporated, and validly under the Laws of Germany and has the requisite corporate power and authority to conduct its business as presently conducted. Each Transferred Subsidiary is duly incorporated or formed, and validly existing, and in good standing under the Laws of the state or country of incorporation to the extent such concept exists in the relevant jurisdiction, and has the requisite corporate power and authority to conduct its business as presently conducted. Section 6.1(a) of Seller’s Disclosure Letter, as of the date hereof, sets forth for Parent and each Transferred Subsidiary the jurisdiction of incorporation. True and complete copies of the Constituent Documents of Parent and all Transferred Subsidiaries have been made available in the Virtual Data Room. Neither Parent nor any of the Transferred Subsidiaries has taken any action that is inconsistent in any material respect with any resolution adopted by its respective equityholders, supervisory board, management board (or other similar governing body) or any committee of its supervisory board (or other similar governing body).
(b) Management. Section 6.1(b) of Seller’s Disclosure Letter, as of the date hereof, sets forth a true and complete list of all members of the management board (Vorstand) and supervisory board (Aufsichtsrat) of Parent. All members of the management board or supervisory board or managing directors (Geschäftsführer) (or equivalents thereof) of Parent and the Transferred Subsidiaries have been duly elected or appointed and since January 1, 2024, all former members of the management board or supervisory board or managing directors (Geschäftsführer) (or equivalent thereof) of each of Parent and the Transferred Subsidiaries have been duly dismissed or removed, except as would not reasonably be expected to have a Parent Material Adverse Effect.
(c) Corporate Authorization. Parent and each of the Transferred Subsidiaries have the requisite corporate or other organizational power and authority to execute and deliver the Transaction Documents to which they are a party and each certificate and other instrument required to be executed and delivered by Parent or each such Transferred Subsidiary pursuant thereto and to perform their obligations thereunder, and to consummate the transactions contemplated thereby. The execution, delivery and performance of the Transaction Documents to which they are a party, and the consummation of the transactions contemplated thereby, by Parent and each Transferred Subsidiary have been duly and validly authorized by all necessary corporate action on the part of Parent and the Transferred Subsidiaries.
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(d) Binding Effect. The Transaction Documents to which they are a party have been duly executed and delivered by Parent and each Transferred Subsidiary. Each Transaction Document to which they are a party is a legal, valid and binding obligation of Parent and each Transferred Subsidiary enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(e) Non-Contravention. The execution, delivery and performance of the Transaction Documents to which Parent and the Transferred Subsidiaries are a party, and the consummation of the transactions contemplated thereby, do not (i) violate or conflict with any provision of the Constituent Documents of Parent and the Transferred Subsidiaries, (ii) violate or conflict with any Law, Government Order or Permit applicable to Parent or any of the Transferred Subsidiaries or by which any property or asset of Parent or such Subsidiary is bound, except in case of clause (ii) of this Section 6.1(e), for any such conflicts, violations, breaches, defaults, terminations, modifications, losses, diminutions of rights, accelerations, cancellations or creations that would not reasonably be expected to have a Parent Material Adverse Effect.
(f) Insolvency. No insolvency or similar proceedings have been, or have been threatened to be, opened or applied for regarding the assets of Parent, and there are no circumstances which would require the opening of or application for such proceedings. Parent is neither illiquid (zahlungsunfähig) nor over-indebted (überschuldet).
Section 6.2 Capital Structure; Subsidiaries.
(a) As of the date hereof, the outstanding share capital of Parent amounts to EUR 64,196,677.00 and is divided into 64,196,677 no-par value bearer shares, each with a nominal amount of EUR 1.00. Other than such outstanding shares and the Options pursuant to Section 6.2(e), there are no shares or other equity securities of Parent or securities convertible or exchangeable into such shares issued, reserved for issuance or outstanding. The Sold Shares have been duly authorized and validly issued, are fully paid and non-assessable and were not issued in violation of any preemptive or other similar rights.
(b) Other than the Options, (i) Parent has not granted any preemptive rights or authorized, issued or outstanding options, warrants, rights of conversion, exchange or purchase, stock appreciation rights or other rights, obligations, agreements, arrangements or commitments of any kind relating to, obligating Parent to issue or to sell, convertible or exchangeable into or exercisable for, valued by reference to or giving any Person a right to subscribe for or acquire any Equity Interests of Parent or other securities of Parent, (ii) there are no contractual obligations of Parent to repurchase, redeem or otherwise acquire any Equity Interests of Parent and (iii) there are no Contracts (except for the Business Combination Agreement) to which the Parent is a party or by which Parent is bound with respect to the issuance, voting, sale or transfer of its Equity Interests. There are no accrued and unpaid dividends or distributions with respect to any Equity Interests of Parent.
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(c) Section 6.2(c) of Seller’s Disclosure Letter sets forth the jurisdiction of organization and issued and outstanding Equity Interests of the Transferred Subsidiaries. Parent directly or indirectly owns and has good and valid title to all the issued and outstanding Equity Interests of the Transferred Subsidiaries, free and clear of any Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents). The issued and outstanding Equity Interests of the Transferred Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and were not issued in violation of any preemptive or other similar right. There are no preemptive rights or authorized, issued or outstanding options, warrants, rights of conversion, exchange or purchase, profits interests or other rights, obligations, agreements, arrangements or commitments of any kind relating to, obligating the Transferred Subsidiaries to issue or to sell, convertible or exchangeable into or exercisable for, valued by reference to or giving any Person a right to subscribe for or acquire any Equity Interests of the Transferred Subsidiaries. There are no contractual obligations of the Transferred Subsidiaries to repurchase, redeem or otherwise acquire any Equity Interests of the Transferred Subsidiaries. Parent is not party to any Contracts relating to the Equity Interests of the Transferred Subsidiaries (except for this Agreement), including with respect to the issuance, voting, sale or transfer of the Equity Interests of the Transferred Subsidiaries.
(d) Except as set forth on Section 6.2(d) of Seller’s Disclosure Letter, there are no Equity Interests or joint venture interests in any Person (other than the Transferred Subsidiaries) owned, directly or indirectly, by Parent or the Transferred Subsidiaries. There are no contractual obligations of Parent or the Transferred Subsidiaries to provide funds to, or make any investment in, any other Person.
(e) Section 6.2(e) of Seller’s Disclosure Letter sets forth a correct and complete list of each holder of an outstanding Option as of the date hereof, which schedule shows for each such Option, the date such Option was granted, the number of Shares to be issued per Option, the relevant exercise price, the applicable vesting schedule, the current or former employer entity within the Parent Group (if any) of each Option holder and the applicable Equity Plan under which such Option was granted. With respect to each Option, (i) each such grant was duly authorized by all necessary corporate action, (ii) each such grant was made in compliance in all material respects with all applicable Laws (including all applicable securities Laws) and all of the material terms and conditions of the applicable Equity Plan, (iii) no material modifications have been made to any Option following the grant date except for the repricing of certain Options, the effects of which are already reflected in Seller’s Disclosure Letter, and (iv) each Option has an exercise price that is equal to or greater than the fair market value of the underlying Share on the applicable grant date, or, with respect to any Options that were repriced, on the applicable repricing date. All Options are evidenced by award agreements in a form materially consistent with forms made available in the Virtual Data Room. Except for the Equity Plans, there are no commitments in any offer letter, Contract, Employee Benefit Plan or otherwise that contemplate a grant of, or right to purchase or receive share options, restricted share units, phantom units or other equity of Parent.
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Section 6.3 Financial Statements; Controls.
(a) Section 6.3(a) of Seller’s Disclosure Letter sets forth a true and complete copy of the audited consolidated financial statements of Parent as of and for the fiscal year ended December 31, 2024, together with the notes thereto (the “Audited Financial Statements”). The Audited Financial Statements in all material respects (i) have been prepared in accordance with IFRS applied on a consistent basis (except as indicated therein or in the notes thereto) and (ii) provide, based on IFRS, a true and fair view of the assets and liabilities (Vermögenslage), financial position (Finanzlage), and results of operations (Ertragslage) for Parent and the other entities consolidated therein as of the dates and for the periods to which they relate.
(b) Section 6.3(b) of Seller’s Disclosure Letter sets forth a true and complete copy of the unaudited consolidated financial statements of Parent (for the avoidance of doubt, such unaudited consolidated financial statements comprise only the four primary statements — statement of financial position, statement of comprehensive income, statement of changes in equity, and statement of cash flows — and do not include notes or other disclosures required by IFRS for a complete set of financial statements) as of and for the six-month period ended June 30, 2025 (the “Latest Balance Sheet Date”) (such financial statements the “Interim Financial Statements”, and the Interim Financial Statements together with the Audited Financial Statements, the “Parent Financial Statements”). The Interim Financial Statements (i) have in all material respects been prepared in accordance with IFRS, and (ii) have been prepared in good faith and, to Knowledge of Seller, do in all material respects not misstate the assets and liabilities (Vermögenslage), financial position (Finanzlage), or results of operations (Ertragslage) for Parent and the other entities consolidated therein as of the dates and for the periods to which they relate.
(c) The Parent Financial Statements have been derived from the accounting systems of Parent and the other entities consolidated therein, and such accounting systems, since the Applicable Date, have been maintained in all material respects in accordance with applicable Law. Since the Applicable Date, Parent and the Transferred Subsidiaries have maintained internal accounting controls that are reasonably necessary to provide reasonable assurance that, in all material respects, (i) transactions are executed in accordance with management’s general or specific authorization, and (ii) transactions are recorded as reasonably necessary to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets. Since the Applicable Date, there has been no change in any material respect with respect to the accounting policies, principles, methods or practices of Parent and the Transferred Subsidiaries, except as set forth in the Parent Financial Statements and/or required under IFRS.
(d) The books and records of Parent and the Transferred Subsidiaries (i) are true, complete and correct in all material respects, (ii) have been maintained in all material respects in accordance with applicable Law and (iii) in all material respects accurately present and reflect all of the Parent transactions and actions related thereto.
(e) None of the statements pursuant to this Section 6.3 shall be construed or interpreted as an objective guarantee (objektive Bilanzgarantie), and where reference is made to a specific accounting standard, only such accounting standard shall be relevant to determine whether or not and how any facts objectively existing as of the relevant reference date are to be reflected therein, including as regards the question as to whether and as of which time the subjective knowledge of such facts by a relevant person is decisive, and the question whose knowledge is relevant shall also solely be determined by the relevant accounting standard used in the preparation of the Parent Financial Statements.
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Section 6.4 No Undisclosed Liabilities; Indebtedness.
(a) Except (i) as set forth on Section 6.4(a) of Seller’s Disclosure Letter, (ii) as reflected or reserved against in the Parent Financial Statements or disclosed in the notes thereto, (iii) for Liabilities incurred by Parent or the Transferred Subsidiaries since the Latest Balance Sheet Date in the ordinary course of their respective businesses (none of which arises out of, relates to, or results from any breach of contract, tort, violation of Law or infringement), (iv) for SLA Credits due by Parent or the Transferred Subsidiaries as a result of any breach of data centers SLAs in instances where Parent or the Transferred Subsidiaries are providers of data center services to their customers, and (v) for Liabilities expressly contemplated by the Transaction Documents, there are no other Liabilities of Parent or any of the Transferred Subsidiaries.
(b) Except as expressly reflected or expressly reserved against in the Parent Financial Statements or expressly disclosed in the notes thereto, Section 6.4(b) of Seller’s Disclosure Letter sets forth a true and complete list of each item of Parent Indebtedness with a value exceeding EUR 500,000.00 as of the date hereof. None of Parent or any of the Transferred Subsidiaries has received notice of a default or payments past due with respect to any such Parent Indebtedness, in each case, in any material respect.
Section 6.5 Absence of Changes. Except as (A) contemplated by the Transaction Documents, (B) disclosed in the Parent Financial Statements, or (C) disclosed in Section 6.5 of Seller’s Disclosure Letter, since the Applicable Date, (i) Parent and the Transferred Subsidiaries have conducted and operated their businesses in the ordinary course in all material respects, (ii) there has not been any change, effect, development, condition, matter, event, fact, circumstance or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect and (iii) neither Parent nor any of the Transferred Subsidiaries has:
(a) amended or waived any rights under any provision of its Constituent Documents in any manner;
(b) split, combined or reclassified any Equity Interests;
(c) declared, set aside or paid any dividend, or otherwise made any distribution to the Seller or any of its Affiliates, with respect to any Equity Interests;
(d) issued, sold, pledged, transferred or disposed of, or agreed to issue, sell pledge, transfer or dispose of, any Equity Interests or issued any Equity Interests of any class or issued or become a party to any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to the issued or unissued equity interests of Parent or any of the Transferred Subsidiaries, or granted any stock appreciation or similar rights;
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(e) redeemed, purchased or otherwise acquired any outstanding Equity Interests or declared or paid any non-cash dividend or made any other non-cash distribution of assets to any Person;
(f) made any material change in its policies with respect to the payment of accounts payable or accrued expenses or the collection of the accounts receivable or other receivables, including any acceleration or deferral of the payment or collection thereof, as applicable, in each case, other than in the ordinary course of business;
(g) made any change in any method of accounting or auditing practice, including any working capital procedures or practices, other than changes required as a result of changes in IFRS or applicable Law;
(h) except in any case as may be required by applicable Law, (A) prepared or filed any income or other material Tax Return inconsistent with past practice, (B) made or changed any Tax election (except in the ordinary course of business), (C) adopted or changed any accounting method relating to Taxes, (D) entered into any closing agreement or requested any ruling or similar guidance relating to Taxes, (E) settled any claim for any material amount of Taxes or assessments relating to Taxes, (F) surrendered any right to claim a refund of any material amount of Taxes paid, (G) consented to any extension or waiver of the limitation period applicable to any claim for any material amount of Taxes or assessments relating to any material amount of Taxes (other than automatic extensions or extensions in the ordinary course of business), or (H) amended any income or other material Tax Return, in each case, if such Tax Return, change, adoption, agreement, settlement, surrender, consent or amendment would reasonably be expected to bind, materially adversely affect or materially increase the liability of Purchaser, Parent, the Transferred Subsidiaries or any of their respective Affiliates;
(i) other than in the ordinary course of business or as required by an Employee Benefit Plan or any obligation under applicable Law or due to an amendment of collective bargaining agreement, works council agreement or other similar labor Contract or as explicitly contemplated hereunder, (A) materially increased the compensation or benefits of any employee or other Parent Service Provider, (B) accelerated the vesting or payment of any compensation or benefits of any Parent Service Provider, (C) entered into, amended or terminated any material Employee Benefit Plan (or any plan, program, agreement or arrangement that would be an Employee Benefit Plan if in effect on the date hereof), (D) made any loan to any present or former Parent Service Provider (other than advancement of expenses in the ordinary course of business consistent with past practices), (E) entered, amended or terminated into any collective bargaining agreement or other agreement with a labor union or labor organization, or (F) commenced any collective redundancy process;
(j) (A) adopted, established, entered into, amended, modified or terminated any collective bargaining agreement, works council agreement or other similar labor Contract, (B) recognized any union, works council, labor organization or other workers’ group as the bargaining representative of any employees, or (C) been the subject of any "relevant transfer" (as defined in the Transfer of Undertakings) Protection of Employment) Regulations 2006 (as amended));
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(k) (i) received any written claim of unfair labor practices involving Parent or any Transferred Subsidiary or (ii) given or received any written resignation, termination, or removal of, or commenced disciplinary proceedings in respect of, any managing director (Geschäftsführer) (or equivalent thereof) or other employee with an annual fixed compensation exceeding EUR 300,000.00 of Parent or any Transferred Subsidiary or made any material change in the terms and conditions of the employment of any such Person;
(l) received any written notice of an investigation or other proceeding by a Government Authority directed against Parent or any Transferring Subsidiary (and which is pending as of the date hereof);
(m) sold, licensed, leased, transferred, assigned, abandoned or otherwise disposed of any assets with a value exceeding EUR 100,000.00 (or any portion thereof) or mortgaged, pledged, permitted or imposed any Encumbrance (other than Permitted Encumbrances) upon any such assets (or any portion thereof), in each case, other than in the ordinary course of business;
(n) incurred, assumed or guaranteed any Parent Indebtedness with a value exceeding EUR 500,000.00;
(o) deferred any capital expenditures with a value exceeding EUR 250,000.00;
(p) made any investment or acquisition either by purchase of stock or securities, contributions to capital, property transfers, merger or purchase of all or substantially all of the property or assets of any Person, in each case with a value exceeding EUR 50,000.00;
(q) materially changed the manner in which Parent generally extends discounts or credits to customers, other than in the ordinary course of business;
(r) suffered any extraordinary casualty loss, except for any such casualty loss covered by insurance;
(s) accelerated, terminated, modified or cancelled any Specified Contract;
(t) with the exception of Permitted Encumbrances, committed to or entered into any contract, agreement, or other understanding to sell, transfer, lease, sublease, license, or otherwise dispose of any Owned Real Property;
(u) with the exception of Permitted Encumbrances, committed to or entered into any contract, agreement, or other understanding to amend, cancel, terminate, or modify any Real Property Lease;
(v) with the exception of Permitted Encumbrances, sold, assigned, transferred, granted, pledged, allowed to lapse, abandoned, dedicated to the public domain or otherwise encumbered or disposed of any Intellectual Property;
(w) entered into, amended, modified, waived, released, extended, transferred or terminated any Related Party Contract; or
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(x) agreed in writing to do any of the foregoing.
Section 6.6 No Litigation or Government Orders.
(a) Except as set for on Section 6.6 of Seller’s Disclosure Letter, since the Applicable Date, there has been no Action pending or, to the Knowledge of Seller, threatened in writing against Parent or any of the Transferred Subsidiaries with a value in dispute exceeding EUR 150,000.00. There is no Action pending or, to the Knowledge of Seller, threatened in writing against Parent or any of the Transferred Subsidiaries or against or applicable to any of the Target Assets that (a) if adversely determined, would reasonably be expected to materially and adversely affect the legality, validity or enforceability of this Agreement or the other Transaction Documents, (b) if adversely determined, would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impair the ability of Parent to consummate the transactions contemplated by this Agreement or the other Transaction Documents, or (c) if adversely determined, would reasonably be expected to, individually or in the aggregate, have a Parent Material Adverse Effect.
(b) Since the Applicable Date, there have been no unsatisfied or outstanding material Government Orders against or applicable to Parent or any of the Transferred Subsidiaries or against or applicable to any of the Target Assets. None of Parent or the Transferred Subsidiaries is a party to or subject to any Government Order that would, individually or in the aggregate, reasonably be expected to (i) materially and adversely affect the legality, validity or enforceability of this Agreement or the other Transaction Documents or (ii) prevent, materially delay or materially impair the ability of Parent to consummate the transactions contemplated by this Agreement or the other Transaction Documents.
Section 6.7 Governmental and Third-Party Approvals, Consents and Notices. Assuming the truth and accuracy of the representations and warranties of Purchaser set forth in Article VIII, other than in connection with the applicable requirements of the HSR Act or with respect to the matters disclosed in Section 6.7 of Seller’s Disclosure Letter, Parent is not required to (a) obtain any authorization, waiver, consent or approval of, (b) make any filing, report or registration with or (c) give any notice to any Government Authority in connection with or as a condition to the execution, delivery and performance of any of the Transaction Documents or the consummation of the transactions contemplated thereby, except as would not reasonably be expected to have a Parent Material Adverse Effect, or prevent or materially impair the ability of Parent to consummate the transactions contemplated hereby.
Section 6.8 Taxes.
(a) Except as set forth in Section 6.8(a) of Seller’s Disclosure Letter, all income and other material Tax Returns that are required to be filed under applicable Laws on or before the Closing (taking into account any timely filed automatic extensions of time in which to file) by Parent or the Transferred Subsidiaries have been or will be timely filed on or before the Closing Date, and all such Tax Returns are complete and accurate in all material respects.
(b) Since the Applicable Date, each of Parent and the Transferred Subsidiaries has timely paid all income and other material Taxes.
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(c) Except as set forth in Section 6.8(c) of Seller’s Disclosure Letter, there is no audit, examination, investigation, action, proceeding or assessment pending or proposed or threatened in writing by a Government Authority with respect to material Taxes for which Parent or the Transferred Subsidiaries would be liable.
(d) Since the Applicable Date, all material Taxes which Parent or the Transferred Subsidiaries are required by Law to withhold or to collect for payment have been duly withheld and collected and have been timely paid to the appropriate Government Authority.
(e) Since the Applicable Date, all material deficiencies asserted or assessments made in writing by a Government Authority of Parent or the Transferred Subsidiaries as a result of any audit, examination, investigation, action, proceeding or assessment have been paid in full or otherwise finally resolved.
(f) No agreement, consent or waiver of any statute of limitations or extension of time is in effect with respect to any material Taxes of Parent or the Transferred Subsidiaries (other than automatic extensions of the due date for filing any Tax Return obtained in the ordinary course of business), and no written request covering any such matter is outstanding.
(g) Parent and the Transferred Subsidiaries have not received or requested any Tax rulings from any Government Authority that would apply for any taxable period ending after the Closing Date.
(h) To the Knowledge of Seller, none of Parent or the Transferred Subsidiaries will be required to include or accelerate the recognition of any material item in income, or exclude or defer any material deduction, in each case in any taxable period (or portion thereof) after the Closing, as a result of any change in method of accounting, closing agreement, intercompany transaction, or installment sale, in each case prior to the Closing.
(i) Since the Applicable Date, none of Parent or the Transferred Subsidiaries has been informed in writing by any Government Authority that such Government Authority believes that such Person was required to file any material Tax Return that was not filed, which claim has not been resolved.
(j) Since the Applicable Date, none of Parent nor any of the Transferred Subsidiaries (i) has been a member of any Parent Group other than each Parent Group of which it is presently a member or (ii) has any Liability for Taxes of any Person (other than Parent or the Transferred Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of Tax Law), as a transferee or successor or by Contract (other than commercial agreements that do not primarily relate to Taxes).
(k) There are no Encumbrances for material Taxes (other than Permitted Encumbrances) on any of the Target Assets.
(l) None of Parent or any of the Transferred Subsidiaries has been, in the last two (2) years, a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
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(m) Since the Applicable Date, none of Parent or any of the Transferred Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
Section 6.9 Employee Benefit Plans.
(a) Section 6.9(a) of Seller’s Disclosure Letter sets forth an accurate and complete list of each material Employee Benefit Plan in effect as of the date hereof. With respect to each such Employee Benefit Plan, Parent has made available in the Virtual Data Room, to the extent applicable, accurate and complete copies of (1) the plan document, including any amendments thereto, (2) a written description of such Employee Benefit Plan if it is not set forth in a written document, (3) the most recent annual reports on IRS Form 5500 (including all schedules and attachments thereto) filed with the U.S. Department of Labor, (4) the most recently prepared financial statements or actuarial report, (5) the most recent summary plan description together with any summaries of all material modifications thereto, (6) the most recent IRS determination or opinion letter, (7) the most recent written results of all required compliance testing, and (8) copies of any material non-routine correspondence with the IRS, U.S. Department of Labor or other Government Authority within the preceding three (3) years. Notwithstanding the foregoing, Section 6.9(a) of Seller’s Disclosure Letter need not identify any employment or consulting agreement or offer letter that is on substantially the same form as Parent’s standard template(s) made available to Purchaser in the Virtual Data Room, or which relates to an individual whose base salary or annual consulting fee does not exceed $200,000, or can be terminated at-will upon one-hundred-eighty (180) days’ notice or less without cost or liabilities in excess of such notice period and does not provide for any change of control, retention, or other transaction bonus. Since the Applicable Date, there has been no announcement by Parent or any of the Transferred Subsidiaries relating to any Employee Benefit Plan which would increase materially the expense of maintaining such Employee Benefit Plan above the level of the expense incurred therefore for the most recent fiscal year.
(b) Since the Applicable Date (i) each Employee Benefit Plan has been established, administered and maintained in all material respects in accordance with its terms and is in compliance in all material respects with all applicable Laws, and (ii) to the Knowledge of Seller, none of Parent or any of the Transferred Subsidiaries, or Parent or the Transferred Subsidiaries has engaged in a transaction with respect to any Employee Benefit Plan that would reasonably be expected to subject Parent or the Transferred Subsidiaries to a Tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA in an amount which could be material. There are no complaints, investigations, claims or disputes in progress, pending or, to the Knowledge of Seller, threatened relating to any Employee Benefit Plan, its related assets or trusts, or any fiduciary, administrator or sponsor thereof (other than routine claims for benefits). Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the IRS to be qualified under Section 401(a) of the Code and to the Knowledge of Seller, nothing has occurred that would adversely affect the qualification or tax exemption of any such Employee Benefit Plan. No stock or other securities issued by Parent or any of the Transferred Subsidiaries forms or has formed any part of the assets of any Employee Benefit Plan that is intended to qualify under Section 401(a) of the Code. No Employee Benefit Plan is presently under audit or examination (nor has written notice been received of a potential audit or examination) by any Government Authority. All material payments required to be made by Parent or any of the Transferred Subsidiaries under, or with respect to, any Employee Benefit Plan (including all contributions, distributions, reimbursements, or premium payments) with respect to all periods prior to the Closing Date have been made on or before their respective due dates or, for any such payments that are not yet due, accrued and reflected in the most recent consolidated balance sheet prior to the date hereof, in each case in accordance with the provisions of each of the Employee Benefit Plans, applicable Law and IFRS. There is not now, nor do any circumstances exist that could give rise to, any requirement for the posting of security with respect to an Employee Benefit Plan or the imposition of any lien under ERISA or the Code.
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(c) No Employee Benefit Plan is, and none of Parent or any of the Transferred Subsidiaries, nor any ERISA Affiliate thereof or any of their respective predecessors, has since January 1, 2024 established, maintained, sponsored, contributed to, or had an obligation to contribute to or any other Liability (whether on account of an ERISA Affiliate or otherwise), or has since January 1, 2024, maintained, sponsored, contributed to, or had an obligation to contribute to or any other Liability, under or with respect to: (i) a plan that is subject to Section 412 or 430 of the Code or Section 302 or Title IV of ERISA or a “defined benefit” plan within the meaning of Section 3(35) of ERISA; (ii) a Multiemployer Plan; (iii) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210(a) of ERISA; (iv) a multiple employer welfare arrangement (as defined in Section 3(40)(A) of ERISA); or (v) a plan maintained in connection with any trust described in Section 501(c)(9) of the Code. None of Parent, any of the Transferred Subsidiaries or any ERISA Affiliate thereof has withdrawn since January 1, 2024 from any Multiemployer Plan, or incurred any withdrawal liability which remains unsatisfied.
(d) Except as required by Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code and any other applicable Law, no Employee Benefit Plan provides retiree or post-employment medical, disability, life insurance or other welfare benefits to any Parent Service Provider. None of Parent or any of the Transferred Subsidiaries has incurred (whether or not assessed), or is reasonably expected to incur or to be subject to, any Tax or other penalty with respect to the reporting requirements under Sections 6055 and 6056 of the Code, as applicable, or under Section 4980B, 4980D or 4980H of the Code. None of Parent or any of the Transferred Subsidiaries has any Liability on account of a material violation of the Affordable Care Act.
(e) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement either alone or together with another event, will (i) entitle any Parent Service Provider to severance pay, any other payment or benefit, any cancellation of indebtedness or any increase in compensation or benefits (other than as required by Law), (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation due to any such individual, or (iii) result in an obligation to fund or otherwise set aside assets to secure to any extent any of the obligations under any Employee Benefit Plan. No Person is entitled to any gross-up, make-whole, or other additional payment by Parent or any of the Transferred Subsidiaries in respect of any Tax or interest or penalty related thereto under Section 409A of the Code, Section 4999 of the Code, or otherwise.
(f) No amount or benefit paid or payable (whether in cash, in property or in the form of benefits) by Parent or any of the Transferred Subsidiaries in connection with any of the transactions contemplated by this Agreement (either alone or together with another event) will result in an “excess parachute payment” within the meaning of Section 280G of the Code.
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(g) All Employee Benefit Plans subject to the Laws of any jurisdiction outside of the United States or that covers any Parent Service Provider residing or working outside of the United States (each, a “Foreign Benefit Plan”) (i) if they are intended to qualify for special tax treatment, meet all requirements for such treatment and, to the Knowledge of Seller, there are no existing circumstances or events that have occurred that would reasonably be expected to affect adversely the special tax treatment with respect to such Foreign Benefit Plan, (ii) if they are intended to be funded and/or book-reserved, are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions, and (iii) if intended or required to be qualified, approved or registered with a Government Authority, is and has been so qualified, approved or registered.
(h) No Foreign Benefit Plan in the UK is a defined benefit pension plan, and none of the Transferred Subsidiaries in the UK has at any time employed a member of, or been associated or connected (as defined in Section 51(3) of the UK Pensions Act 2004) with an employer which employed a member of, an occupational defined benefit pension plan.
(i) No Foreign Benefit Plan of each of the Transferred Subsidiaries in the UK provides retirement benefits which are not “money purchase benefits” as defined in Section 181 of the UK Pension Schemes Act 1993 and each of the Transferred Subsidiaries in the UK: (i) has at all times complied with its auto-enrolment obligations under the UK Pensions Act 2008; (ii) has not at any time employed an employee whose contract of employment transferred to it from another employer under the UK Transfer of Undertakings (Protection of Employment) Regulations 1981 or 2006, where this employee has a right to benefits which are not benefits on old age invalidity or death.
Section 6.10 Labor Matters.
(a) Section 6.10(a) of Seller’s Disclosure Letter sets out an anonymized list of all Parent Service Providers with particulars of the date of commencement of employment, employing entity, location, fixed annual salary, type of contract and all material benefits provided, in each case as of the date hereof.
(b) The Virtual Data Room contains a representative sample of standard terms and conditions of employment used for each grade of employee of Parent and staff handbooks and material employment policies which apply to Parent Service Providers.
(c) Section 6.10(c) of Seller’s Disclosure Letter contains details of any consultants, workers, independent contractors, freelancers, outworkers, agency workers or persons treated as self-employed or contracted labor as of the date hereof, providing services to Parent for a compensation exceeding EUR 100,000.00 p.a. Copies of their agreements or particulars of their engagement have been placed in the Virtual Data Room.
(d) Since the Applicable Date, none of Parent or the Transferred Subsidiaries is or has been a party to, is or has been bound by, is or has been negotiating or, to the Knowledge of Seller, has been asked to negotiate, any labor agreements, works council agreements, union Contracts or collective bargaining agreements. To the Knowledge of Seller, there is not currently, nor has there been since the Applicable Date, any organized effort by any labor union to organize any Parent Service Provider into one or more collective bargaining unions.
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(e) None of Parent or the Transferred Subsidiaries is, or since January 1, 2024 has been, a party to any dispute or controversy with a labor union or with respect to unionization or collective bargaining involving any of their current or former Parent Service Provider, including any actual or threatened in writing, strike, lockout, walkout, work stoppage, slowdown, picketing, boycott, or other dispute involving union or other labor organization or with respect to unionization or collective bargaining. Additionally, Parent and the Transferred Subsidiaries have not received a written notice informing them that (i) there are unfair labor practice charges or complaints pending against Parent or any Transferred Subsidiary before any applicable Government Authority relating to any Parent Service Provider; (ii) there are material representation claims or petitions pending before any applicable Government Authority; or (iii) there are material charges with respect to or relating to Parent or any of the Transferred Subsidiaries pending before any applicable Government Authority responsible for the prevention of unlawful employment practices.
(f) To the Knowledge of Seller, each of Parent and the Transferred Subsidiaries is and has since the Applicable Date been in material compliance with all applicable Laws which relate to labor, employment and employment practices, terms and conditions of employment, wages, hours, overtime, wage payment, payment of holiday pay, classification of employees and other service providers (including independent contractors), record keeping, fair employment practices, workers’ compensation, withholding of Taxes, discrimination in employment, harassment, disability rights or benefits, immigration (including applicable Form I-9 Laws and prevention of illegal working Laws), reasonable accommodations, employee leave issues, unemployment insurance, and occupational safety and health, except as would not be expected to have a Parent Material Adverse Effect.
(g) There is no pending or, to the Knowledge of Seller, threatened in writing material claim or litigation against Parent or the Transferred Subsidiaries with respect to allegations of sexual harassment, sexual misconduct or a hostile work environment, and, since January 1, 2024, (i) there have been no reported internal or external complaints accusing any Parent Service Provider of sexual harassment, sexual misconduct or creating a hostile work environment, and since the Applicable Date (ii) there has been no settlement of, or payment arising out of or related to, any litigation with respect to sexual harassment, sexual misconduct or a hostile work environment against Parent or the Transferred Subsidiaries.
(h) Each sponsor license held in the UK which is utilized to sponsor UK employees of Parent or the Transferred Subsidiaries is valid, subsisting and A-rated. In relation to any UK employee who requires a certificate of sponsorship in order to remain and work in the UK, the relevant sponsoring entity has at all relevant times been a licensed sponsor.
Section 6.11 No Violation of Law; Regulatory Matters; Required Licenses and Permits.
(a) Except as set forth in Section 6.11(a) of the Seller’s Disclosure Letter, since the Applicable Date, each of Parent or its Subsidiaries has been in compliance in all material respects with (i) all applicable Laws and (ii) all Government Orders against Parent or any of the Transferred Subsidiaries or the Target Assets or their respective businesses, and none of Parent or any of the Transferred Subsidiaries, has received any written notice alleging that Parent or any of the Transferred Subsidiaries is not in compliance in any material respect with any Law or Government Order, in each case except as would not be expected to have a Parent Material Adverse Effect. Solely with regards to Section 87 para 1 sentence 1 AktG, limb (i) in the foregoing sentence does not apply to the bitcoin bonus granted to a member of the management board of Parent.
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(b) Except as has not had and would not reasonably be expected to have a Parent Material Adverse Effect, since the Applicable Date, none of Parent or the Transferred Subsidiaries or any of their respective Representatives (acting in their capacities as such) has violated the Anti-Money Laundering Laws.
(c) None of Parent or the Transferred Subsidiaries is subject to regulation as a “public utility,” “utility,” “electric utility,” “retail electric provider” or “transmission and distribution utility”.
(d) Other than as set forth in Section 6.11(d) of Seller’s Disclosure Letter, (i) Parent and the Transferred Subsidiaries and each of their respective Representatives (acting in their capacities as such) are, and have been, since January 1, 2024, in compliance with the Export and Sanctions Regulations in all material respects; (ii) none of Parent or the Transferred Subsidiaries or any of their respective Representatives (acting in their capacities as such) has been, since January 1, 2024 and continuing to the present (A) organized in, operating from or resident in a Sanctioned Country or (B) directly engaged in any dealings or transactions in a Sanctioned Country in violation of applicable Export and Sanctions Regulations, or (C) a Sanctioned Person; (iii) none of Parent or the Transferred Subsidiaries or any of their respective Representatives is or has been a Sanctioned Person; (iv) none of Parent or the Transferred Subsidiaries or any of their respective Representatives (acting in their capacities as such) is involved in any Action, or has since January 1, 2024, received a written request for information or any other form of communication from any Government Authority, or has since January 1, 2024, had any judgments imposed (or threatened to be imposed) upon Parent or any of the Transferred Subsidiaries by or before a Government Authority, in each case in connection with any actual or alleged material violation of any Export and Sanctions Regulations; and (v) the Parent and any of the Transferred Subsidiaries maintain policies and procedures reasonably designed to ensure compliance with and to prevent violations of Export and Sanctions Regulations.
(e) Since January 1, 2024, (i) none of Parent or any of the Transferred Subsidiaries or any of their respective Representatives (acting in their capacities as such) has taken any action, or engaged in any activity, practice or conduct, that would violate the FCPA, the U.K. Bribery Act, or any other applicable Law regarding anti-corruption, (ii) none of Parent or any of the Transferred Subsidiaries or any of their respective Representatives (acting in their capacities as such) has (A) used any corporate funds of Parent or any of the Transferred Subsidiaries for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (B) authorized, offered, promised or made any unlawful payment to any foreign or domestic governmental officials or (C) paid any bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment to any Person, private or public, regardless of form, whether in money, property or services, to obtain favorable treatment in securing business or to obtain special concessions for Parent or any of the Transferred Subsidiaries, in the case of the foregoing clauses (A), (B) and (C) which would or would reasonably be expected to result in a material violation of the FCPA, the U.K. Bribery Act, or any other applicable Laws regarding anti-corruption, (iii) there are no pending or, to the Knowledge of Seller, threatened in writing Actions against Parent or any of the Transferred Subsidiaries with respect to the FCPA, the U.K. Bribery Act, or any other applicable Law regarding anti-corruption, nor has Parent nor any of the Transferred Subsidiaries received any written notice, request, or citation of any allegation with regards to a violation or potential violation of the FCPA, the U.K. Bribery Act, or any other applicable anti-corruption Laws, and (iv) Parent and the Transferred Subsidiaries maintain policies and procedures reasonably designed to ensure compliance with and to prevent breaches of the FCPA, the U.K. Bribery Act, and other applicable anti-corruption Laws.
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(f) Since the Applicable Date, Parent and the Transferred Subsidiaries have owned, held or possessed all Permits necessary for the conduct of Parent’s and the Transferred Subsidiaries’ businesses as currently conducted and Parent and the Transferred Subsidiaries’ businesses have been conducted in compliance in all material respects with such Permits, except as would not be expected to have a Parent Material Adverse Effect. Since the Applicable Date, to the Knowledge of Seller, none of Parent or the Transferred Subsidiaries has received any written notice alleging that Parent or any of the Transferred Subsidiaries are not in compliance in any material respect with any terms or requirements of any Permit or regarding the potential revocation, withdrawal, suspension, cancellation, termination or modification of any Permit.
(g) Parent is and has since January 1, 2024 been in compliance with the Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation), as amended, and Parent has not received any written notice alleging that Parent or any of the members of its management board or supervisory board is not in compliance in any material respect therewith.
Section 6.12 Real Property.
(a) Section 6.12(a) of Seller’s Disclosure Letter, as of the date hereof, sets forth a true and complete list of all real property owned by Parent or the Transferred Subsidiaries (the “Owned Real Property”), all of which are owned by Parent or any of the Transferred Subsidiaries or are expected to be owned by them as of the Closing. The title in the Owned Real Property of Parent and each of the Transferred Subsidiaries is good and valid and free and clear of any Encumbrances, except for Permitted Encumbrances. There are no leases, subleases, licenses, occupancy agreements or other agreements by, through or under Parent or any of the Transferred Subsidiaries granting to any other Person the right of use or occupancy of any Owned Real Property or any portion thereof other than the Data Center Leases. There are no tax reduction proceedings pending (rechtshängig) with respect to all or any portion of the Owned Real Property. To the Knowledge of Seller, no Person other than Parent and the Transferred Subsidiaries is currently in possession of any portion of the US Owned Real Property.
(b) To the Knowledge of Seller, (i) there is no existing material breach or material default by any party under any easements or restrictive covenants affecting any Owned Real Property which material breach or material default has not yet been cured, (ii) neither Parent nor any of the Transferred Subsidiaries has received written notice of any material default under any easements or restrictive covenants affecting the Owned Real Property which material default has not yet been cured, and (iii) there does not exist any condition or event that with the lapse of time or the giving of notice, or both, would constitute such a material breach or material default under any easements or restrictive covenants affecting any Owned Real Property. To the Knowledge of Seller, there are no existing unrecorded (but recordable) deeds, land contracts, leases, rights of first offer, rights of first refusal, options to purchase, mortgages, agreements or other instruments, in each case adversely affecting title to the Owned Real Property or any portion thereof or interests therein, which are not reflected in the public records of the jurisdiction where the Owned Real Property is located.
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(c) Section 6.12(c) of Seller’s Disclosure Letter, as of the date hereof, sets forth a true and complete list of all real property in which Parent or the Transferred Subsidiaries holds a leasehold, subleasehold or license interest (the “Leased Real Property”), or for which Parent or the Transferred Subsidiaries have entered into a binding agreement to hold a leasehold, subleasehold or license interest as of the Closing. None of the Real Property Leases have been modified by Parent or any of the Transferred Subsidiaries, other than pursuant to a written agreement. Since the Applicable Date, no rights or claims have been asserted in writing under any Encumbrance (other than Permitted Encumbrances) against Parent or the Transferred Subsidiaries that would reasonably be expected to materially and adversely interfere with the use, occupancy or operation of any Leased Real Property (other than the Data Center Leases) as currently used, occupied or operated. To the Knowledge of Seller, there are no uncured material disputes with respect to the Real Property Leases that would entitle the holder thereof to materially interfere with or materially disturb the tenant’s use and enjoyment of the Leased Real Property or the exercise of the tenant’s rights thereunder so long as the tenant is not in default under the applicable Real Property Lease. There is no pledge or security interest granted in any of the Real Property Leases (other than Permitted Encumbrances), and to the Knowledge of Seller, except as disclosed in the public records of the jurisdiction wherein the Leased Real Property is located, no Real Property Lease is subject to any ground lease, mortgage, deed of trust or other superior Encumbrance or interests (including, for the avoidance of doubt, any present or future right to occupy any portion of the Leased Real Property) that would entitle the holder thereof to materially interfere with or materially disturb tenant’s use and enjoyment of the Leased Real Property or the exercise of the tenant’s rights thereunder so long as the tenant is not in default under the applicable Real Property Lease. Except as set forth in Seller’s Disclosure Letter, there are no leases, subleases, licenses, occupancy agreements or other agreements (other than the Real Property Leases) by, through or under Parent or any of the Transferred Subsidiaries granting to any other Person the right of use or occupancy of any Leased Real Property (other than the Data Center Leases). To the Knowledge of Seller, no material obligations of any landlord, sublandlord or licensor thereunder are delinquent. As of the date hereof, neither Parent nor any of the Transferred Subsidiaries has received written notice of any material default that would constitute a material default pursuant to a Real Property Lease other than defaults that have been cured or waived in writing.
(d) The Real Property constitutes all of the real property used by Parent and the Transferred Subsidiaries for their current operations. There is currently no ongoing material construction work in, on, or about any Real Property (other than the Data Centers) other than routine maintenance and repairs as well as tenant-fit outs being performed in the ordinary course of business. There are no leasing commissions due from Parent or any of the Transferred Subsidiaries with respect to any Real Property (other than the Data Centers) that remain outstanding or unpaid. To the Knowledge of Seller, other than the Data Centers, the buildings, structures and facilities on the Owned Real Property are in good operating condition and repair (ordinary wear and tear excepted), are suitable for the purposes for which they are currently being used and for the current operations of Parent and the Transferred Subsidiaries. No Government Authority having jurisdiction over any Real Property (other than the Data Centers) has issued towards Parent or the Transferred Subsidiaries any written notice, Government Order or Action that would reasonably be expected to materially and adversely impair the use, occupancy or operation of any Real Property as currently used, occupied or operated.
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(e) There is no condemnation or eminent domain proceeding that would materially impair the use, occupancy or operation of any Real Property or any part thereof as currently used, occupied or operated.
(f) Neither Parent nor any of the Transferred Subsidiaries owns or holds, or is obligated under or party to, any option, right of first offer, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any Real Property or any portion thereof.
Section 6.13 Intellectual Property.
(a) Section 6.13(a) of Seller’s Disclosure Letter contains a true, accurate and complete list, as of the date hereof, of all (A) Registered Intellectual Property used by Parent and the Transferred Subsidiaries, indicating for each item of such Registered Intellectual Property the (i) applicable owner, (ii) registration, patent or application number, (iii) date of registration, issuance or application and (iv) applicable filing jurisdiction and (B) all Software included in the Owned Intellectual Property (as defined below (such Software, “Business Software”). The Registered Intellectual Property is enforceable subsisting and, to the Knowledge of Seller, all registered or issued Registered Intellectual Property is valid. Parent and the Transferred Subsidiaries, as applicable, exclusively own all Owned Intellectual Property, free and clear of any Encumbrance (other than Permitted Encumbrances). Parent and the Transferred Subsidiaries exclusively owns or have a valid right to use in the manner currently used in all material aspects all Intellectual Property used in or held for use in or necessary for the conduct of Parent’s and the Transferred Subsidiaries’ businesses as presently conducted (collectively, the “Business Intellectual Property”).
(b) The execution, delivery and performance of this Agreement and each of the other Transaction Documents to which it is a party by Parent and each Transferred Subsidiary, and the consummation by Parent and each Transferred Subsidiary of the transactions contemplated hereby and thereby, will not result in the loss, termination or impairment of any rights of Parent or the Transferred Subsidiaries to own or use any material Business Intellectual Property. Except as set forth in Disclosure Letter, no material Owned Intellectual Property is subject to any proceeding or outstanding order, Contract or stipulation restricting the use, transfer or licensing thereof by Parent or any Transferred Subsidiary.
(c) Except as set for on Section 6.13(c) of Seller’s Disclosure Letter, to the Knowledge of Seller, neither Parent nor any of the Transferred Subsidiaries have, since the Applicable Date, infringed, misappropriated, diluted or otherwise violated the Intellectual Property of any third party and Parent’s and the Transferred Subsidiaries’ operations as currently conducted or as previously conducted since the Applicable Date do not infringe, misappropriate, dilute or otherwise violate (or have infringed, misappropriated, diluted or otherwise violated the Intellectual Property rights of any third party. Except as set forth in Seller’s Disclosure Letter, no Person has, since the Applicable Date, asserted in writing received by Parent or any of the Transferred Subsidiaries that Parent or any of the Transferred Subsidiaries have infringed, misappropriated or otherwise violated the Intellectual Property of any third party. To the Knowledge of Seller, no third party has, since the Applicable Date, infringed, diluted, violated or misappropriated any material Owned Intellectual Property. There is no Action threatened in writing or pending (i) alleging that Parent or any of the Transferred Subsidiaries have infringed, diluted, misappropriated or otherwise violated the Intellectual Property rights of any third party (including an assertion of an ownership interest in any Intellectual Property rights, any invitation to license or request or demand to refrain from using any Intellectual Property rights of any Person) in any material respect; or (ii) challenging the validity, enforceability, or ownership of any material Owned Intellectual Property.
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(d) To the Knowledge of Seller, since the Applicable Date, Parent and the Transferred Subsidiaries take and have taken commercially reasonable measures to protect the Intellectual Property rights, including to protect confidential nature of any of the Trade Secrets owned or used by Parent or the Transferred Subsidiaries. All Persons granted access to such Trade Secrets are subject to contractual, legal, or enforceable ethical obligations that require such Persons to protect the confidentiality of such Trade Secret. To the Knowledge of Seller, no Person having access to Trade Secrets and material confidential information has misappropriated any material Trade Secret or other material confidential information in the course of his or her duties.
(e) To the extent that any material third-party owned Intellectual Property is incorporated into, integrated or bundled with, or used by any Parent or any Transferred Subsidiary in the development, manufacture, compilation, use, or other exploitation of any Business Intellectual Property, such Parent or Transferred Subsidiary has all necessary rights to use or exploit all such material third-party owned Intellectual Property, subject to the terms of any applicable license agreement.
(f) No funding, facilities, personnel or other resources of any Government Authority or any academic institution were used by Parent and the Transferred Subsidiaries to develop or create any material Owned Intellectual Property.
(g) All Parent Service Providers who have contributed to the conception, authorship, or development of any material Intellectual Property rights that are purported to be owned by Parent or any of the Transferred Subsidiaries or in connection with his, her or its employment by Parent or any of the Transferred Subsidiaries have executed and delivered to Parent or any of the Transferred Subsidiaries, or Parent or any of the Transferred Subsidiaries, as applicable, a written agreement sufficient to vest Parent and the Transferred Subsidiaries with full ownership of such Intellectual Property to the extent Parent or any of the Transferred Subsidiaries did not acquire ownership of such Intellectual Property rights by operation of Law. To the extent a full assignment of ownership is not possible for reasons of applicable copyright law, the term “ownership” shall mean that each Parent Service Provider has granted to Parent or any of the Transferred Subsidiaries the exclusive, worldwide, perpetual, unrestricted, royalty-free, transferable and sublicensable rights which allow for the unrestricted economic exploitation of the Intellectual Property rights. With respect to the software, the term “ownership” shall mean that the Parent or any of the Transferred Subsidiaries holds rights in accordance with Section 69b of the Germany Copyright Act (Urheberrechtsgesetz) or any comparable provision in any other jurisdiction, if applicable. To the Knowledge of Seller, Parent and the Transferring Subsidiaries have since the Applicable Date duly complied with the provisions of the German Act on Employee Inventions (Arbeitnehmererfindungsgesetz) or any comparable provision in any other jurisdiction, if applicable. To the Knowledge of Seller and except as would not be expected to have Parent Material Adverse Effect, Parent and the Transferring Subsidiaries have exclusive and unrestrictive rights to all inventions and developments which were made by the Parent Service Providers on behalf of Parent and the Transferring Subsidiaries in connection with a job at or the work performed for them.
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(h) Neither Parent nor any of the Transferred Subsidiaries has disclosed, delivered, licensed or made available to any escrow agent or other Person any Business Source Code or Business Software, except for disclosures to employees, consultants, agents and independent contractors for Parent or one of the Transferred Subsidiaries that are subject to confidentiality obligations to maintain the confidentiality of such Business Source Code and who have had such access in connection with their employment or engagement by Parent or any of the Transferred Subsidiaries, as applicable. Neither Parent nor any Transferred Subsidiary has any duty or obligation (whether present, contingent or otherwise) to deliver, license or make available any Business Source Code or Business Software to any escrow agent or other Person who is the beneficiary of any escrow agreement pursuant to which any Business Source Code or Business Software has been deposited.
(i) Except as would not be material and adverse to Parent or the Transferred Subsidiaries, Parent and the Transferred Subsidiaries as applicable, maintain machine readable copies of all material Business Software owned by Parent or the Transferred Subsidiaries that is incorporated in or distributed as part of any product sold, distributed or made commercially available by Parent or any of the Transferred Subsidiaries to a customer (including Business Source Code and system specifications, but expressly excluding any shrink-wrap, click-wrap or commercial off-the-shelf software licenses).
(j) To the Knowledge of Seller, the manner in which any Open Source Software is incorporated into, used in, linked to or called by, or otherwise combined or distributed with Business Software does not, according to the terms of the license applicable to such Open Source Software, obligate Parent or any of the Transferred Subsidiaries to: (A) disclose, make available, offer or deliver all or any portion of any source code of any such Business Software to any third party, other than the applicable Open Source Software, or (B) create obligations for Parent or its Transferred Subsidiaries, as applicable, to grant to any third party any rights or immunities under any Intellectual Property (including any agreement not to assert patents), or impose any limitations or restrictions on Parent’s or any of the Transferred Subsidiaries’ use, distribution or exploitation thereof, other than with respect to the applicable Open Source Software itself.
(k) The Parent IT Systems (including the Business Software), (i) operate and perform in all material respects as required by Parent and the Transferred Subsidiaries; (ii) are sufficient in all material respects for the conduct of the business of Parent and the Transferred Subsidiaries being transferred pursuant to this Agreement as presently conducted; and (iii) have not malfunctioned or failed in any material respect since the Applicable Date, except for failures or defects of individual systems in the ordinary course of business. Since the Applicable Date, none of Parent or any of the Transferred Subsidiaries have been subjected to a license audit of any kind in connection with any Contract pursuant to which they use any material third-party Parent IT System, nor received any notice of intent to conduct any such audit. Except as would not be material and adverse to Parent and the Transferred Subsidiaries, Parent and the Transferred Subsidiaries possess sufficient seat licenses to use the Parent IT Systems for its businesses as currently conducted.
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Section 6.14 Information Security; Data Privacy.
(a) Since the Applicable Date, Parent and the Transferred Subsidiaries have established, implemented and maintained an Information Security Program that is appropriate to the nature of the Personal Data Processed by Parent or the Transferred Subsidiaries, and, has included assessment and testing, and remediation of all material risks and vulnerabilities identified by such assessments and/or tests. The Information Security Program is compliant with Privacy Requirements in all material respects. The Parent IT Systems (including the Business Software) are in good working condition, do not contain any known Malicious Code or significant defect, and in all material respects operate and perform as necessary for the conduct of Parent’s and the Transferred Subsidiaries’ business.
(b) Neither the execution, delivery nor performance of this Agreement or any other Transaction Document violate any Privacy Requirement, except as would not be reasonably be expected to be material to any Parent or the Transferred Subsidiaries.
(c) Parent and the Transferred Subsidiaries comply and have since the Applicable Date processed Personal Data in compliance with all Privacy Requirements in all material respects, including with respect to any contracts, terms of service, or similar agreements, Parent or Transferred Subsidiaries have in place with processor or service providers (as those and similar terms are defined in the Privacy Requirements). To the extent required by Privacy Requirements, and to the Knowledge of Seller, Personal Data is securely deleted or destroyed. Parent and Transferred Subsidiaries do not sell, and have not sold (as defined in the California Consumer Privacy Act, as amended by the California Privacy Rights Act, and its implementing regulations, or, in reference to any Privacy Requirement, in a comparable definition embodied in that particular Privacy Requirement with comparable exceptions) any Personal Data. Any International Transfers by Parent or any of the Transferred Subsidiaries in all material aspects comply with Privacy Requirements.
(d) Except as set forth in Section 6.14(d)(i) of Seller’s Disclosure Letter, to the Knowledge of Seller, none of Parent or the Transferred Subsidiaries or third parties processing Personal Data on their behalf have, since the Applicable Date, suffered a Security Incident. Except as set forth in Section 6.14(d)(ii) of Seller’s Disclosure Letter, none of Parent or the Transferred Subsidiaries has received a written notice, letter, or complaint from a Government Authority or any Person alleging noncompliance or potential noncompliance with any Privacy Requirements and has not been subject to any Action relating to noncompliance or potential noncompliance with Privacy Requirements or Parent’s or any Transferred Subsidiaries’ Processing of Personal Data.
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Section 6.15 Specified Contracts.
(a) Except for purchase orders, other than the purchase orders listed in Section 6.15(a)(xvi), and invoices, Employee Benefit Plans and Parent Insurance Policies, Section 6.15(a) of Seller’s Disclosure Letter lists, as of the date hereof, the following Contracts to which Parent or a Transferred Subsidiary is a party (other than the Transaction Documents, collectively, the “Specified Contracts” and references to the “Parent Party” below refer to Parent or any Transferred Subsidiaries party to the Contract):
(i) Top Ten Customers. Contracts with the top ten (10) largest customers of Parent (measured by revenue received) during the fiscal year ended December 31, 2024 (the “Top Ten Customers”);
(ii) Top Fifteen Suppliers. Contracts with the top fifteen (15) largest suppliers of Parent (measured by aggregate dollars spent) during the fiscal year ended December 31, 2024;
(iii) Future Payment Obligations. Any Contract (or group of related Contracts or group of Contracts with the same counterparty or related counterparties), except Real Property Leases, involving the payment by the Parent Party of more than EUR 250,000.00 and which are not cancelable (without penalty, cost or other Liability) upon notice of ninety (90) days or less;
(iv) Energy. Any Contract involving annual payments in excess of EUR 250,000.00, providing for or relating to the purchase, sale, transmission, distribution or management of power or energy, including any retail and wholesale supply, offtake, and demand response agreements, interconnection, transmission service, distribution facility extension and shared facility agreements and management, consulting, advisory and brokerage agreements;
(v) Capital Expenditures. Any Contract (or group of Contracts relating to the same project or subject matter) providing for or requiring any capital expenditure by the Parent Party in excess of EUR 1,500,000.00;
(vi) Government Authorities. Any Contract with any Government Authority;
(vii) Restrictive Covenants. Any Contract containing covenants materially limiting the freedom of any Parent Party to compete or engage in any line of business or operate in any geographical area;
(viii) Exclusivity. Any Contract pursuant to which any Parent Party has agreed to purchase or sell goods or services exclusively from or to any Person (or group of Persons) or granted “most favored nation” pricing provisions;
(ix) Licenses. Any Contract containing (A) any inbound licenses of material Intellectual Property to the Parent Party (except for (1) shrink-wrap, click-wrap or commercial off-the-shelf software licenses, or (2) any other non-exclusive licenses of software that is commercially available to the public generally for which the aggregate fees payable by the Parent Party in any 12-month period do not exceed EUR 250,000) and (B) any outbound licenses of material Owned Intellectual Property (except for agreements with customers, suppliers or third-party contractors entered into in the ordinary course of business);
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(x) Indebtedness. Any Contract (A) for or relating to any Parent Indebtedness having an outstanding principal amount in excess of EUR 250,000.00, (B) under which any Parent Party has made advances or loans to any Person that is not a Parent or Transferred Subsidiary having an outstanding principal amount in excess of EUR 250,000.00; (C) for a capital lease determined in accordance with IFRS or a sale-and-leaseback transaction or (D) containing any interest rate swap agreement, forward rate agreement, interest rate cap or collar agreement;
(xi) Acquisitions and Dispositions. Any Contract contemplating or relating to the acquisition or disposition (whether by merger or sale of stock) of any Person or Equity Interests;
(xii) Joint Ventures. Any partnership, strategic alliance or joint venture agreement with a third party (in each case, other than with respect to wholly owned Subsidiaries of Parent);
(xiii) Real Property Leases. Any leases (including any Data Center Lease), subleases, licenses, concessions, occupancy agreements and other Contracts, in each case (A) granting the Parent Party the right of use or occupancy of the Leased Real Property (together with all amendments, guarantees and modifications thereto, collectively, the “Real Property Leases”) and (B) involves annual payments in excess of EUR 250,000.00;
(xiv) Related Party Contract. Any Contract between (A) on the one hand, Parent or any of its Subsidiaries and (B) on the other hand, any Affiliates (other than Subsidiaries) of Parent or any member of the management board (Vorstand) or supervisory board (Aufsichtsrat) of Parent (collectively, the “Related Party Contracts”);
(xv) Purchase Orders. Any outstanding purchase order of Parent involving the purchase of (A) inventory, materials, supplies, equipment, services or other items from third parties, which involves payments or performance by a Parent Party in excess of EUR 250,000.00, and (B) GPUs (including, for the avoidance of doubt, equipment incorporating GPUs); and
(xvi) Intellectual Property. Any Contract entered into outside the ordinary course of business containing a covenant not to use, sue or assert, escrow, co-existence, or settlement agreements with respect to any Intellectual Property granted by or to Parent or any Transferred Subsidiary.
(b) Except as set for on Section 6.15(b) of Seller’s Disclosure Letter, as of the date hereof, each Specified Contract is (i) in full force and effect, and (ii) a legal, valid and binding obligation of, and is an enforceable obligation against, the applicable Parent Party, subject to the Remedies Exception. No Parent Party or, to the Knowledge of Seller, any other party to a Specified Contract is in breach of a Specified Contract in any material respect, save, for the avoidance of doubt, in respect of any SLA breach. To the Knowledge of Seller, as of the date hereof, neither Parent nor any of the Transferred Subsidiaries has received or given notice in writing of an intent to terminate, or accelerate the performance of material obligations, modify, amend or otherwise materially and adversely alter the terms and conditions of any Specified Contract or has received any claim in writing of material breach or default under any Specified Contract save, for the avoidance of doubt, in respect of any breach under a service level agreement (a “SLA”).
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(c) True and complete copies of the Specified Contracts have been made available in the Virtual Data Room.
(d) The execution, delivery and performance of the Transaction Documents to which Parent and the Transferred Subsidiaries are a party, and the consummation of the transactions contemplated thereby, do not (i) conflict with, constitute a violation of or breach or default under or give any third party any rights of termination, modification, loss, diminution of rights, acceleration or cancellation of or under any Specified Contract or (ii) result in the creation of any Encumbrance (other than Permitted Encumbrances) under any Specified Contract or upon any of the Target Assets, except for any such conflicts, violations, breaches, defaults, terminations, modifications, losses, diminutions of rights, accelerations, cancellations or creations that would not reasonably be expected to have a Parent Material Adverse Effect.
Section 6.16 Assets.
(a) Parent or the Transferred Subsidiaries hold good and valid title to, or a valid leaseholder or license interest in all material Target Assets, including all GPUs, free and clear of all Encumbrances other than Permitted Encumbrances.
(b) The material equipment included in the Target Assets, which includes all GPUs, is in all material respects in good operating condition and repair (except for wear and tear in the ordinary course), and is useable for the purposes to which it is being put, and none of such equipment is in need of maintenance or repair other than ordinary, routine maintenance or repair conducted in the ordinary course of business, in each case except as would not be expected to have a Parent Material Adverse Effect.
Section 6.17 Insurance. Section 6.17 of Seller’s Disclosure Letter, as of the date hereof, sets forth a true and complete list of the Parent Insurance Policies, specifying the insurer and type of insurance. All of the Parent Insurance Policies are in full force and effect as of the date hereof, and since the Applicable Date, all insurance premiums due thereon have been paid, except as would not be material to Parent. Since the Applicable Date, none of Parent or any of the Transferred Subsidiaries has received in writing any notice of a material premium increase with respect to any such Parent Insurance Policy, or notice in writing of denial of coverage with respect to any such policy, except to the extent such policy has expired. There are no outstanding claims related to Parent exceeding an amount of EUR 250,000.00 under any Parent Insurance Policy.
Section 6.18 Environmental Matters.
(a) To Knowledge of Seller, Parent and the Transferred Subsidiaries are, and since the Applicable Date have been, in compliance in all material respects with Environmental Laws.
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(b) To Knowledge of Seller, Parent and the Transferred Subsidiaries hold all Environmental Permits that are necessary to own, lease or operate the Target Assets and to conduct their business in all material respects as presently operated, and Parent and the Transferred Subsidiaries are, and since the Applicable Date have been, in compliance in all material respects with all such Environmental Permits.
(c) Since the Applicable Date or as is otherwise unresolved, none of Parent or any of the Transferred Subsidiaries has received any written notice, demand, request for information, order or claim that alleges that Parent or any of the Transferred Subsidiaries is not or was not in material compliance with any Environmental Law or is or was subject to material liability under any Environmental Law.
(d) There are no Actions pending or, to the Knowledge of Seller, threatened in writing against Parent or any of the Transferred Subsidiaries relating to compliance with or any material liability or obligation under any Environmental Law or to the investigation, remediation or cleanup of or exposure of any Person to any Hazardous Substance that could form the basis of any Actions, orders or claims against Parent or any of the Transferred Subsidiaries.
(e) To Knowledge of Seller, Hazardous Substances are not present, and since the Applicable Date there has been no Release or exposure of any Person to any Hazardous Substance on, at, under, upon, to or from any property currently or formerly owned or leased by Parent or any of the Transferred Subsidiaries which could reasonably be expected to have a Parent Material Adverse Effect.
(f) True and complete copies of all material studies, audits, assessments, memoranda, soil, air, groundwater or similar sampling data or other material written information in the possession or reasonable control of Parent or any of the Transferred Subsidiaries that relate to Parent, any of the Transferred Subsidiaries, or the Target Assets, or any property currently or formerly owned or leased by Parent or any of the Transferred Subsidiaries related to compliance with or liability under Environmental Laws have been made available in the Virtual Data Room.
Section 6.19 Data Centers.
(a) Operational Data Centers.
(i) Section 6.19(a)(i) of Seller’s Disclosure Letter, as of November 1, 2025, sets forth a list of (A) all Operational Data Centers, (B) all Interconnected Carriers present and available to customers at the Operational Data Centers, (C) the current Capacity built at the Operational Data Centers, (D) the amount of Capacity committed to or reserved to each customer, and (E) the amount of any additional colocation space at the Data Centers subject to rights of first refusal granted in favor of existing customers.
(ii) SLAs in effect with those of the Top Ten Customers present at the Operational Data Centers are set forth in the Data Center Leases. Except as disclosed in Section 6.19(a)(ii) of Seller’s Disclosure Letter, since the Applicable Date, neither Parent nor any of the Transferred Subsidiaries have (A) experienced any material service outage with those of the Top Ten Customers present at the Operational Data Centers that has triggered SLA Credit representing an aggregate annual amount per service order of more than EUR 250,000.00, or (B) experienced any material security breaches triggering SLA Credits at any of the Operational Data Centers.
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(iii) Part I of Section 6.19(a)(iii) of Seller’s Disclosure Letter sets forth each SLA that is in effect at such Operational Data Center. At all times during operation since the Applicable Date, the entire Capacity of the Operational Data Center has been operated pursuant to a SLA. Except as disclosed in Part II of Section 6.19(a)(iii) of Seller’s Disclosure Letter, since the Applicable Date, neither Parent nor any of the Transferred Subsidiaries have (A) experienced any material interruption in the transmission of Capacity to any of the Operational Data Centers that has triggered SLA Credits representing an aggregate annual amount per service order of more than EUR 50,000.00, or (B) experienced any material security breaches at any of the Operational Data Centers.
(iv) The Virtual Data Room contains a true and complete copy of all service performance and service incidents logs or records reflecting all high priority or critical service outage events affecting any data hall since the Applicable Date.
(v) Subject to disclosures made under Section 6.19(a)(v) of Seller’s Disclosure Letter, neither Parent nor any of the Transferred Subsidiaries have made contractual commitments to customers on an aggregate basis per data hall in excess of the power deployed and available to such Person at such data hall, including the utilities, uninterruptible power supply, backup generators and mechanical systems. The electrical utility entrance facility, power system and cooling system capacity and utilization levels disclosed on Section 6.19(a)(v) of Seller’s Disclosure Letter on a per data hall basis are true and accurate as of the date hereof.
(b) Pre-Operational Data Centers.
(i) Section 6.19(b)(i) of Seller’s Disclosure Letter, as of the date hereof, sets forth a true, correct and complete list of all Pre-Operational Data Centers together (A) with their projected power capacity and (B) the indicative date on which such Pre-Operational Data Center is reasonably expected to achieve commercial operation for the full projected power capacity. Except as would not reasonably be expected to have a Parent Material Adverse Effect, each Pre-Operational Data Center is projected to be constructed or developed with (i) a fire suppression system to the extent required by Law; (ii) functioning equipment and facilities, adequate for such Pre-Operational Data Center to receive electric energy from the applicable utility up to the applicable peak contractual demand of such Pre-Operational Data Center; (iii) an executed Contract for the purchase of electric energy from a utility or third-party supplier, up to the applicable peak demand, but excluding any onsite power generation or any other emergency sources of power listed in paragraph (iv); (iv) functioning sources of emergency power, sufficient to permit such Pre-Operational Data Center to maintain substantially normal operations in the event of short-term utility power interruptions; and (v) functioning cooling, power, humidity, network and security facilities and equipment to the extent required by Law and as required to fulfill the requirements of the applicable Contract.
(ii) Section 6.19(b)(ii) of Seller’s Disclosure Letter, as of the date hereof, sets forth the approved specifications for the Physical Network.
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(iii) Section 6.19(b)(iii) of Seller’s Disclosure Letter, as of the date hereof, sets forth the power availability to be made available to each Pre-Operational Data Center under the applicable power agreements.
(iv) Section 6.19(b)(iv) of Seller’s Disclosure Letter contains a true and correct list, as of the date hereof, of all Data Center Leases, along with the amount of power leased or licensed, or anticipated to be leased or licensed, pursuant to each such Data Center Lease as of the date hereof.
(v) Parent and the Transferred Subsidiaries have obtained all Permits required under applicable Law for the construction and development that is ongoing at the applicable Pre-Operational Data Center, and such Permits and entitlements are in full force and effect, subject to any pending appeal, except where the failure to obtain such Permits or entitlements would not reasonably be expected to have a Parent Material Adverse Effect.
Section 6.20 Purchase Orders and Commitments.
(a) Section 6.20(a) of Seller’s Disclosure Letter sets forth a true, complete and accurate list, as of the date hereof, of all outstanding purchase orders, contracts, and other written commitments of Parent other than the Data Center Leases (collectively, “Commitments”) involving the purchase of inventory, materials, supplies, equipment (including GPUs), services or other items from third parties, which (i) individually require future payments or performance by Parent in excess of EUR 1,000,000.00 or (ii) in the aggregate with other similar commitments with the same counterparty exceed EUR 2,500,000.00, and includes for each such Commitment the name of the counterparty, the amount committed (including both paid and unpaid amounts), a description of the goods or services ordered, the dates on which payment is due (or performance is required), whether such Commitment is cancellable or non-cancellable, and whether any disputes exist with respect to such Commitment. Copies of the agreements relating to the Commitments have been made available in the Virtual Data Room.
(b) There are no material defaults by Parent, or, to the Knowledge of Seller, by any other party to any such Commitment, nor has any written notice of termination or intent to cancel any such Commitment been received or delivered by Parent.
Section 6.21 Relationships with Related Persons. Except (i) for the Transaction Documents, (ii) as contemplated under the Transaction Documents, or (iii) as set forth in Seller’s Disclosure Letter, as of the date hereof, none of Parent or any of the Transferred Subsidiaries are bound by any Related Party Contract.
Section 6.22 Peak Mining Purchase Agreement; Legacy Liabilities. The Peak Mining Purchase Agreement is a legal, valid and binding obligation of the parties thereto, enforceable in accordance with its terms and is in full force and effect, subject to the Remedies Exception. No party to the Peak Mining Purchase Agreement is in breach or default thereunder. Parent has not received any written notice of any intention by any party to terminate, rescind, or materially amend the Peak Mining Purchase Agreement.
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Section 6.23 Finder’s Fees; Brokerage. Except as disclosed in Seller’s Disclosure Letter, none of Parent or any of the Transferred Subsidiaries has employed or has any understanding with any broker, finder or investment bank, has incurred or will incur any obligation or Liability for any brokerage fees, commissions or finders fees, or has provided, promised or will provide or promise, any payment or other incentive to any Person, in each case in connection with any of the Transaction Documents or the transactions contemplated thereby.
Section 6.24 No Other Representations or Warranties. Except for the representations and warranties contained in Article V and this Article VI (as qualified by the applicable items disclosed in Seller’s Disclosure Letter and the Bring-Down Certificate), and the other Transaction Documents, and any certificate delivered hereto or thereto, none of Parent, Seller, any of their respective Affiliates or Representatives or any other Person makes any express or implied representation or warranty on behalf of Parent, Seller or their respective Affiliates, and Parent and Seller hereby disclaim any other representations or warranties, with respect to the subject matter of this Agreement. Furthermore, without limiting the foregoing sentence, except for the representations and warranties contained in Article V and this Article VI (as qualified by Seller’s Disclosure Letter and the Bring-Down Certificate), any of the other Transaction Documents, and any certificate delivered hereto or thereto, Parent and Seller do not give or make any warranty or representation as to (and shall have no indemnification obligation or, in the absence of deceit (arglistige Täuschung) or willful misconduct (Vorsatz), other liabilities in respect of) the accuracy or reasonableness of any forecasts, estimates, projections, statements of intent or statements of opinion provided to Purchaser, any of its Affiliates, or any of their respective Representatives on or prior to the date of this Agreement in connection with this Agreement, including in any “Confidential Information Presentation” relating to Parent or Seller, any management presentations, and any other information made available in the Virtual Data Room. Purchaser acknowledges and agrees that, except for the representations and warranties contained in Article V and this Article VI (as qualified by Seller’s Disclosure Letter and the Bring-Down Certificate), the other Transaction Documents, and any certificate delivered hereto or thereto, none of Parent, Seller or any of their respective Affiliates is making any representation or warranty regarding any documents, projections, forecasts, statement or other information made, communicated or furnished (orally, in writing, in the Virtual Data Room, in management presentations (including any questions posed and answers given and any related discussions, whether formal or informal) or otherwise) to Purchaser, any of its Affiliates, or any of their respective Representatives (including any opinion, information, projection or advice that may have been or may be provided to such Person by any Representatives of Parent, Seller or any of their respective Affiliates), in connection with this Agreement.
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Article
VII.
LIMITATIONS OF LIABILITY
Section 7.1 Limited Scope of Representations.
(a) Prior to the date hereof, Seller and Parent made available to Purchaser detailed information with regard to the commercial, technical, financial and legal (including tax) circumstances of Parent Group and its business. Furthermore, Purchaser had the opportunity to review material information concerning Parent Group in the Virtual Data Room. In addition, Purchaser had the opportunity to visit and inspect the business operations of Parent Group with its Representatives and was given the opportunity to discuss any issues in detail with Parent. Against this background Purchaser explicitly acknowledges and agrees:
(i) to purchase and acquire the Sold Shares based upon its own inspection, examination and determination of all circumstances with respect to the Sold Shares, Parent Group and its business, and to undertake the transactions contemplated in the Transaction Documents based upon Purchaser’s own inspection, examination and determination without reliance upon any express or implied representations, warranties of any nature made by the Seller, except for the representations and warranties explicitly made by the Seller under Article V and Article VI;
(ii) that Seller does not make any representations or warranties as to the future development of Parent Group or as to budgets, business plans or other forward-looking statements or other projections of a financial, technical or business nature relating to the business of Parent Group;
(iii) that Seller and its Representatives have not and shall not be under any obligation to make any independent examinations or verifications of whatever nature (such as a review of any of the books or other records of any of Parent Group or any research with any publicly available register or enquiry of Representatives of Parent Group); and
(iv) that the lack of any independent examination or verification by Seller and its Representatives shall in no event be regarded as acting in a fraudulent manner (keine Arglist aufgrund von Angaben “ins Blaue hinein”) as Purchaser is fully aware of and accepts these circumstances.
(b) Seller’s liability for breaches of any of the representations and warranties of Seller contained in Article VI shall be limited to EUR 1.00, provided that this shall not apply in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz) by Seller.
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Section 7.2 RWI Policy.
(a) Purchaser has entered into a binder agreement with the RWI Provider with respect to the RWI Policy covering certain of the representations and warranties of Seller contained in Article V and Article VI. The Parties agree that the representations and warranties of Seller contained in Article V and Article VI are made on the grounds (Geschäftsgrundlage) that (i) they solely serve for risk allocation purposes in accordance with the rights and remedies of the Purchaser for any incorrectness of representations and warranties of a representation of Seller contained in Article V and Article VI (other than the Seller Fundamental Representations), and (ii) for the purpose of giving these representations in Article VI only, Seller may not have had first-hand knowledge with respect to the subject matters of covered by these representations and neither Seller nor any of Seller’s Representatives has independently examined or verified the underlying facts, matters, circumstances or statements made in these representations or Seller’s Disclosure Schedule as prepared by Parent Group and its Representatives, but rather had to rely on documentation and information made available by the Representatives of the Parent Group.
(b) True and complete copies of the binder agreement with the RWI Provider and the RWI Policy have been made available to Seller. Purchaser guarantees to Seller that the provisions of the RWI Policy include terms to the effect that the RWI Provider waives any right of subrogation against Seller in connection with this Agreement and the transactions contemplated hereby, except in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz) by Seller. The RWI Policy is or will be agreed on a non-recourse basis and, therefore, Purchaser shall ensure that under the RWI Policy and under applicable Law the RWI Provider shall only be able to raise claims against Seller in the event of any payments by the RWI Provider to Purchaser in connection with the RWI Policy in case of a deceit (arglistige Täuschung) or willful misconduct (Vorsatz) by Seller.
(c) Purchaser and its Affiliates will not, directly or indirectly, (i) terminate, cancel, amend, waive or modify the RWI Policy in a manner adverse to Seller during its policy term, or (ii) assign or to be obliged to assign any claim Purchaser might have against Seller to the RWI Provider, in each case without prior written consent of Seller. Purchaser and its Affiliates shall refrain from any actions or omissions that could adversely affect Purchaser’s coverage position under, or the continuation of, the RWI Policy.
(d) The cost of the premiums, together with all Taxes and application, underwriting or similar fees or expenses, in connection with the RWI Policy shall be paid 100% by Purchaser.
(e) To the extent legally permissible, Purchaser hereby bindingly waives (i) any and all claims against Seller in respect of and in connection with breaches of representations and warranties made by Seller under Article V and Article VI (other than the Seller Fundamental Representations), in each case save for any claims of Purchaser arising in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz) by Seller, and provided that this shall not affect Purchaser’s claims vis-à-vis the RWI Provider.
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(f) Save for any claims of Purchaser arising in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz) by Seller, it is expressively agreed between the Parties and acknowledged by Purchaser that even in the event that the RWI Policy should actually not have been validly concluded or the RWI Provider is not willing to grant coverage or rejects payment for all or specific claims in respect of breaches of representations and warranties made by Seller under Article V and Article VI, or claims can for any other reason not be enforced or collected under the RWI Policy, this shall have no impact on the exclusion or limitations of liability provided for in this Agreement and any event leading to the RWI Provider not being willing or able to pay shall not be considered as a reason for rescission or a cessation of the basis of such limitations (Wegfall der Geschäftsgrundlage) or for any other claim. Purchaser expressly acknowledges, and the Parties agree, that the risk to successfully claim and/or recover from the RWI Provider any losses of Purchaser under or in connection with the Transaction Documents and the transactions contemplated thereunder shall solely and irrevocably rest with Purchaser.
(g) From the date of this Agreement until the Closing, Seller shall use reasonable efforts to fully cooperate with Purchaser and its Representatives in connection with Purchaser’s efforts to remove any “exclusions” under the RWI Policy based on incomplete information provided to the RWI Provider as of the date of the RWI Policy. Such cooperation shall include, without limitation, providing access to and participation in due diligence sessions, reconsenting fully and accurately to information and document requests, making relevant personnel reasonably available for interviews and meeting (including with the underwriters and their advisors), and executing and delivering such customary authorizations, certificates, or consents as may be required by the underwriters of such insurance.
Section 7.3 Exclusion of other Remedies.
(a) The Parties agree that the warranties and remedies explicitly provided for by this Agreement shall be the exclusive warranties and remedies available to Purchaser against Seller or its Affiliates or any of its or their Representatives in respect of any circumstances relating to the status and condition of the Parent Group and its assets, liabilities and business. Unless explicitly otherwise provided for in this Agreement, any further claims and remedies for Purchaser against Seller or its Affiliates or its or any of their Representatives relating to the status and condition of the Parent Group and its assets, liabilities and business, irrespective of which nature, amount or legal basis, are hereby expressly waived and excluded, in particular, without limitation (i) any right of Purchaser to rescind (zurücktreten) from this Agreement or any other Transaction Document or to require the unwinding of the transactions contemplated therein (e.g., by way of damages instead of performance (Schadensersatz statt der Leistung), (ii) any claims arising from statutory warranty provisions (gesetzliche Gewährleistungsbestimmungen), for example pursuant to Sections 437 thorough 441 BGB, (iii) any claim for breach of pre-contractual obligations (culpa in contrahendo) pursuant to Sections 241 para. 2, 311 paras. 2 and 3 BGB), (iv) any claim for frustration of contract pursuant to Section 313 BGB (Störung der Geschäftsgrundlage), (v) any claims of Purchaser arising from the rescission of this Agreement (Rücktritt vom Vertrag), (vi) any rights to reduce the Rumble Share Consideration or any parts thereof (Kaufpreis mindern) or to appeal (anfechten) this Agreement, and (vii) any other rights of Purchaser to cause the termination, invalidity or unwinding (Rückabwicklung) of this Agreement or any other Transaction Document, a change of their content or a reimbursement or reduction of the Rumble Share Consideration or any parts thereof shall be excluded, save for any remedies of Purchaser based on deceit (arglistige Täuschung) or willful misconduct (Vorsatz).
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(b) The Parties agree that the warranties and remedies explicitly provided for by this Agreement shall be the exclusive warranties and remedies available to Seller in respect of any circumstances relating to the status and condition of Purchaser and its Subsidiaries and their respective assets, liabilities and business. Unless explicitly otherwise provided for in this Agreement, any further claims and remedies for Seller relating to the status and condition of Purchaser and its Subsidiaries and their respective assets, liabilities and business, irrespective of which nature, amount or legal basis, are hereby expressly waived and excluded, in particular, without limitation (i) any right of Seller to rescind (zurücktreten) from this Agreement or any other Transaction Document or to require the unwinding of the transactions contemplated therein (e.g., by way of damages instead of performance (Schadensersatz statt der Leistung), (ii) any claims arising from statutory warranty provisions (gesetzliche Gewährleistungsbestimmungen), for example pursuant to Sections 437 thorough 441 BGB, (iii) any claim for breach of pre-contractual obligations (culpa in contrahendo) pursuant to Sections 241 para. 2, 311 paras. 2 and 3 BGB), (iv) any claim for frustration of contract pursuant to Section 313 BGB (Störung der Geschäftsgrundlage), (v) any claims of Seller arising from the rescission of this Agreement (Rücktritt vom Vertrag), and (vi) any other rights of Seller to cause the termination, invalidity or unwinding (Rückabwicklung) of this Agreement or any other Transaction Document, a change of their content, save for any remedies of Seller based on deceit (arglistige Täuschung) or willful misconduct (Vorsatz).
Article
VIII.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller in the form of an independent guarantee (selbstständiges Garantieversprechen) pursuant to Section 311 para. 1 BGB and irrespective of fault that except as set forth in Purchaser’s Disclosure Letter, the following statements are true and correct, as of the date hereof and as of the Closing Date (except to the extent any such representation and warranty is expressly made as of a specific date, in which case Purchaser hereby makes to Seller such representation and warranty only as of such date):
Section 8.1 Organization, Authorization, Enforceability, Non-Contravention.
(a) Organization. Purchaser is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has the requisite corporate or other organizational power to own, lease or operate the properties and assets owned, operated or leased by it and to conduct its business as presently conducted. Purchaser is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character or location of its owned, operated or leased properties and assets makes such licensing or qualification necessary, except where the failure to be so licensed or qualified or in good standing has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.
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(b) Corporate Authorization. Purchaser has full corporate power and authority to execute and deliver each of the Transaction Documents and each certificate and other instrument required to be executed and delivered by Purchaser pursuant hereto and to perform its obligations under, and consummate the transactions contemplated by, each such Transaction Document and each such certificate or other instrument required to be executed and delivered by Purchaser pursuant hereto. Purchaser is required by NASDAQ rules to obtain the affirmative vote (in person or by written consent, including by obtaining the Written Consent) of holders of a majority of the votes cast in favor of approving and adopting this Agreement. In lieu of calling a meeting of shareholders, Purchaser submitted to, and immediately after the execution of this Agreement obtained from, Chris Pavlovski, in his capacity as the record and beneficial owner of at least a majority of the voting power of the outstanding Class A Common Stock, Class C Common Stock and Class D Common Stock, a duly executed written consent to approve and adopt this Agreement, which is attached hereto as Exhibit F (the “Written Consent”). The Written Consent satisfies all of Purchaser’s obligations relating to obtaining shareholder approval of this Agreement and the transactions contemplated hereunder under the NASDAQ rules and it is the only vote of shareholders of Purchaser necessary in connection with the consummation of the transactions contemplated by this Agreement or by the other Transaction Documents. The execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby (including the issuance of the Rumble Share Consideration), by Purchaser have been duly and validly authorized by all necessary corporate action on the part of Purchaser. The execution, delivery and performance of the other Transaction Documents to which it is a party and each certificate and other instrument required to be executed and delivered by Purchaser pursuant hereto, and the consummation of the transactions contemplated thereby, have been, or prior to the Closing will have been, duly and validly authorized by all necessary corporate or other action on the part of Purchaser. None of the execution, delivery and performance of the Transaction Documents and each certificate and other instrument required to be executed and delivered by Purchaser pursuant to this Agreement, and the consummation of the transactions contemplated thereby, by Purchaser requires any authorization, vote or other approval of the shareholders of Purchaser (other than the Written Consent) pursuant to the Constituent Documents of Purchaser or applicable Law.
(c) Issuance of Securities. The issuance of all Purchaser Common Shares that may be issued pursuant to the Transaction Documents (including the Rumble Share Consideration) has been duly authorized and, upon issuance in accordance with the terms of the Transaction Documents, will be validly issued, fully paid and non-assessable and in each case, free and clear of any Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents). As of the Closing, Purchaser shall have reserved from its duly authorized capital stock not less than the sum of the number of Purchaser Common Shares equal to the Offer Ratio multiplied by the number of Shares to be transferred pursuant to this Agreement, the CEO Purchase Agreement, the Apeiron Purchase Agreement and the Tender Offer. As of the Closing, the issuance of the Pre-Funded Warrant shall be duly authorized, and upon the due execution, issuance and delivery, the Pre-Funded Warrant will be a valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms. As of the Closing, the issuance of Purchaser Common Shares underlying the Pre-Funded Warrant shall be duly authorized, and upon issuance in accordance with the exercise of the Pre-Funded Warrant, such Purchaser Common Shares will be validly issued, fully paid and non-assessable and free and clear of any Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents), with the holder being entitled to all rights accorded to a holder of Purchaser Common Shares. Upon issuance in accordance with the terms of the Transaction Documents, Seller will have good and marketable title to the Rumble Share Consideration.
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(d) Binding Effect. This Agreement has been, and the other Transaction Documents to which it is a party, will at the Closing be, duly executed and delivered by Purchaser. This Agreement is a legal, valid and binding obligation of Purchaser enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. The other Transaction Documents to which Purchaser is a party, when executed and delivered by Purchaser, will be a legal, valid and binding obligation of Purchaser enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(e) Non-Contravention. Assuming the receipt of the Required HSR Act Clearance and satisfaction of the other requirements set forth in Section 8.4, the execution, delivery and performance of the Transaction Documents by Purchaser, and the consummation by Purchaser of the transactions contemplated thereby, do not and will not (with or without notice or passage of time or both) (i) violate or conflict with any provision of the Constituent Documents of Purchaser, (ii) violate or conflict with any Law, Government Order or Permit applicable to Purchaser or by which any property or asset of Purchaser is bound, (iii) conflict with, constitute a violation of or breach or default under or give any third-party any rights of termination, modification, loss, diminution of rights, acceleration or cancellation of or under any material Contract to which Purchaser is a party or by which Purchaser is bound or (iv) result in the creation of any Encumbrance (other than Permitted Encumbrances) on any of the assets or properties of Purchaser, except in the case of clauses (ii) through (iv) of this Section 8.1(e), for any such conflicts, violations, breaches, defaults, terminations, modifications, losses, diminutions of rights, accelerations, cancellations or creations that would not and would not reasonably be expected to, individually or in the aggregate, have a Purchaser Material Adverse Effect.
(f) Management; Books and Records. All senior officers, senior managers and directors (or equivalents thereof) of Purchaser have been duly elected or appointed and all former senior officers, senior managers or directors (or equivalent thereof) of Purchaser have been duly dismissed or removed, in each case in accordance with its Constituent Documents and applicable Law, except as would not reasonably be expected to, individually or in the aggregate, have a Purchaser Material Adverse Effect.
Section 8.2 Capitalization.
(a) As of the date hereof, the authorized capital stock of Purchaser consists of 700,000,000 shares of Class A Common Stock par value $0.0001 per share (“Class A Common Stock”), 170,000,000 shares of Class C Common Stock, par value $0.0001 per share (“Class C Common Stock”), 110,000,000 shares of Class D Common Stock, par value $0.0001 per share (“Class D Common Stock”), and 20,000,000 shares of preferred stock, par value $0.0001 per share. As of November 5, 2025, there were outstanding (i) 215,380,826 shares of Class A Common Stock (20,800,886 of which are held in escrow subject to earn-out conditions and 1,963,750 of which are held by the former SPAC sponsor subject to forfeiture, in each case as further described in the Purchaser Reports), (ii) 123,690,477 shares of Class C Common Stock, (iii) 95,791,120 shares of Class D Common Stock and (iv) no shares of preferred stock. Each share of Class C Common Stock is issued “in tandem” with an exchangeable share of 1000045728 Ontario Inc. (“ExchangeCo Shares”), a corporation formed under the laws of the Province of Ontario, Canada, and an indirect, wholly owned subsidiary of Purchaser. As of the date hereof, there were 123,690,477 ExchangeCo Shares outstanding (55,611,718 of which are held in escrow subject to earn-out conditions as described in the Purchaser Reports). As of the date hereof, there were 89,105,079 shares of Class A Common Stock reserved and available for future issuance under the Purchaser Equity Plans, and there were 1,795,823 shares of Class A Common Stock reserved and available for future issuance under the Purchaser ESPP. All outstanding shares of capital stock of Purchaser have been, and all Purchaser Common Shares issued hereunder will be, when issued at the Closing in accordance with Article II, duly authorized and validly issued, fully paid and nonassessable, free and clear of any Encumbrances and free of any preemptive or similar rights.
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(b) As of the date hereof, there were (i) 44,147,954 shares of Class A Common Stock issuable under Purchaser Options outstanding, (ii) an additional 28,587,400 shares of Class A Common Stock issuable under Purchaser Options that are subject to earn-out conditions as described in the Purchaser Reports, (iii) 2,461,784 shares of Class A Common Stock issuable upon settlement of Purchaser RSUs outstanding, and (iv) no other Purchaser Equity Award outstanding. Section 8.2(b) of the Purchaser’s Disclosure Letter contains a complete and accurate list of each outstanding Purchaser Equity Award as of the date hereof, including, for each such award: (A) the name of the holder of such award, (B) the date each such award was granted, (C) the number of shares of Class A Common Stock subject to each such award, (D) with respect to any award of Purchaser Options, the price at which such Purchaser Option may be exercised, and (E) a description of the vesting conditions relating to such award, including any time-based vesting schedule and a description of any terms under any Purchaser Equity Plan or award agreement thereunder which provide for accelerated vesting with respect to such award as a result of the consummation of the transactions contemplated by this Agreement. Other than the Purchaser Options and Purchaser RSUs listed in Section 8.2(b) of the Purchaser’s Disclosure Letter or that may be issued after the date hereof as permitted under Section 9.1(c)(ii), there are no equity or equity-based awards outstanding under any Purchaser Equity Plans. The exercise price of each Purchaser Option is not less than the fair market value of a share of Class A Common Stock on the date of grant of such Purchaser Option.
(c) As of November 5, 2025, there were 8,046,032 shares of Class A Common Stock issuable under the Purchaser Warrants outstanding.
(d) There are no outstanding bonds, debentures, notes or other indebtedness of Purchaser having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of Purchaser may vote. Except as set forth in this Section 8.2 and for changes since November 5, 2025 resulting from the exercise of Purchaser Options, ExchangeCo Shares, Purchaser Warrants or settlement of Purchaser RSUs outstanding on such date, or the issuance of equity awards after the date hereof as permitted under Section 9.1(c)(ii), there are no issued, reserved for issuance or outstanding (i) shares of capital stock or other voting securities of or ownership interests in Purchaser, (ii) securities of Purchaser convertible into or exchangeable or exercisable for shares of capital stock or other voting securities of or ownership interests in Purchaser, (iii) warrants, calls, options or other rights to acquire from Purchaser, or other obligation of Purchaser to issue, any capital stock or other voting securities or ownership interests in or any securities convertible into or exchangeable or exercisable for capital stock or other voting securities or ownership interests in Purchaser or (iv) restricted shares, restricted stock units, stock appreciation rights, performance units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based on, directly or indirectly, the value or price of, any capital stock or voting securities of Purchaser (the items in clauses (i) through (iv) being referred to collectively as the “Purchaser Securities”). There are no outstanding obligations of Purchaser or any of its subsidiaries to repurchase, redeem or otherwise acquire any of the Purchaser Securities. As of the date hereof, neither Purchaser nor any of its subsidiaries is a party to any voting agreement with respect to the voting of any Purchaser Securities. There are no Purchaser Securities or instruments containing anti-dilution, adjustments, modifications or similar provisions that will be triggered by the transactions contemplated by this Agreement. The Purchaser Reports contain true, correct and complete descriptions of the terms of all Purchaser Securities convertible into, or exercisable or exchangeable for, shares of Class A Common Stock and the material rights of the holders thereof.
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Section 8.3 Available Funds. Purchaser has immediately available funds sufficient to pay all fees and expenses to be paid by Purchaser in connection with this Agreement and the other Transaction Documents to which it is a party, and the transactions contemplated hereby and thereby, and to satisfy all other payment obligations of Purchaser contemplated by this Agreement and the other Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby on the terms and subject to the conditions hereof and thereof.
Section 8.4 Governmental and Third-Party Approvals, Consents and Notices. Other than in connection with (a) the notification and waiting period requirements of the HSR Act (the “Required HSR Act Clearance”) and the other requirements as set forth in Section 8.4 of Purchaser’s Disclosure Letter, (b) the requirements of the federal securities Laws or any U.S. state securities or “blue sky” Laws and (c) the notification and listing authorization requirements under the rules of NASDAQ, neither Purchaser nor any of its Affiliates is required to (i) obtain any authorization, waiver, consent or approval of, (ii) make any filing, report or registration with or (iii) give any notice to any Government Authority or any other Person in connection with or as a condition to the execution, delivery and performance of any of the Transaction Documents or the consummation of the transactions contemplated thereby, other than any authorization, waiver, consent, approval, filing, report, registration or notice the failure of which to obtain, make or give has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.
Section 8.5 No Litigation or Governmental Orders. Since January 1, 2022, there has been no material Action pending or, to Purchaser’s Knowledge, threatened against, by or on behalf of Purchaser or its Subsidiaries. There is no Action pending or, to Purchaser’s Knowledge, threatened against Purchaser or any of its Affiliates that (a) if adversely determined, would reasonably be expected to materially and adversely affect the legality, validity or enforceability of this Agreement or any other Transaction Document, (b) if adversely determined, would reasonably be expected to, individually or in the aggregate, prevent or materially impair the ability of Purchaser to consummate the transactions contemplated by the Transaction Documents or (c) if adversely determined, would reasonably be expected to, individually or in the aggregate, have a Purchaser Material Adverse Effect. Since January 1, 2022, there have been no unsatisfied or outstanding material Government Orders against or applicable to Purchaser or any of its Subsidiaries or against or applicable to any of the properties, assets or businesses of Purchaser and its Subsidiaries. Purchaser and its Affiliates are not a party to or subject to the provisions of any Government Order that have or would reasonably be expected to, individually or in the aggregate, (i) materially and adversely affect the legality, validity or enforceability of this Agreement or any other Transaction Document or (ii) prevent or materially impair the ability of Purchaser to consummate the transactions contemplated by the Transaction Documents.
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Section 8.6 Purchaser Reports; Financial Statements.
(a) Except as set forth in Section 8.6(a) of Purchaser’s Disclosure Letter, Purchaser has filed or furnished, as applicable, on a timely basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with the SEC under the Exchange Act or the Securities Act since January 1, 2022 (the forms, statements, reports and documents filed or furnished since January 1, 2022 (including notes, exhibits and schedules thereto and all other information incorporated by reference therein and any amendments and supplements thereto) and, unless otherwise expressly stated in this Agreement, those filed or furnished subsequent to the date hereof, the “Purchaser Reports”).
(b) Each of the Purchaser Reports filed prior to the date hereof, at the time of its filing or being furnished (or, if amended prior to the date hereof, as of the date of such last amendment) complied, or if to be filed or furnished subsequent to the date hereof and prior to the Closing, will comply, in all material respects with the applicable requirements of NASDAQ, the Securities Act, the Exchange Act and the Sarbanes-Oxley Act, and any rules and regulations promulgated thereunder applicable to the Purchaser Reports, each as in effect on the date so filed or furnished (or amended). As of their respective dates (or, if amended prior to the date hereof, as of the date of such last amendment), and except to the extent that information in any Purchaser Report has been revised or superseded by another Purchaser Report, the Purchaser Reports did not, and any of the Purchaser Reports filed or furnished with the SEC prior to the Closing will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. The Purchaser Common Shares are registered pursuant to Section 12(b) of the Exchange Act and listed on the NASDAQ and the Purchaser has taken no action designed to, or which to the Knowledge of Purchaser is reasonably likely to have the effect of, terminating the registration of the Purchaser Common Shares under the Exchange Act or delisting the Purchaser Common Shares from the NASDAQ, nor has the Purchaser received any notification that the SEC or the NASDAQ is contemplating terminating such registration or listing. The Purchaser is, and will be as a result of the closing of the transactions contemplated by this Agreement and the Transaction Documents, in compliance in all material respects with applicable continued listing requirements of NASDAQ.
(c) Except as set forth in Section 8.6(c) of Purchaser’s Disclosure Letter, there are no outstanding or unresolved comments in any comment letters received from the SEC staff with respect to any Purchaser Report and, to Purchaser’s Knowledge, none of the Purchaser Reports is the subject of ongoing SEC review. There are no internal investigations and Purchaser has not received written notice of any SEC inquiries or investigations or other inquiries or investigations conducted by a Government Authority pending or, to Purchaser’s Knowledge, threatened, in each case, regarding any accounting practices of Purchaser.
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(d) None of the Subsidiaries of Purchaser is subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(e) Purchaser’s audited consolidated financial statements and unaudited interim financial statements (including, in each case, any notes thereto) contained in the Purchaser Reports were prepared and between the date hereof and the Closing Date, will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto or, in the case of unaudited or interim consolidated financial statements, where information and footnotes contained in such financial statements are not required to be in compliance with GAAP), were prepared and, between the date hereof and the Closing Date, will be prepared from and in accordance with the books and records of Purchaser and its Subsidiaries, and in each case such consolidated financial statements fairly presented and, between the date hereof and the Closing Date, will fairly present in all material respects, the consolidated financial position, results of operations, changes in stockholders’ equity and cash flows of Purchaser and the consolidated Subsidiaries of Purchaser as of the respective dates thereof and for the respective periods covered thereby, as applicable (subject, in the case of unaudited statements, to normal year-end adjustments).
Section 8.7 Controls.
(a) Purchaser maintains disclosure controls and procedures and internal control over financial reporting required and as defined by Rule 13a-15 and 15d-15, as applicable, under the Exchange Act, and reasonably necessary to provide reasonable assurance that, in all material respects, (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as reasonably necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (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. Purchaser’s disclosure controls and procedures are designed to ensure that all information required to be disclosed by Purchaser or any of its Subsidiaries in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to Purchaser’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act. Purchaser’s management has completed an assessment of the effectiveness of Purchaser’s internal control over financial reporting in compliance with the requirements of Section 404(a) of the Sarbanes-Oxley Act, and the conclusions of the most recent such assessment are disclosed in the applicable Purchaser Report. Since the date of such assessment, there have been no changes in Purchaser’s internal control over financial reporting that, individually or in the aggregate, have materially and adversely affected or would reasonably be expected to materially and adversely affect Purchaser’s internal control over financial reporting.
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(b) Purchaser has disclosed, since January 1, 2022, to Purchaser’s outside auditors and audit committee (i) any identified significant deficiencies and material weaknesses in the design or operation of internal controls that would be reasonably expected to adversely affect Purchaser’s ability to record, process, summarize and report financial information for inclusion in the applicable consolidated financial statements and (ii) any identified fraud, whether or not material, that involves management or any other current or former employees who have (or had) a significant role in Purchaser’s internal controls over financial reporting.
(c) Since January 1, 2022, (i) neither Purchaser nor any of its Subsidiaries, nor, to Purchaser’s Knowledge, any Representative of Purchaser or any of its Subsidiaries, has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods (including with respect to loan loss reserves, write-downs, charge-offs and accruals) of Purchaser or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that Purchaser or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and (ii) no attorney representing Purchaser or any of its Subsidiaries, whether or not employed by Purchaser or any of its Subsidiaries, has reported evidence of a material violation of securities Laws, breach of fiduciary duty or similar violation by Purchaser or any of its officers, directors, employees or agents to the board of directors of Purchaser or any committee thereof or to any director or officer of Purchaser.
Section 8.8 No Violation of Law; Regulatory Matters; Required Licenses and Permits.
(a) Since January 1, 2022, Purchaser and each of its Subsidiaries (i) have been in compliance with all applicable Laws (including Laws related to activities in connection with cryptocurrency and digital assets) and (ii) are not party or subject to any Government Order with any Government Authority with jurisdiction over Purchaser or any of its Subsidiaries, as applicable, which imposes any restrictions on the business of Purchaser or its Subsidiaries, except in each case of the foregoing clauses (i) and (ii) as has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect. Purchaser and its Subsidiaries, since January 1, 2022, have owned, held or possessed, and, currently, own, hold, or possess, all Permits necessary for the conduct of their respective businesses and the business of Purchaser and its Subsidiaries is being conducted in compliance with all such Permits, except in each case as has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.
(b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect, since January 1, 2022, neither Purchaser nor any of its Subsidiaries nor any of their respective Representatives (acting in their capacities as such) has violated or taken any material act in furtherance of violating the Anti-Money Laundering Laws.
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(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect: (i) Purchaser and each of its Subsidiaries and each of their respective Representatives (acting in their capacities as such) are, and since January 1, 2022 have been, in compliance with the Export and Sanctions Regulations; (ii) since January 1, 2022, neither Purchaser nor any of its Subsidiaries nor any of their respective Representatives (acting in their capacities as such) has (A) been organized, operated or resided in or (B) engaged, directly or indirectly, in any dealings or transactions in a Sanctioned Country (or with any Sanctioned Persons); and (iii) neither Purchaser nor any of its Subsidiaries nor any of their respective Representatives (acting in their capacities as such) is involved in any Action, or since January 1, 2022 has received a written request for information or any other form of communication from any Government Authority, or has had any judgments imposed (or threatened to be imposed) upon Purchaser or any of its Subsidiaries by or before a Government Authority, in each case in connection with any actual or alleged material violation of any Export and Sanctions Regulations.
(d) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect: (i) since January 1, 2022, none of Purchaser or any of its Subsidiaries or any of their respective Representatives (acting in their capacities as such) has taken any action, or engaged in any activity, practice or conduct, that would violate the FCPA, the U.K. Bribery Act, or any other applicable Law regarding anti-corruption; (ii) none of Purchaser, any of its Subsidiaries or any of their respective Representatives (acting in their capacities as such) has (A) used any corporate funds of Purchaser or any of its Subsidiaries for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (B) authorized, offered, promised or made any unlawful payment to any foreign or domestic governmental officials, or (C) paid any bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment to any Person, private or public, regardless of form, whether in money, property or services, to obtain favorable treatment in securing business or to obtain special concessions for Purchaser or any of its Subsidiaries, in the case of the foregoing clauses (A), (B) and (C) which would or would reasonably be expected to result in a material violation of the FCPA, the U.K. Bribery Act, or any other applicable Laws regarding anti-corruption; (iii) there are no pending or, to Purchaser’s Knowledge, threatened in writing Actions against Purchaser or any of its Subsidiaries with respect to the FCPA, the U.K. Bribery Act, or any other applicable Law regarding anti-corruption.
Section 8.9 Securities Law Compliance. Purchaser is financially sophisticated and is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act. Purchaser understands that the Sold Shares have not been registered under the Securities Act and may only be transferred pursuant to registration or an applicable exemption under all applicable Laws. Pursuant to this Agreement, Purchaser is acquiring the Sold Shares for its own account, for the purpose of investment only and not with a view to, or for sale in connection with, any distribution thereof in violation of applicable Law. Purchaser has not, directly or indirectly, offered the Sold Shares to anyone or solicited any offer to buy the Sold Shares from anyone, in each case that would have the effect of bringing to such offer and sale of the Sold Shares by Purchaser within the registration requirements of the Securities Act or the securities Laws of any other jurisdiction.
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Section 8.10 Due Diligence by Purchaser. Purchaser acknowledges that it has, as of the Closing, conducted an independent investigation of Parent and the operations, assets, Liabilities and financial condition of Parent and the Transferred Subsidiaries in making the determination to proceed with the transactions contemplated by the Transaction Documents and has relied solely on the results of its own independent investigation and the representations and warranties in Article V and Article VI in connection with Parent and the Transferred Subsidiaries and the subject matter of this Agreement. Purchaser and its Representatives, collectively, have, among other things, had access to the Virtual Data Room and Purchaser has received Seller’s Disclosure Letter.
Section 8.11 Solvency. Assuming the accuracy of the representations and warranties contained in Article V and Article VI and assuming that immediately prior to the Closing Parent and the Transferred Subsidiaries are Solvent, after giving effect to the payment of all amounts required to be paid pursuant to the terms of this Agreement in connection with the consummation of the transactions contemplated by this Agreement, Purchaser will be Solvent as of and immediately following the Closing.
Section 8.12 Absence of Changes. Except as contemplated by the Transaction Documents, since January 1, 2022 through the date hereof, (a) there has not been any change, effect, development, condition, matter, event, fact, circumstance or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect and (b) neither Purchaser nor any of its Subsidiaries has taken any action that would have been prohibited or restricted under Article IX had such action been taken between the date hereof and the earlier of the Closing and the termination of this Agreement in accordance with its terms.
Section 8.13 Taxes.
(a) All income and other material Tax Returns that are required to be filed under applicable Laws during the Applicable Purchaser Period (taking into account any timely filed automatic extensions of time in which to file) by Purchaser and its Subsidiaries have been or will be timely filed on or before the Closing, and all such Tax Returns are complete and accurate in all material respects.
(b) Each of Purchaser and its Subsidiaries has timely paid all income and other material Taxes of Purchaser or relevant Subsidiary, as applicable, at all times during the Applicable Purchaser Period.
(c) All material Taxes which Purchaser or any of its Subsidiaries is required by Law to withhold or to collect for payment have been duly withheld and collected and have been timely paid to the appropriate Government Authority during the Applicable Purchaser Period.
(d) There is no audit, examination, investigation, action, proceeding or assessment pending or proposed or threatened in writing with respect to material Taxes for which Purchaser or its Subsidiaries may be liable. All material deficiencies asserted or assessments made in writing of Purchaser or its Subsidiaries as a result of any audit, examination, investigation, action, proceeding or assessment have been paid in full or otherwise finally resolved.
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(e) No agreements, consents or waivers of any statute of limitations or extension of time is in effect with respect to any material Taxes of Purchaser or any of its Subsidiaries (other than automatic extensions of the due date for filing any Tax Return of Purchaser or any of its Subsidiaries obtained in the ordinary course of Purchaser’s or its Subsidiaries’ business), and no written request covering any such matter is outstanding.
(f) There are no Encumbrances for material Taxes (other than Permitted Encumbrances) on any of the assets of Purchaser or any of its Subsidiaries.
(g) Neither Purchaser nor any of its Subsidiaries has been, in the last two (2) years, a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(h) At any time during the Applicable Purchaser Period, neither Purchaser nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
(i) Purchaser is not a “United States real property holding corporation” within the meaning of Section 897(e)(2) of the Code and the Treasury Regulations thereunder, and does not expect to become a “United States real property holding corporation” in the foreseeable future.
(j) At any time during the Applicable Purchaser Period, neither Purchaser nor any of its Subsidiaries was, or will be, a member of any Tax group with a corporation filing Tax Returns on a combined, consolidated, unitary or similar basis (except with respect to a Tax group which Purchaser is a common parent), and neither Purchaser nor any of its Subsidiaries has any Liability for Taxes of any other Person (other than Purchaser and its Subsidiaries) as a transferee or successor, or by Contract (other than commercial agreements that do not primarily relate to Taxes).
Section 8.14 Investment Company. As of the date hereof, neither Purchaser nor any of its Subsidiaries is an “investment company” as such term is defined in the U.S. Investment Company Act of 1940.
Section 8.15 Properties. Except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect, Purchaser and its Subsidiaries have in all material respects good title to, or valid leasehold interests in, all property and assets reflected on the Purchaser Balance Sheet, or acquired or leased after the Purchaser Balance Sheet Date, except as have been disposed of since the Purchaser Balance Sheet Date in the ordinary course of business consistent with past practice.
Section 8.16 Form S-3. As of the date of this Agreement, Purchaser satisfies the eligibility requirements for, and complies with the conditions for, the use of Form S-3 under the Securities Act and other securities Laws.
Section 8.17 Finder’s Fees; Brokerage. Except as set forth in Section 8.17 of Purchaser’s Disclosure Letter, neither Purchaser nor any of its Affiliates has employed or has any understanding with any broker, finder or investment bank, has incurred or will incur any obligation or Liability for any brokerage fees, commissions or finders fees, or has provided, promised or will provide or promise any payment or other incentive to any Person, in each case in connection with any of the Transaction Documents or the transactions contemplated thereby.
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Section 8.18 Intellectual Property. Except as set forth in Section 8.18 of Purchaser’s Disclosure Letter and except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect: (i) Purchaser and each of its Subsidiaries is the sole and exclusive owner of, or has a valid and legally enforceable license to use, all Intellectual Property used or held for use in, or necessary for, the conduct of its business as currently conducted; (ii) to the Knowledge of Purchaser, neither Purchaser nor any of its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property rights of any Person; and (iii) to the Knowledge of Purchaser, no Person has challenged, infringed, misappropriated or otherwise violated any Intellectual Property rights owned by and/or exclusively licensed to Purchaser or any of its Subsidiaries.
Section 8.19 Employee Benefits Plans. Except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect, the Purchaser Plans and the Purchaser Equity Awards are as disclosed in the Purchaser Reports.
Section 8.20 Labor Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect, Purchaser and its Subsidiaries are in compliance with all applicable Laws relating to labor and employment, including those relating to labor management relations, wages, hours, overtime, worker classification, discrimination, sexual harassment, civil rights, affirmative action, work authorization, immigration, safety and health, information privacy and security, worker’s compensation, continuation coverage under group health plans, wage payment and the payment and withholding of Taxes.
Section 8.21 Environmental Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect, Purchaser and its Subsidiaries are in compliance with all Environmental Laws.
Section 8.22 Material Contracts. As of the date of this Agreement, neither Purchaser nor any of its Subsidiaries is a party to or bound by any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) except as disclosed in the Purchaser Reports.
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Section 8.23 Sale of Securities. Assuming the accuracy of the representations and warranties set forth in Section 5.5, the offer, sale and issuance of the Rumble Share Consideration pursuant to this Agreement is exempt from the registration and prospectus delivery requirements of the Securities Act. Without limiting the foregoing, neither Purchaser nor, to the knowledge of Purchaser, any other Person authorized by Purchaser to act on its behalf, has engaged in a general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) of investors with respect to offers or sales of the Rumble Share Consideration pursuant to this Agreement, and neither Purchaser nor, to the knowledge of Purchaser, any Person acting on its behalf has made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the offering or issuance of the Rumble Share Consideration under this Agreement to be integrated with prior offerings by Purchaser for purposes of the Securities Act that would result in none of Regulation D or any other applicable exemption from registration under the Securities Act to be available, nor will the Purchaser take any action or steps that would cause the offering or issuance of the Rumble Share Consideration under this Agreement to be integrated with other offerings by Purchaser.
Section 8.24 Antitakeover Statutes and Rights Agreement. Purchaser has no “rights plan,” “rights agreement,” or “poison pill” in effect. Purchaser has taken all action necessary to exempt the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement, the issuance of the Rumble Share Consideration and any other transaction contemplated by this Agreement or any other Transaction Document from Section 203 of the DGCL, and, accordingly, neither Section 203 of the DGCL nor any other “control share acquisition,” “fair price,” “moratorium” or other antitakeover or similar applicable Law enacted under U.S. state or federal laws apply to this Agreement or any other Transaction Document or any of the transactions contemplated hereby or thereby.
Section 8.25 Written Consent. Purchaser has delivered to Parent a true and correct copy of the Written Consent.
Section 8.26 No Other Representations or Warranties.
(a) Except for the representations and warranties contained in Section 8.1 through Section 8.25 (as qualified by the applicable items disclosed in Purchaser’s Disclosure Letter), none of Purchaser or any of its Affiliates or Representatives or any other Person makes any express or implied representation or warranty on behalf of Purchaser or any of its Affiliates, and Purchaser hereby disclaims any other representations or warranties, with respect to the subject matter of this Agreement. Furthermore, without limiting the foregoing sentence, except for the representations and warranties contained in Section 8.1 through Section 8.25 (as qualified by the applicable items disclosed in Purchaser’s Disclosure Letter), any of the other Transaction Documents, and any certificate delivered hereto or thereto, Purchaser does not give or make any warranty or representation as to (and shall have no indemnification obligation or, in the absence of deceit (arglistige Täuschung) or willful misconduct (Vorsatz), other liabilities in respect of) the accuracy or reasonableness of any forecasts, estimates, projections, statements of intent or statements of opinion provided to Seller, any of its Affiliates, or any of their respective Representatives on or prior to the date of this Agreement in connection with this Agreement, including in any “Confidential Information Presentation” relating to Purchaser, any management presentations, and any other information made available in the Virtual Data Room.
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(b) Seller acknowledges and agrees that, except for the representations and warranties contained in Section 8.1 through Section 8.25 (as qualified by Purchaser’s Disclosure Letter), neither Purchaser nor any of its Affiliates is making any representation or warranty regarding any documents, projections, forecasts, statement or other information made, communicated or furnished (orally, in writing, in the Virtual Data Room, in management presentations (including any questions posed and answers given and any related discussions, whether formal or informal) or otherwise) to Seller, any of its Affiliates, or any of Seller’s Representatives (including any opinion, information, projection or advice that may have been or may be provided to such Person by any Representatives of Purchaser or any of its Affiliates), in connection with this Agreement.
Article
IX.
COVENANTS
Section 9.1 Conduct of Business.
(a) Except as consented to in writing by Purchaser in advance, between the date hereof and the earlier of the Closing or the termination of this Agreement in accordance with its terms, Seller shall not, and shall cause any of its Affiliates not to, directly or indirectly vote (or execute any written consent with respect to) any Equity Interests of Parent beneficially owned by Seller or their respective Affiliates in favor of, or otherwise consent to, any matter presented for approval at any annual general meeting or extraordinary general meeting of Parent (or any action by written consent of the shareholders in lieu thereof), including, without limitation, any resolution to (i) declare or pay any dividend or make any other distribution with respect to any Equity Interests of Parent, (ii) amend, modify or restate any of Parent’s Constituent Documents (including any capital increase or reduction of share capital), (iii) approve any split or consolidation of Equity Interests of Parent, a consolidation of any Equity Interests of Parent, or any alteration of the rights pertaining to Parent’s Equity Interests, including the acceleration of vesting or exercisability of any Option, or (iv) approve any matter that would result in a breach by Parent of its obligations under the Business Combination Agreement. Until Closing, Seller and its Affiliates shall not take action to cause Parent to breach or fail to perform or comply with any covenant, agreement or obligation of Parent under the Business Combination Agreement. Nothing contained in this Agreement is intended to, or shall be deemed to, give Purchaser, directly or indirectly, any rights to control or direct the business of Parent or any other member of Parent Group.
(b) Between the date hereof and the earlier of the Closing or the termination of this Agreement in accordance with its terms, Seller shall not Transfer (or cause or permit the Transfer of) any Shares, including, once acquired, any Top-Up Shares and Additional Top-Up Shares, other than with the prior written consent of Purchaser. If any involuntary Transfer of any such Shares shall occur prior to the Closing, Seller shall procure that any transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until the Closing.
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(c) Between the date hereof and the earlier of the Closing and the termination of this Agreement in accordance with its terms, Purchaser shall, and shall cause each of its Subsidiaries to, conduct its business in the ordinary course consistent with past practice. Without limiting the generality of the foregoing, Purchaser shall, and shall cause each of its Subsidiaries to, use its commercially reasonable efforts to (i) preserve intact its present business organization, (ii) maintain in effect its Permits, (iii) keep available the services of its directors, officers, key employees and key consultants, and (iv) maintain satisfactory relationships with its customers, lenders, suppliers and others having significant business relationships with it, in each case, only if such change would reasonably be expected to have a material and adverse effect on Purchaser. Without limiting the generality of the foregoing, except (x) as expressly required by this Agreement or as contemplated by the Written Consent, (y) as set forth in the corresponding subsection of Section 9.1(c) of Purchaser’s Disclosure Letter or (z) as consented to in writing by Seller in advance (such consent not to be unreasonably withheld, conditioned or delayed), Purchaser shall and shall cause its Subsidiaries to, between the date hereof and the earlier of the Closing and the termination of this Agreement in accordance with its terms, not:
(i) amend in any material respect, or waive any material rights under, any provision of the Constituent Documents of Purchaser or any of its Subsidiaries or any term of the Equity Interests of Purchaser, in each case in any manner that would (A) adversely impact Seller disproportionally as compared to the impact on other holders of Purchaser Common Shares or (B) prevent or materially impair Purchaser’s ability to perform its obligations under the Transaction Documents or consummate the transactions contemplated by the Transaction Documents;
(ii) issue, or grant an option, warrant or right of any kind to subscribe for, any Equity Interests of Purchaser’s or any of its Subsidiaries’ Equity Interests of any class or any debt or equity securities which are convertible into or exchangeable for, or valued by reference to, such Equity Interests, except for (A) upon the exercise, conversion or vesting of Purchaser Equity Awards, Purchaser Warrants or any other equity awards of Purchaser, (B) upon the exchange of any ExchangeCo Shares, (C) upon the satisfaction of any contingency with respect to any securities described in Section 8.2(c) that are subject to earn-out, forfeiture or other similar contingencies tied to Purchaser’s stock price, (D) pursuant to the Purchaser Equity Plans (or any successor equity plans), and (E) up to 20.0% of the issued and outstanding Purchaser Common Shares as of the date hereof in connection with bona fide acquisitions, mergers or strategic partnership transactions to the extent such acquisitions, mergers or strategic partnership transactions are otherwise permitted hereunder; provided that, in each case of clause (E), Purchaser shall have provided to Seller written notice of such proposed transaction with a reasonable description thereof at least two Business Days prior to the consummation of such transaction;
(iii) split, combine, reclassify or subdivide any outstanding Purchaser Common Shares, in each case to the extent the Rumble Share Consideration is not equitably adjusted to provide Parent the same economic effect as contemplated by this Agreement prior to such event pursuant to Section 2.4;
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(iv) redeem, purchase or otherwise acquire any outstanding Purchaser Common Shares, except in connection with cashless exercises, net exercises or net cash settlement of or withholding under Purchaser Equity Awards, the Purchaser Warrants and any other equity awards of Purchaser in accordance with their terms or the exchange of any ExchangeCo Shares in accordance with their terms;
(v) commence any proceeding or file any petition in any court relating to bankruptcy, reorganization, insolvency, dissolution, liquidation or relief from debtors, in any case, in respect of Purchaser, make any assignment for the benefit of creditors or apply for the appointment of a custodian, receiver or trustee; or
(vi) affirmatively authorize, agree or commit to do any of the actions prohibited by this Section 9.1.
(d) Subject to the terms and conditions of this Agreement, Purchaser and Seller shall use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to (i) prepare and file as promptly as practicable with any Government Authority all documentation to effect all necessary Filings and (ii) obtain and maintain all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Government Authority that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement; provided that the parties hereto understand and agree that neither Seller nor Purchaser shall be required to (A) divest or otherwise hold separate (including by establishing a trust or otherwise), or take, cause to be taken or refrain from taking any other action (or otherwise agreeing to do any of the foregoing) with respect to, any of Seller’s or Purchaser’s or any of their respective Affiliates’ businesses, assets or properties, (B) enter into any settlement, undertaking, consent decree, stipulation or agreement with any Government Authority in connection with the transactions contemplated hereby, (C) litigate, challenge or take any action with respect to any Action by any Government Authority or (D) agree to do any of the foregoing.
(e) In furtherance and not in limitation of the foregoing, each of Seller and Purchaser shall make a Notification and Report Form pursuant to the HSR Act to the extent required by the HSR Act and any other appropriate Filings with the Government Authorities overseeing Antitrust Law approvals as set forth on Schedule 3.1(d) with respect to the transactions contemplated hereby as promptly as practicable (and in any event within five Business Days) after the date hereof and use their reasonable best efforts (i) to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act or such Antitrust Law and (ii) to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or such Antitrust Law, or the receipt of any requisite clearances and approvals under such Antitrust Law, as soon as practicable.
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(f) To the extent permitted by applicable Law, each of Seller and Purchaser shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any Filing and in connection with any investigation or other inquiry, including any Action initiated by a private party, (ii) promptly inform the other party of any Filing or communication received from, or intended to be given to, any Government Authority and of any material communication received or intended to be given in connection with any Action by a private party, in each case regarding any of the transactions contemplated hereby, and prior to submitting any Filing, substantive written communication, correspondence or other information or response by such party to any Government Authority (or members of the staff of any Government Authority) or in connection with any Action by a private party, the submitting party shall permit the other party and its counsel the opportunity to review as reasonably in advance as practicable under the circumstances, and consider in good faith the comments of the other party in connection with any such Filing, communication or inquiry, and not submit such Filing (or the withdrawal of such Filing) or material communications without the prior written approval of or on behalf of the Seller, such approval not to be unreasonably withheld or delayed; and further each of Purchaser and Seller shall furnish each other as promptly as practicable with a copy of any Filing, communication or, if in written form, inquiry, it or any of its Affiliates makes to or receives from any Government Authority or in connection with any proceeding by private party, in each case regarding any of the transactions contemplated hereby, and (iii) consult with each other in advance of any meeting or conference with any such Government Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent reasonably practicable, give the other party the opportunity to attend and participate in such meetings and conferences (including video calls) and other material discussions.
Section 9.2 Notice of Certain Events. Each of Purchaser and Seller shall promptly notify the other of:
(a) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement or any other Transaction Document;
(b) any notice or other communication received by Purchaser or any of its Affiliates or Seller or any of its Affiliates from any Government Authority in connection with the transactions contemplated by this Agreement or any other Transaction Document;
(c) any Actions commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting Purchaser or any of its Subsidiaries or Seller and any of its Subsidiaries, as the case may be, (i) that, if pending on the date of this Agreement, would have been required to have been disclosed by such Person pursuant to any Section of this Agreement or (ii) that relate to this Agreement or the consummation of the transactions contemplated hereby;
(d) any inaccuracy of any representation or warranty of such Party contained in this Agreement at any time during the term hereof that could reasonably be expected to cause any conditions to the Closing not to be satisfied; and
(e) any failure of a Party to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it hereunder;
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provided that the delivery of any notice pursuant to this Section 9.2 shall not limit or otherwise affect the remedies available hereunder to the Party receiving such notice.
Section 9.3 Peak Mining Sale. Seller shall not cause any Person that is a party to the Peak Mining Purchase Agreement to amend, modify or waive any provision or term of the Peak Mining Purchase Agreement in any manner that is adverse to Purchaser as compared to the terms set forth in the Peak Mining Purchase Agreement.
Section 9.4 Lock-Up.
(a) Subject to Section 9.4(b), Seller hereby agrees that it shall not, without the prior written consent of Purchaser, Transfer any Purchaser Common Shares comprising the Rumble Share Consideration (including any pre-funded warrants issued in lieu thereof) (collectively, the “Lock-Up Shares”) until six months following the Closing Date (the “Lock-Up Period”).
(b) Notwithstanding any other provision of this Agreement, Seller may Transfer the Purchaser Common Shares during the Lock-Up Period (i) to any Affiliate of Seller or (ii) in connection with a third-party tender or exchange offer to acquire any securities of Purchaser or in any other business combination, acquisition, merger, joint venture, recapitalization, restructuring or similar transaction involving Purchaser, in each case, approved by Purchaser’s board of directors; provided, however, that in the case of clause (i), such Affiliate must enter into a written agreement with Purchaser and Seller agreeing (x) to be bound by this Section 9.4 and (y) that at any time such transferee ceases to qualify as an Affiliate of Seller, to promptly transfer any such Lock-Up Shares back to Seller or other Person that qualifies as an Affiliate of Seller.
(c) If any Transfer of Lock-Up Shares is made or attempted contrary to the provisions of this Agreement, such purported Transfer shall be null and void ab initio, and Purchaser may refuse to recognize any such purported transferee of the Lock-Up Shares. In order to enforce this Section 9.4, Purchaser may impose stop-transfer instructions with respect to the Lock-Up Shares until the end of the Lock-Up Period.
Section 9.5 Top-Up Shares. Prior to the Closing, and for up to one year after Closing, to the extent the Secured Shares represent in the aggregate less than the Target Shareholding, then upon written request by Purchaser to Seller at any time, Seller shall, to the extent permitted by applicable Law, offer to purchase (either by placing corresponding offers in Xetra-trading or agreeing on bilateral purchases with other shareholders of Parent to be identified by either Party and the Parent Group) such number of Shares as is required to allow Purchaser to reach the Target Shareholding; provided, however, that Seller shall in no case be required (i) to purchase Shares at a price higher than the Reference Price or (ii) to spend more than EUR 218,709,705.00 for purchases of Shares after the date hereof. The Shares acquired by Seller pursuant to this Section 9.5 shall be referred to as “Top-Up Shares”. The Shares acquired by Seller pursuant to this Section 9.5 after the Closing shall be referred to as the “Additional Top-Up Shares” and shall be sold to Purchaser in exchange for a number of Purchaser Common Shares at the Offer Ratio per Share at the end of each calendar month. Seller shall (i) not Transfer any Top-Up Shares or Additional Top-Up Shares other than pursuant to the terms of this Agreement and (ii) provide Purchaser with updates on any purchases of Top-Up Shares or Additional Top-Up Shares, including the funds spent thereon, by the end of every two weeks.
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Section 9.6 No Solicitation; Other Offers. From the date hereof until the earlier of the Closing and the termination of this Agreement in accordance with its terms, Seller shall not and shall cause its Affiliates not to, nor shall Seller authorize or permit any of its or their respective Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly assist, facilitate or encourage the submission of any Acquisition Proposal; (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to Parent or any Transferred Subsidiaries or request Parent to provide access to the business, properties, assets, books or records of Parent or any Transferred Subsidiaries, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, is seeking to make or would be reasonably expected to make an Acquisition Proposal; (iii) recommend an Acquisition Proposal other than the transactions contemplated by this Agreement, the CEO Purchase Agreement, the Apeiron Purchase Agreement or the Business Combination Agreement; or (iv) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal. The Parties acknowledge and agree that this Section 9.6 shall not apply to the sale of the Peak Mining Business in accordance with the terms of the Peak Mining Purchase Agreement. It is agreed that any violation of the restrictions on Seller set forth in this Section 9.6 by any Representative of Seller acting on behalf of or at the direction of Seller or any of its Affiliates shall be a breach of this Section 9.6 by Seller.
Section 9.7 Confidentiality. Each Party acknowledges that the information being provided to it and its Representatives in connection with the transactions contemplated by the Transaction Documents is subject to the terms of the Confidentiality Agreement, which shall remain in full force and effect on and after the date hereof; provided that actions taken by either Party to the extent necessary in order to comply with their respective obligations under Section 9.1 shall not be deemed to be in violation of this Section 9.7 or the Confidentiality Agreement. The confidentiality and information non-use obligations under the Confidentiality Agreement shall automatically be deemed terminated and cease to have any force or effect as of the Closing.
Section 9.8 Announcements. Promptly following the execution and delivery hereof (and in any event within four (4) Business Days thereafter), Purchaser shall prepare and file a Current Report on Form 8-K pursuant to the Exchange Act to report the execution of this Agreement (the “Signing Form 8-K”) and the parties hereto shall issue a mutually agreeable press release announcing the execution of this Agreement and the other Transaction Documents. Purchaser shall provide Seller with a reasonable opportunity to review and comment on the Signing Form 8-K prior to its filing and shall consider such comments in good faith. Following such initial press release, neither Seller nor Purchaser shall, and they shall cause their respective Affiliates not to, issue any press release or make any public announcement relating to the existence or subject matter of this Agreement or any agreement entered into pursuant to this Agreement, or the provisions hereof or thereof or the transactions contemplated hereby or thereby, without the prior review and written approval of the other Party (which approval shall not be unreasonably withheld, conditioned or delayed); provided, however, that the foregoing shall not prohibit such disclosure if required by Law, any Government Authority or any recognized stock exchange on which the Equity Interests of either Seller or Purchaser or any of their respective Affiliates are listed (in which case the applicable Party will use its commercially reasonable efforts to consult with the other Party before making the disclosure and to allow such other Party to review the text of the disclosure before it is made, to the extent practicable); provided, further, that the foregoing shall not prohibit such disclosure if made following the Closing and consistent in tone and substance in all material respects with any press release previously issued or public announcement previously made in accordance with the terms hereof; provided, further, that the Parties may disclose such matters to their respective employees, accountants, advisors, investors and other Representatives who have a need to know and as necessary in connection with the ordinary conduct of their respective businesses (so long as such Persons agree to, or are bound by Contract or professional or fiduciary obligations to, keep the terms of this Agreement confidential and so long as the Parties shall be responsible to the other Parties for breach of this Section 9.8 or such confidentiality obligations by the recipients of its disclosure).
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Section 9.9 Shareholder Loan Agreement. From the date hereof until the earlier of the Closing and the termination of this Agreement in accordance with its terms, Seller agrees and undertakes that it shall not, and shall not cause any of its Affiliates to, take any action, send any notice or take any steps to enforce against Parent or any of its Affiliates in relation to any actual, alleged or anticipated breach (including, without limitation, any failure to comply with financial covenants) of, or in relation to, the Shareholder Loan Agreement. Seller agrees that this undertaking shall remain in full force and effect (and that it shall continue to forbear and refrain from exercising any rights it may have in relation to any actual or anticipated breach of the Shareholder Loan Agreement) for the entire duration of this Agreement. For the avoidance of doubt, such suspension of enforcement shall not affect the amounts outstanding under the Shareholder Loan Agreement, the accrual of interest thereunder or Seller’s right to enforce such Shareholder Loan Agreement after termination of this Agreement.
Section 9.10 Tender Offer.
(a) Purchaser agrees and undertakes that it shall duly perform and comply with the covenants and agreements of Purchaser set forth in the Business Combination Agreement. Purchaser shall (i) maintain in effect the Business Combination Agreement and (ii) comply with and enforce, as applicable, its covenants, agreements, rights and obligations set forth in the Business Combination Agreement (including, for the avoidance of doubt, its right to enforce any covenants, agreements or other obligations of Parent). Purchaser shall not (A) assign or delegate any of its rights or obligations under the Business Combination Agreement, (B) amend, amend and restate, restate, supplement or otherwise modify any of the terms or conditions of the Business Combination Agreement, (C) waive any of the covenants, agreements, obligations, representations or warranties of Parent or (D) agree to terminate the Business Combination Agreement, in each case, without the prior written consent of Seller.
(b) Purchaser shall promptly notify Seller in writing if it has knowledge that Parent has breached any of the covenants, agreements, rights and obligations set forth in the Business Combination Agreement.
(c) Subject to the terms and conditions set forth in this Agreement and the Business Combination Agreement and to the satisfaction or waiver of the conditions of the Tender Offer contained in the Business Combination Agreement, Purchaser shall (i) accept for payment, as promptly as practicable (and in any event within one Business Day) after the expiration of the Acceptance Period and the Additional Acceptance Period, as applicable, all Shares validly tendered pursuant to the Tender Offer, and (ii) promptly thereafter deliver Purchaser Common Shares pay for such Shares.
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(d) Purchaser shall be free to acquire Shares outside of the Tender Offer, in accordance with applicable Law, including for a purchase price per Share higher than the Offer Ratio; provided, that (i) Purchaser promptly notifies Seller prior to any such transaction and (ii) if the aggregate number of Shares purchased outside the Tender Offer in accordance with the foregoing exceeds 100,000 Shares (any such excess purchase being “Excess Additional Shares”), Purchaser shall, increase the Rumble Share Consideration so that the aggregate consideration received by Seller for the Sold Shares sold hereunder shall be no less than the greater of (x) the Offer Ratio per Share and (y) the average consideration per Share paid by Purchaser to any third party for any Excess Additional Shares.
(e) Notwithstanding anything to the contrary herein, Purchaser and Seller shall use reasonable, good faith efforts to structure the transactions contemplated hereunder in a mutually acceptable tax efficient manner, including with respect to income Tax and withholding Tax consequences of the transactions to Seller and Purchaser, and support mutually acceptable tax positions, provided such positions are reasonable.
Section 9.11 Cooperation.
(a) Seller shall cooperate and shall, to the extent legally permitted, use its influence as a shareholder of Parent, including by exercising its voting rights, to ensure that Parent cooperates, with Purchaser on any publications required in connection with the transactions contemplated by this Agreement and the other Transaction Documents to which Seller is a party.
(b) Purchaser shall (i) provide Seller and its Representatives, as soon as reasonably practicable, with drafts of any intended disclosures or publications, including registration statements, offer documents, or security prospectuses for their review and approval, which such approval shall not be unreasonably withheld, conditioned or delayed, (ii) keep Seller reasonably informed regarding (including by providing any comments or other communications received from and to be provided to any regulatory authorities or other parties involved therein), and shall provide relevant drafts sufficiently in advance for Seller and its advisors to review and comment with respect to: (A) preparing, filing and bringing effective a registration statement/prospectus on Form S-4 registering the sale of the Purchaser Common Shares issued as consideration in the Tender Offer and including an information statement relating to the execution of the Written Consent, (B) preparing, filing with and obtaining approval from the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin) for an offer prospectus (including any supplements thereof), (C) ensuring the Purchaser Common Shares issued as consideration are admitted to trading on NASDAQ as soon as reasonably practicable, (D) preparing any other disclosure legally required in connection with the issuance of the Purchaser Common Shares and the Tender Offer, including any security prospectus and (E) the squeeze-out of the minority shareholders of Parent.
(c) Purchaser shall use reasonable efforts to comply with all applicable provisions of, and rules under, the Securities Act and Exchange Act, the certificate of incorporation, bylaws or other similar organizational documents of Purchaser and all applicable Laws of the State of Delaware and Germany, European Laws and regulations and NASDAQ regulations in the preparation, filing and distribution of the publications set forth in Section 9.11(b), as applicable.
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Section 9.12 Other Purchase Agreements.
(a) Purchaser shall (i) maintain in effect each of the CEO Purchase Agreement and the Apeiron Purchase Agreement and (ii) comply with and enforce, as applicable, its covenants, agreements, rights and obligations set forth in the CEO Purchase Agreement and the Apeiron Purchase Agreement (including, for the avoidance of doubt, its right to enforce any covenants, agreements or other obligations of any counterparty thereto).
(b) Purchaser shall not (i) assign or delegate any of its rights or obligations under the CEO Purchase Agreement or the Apeiron Purchase Agreement, (ii) amend, amend and restate, restate, supplement or otherwise modify any of the terms or conditions of the CEO Purchase Agreement or the Apeiron Purchase Agreement, (iii) waive any of the covenants, agreements, obligations, representations or warranties of any counterparty to the CEO Purchase Agreement or the Apeiron Purchase Agreement, or (iv) agree to terminate the CEO Purchase Agreement or the Apeiron Purchase Agreement, in each case, without the prior written consent of Seller.
(c) Purchaser shall reasonably promptly notify Seller in writing if it has knowledge that any party has breached any of the covenants, agreements, rights and obligations set forth in the CEO Purchase Agreement or the Apeiron Purchase Agreement.
Section 9.13 Squeeze-Out.
(a) If following the Tender Offer, Purchaser owns 90% or more, but less than 100% of the outstanding Shares, then Seller shall, at such time(s) directed by Purchaser, fund cash to a bank account designated by Purchaser in such aggregate amount necessary to enable Purchaser to squeeze-out the minority shareholders of Parent.
(b) For each Share acquired by Purchaser pursuant to such squeeze-out (including via cancellation in the squeeze-out) using funds provided by Seller, Purchaser shall issue and deliver to Seller, promptly following the consummation of such squeeze-out, a number of Purchaser Common Shares at the Offer Ratio per Share so acquired and evidence of such issuance in DRS non-certificated book-entry form by Purchaser’s transfer agent and registered in the name of Seller, in form and substance reasonably satisfactory to Seller. All calculations of the number of Purchaser Common Shares to be issued to Seller shall be carried out to at least four decimal places, and the number of Purchaser Common Shares to be issued shall be rounded down to the nearest whole share. No fractional shares shall be issued and in lieu of any fractional shares that would otherwise be issuable, the number of shares shall be rounded downward to the nearest whole share without any cash or other consideration being paid in lieu thereof.
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(c) If following a squeeze-out one or more shareholders initiate appraisal proceedings (Spruchverfahren) with respect to the squeeze-out compensation (“Appraisal Proceedings”), Seller shall indemnify Purchaser for any amounts required to pay any increased squeeze-out compensation determined by the competent court. In connection with such Appraisal Proceedings, subject to limitations under applicable law:
(i) Purchaser shall inform Seller of the initiation of any Appraisal Proceedings, and shall allow Seller (at Seller’s sole cost and expense) to assume control of such Appraisal Proceedings, either by conducting them in the name of Purchaser or by issuing binding instructions to Purchaser, taking into account Purchaser’s legitimate interests and providing that Purchaser shall be given reasonable opportunity to actively participate in any hearing, meeting, audit or other discussion or communication and to review any relevant document relevant in connection with the Appraisal Proceedings;
(ii) Purchaser shall without undue delay (unverzüglich) provide Seller with any communications received in connection with the Appraisal Proceedings;
(iii) Purchaser shall cooperate with Seller and its advisors, and shall, subject to limitations under applicable German law, ensure that all members of the Parent Group will fully cooperate, in particular by providing without undue delay any information requested by Seller for the conduct of the Appraisal Proceedings; and
(iv) Seller shall be free to settle any Appraisal Proceedings, subject to complying with its indemnification obligation set forth above.
Section 9.14 Information Undertaking. During the Acceptance Period and the Additional Acceptance Period, Purchaser shall inform Seller of the acceptance rate of the Tender Offer (i) during the first three weeks of the Acceptance Period, on a weekly basis (each Friday), and (ii) during the remainder of the Acceptance Period and Additional Acceptance Period, on a daily basis.
Section 9.15 Stock Exchange Listing. Purchaser shall use its reasonable best efforts to cause the Rumble Share Consideration to be issued at the Closing pursuant to Article II to be listed on NASDAQ at such time of issuance, subject to official notice of issuance, but in no event later than the Closing.
Section 9.16 Takeover Statutes. Purchaser shall (a) take all actions necessary so that no “control share acquisition,” “fair price,” “moratorium” or other antitakeover or similar statute or regulation becomes applicable to the transactions contemplated or permitted by this Agreement or the other Transaction Documents and (b) if any such antitakeover or similar statute or regulation becomes applicable to the transactions contemplated or permitted by this Agreement or the other Transaction Documents, take all actions necessary so that such transactions may be consummated as promptly as practicable and otherwise to take all such other actions as are reasonably necessary to eliminate or minimize to the greatest extent possible the effects of any such statute or regulation on such transactions.
Section 9.17 Written Consent. In connection with the Written Consent, Purchaser shall take all actions necessary to comply in all material respects with Section 228 of the DGCL.
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Section 9.18 Reporting Status Until the second year anniversary of the Closing Date, for so long as Seller continues to hold Purchaser Common Shares, Purchaser shall use commercially reasonable efforts to file all reports required to be filed with the SEC pursuant to the Exchange Act (or, if Purchaser is not required to file such reports, it will, upon the reasonable request of Seller, make publicly available such necessary information for so long as is necessary to permit sales pursuant to Rule 144 under the Securities Act, as such rules may be amended from time to time), and, except as part of transaction of the type contemplated by the definition of Acquisition Proposal (replacing references to: (i) “Parent or the Transferred Subsidiaries” with “Purchaser”; (ii) “Sold Shares” with “Rumble Share Consideration”; and (iii) “20%” therein with “50%”), Purchaser shall not terminate its status as an issuer required to file reports under the Exchange Act even if the Exchange Act or the rules and regulations thereunder would no longer require registration or otherwise permit such termination.
Section 9.19 No Deregistration. Until the second anniversary of the Closing Date, for so long as Seller continues to hold Purchaser Common Shares, Purchaser shall use its reasonable best efforts to maintain the listing of the Purchaser Common Shares on NASDAQ or the New York Stock Exchange, and shall not effect any voluntary delisting of the Purchaser Common Shares from NASDAQ except, in either case, as part of a transaction of the type contemplated by the definition of Acquisition Proposal (replacing references to: (i) “Parent or the Transferred Subsidiaries” with “Purchaser”; (ii) “Sold Shares” with “Rumble Share Consideration”; and (iii) “20%” therein with “50%”).
Section 9.20 Affiliate Transfers. For so long as Seller has obligations under Article XI, in the event that Seller transfers all or any portion of the Rumble Share Consideration to any of its Affiliates, as a condition to such transfer, such Affiliate shall execute and deliver to Purchaser a joinder agreement, in the form and substance reasonably acceptable to Purchaser, pursuant to which such Affiliate shall agree to be bound by, and shall assume, on a joint and several basis with the transferor, all obligations of such transferor under Article XI (Survival; Indemnification) of this Agreement with respect to the Rumble Share Consideration so transferred.
Section 9.21 Release of Seller Protected Person. To the extent legally permissible, Purchaser (i) hereby releases and waives, and (ii) shall procure that each of its Affiliates and after Closing each member of Parent Group will release and waive, and Purchaser shall not raise, and shall procure that each of its Affiliates and after Closing the members of Parent Group will not raise, any claims against the Seller or any of its Affiliates, or any of their respective Representatives (each person against which claims shall not be raised a “Seller Protected Person”) in connection with this Agreement, their direct or indirect shareholding in Parent, or the business of Parent Group before the Closing, including:
(a) actions or omissions of a Seller Protected Person in the capacity as a direct or indirect shareholder or controlling entity of a Parent Group member, or as its director or officer, member of a corporate body, employee, advisor or representative; or
(b) any payments by a member of Parent Group on or prior to the Closing Date; or
(c) any kind of joint liability or similar co-liability of a Seller Protected Person, on the one hand, and a member of Parent Group, on the other hand,
in particular under or in connection with Sections 309 et seq. AktG or pursuant to any comparable domestic or foreign legal concepts, as the case may be, except, in each case for claims or any liability of Purchaser, its Affiliates and after Closing the members of Parent Group that (i) arise out of or in connection with any Transaction Document (provided that this exception shall not apply to any claim or liability arising from (A) a Seller Protected Person entering into a Transaction Document and (B) a Seller Protected Person performing a Transaction Documents in accordance with its terms) or other commercial contract in effect between Parent Group and any Seller Protected Person entered into in the ordinary course of business prior to Closing, provided that this exception shall not apply to any claim or liability arising from a Seller Protected Person performing such contract in accordance with its terms, or (ii) are a result of fraud (Arglist) or willful misconduct (Vorsatz).
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Section 9.22 Release of Purchaser Protected Person. To the extent legally permissible, Seller (i) hereby releases and waives, and (ii) shall procure that each of its Affiliates will release and waive, and Seller shall not raise, and shall procure that each of its Affiliates will not raise, any claims against the Purchaser or any of its Affiliates and the members of Parent Group, or any of their respective Representatives (each person against which claims shall not be raised a “Purchaser Protected Person”) in connection with Seller’s or any of its Affiliates’ direct or indirect shareholding in Parent, or the business of Parent Group before the Closing, provided that this shall not apply to any liability arising out of or in connection with any Transaction Document.
Section 9.23 Title Insurance Policy; Survey. Prior to Closing, Seller shall not prevent or seek to prevent the applicable Transferred Subsidiary from reasonably cooperating with Purchaser to obtain any Title Insurance Policy that Purchaser elects to obtain, in its sole and absolute discretion, with respect to any Real Property. Purchaser may, at its sole option and expense, obtain an American Land Title Association (ALTA) (or equivalent) survey on each parcel of Real Property and such other reports or documents customarily obtained by purchasers of real property.
Section 9.24 Amendment to Peak Mining Purchase Agreement. In the event that the Tender Offer is consummated, Seller shall (i) promptly (and in any event within three (3) Business Days) following the consummation of the Tender Offer) take all actions necessary to cause Section 9.08(a) of the Peak Mining Purchase Agreement (and any related references thereto) to be deleted in its entirety, and shall deliver to Purchaser evidence reasonably satisfactory to Purchaser of such deletion and (ii) acknowledge and agree that Seller shall not be entitled to bring any claims for breaches of representations and warranties (e.g., common law claims) under the Peak Mining Purchase Agreement, except in accordance with the indemnification provisions of the Peak Mining Purchase Agreement.
Article
X.
TAX MATTERS
Section 10.1 VAT. The Parties share the understanding that the transactions contemplated under this Agreement are not subject to and otherwise exempt from value-added tax (VAT) and therefore the transfer of the Sold Shares and the Rumble Share Consideration are exclusive of VAT. The Parties undertake not to waive any exemption from VAT with regard to any transaction contemplated under this Agreement. To the extent any transaction contemplated under this Agreement does trigger VAT contrary to the Parties’ shared view and without a Party having waived an exemption from VAT, the recipient of the respective delivery or service shall pay the amount of statutory VAT to the Party providing the respective delivery or service subject to receipt of an invoice in accordance with applicable VAT Laws.
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Section 10.2 Other Tax Matters. Any transfer, documentary, registration, stamp, excise, recording, or other similar Taxes (collectively, “Transfer Taxes”) arising from the transactions contemplated by this Agreement, if any, shall be borne by Purchaser. All Tax Returns with respect to such Transfer Taxes shall be filed by the Party required to file the Tax Return under applicable Law, and the non-filing Party shall cooperate in the filing and join in the execution of any such Tax Returns and other required documentation and Purchaser shall reimburse Seller for any such Transfer Taxes that are paid by Seller.
Article
XI.
SURVIVAL; INDEMNIFICATION
Section 11.1 Survival.
(a) The Parties, intending to modify any applicable statute of limitations, each agree that:
(i) any claims for breaches of Seller Fundamental Representations or the Purchaser Fundamental Representations shall expire 18 months after Closing;
(ii) the representations and warranties of Seller contained in Article V and Article VI (other than the Seller Fundamental Representations) and the representations or warranties of Purchaser contained in Article VIII (other than the Purchaser Fundamental Representations) shall expire at Closing and thereafter there shall be no liability on the part of, nor shall any claim be made by, any Party or its Affiliates with respect to these representations and warranties regardless of whether such liability accrued prior to, on or after the Closing, other than as expressly set forth in this Article XI or in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz); and
(iii) any covenants and agreements contained in this Agreement to be performed at or prior to Closing shall expire three (3) months following the Closing;
(iv) any covenants and agreements contained in this Agreement to be performed after the Closing shall survive the Closing until fully performed in accordance with their terms;
(v) any claims pursuant to Section 11.2(c) and Section 11.2(d) shall survive 18 months after Closing; and
(vi) any claims pursuant to Section 11.2(e) shall survive until the date that is thirty (30) days after the expiration of the applicable statute of limitations applicable to the underlying matter giving rise to such claim.
(b) No Purchaser Indemnitee nor Seller Indemnitee (as applicable, the “Indemnified Party”) shall have the right to recover any amounts pursuant to this Article XI unless on or before the last day of the relevant expiration period specified in Section 11.1(a) (the applicable “Survival Date”), the Indemnified Party notifies the respective other Party of a claim specifying the factual basis of that claim in reasonable detail (to the extent then known by such Indemnified Party).
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(c) Notwithstanding anything to the contrary set forth herein, obligations to indemnify hereunder shall not terminate with respect to any claim as to which the Indemnified Party shall have, before the applicable Survival Date, delivered notice of such claim for indemnification (without having to commence a legal proceeding) from Seller or Purchaser, respectively (as applicable, the “Indemnifying Party”) in accordance with Section 11.6 until such claim is fully and finally resolved, provided that the delivering Party shall continuously pursue its claim in good faith.
(d) Notwithstanding anything to the contrary set forth herein, the limitations set forth in this Article XI shall not apply in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz).
(e) Neither this Article XI nor anything else in this Agreement shall in any way inhibit Purchaser from recovering or otherwise obtaining any remedies, or shall otherwise limit any rights Purchaser may have against the RWI Provider or any other Person under the RWI Policy.
Section 11.2 Indemnification of Purchaser Indemnitees. From and after the Closing, Seller shall, subject to the limitations in this Article XI and Article VIII, indemnify and hold harmless the Purchaser Indemnitees from and against all Damages suffered, sustained or incurred by any of them until the expiration of the applicable Survival Date resulting from:
(a) any inaccuracy in or breach of any of the Seller Fundamental Representations made by Seller in Article V or in any certificate delivered by Seller pursuant hereto;
(b) any breach of, or failure to perform or comply with, any covenant, agreement or obligation of Seller under this Agreement;
(c) any Excluded Liability;
(d) any Action by any securityholder of Parent solely in connection with the sale of the Peak Mining Business; and
(e) any indemnification obligations of Parent pursuant to the Peak Mining Purchase Agreement, other than the indemnification of Losses that are recovered from the Escrow Amount (if any) or by setting off such Losses against the Earn-Out Amount (if any) pursuant to Section 9.08(b) of the Peak Mining Purchase Agreement.
Section 11.3 Indemnification of the Seller Indemnitees. From and after the Closing, Purchaser shall, subject to the limitations in this Article XI, indemnify, save, defend and hold harmless the Seller Indemnitees from and against all Damages suffered, sustained or incurred by any of them until the expiration of the applicable Survival Date resulting from:
(a) any inaccuracy in or breach of any Purchaser Fundamental Representation made by Purchaser in Article VIII or in any certificate delivered by Purchaser pursuant hereto; and
(b) any breach of, or failure to perform or comply with, any covenant, agreement or obligation of Purchaser under this Agreement or any other Transaction Document;
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Section 11.4 Limitation on Indemnification Obligations.
(a) The maximum aggregate amount of indemnifiable Damages that may be recovered by the Purchaser Indemnitees under Section 11.2 or any other provision of this Agreement shall be the value of the Rumble Share Consideration (based on the Purchaser Common Stock Price) actually received by Seller.
(b) The maximum aggregate amount of indemnifiable Damages that may be recovered by the Seller Indemnitees under Section 11.3 shall be the value of the Rumble Share Consideration (based on the Purchaser Common Stock Price) actually delivered to Seller.
(c) Notwithstanding anything to the contrary set forth herein, the limitations set forth in this Section 11.4 shall not apply in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz). Neither this Section 11.4 nor anything else in this Agreement shall in any way inhibit Purchaser from recovering or otherwise obtaining any remedies, or shall otherwise limit the rights that Purchaser may have against the RWI Provider or any other Person under the RWI Policy.
(d) Notwithstanding anything in this Article XI or elsewhere in this Agreement to the contrary, except in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz), Purchaser agrees that the Purchaser Indemnitees shall first use reasonable best efforts to seek recovery under the RWI Policy, if recovery is available for the applicable Damages under the RWI Policy, before seeking recovery directly from Seller under Section 11.2(a). In the event that any Damages are actually recovered by the Purchaser Indemnitees under the RWI Policy, the Purchaser Indemnitees shall not be entitled to make any claim for indemnification under this Article XI for the same Damages.
(e) Subject to Section 11.4(d), the Purchaser Indemnitees shall first use commercially reasonable efforts to seek recovery under the indemnification provisions included in the CEO Purchase Agreement, before seeking recovery from Seller under Section 11.2(a) and/or Section 11.2(c). Regarding any indemnifiable Damages not actually recovered by the Purchaser Indemnitees under the indemnification provisions included in the CEO Purchase Agreement, the Purchaser Indemnitees, to the extent that they seek recovery directly from Seller pursuant to Section 11.2(a) and/or Section 11.2(c) must also seek recovery pursuant to the indemnification provisions included in the Apeiron Purchase Agreement, and the obligations of Seller hereunder shall be pari passu with the obligations of Apeiron with regard to the indemnification of such Damages. Any recovery from Seller under Section 11.2(a) and/or Section 11.2(c) shall be satisfied (i) first, from and against the Holdback Rumble Share Consideration pursuant to the terms of Section 4.3, and (ii) thereafter, against Seller; provided, however, that Seller shall receive a credit against its obligations to indemnify Purchaser for Damages in an amount equal to (x) the Earn-Out Amount, plus (y) the difference between (a) any proceeds from a CC Purchase or CC Sale, as applicable, in each case actually received by Parent, minus (b) the amount paid by Purchaser as earnout payments under this Agreement, the Business Combination Agreement, the CEO Purchase Agreement and the Apeiron Purchase Agreement; any obligation of Seller to indemnify Purchaser for Damages hereunder shall be reduced by such amount. Nothing herein shall preclude the Purchaser Indemnitees from seeking indemnification under this Agreement to the extent necessary to obtain full recovery, it being understood that in no event shall the Purchaser Indemnitees be entitled to duplicative recovery for the same Damages.
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(f) No Party shall be entitled to be indemnified, defended, held harmless or reimbursed for, from or against any Damages pursuant to this Article XI, if such Damages are accounted for in the calculation of the Offer Ratio as previously communicated between the Parties. No Purchaser Indemnitee shall be entitled to be indemnified, defended, held harmless or reimbursed for, from or against any Damages under this Article XI to the extent with respect to the relevant claim:
(i) the matter (other than an Excluded Liability) is disclosed, accrued or reserved for in the Parent Financial Statements (including, where applicable, the notes thereto); provided, that such disclosure shall not be deemed to apply if it is contained only in a general category, except to the extent such matter is expressly and specifically disclosed; or
(ii) such claim would not have arisen (or would have been reduced) but for any act or omission of Parent Group on or before Closing carried out at the express request of Purchaser on or before Closing, or any act or omissions of Purchaser or Parent Group after Closing; or
(iii) such claim is attributable to, or the amount of such claim results from or is increased by, the passing of, or any change in any Law after the date hereof.
(g) Notwithstanding anything herein to the contrary, no Party shall be entitled to be indemnified, defended, held harmless or reimbursed for, from or against any Damages: (i) relating to any Taxes directly relating to actions outside the ordinary course of business taken by any Indemnified Party (including actions taken by Purchaser with regard to the Parent) at any time on the Closing Date after the Closing or (ii) arising as a result of any election with respect to Taxes made after the Closing.
Section 11.5 Determination of Damages. The Parties acknowledge and agree that qualifications or limitations as to materiality, “material adverse effect,” Parent Material Adverse Effect, Seller Material Adverse Effect or Purchaser Material Adverse Effect (or any similar qualifications or limitations as to materiality) in any representation or warranty set forth herein shall be ignored and disregarded both for the purpose of determining whether inaccuracy or breach of any representation or warranty has occurred and for determining the amount of applicable Damages, which shall be calculated without regard to any such qualifications or limitations contained in any such representation or warranty.
Section 11.6 Claim Procedures.
(a) Third-Party Claims. In order for an Indemnified Party to be entitled to any indemnification from the Indemnifying Party, provided for under this Article XI in respect of, arising out of, relating to or involving a claim made or threatened by any Person not a Party against such Indemnified Party (a “Third-Party Claim”), such Indemnified Party shall notify the Indemnifying Party in writing of such Third-Party Claim (setting forth in reasonable detail the facts giving rise to such Third-Party Claim (to the extent known), the amount or good faith estimated amount (to the extent reasonably estimable) of Damages in respect of, arising out of, relating to or involving such Third-Party Claim, a description of any other remedy sought in connection therewith, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto) (a “Claim Notice”) promptly after receipt by such Indemnified Party of written notice of such Third-Party Claim (and in any event not later than the date that is ten (10) Business Days preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal, or an answer or similar pleading is required to be filed in a litigation or other proceeding, with respect to such Third-Party Claim); provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent that the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure. The Indemnified Party shall keep the Indemnifying Party reasonably and promptly informed of factual and procedural developments in connection with the allegations made in the Claim Notice and, to the extent reasonable practicable, provide the Indemnifying Party the information with respect to the Claim Notice upon reasonable request of the Indemnifying Party subject to the confidentiality provisions set forth herein, as applicable.
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(b) Assumption. If a Third-Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to assume the defense thereof (unless the Indemnifying Party indicates it is not willing to defend such Third-Party Claim), if the Indemnifying Party so chooses, with counsel selected by the Indemnifying Party, which counsel must be reasonably satisfactory to the Indemnified Party, by giving written notice thereof to the Indemnified Party within 20 Business Days after the Indemnified Party provides a Claim Notice to the Indemnifying Party of such Third-Party Claim. If the Indemnifying Party assumes the defense of a Third-Party Claim in accordance with this Section 11.6(b), the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. Any such participation or assumption shall not constitute a waiver by any Party of any attorney-client privilege in connection with such Third-Party Claim. If the Indemnifying Party assumes the defense of a Third-Party Claim in accordance with this Section 11.6(b), the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel reasonably satisfactory to the Indemnifying Party, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy related to such Third-Party Claim subject to the other terms hereof. If the Indemnifying Party chooses to assume the defense of a Third-Party Claim, the Indemnified Party shall cooperate in the defense or prosecution thereof. If a Claim Notice is given to the Indemnifying Party of a Third-Party Claim in accordance with this Section 11.6(b) and the Indemnifying Party does not, within 20 Business Days after such Claim Notice is given, give notice in writing to the Indemnified Party of its election to assume the defense of such Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to assume its own defense, provided that the Indemnified Party may not settle any such Third-Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided, further, that any such consent provided by an Indemnifying Party shall not prejudice such Indemnifying Party’s ability to dispute whether an Indemnified Party is entitled to indemnification for such Third-Party Claim under this Article XI. If the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party shall use its commercially reasonable efforts to defend such Third-Party Claim vigorously and diligently to final conclusion or settlement of such Third-Party Claim; provided, however, that the Indemnifying Party shall not settle such Third-Party Claim without the consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) if such settlement would result in (i) a finding or admission of any violation of Law or the rights of any Person that would have any adverse effect on any other claims that may be made against any Person, (ii) any relief other than monetary damages paid in full by the Indemnifying Party or any of its Affiliates or (iii) no complete, final and unconditional release of the Indemnified Party in connection with such Third-Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third-Party Claim if (i) the Third-Party Claim seeks an injunction or other equitable relief or relief other than monetary damages for which the Indemnified Party would be entitled to indemnification under this Agreement, (ii) the Third-Party Claim is a criminal or administrative proceeding, or relates to such a proceeding, or the underlying facts or circumstances of which could reasonably be expected to give rise to such a proceeding, or (iii) in the case of a Purchaser Indemnitee, a Purchaser Indemnitee is seeking full recovery relating to the Third-Party Claim under the RWI Policy.
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(c) Privilege. If an Indemnifying Party chooses to assume the defense of a Third-Party Claim in accordance with the terms hereof, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), cause, or agree to, the waiver of the attorney-client privilege, attorney work-product immunity or any other privilege or protection in respect of confidential legal memoranda and other privileged materials drafted by, or otherwise reflecting the legal advice of, internal or outside counsel of an Indemnified Party (the “Subject Materials”) relating to such Third-Party Claim (consistent with applicable Law). Each Party acknowledges and agrees, on behalf of itself and its Affiliates, that (i) each shares a common legal interest in preparing for the defense of legal proceedings, or potential legal proceedings, arising out of, relating to or in respect of any actual or threatened Third-Party Claim or any related claim or counterclaim, (ii) the sharing of Subject Materials will further such common legal interest and (iii) by disclosing any Subject Materials to and/or sharing any Subject Materials with the Indemnifying Party, the Indemnified Party shall not waive the attorney-client privilege, attorney work-product immunity or any other privilege or protection; provided, however, that nothing herein shall prohibit the Indemnifying Party that does not choose to assume the defense of a Third-Party Claim from utilizing Subject Materials to defend itself against a claim by the Party seeking indemnification hereunder. The Indemnified Party shall not be required to make available to the Indemnifying Party any information that is subject to an attorney-client or other applicable legal privilege that, based on the advice of outside counsel, would be impaired by such disclosure or any confidentiality restriction under applicable Law.
(d) Other Claims. In the event an Indemnified Party has a claim against an Indemnifying Party under this Article XI that does not involve a Third-Party Claim, the Indemnified Party shall notify the Indemnifying Party in writing of such claim (setting forth in reasonable detail the facts giving rise to such claim (to the extent known), the amount or good faith estimated amount (to the extent reasonably estimable) of Damages arising out of, involving or otherwise in respect of such claim, a description of any other remedy sought in connection therewith, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto) with reasonable promptness after becoming aware of such claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent that the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure.
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(e) Claims and RWI Policy. For the avoidance of doubt, if and to the extent any of the Purchaser Indemnitees makes a claim solely under the RWI Policy and not against Seller, the procedures and other requirements of this Section 11.6 shall not apply.
Section 11.7 No Double Recovery. No Indemnified Party shall be entitled to recover from any Indemnifying Party under this Article XI, the RWI Policy or under any other Transaction Document more than once in respect of the same Damages (notwithstanding that such Damages may result from breaches of multiple provisions of this Agreement).
Section 11.8 Mitigation of Losses. Section 254 BGB shall apply to the obligations of any Indemnified Party to mitigate Damages.
Section 11.9 Tax Treatment of Indemnification Claims. Purchaser and Seller agree to report each indemnification payment made in respect of any Damages hereunder as an adjustment to the value of the Rumble Share Consideration for income Tax purposes unless otherwise required by applicable Law.
Article
XII.
TERMINATION
Section 12.1 Termination. Notwithstanding anything to the contrary herein, this Agreement may be terminated prior to the Closing:
(a) Consent. By the mutual written consent of Seller and Purchaser;
(b) Delay. By either Seller or Purchaser if the Closing has not occurred on or before the Outside Date; provided, however, that the right to terminate this Agreement under this Section 12.1(b) shall not be available to Seller or Purchaser, as applicable, if the failure to fulfill any of such Party’s obligations under this Agreement has been the primary cause of, or resulted in, the failure of the Closing to occur on or before the Outside Date;
(c) Breach. By either Seller or Purchaser in the event of a material breach of any representation, warranty, covenant or agreement contained in this Agreement on the part of the respective other Party, which breach would, individually or in the aggregate, result in, if occurring or continuing on the Closing Date, the failure of any condition to the terminating Party’s obligations set forth in Article III to be satisfied, and which cannot be or has not been cured within 30 days after the giving of written notice to the breaching Party of such breach (or by the Outside Date, if earlier); provided, however, that the right to terminate this Agreement under this Section 12.1(c) shall not be available to a would-be terminating Party if such Party is then in material breach of any of its representations, warranties, agreements and covenants hereunder;
(d) Prohibition. By either Seller or Purchaser if any final and non-appealable Government Order or other Law shall have been issued, entered, enacted, or promulgated having the effect of permanently enjoining, restraining, or otherwise prohibiting or making illegal the consummation of the transactions contemplated by this Agreement; provided, however, that the right to terminate this Agreement under this Section 12.1(d) shall not be available to Seller or Purchaser, as applicable, if the failure to fulfill any of such Party’s obligations under this Agreement has been the primary cause of, or resulted in, such Government Order or other Law;
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(e) Purchaser Shareholder Approval. By Seller if the Written Consent is not duly executed and delivered to Seller within twenty-four (24) hours of the date hereof in accordance with the terms of this Agreement.
(f) Specific Conditions. By either Seller or Purchaser if any of the conditions to publication of the offer document pursuant to Section 4.20 and 4.21 of the Business Combination Agreement has not been satisfied (the “Specific Conditions”). If the Parties cannot agree on whether a Specific Condition has not been satisfied, Purchaser hereby consents to Seller undertaking the dispute in accordance with the procedures set forth on Schedule 4.22 of the Business Combination Agreement as if Purchaser was Seller mutatis mutandis.
Section 12.2 Notice of Termination. If Seller or Purchaser desires to terminate this Agreement pursuant to Section 12.1, it shall give written notice of such termination to (in the case of termination by Seller) Purchaser or to (in the case of termination by Purchaser) Seller setting forth the basis and provision(s) of Section 12.1 being relied upon to terminate this Agreement.
Section 12.3 Effect of Termination. Upon a termination of this Agreement in accordance with Section 12.1 and Section 12.2, each Party’s further rights and obligations hereunder, other than the Surviving Provisions (which shall survive such termination and remain in full force and effect), shall terminate without any Liability of any Party to any other Party, but termination shall not affect any rights or obligations of a Party which may have accrued prior to such termination and shall not relieve any Party from Liability for any breach based on deceit (arglistige Täuschung) or willful misconduct (Vorsatz) prior to such termination.
Article
XIII.
MISCELLANEOUS
Section 13.1 Notices.
(a) Any notice, request, claim, demand or other communication in connection with this Agreement (each, a “Notice”) shall be:
(i) in writing in English; and
(ii) delivered by hand, registered mail or by courier using an internationally recognized courier company, or transmitted by email.
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(b) A Notice to any Party shall be sent to such Party at the following address, or such other Person or address as such Party may designate by delivery of Notice to each other Party in accordance herewith.
If to Seller, to:
Tether Investments, S.A. de C.V.
Final Av. La Revolucion, San Benito Edif. Centro,
Corporativo Presidente Plaza Nivel 12
San Salvador, Republica de El Salvador
Attention:
Email:
With a copy to (which shall not constitute a Notice):
McDermott Will & Schulte Rechtsanwälte Steuerberater
LLP
Oberlindau 54-56
60323 Frankfurt am Main
Germany
Attention: Dr. Felix Ganzer
Email: fganzer@mwe.com
and
McDermott Will & Schulte LLP
One Vanderbilt Avenue
New York, NY 10017-3852
Attention: Daniel Woodard
Email: dwoodard@mwe.com
If to Purchaser or, following the Closing, to:
Rumble, Inc.
444 Gulf of Mexico Dr.
Longboat Key, Florida 34228
Attention:
Email:
With a copy to (which shall not constitute a Notice):
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019-6099
Attention: Russell L. Leaf, Sean M. Ewen
Email: rleaf@willkie.com; sewen@willkie.com
(c) A Notice shall be effective upon receipt and shall be deemed to have been received:
(i) at the time of delivery, if delivered by hand, registered post or courier; or
(ii) when sent by email (with email confirmation of receipt, including automated electronic confirmation of receipt).
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Section 13.2 Assignment. Except as otherwise expressly provided in this Agreement, no Party may, without the prior written consent of the other Parties, directly or indirectly assign, grant any security interest over, hold on trust or otherwise transfer the benefit of the whole or any part of this Agreement, except that Purchaser may transfer or assign, in whole or from time to time in part, its rights under this Agreement to any of its Affiliates, but any such transfer or assignment will not relieve Purchaser of any of its obligations hereunder. Any attempted assignment in violation of this Section 13.2 shall be null and void. This Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the Parties and their successors and permitted assigns.
Section 13.3 No Third-Party Beneficiaries; No Recourse Against Non-Parties.
(a) Except as provided in Article XI and Section 13.3(b), this Agreement is for the sole benefit of the Parties and their successors and permitted assigns, and nothing herein expressed or implied shall give or be construed to give to any Person, other than the Parties and such successors and assigns, any legal or equitable rights or remedies (including third-party beneficiary rights) hereunder.
(b) (i) All claims or causes of action (whether in contract or in tort, in law or in equity) that may be based upon, arise out of or relate to this Agreement or any other Transaction Document, or the negotiation, execution or performance of this Agreement or any other Transaction Document (including any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement or any Transaction Document), may be made only against (and subject to the terms and conditions thereof) the entities that are expressly identified as parties hereto and thereto and (ii) no Person who is not a named party to this Agreement or any other Transaction Document, including any past, present or future director, officer, employee, incorporator, member, manager, partner, equityholder, Affiliate, agent, attorney or Representative of any named party to this Agreement or any other Transaction Document (“Non-Party Affiliates”), shall have any liability (whether in contract or in tort, in law or in equity, or based upon any theory that seeks to impose liability of an entity party against its owners or Affiliates) for any obligations or liabilities arising under, in connection with or related to this Agreement or any other Transaction Document or for any claim based on, in respect of, or by reason of this Agreement or any other Transaction Document or its negotiation or execution, and each party hereto waives and releases all such liabilities, claims and obligations against any such Non-Party Affiliates. Non-Party Affiliates are expressly intended as third-party beneficiaries of this provision of this Agreement.
Section 13.4 Whole Agreement; Conflict with Other Transaction Documents. This Agreement (including all Schedules and Exhibits hereto), Seller’s Disclosure Letter, Purchaser’s Disclosure Letter, the other Transaction Documents, and the other agreements and deliverables in connection herewith referred to herein constitute the whole agreement among the Parties relating to the subject matter hereof and thereof to the exclusion of any terms implied by Law which may be excluded by Contract and supersede any prior understandings, negotiations, agreements, statements, or representations among the Parties or any of their respective Affiliates of any nature, whether written or oral, to the extent they relate to the subject matter hereof and thereof.
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Section 13.5 Costs. Except as otherwise expressly provided herein and therein, each Party shall bear all costs incurred by it in connection with the preparation, negotiation, execution and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby.
Section 13.6 Governing Law; Consent to Jurisdiction; Specific Performance.
(a) This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany, without recourse to any conflicts of law provisions.
(b) All disputes arising under or in connection with this Agreement (including any dispute in connection with the breach, termination or its validity) shall be finally settled, under exclusion of any state court’s competence, by three (3) arbitrators in accordance with the Arbitration Rules of the German Institution of Arbitration e.V. (Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS)), as applicable as of the filing of the claim. Each arbitrator shall be eligible for the office of a judge in Germany and have proven expertise and professional expertise as is required for the relevant dispute at hand. The venue of the arbitration shall be Frankfurt am Main, Germany. The language of the arbitral proceedings shall be English. Documents already existing as at the date of this Agreement may also be submitted in the German language.
(c) If mandatory applicable Law requires any matter arising from or in connection with this Agreement or its consummation to be decided upon by a court of Law, the competent courts in and for Frankfurt am Main, Germany, shall have the exclusive jurisdiction.
Section 13.7 Counterparts. This Agreement, and the other Transaction Documents and the other agreements referred to herein may be executed in any number of counterparts, each of which shall be deemed to constitute an original and all of which shall together constitute one and the same instrument. This Agreement shall become binding when any number of counterparts, individually or taken together, shall bear the signatures of and be delivered by all Parties. This Agreement may be executed and delivered by facsimile or any other electronic means, including “.pdf” or “.tiff” files, DocuSign, and any facsimile or electronic signature shall constitute an original for all purposes.
Section 13.8 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid, void or unenforceable, (a) a suitable and equitable provision shall be negotiated by the Parties in good faith in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
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Section 13.9 Amendments; Waiver. Any provision of this Agreement may be amended or modified if, and only if, such amendment is in writing and signed by and on behalf of each Party. Any provision of this Agreement may be waived if, and only if, such waiver is in writing and signed by and on behalf of the Party against whom such waiver is to be enforced. No waiver of any breach of this Agreement or right or remedy under this Agreement will be implied from any delay, forbearance or failure of a Party to take action thereon. Any such waiver described in the preceding sentence may, at any time prior to the Closing, (a) extend the time for performance of any of the obligations or other acts of the other Parties hereto, (b) waive any inaccuracies in the representations and warranties of the other Parties contained in this Agreement or in any document delivered pursuant to this Agreement or (c) waive compliance by the other Parties with any term or provision of this Agreement on the part of such other Party to be performed or complied with. The waiver by any Party of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach. No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other further exercise thereof or the exercise of any other right, power or privilege.
Section 13.10 Payments. Except to the extent otherwise expressly provided in Section 2.3 and Section 4.3 and otherwise in this Agreement, all payments to be made under this Agreement shall be made in full, without any setoff or deduction for or on account of any counterclaim. Any payment to be made under this Agreement shall be effected by crediting for same-day value the account specified by the Party entitled to the payment before the due date for payment as set forth herein.
Section 13.11 No Admission. Nothing herein shall be deemed an admission by any Party or any of their respective Affiliates, in any Action or Action by or on behalf of a third party, that any Party or any of their respective Affiliates, or that such third party or any of its Affiliates, is or is not in breach or violation of, or in default in, the performance or observance of any term or provisions of any Contract.
Section 13.12 Interpretation.
(a) Unless the context otherwise specifically requires:
(i) the words “hereof,” “herein,” “hereby” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
(ii) the word “including” and words of similar import when used in this Agreement and the Transaction Documents shall mean “including without limitation,” unless otherwise specified;
(iii) all terms defined in the singular have a comparable meaning when used in the plural, and vice versa;
(iv) the terms “Dollars” and “$” mean United States Dollars;
(v) references to words of inclusion herein shall not be construed as terms of limitation, and thus references to “included” matters or items shall be regarded as non-exclusive, non-characterizing illustrations;
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(vi) references herein to either gender shall include the other gender;
(vii) references to this Agreement shall include Seller’s Disclosure Letter, Purchaser’s Disclosure Letter, the Preamble and any Recitals, Schedules and Exhibits to this Agreement;
(viii) references herein to the Preamble or to any Recital, Article, Section, Subsection, Exhibit or Schedule shall refer, respectively, to the Preamble or to a Recital, Article, Section, Subsection, Exhibit or Schedule of or to this Agreement;
(ix) references to Law shall be deemed to refer to such Law as amended through the date hereof and to any rules or regulations promulgated thereunder as amended through the date hereof, provided, however, that for purposes of representations and warranties contained in this Agreement that are made as of a specific date, references to any Law shall be deemed to refer to such Law and any rules or regulations promulgated thereunder as amended through such specific date;
(x) references to any Government Authority include any successor to such Government Authority;
(xi) references to any Person include such Person’s successors and permitted assigns;
(xii) references to any agreement or other document are to such agreement or document as amended, modified, supplemented or replaced from time to time;
(xiii) references to books, records or other information mean books, records or other information in any form including, paper, electronically stored data, magnetic media, film and microfilm;
(xiv) references to a time of day are, unless otherwise specified, references to New York City time;
(xv) references to writing shall include any mode of reproducing words in a legible and non-transitory form, including in electronic form;
(xvi) the rule known as the ejusdem generis rule shall not apply and, accordingly, general words introduced by the word “other” shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things;
(xvii) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase shall not simply mean “if”;
(xviii) the word “will” shall be construed to have the same meaning and effect as the word “shall”; and
(xix) the word “or” shall be construed as disjunctive but not exclusive.
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(b) The table of contents and headings contained in this Agreement and the other Transaction Documents are for reference purposes only and do not limit or otherwise affect any of the provisions of this Agreement.
(c) No rule of construction against the draftsperson shall be applied in connection with the interpretation or enforcement of this Agreement, as this Agreement is the product of negotiation between sophisticated parties advised by counsel. Each of the Parties has participated in the negotiation and drafting of this Agreement and the Transaction Documents and if an ambiguity or question of interpretation should arise, this Agreement and the Transaction Documents shall be construed as if drafted jointly by the parties thereto.
(d) Whenever a provision of this Agreement provides that an action is to be effected as of, on or by a certain date, and such date is not a Business Day, this Agreement shall be read so that such action is required to be effected as of, on or by (as applicable) the next succeeding Business Day.
(Signature Page Follows)
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
| Tether Investments, S.A. de C.V. | |||
| By: | /s/ Giancarlo Devasini | ||
| Name: | Giancarlo Devasini | ||
| Title: | Sole Administrator | ||
| RUMBLE INC. | |||
| By: | /s/ Chris Pavlovski | ||
| Name: | Chris Pavlovski | ||
| Title: | Chief Executive Officer | ||
[Signature Page to Tether Transaction Support Agreement]
Schedule
A
Definitions and Terms
“Acceptance Period” means the Initial Acceptance Period together with any Additional Acceptance Period.
“Action” means any civil, criminal or administrative action, suit, demand, claim, case, litigation, mediation, arbitration, opposition, objection, cancellation, inquiry, charge, subpoena, audit, examination, hearing, dispute, investigation or other proceeding (whether civil, criminal or administrative).
“Acquisition Proposal” means, other than the transactions contemplated by this Agreement, the CEO Purchase Agreement, the Apeiron Purchase Agreement or the Business Combination Agreement, any Third Party offer, proposal or inquiry relating to, or any Third Party indication of interest in, (a) any acquisition or purchase of any of the Sold Shares, (b) any acquisition, purchase or exclusive license, directly or indirectly, of 20% or more of the consolidated assets of Parent or the Transferred Subsidiaries or 20% or more of any class of equity or voting securities of Parent or the Transferred Subsidiaries, (c) any tender offer or exchange offer that, if consummated, would result in such Third Party beneficially owning 20% or more of any class of equity or voting securities of Parent or the Transferred Subsidiaries, or (d) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Parent or the Transferred Subsidiaries.
“Additional Acceptance Period” has the meaning set forth in the Business Combination Agreement.
“Additional Top-Up Shares” has the meaning set forth in Section 9.5.
“Affiliate” means, with respect to any Person, any other Person who is an affiliated enterprise (verbundenes Unternehmen) of Person within the meaning of Sections 15 et seq. AktG, provided that the Parent and its Subsidiaries shall not be considered Affiliates of Seller or any other Person that is an Affiliate of Seller for purposes of this Agreement.
“Agreement” has the meaning set forth in the Preamble.
“AktG” means the German Stock Corporation Act (Aktiengesetz).
“Anti-Money Laundering Laws” means all anti-money laundering and counter-terrorist financing Laws and financial recordkeeping, reporting and registration requirements administered or enforced by any Government Authority.
“Antitrust Law” means any antitrust Law designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization, restraint of trade or lessening of competition through acquisition or agreement.
“Apeiron” has the meaning set forth in the Recitals.
Sch A-1
“Apeiron Purchase Agreement” has the meaning set forth in the Recitals.
“Applicable Date” means January 1, 2025.
“Applicable Purchaser Period” means, with respect to Purchaser and any of its Subsidiaries, periods beginning after December 31, 2021 and continuing through the Closing Date.
“Appraisal Proceedings” has the meaning set forth in Section 9.13(c).
“Audited Financial Statements” has the meaning set forth in Section 6.3(a).
“BGB” means the German Civil Code (Bürgerliches Gesetzbuch).
“Bring-Down Certificate” has the meaning set forth in Section 4.2(a)(i).
“Business Combination Agreement” has the meaning set forth in the Recitals.
“Business Day” means any day other than a Saturday, a Sunday, on which banks located in New York, New York, United States, and Frankfurt am Main, Germany, are generally open for business.
“Business Intellectual Property” has the meaning set forth in Section 6.13(a).
“Business Software” has the meaning set forth in Section 6.13(a).
“Business Source Code” means source code of any Business Software which is incorporated in or distributed as part of any product sold, distributed or made commercially available by Parent or any of the Transferred Subsidiaries.
“Capacity” means the total (in kilowatts) of: (a) backup generators capacity, (b) uninterruptible power supply (UPS), and (c) cooling measured at the Data Centers, but excluding, in each case, any amounts required for redundancy.
“CC Purchase” has the meaning set forth in the Peak Mining Purchase Agreement.
“CC Sale” has the meaning set forth in the Peak Mining Purchase Agreement.
“CEO Purchase Agreement” has the meaning set forth in the Recitals.
“Claim Notice” has the meaning set forth in Section 11.6(a)
“Class A Common Stock” has the meaning set forth in Section 8.2(a).
“Class C Common Stock” has the meaning set forth in Section 8.2(a).
“Class D Common Stock” has the meaning set forth in Section 8.2(a).
“Clearstream” has the meaning set forth in the Recitals.
Sch A-2
“Closing” has the meaning set forth in Section 4.1.
“Closing Actions” has the meaning set forth in Section 4.2(a).
“Closing Date” means the date on which the Closing occurs.
“Closing Protocol” has the meaning set forth in Section 4.2(c).
“Code” means the U.S. Internal Revenue Code of 1986, as the same may be amended or supplemented from time to time, and any successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect.
“Commitments” has the meaning set forth in Section 6.20.
“Confidentiality Agreement” means that certain letter agreement, dated as of August 5, 2025, between Purchaser and Seller.
“Constituent Documents” means, with respect to any corporation, its charter and bylaws; with respect to any partnership, its certificate of partnership and partnership agreement; with respect to any limited liability company, its certificate of formation and limited liability company or operating agreement; and, with respect to each other Person, its comparable constitutional instruments or documents (and, in each case, such similar instruments or documents as applicable under the relevant jurisdiction).
“Contract” means any contract, agreement, undertaking, commitment, purchase order, loan, guarantee, indenture, lease or license.
“Customer Agreement” means that certain Customer Agreement, to be dated the Closing Date, between Purchaser and Seller, in the form attached hereto as Exhibit G.
“Damages” means any damages, costs, or actual out-of-pocket expenses and amounts paid in settlement (including reasonable attorneys’ fees and expenses), but excluding indirect damages, consequential damages, loss of profits (entgangener Gewinn), frustrated expenses (vergebliche Aufwendungen) within the meaning of Section 284 BGB, exemplary and punitive damages, and any damages based upon any type of multiple, except for (i) such damages that are paid to a third party in connection with a Third-Party Claim and (ii) consequential damages, loss of profits or frustrated expenses that are reasonably foreseeable.
“Data Center Lease” means any master service agreement, colocation agreement, lease, sublease, license or other Contract or Real Property Lease (including service or similar orders thereunder) in respect of the HPC Segment to which Parent or any of the Transferred Subsidiaries grants or agrees to grant a Person a leasehold estate, leasehold interest, subleasehold estate, sublease interest, license or the right to use or occupy space in, or to receive power or ancillary services related to, any high performance computing data center, together with all amendments, guarantees and modifications thereto.
“Data Centers” mean the Operational Data Centers and the Pre-Operational Data Centers.
Sch A-3
“DGCL” means the General Corporation Law of the State of Delaware.
“Disclosure Letter” means, with respect to each Party, a letter delivered by such Party to the respective other Party contemporaneously with the execution and delivery of this Agreement setting forth, among other things, items the disclosure of which is necessary or appropriate either in response to an express disclosure requirement contained in a provision hereof or as an exception to one or more representations, warranties or covenants of such Party contained in this Agreement; provided that the mere inclusion of an item in a Disclosure Letter as an exception to a representation, warranty or covenant shall not be deemed an admission by the disclosing Party that such item (or any non-disclosed item or information of comparable or greater significance) represents a material exception or fact, event or circumstance or that such item has had or is reasonably likely or expected to result in a Parent Material Adverse Effect or a Purchaser Material Adverse Effect, as applicable; provided, further, that each Disclosure Letter has been arranged as separate sections corresponding to the subsections of this Agreement, and a disclosure in any section of such Party’s Disclosure Letter shall be deemed to be a disclosure for all other sections of such Party’s Disclosure Letter in respect of which it is reasonably apparent on its face that such disclosure is applicable, whether or not repeated or cross-referenced in such other section. Notwithstanding anything to the contrary contained herein, the facts and circumstances in the documents disclosed in the Virtual Data Room are deemed to be expressly disclosed as if they were included in Seller’s Disclosure Letter, except (a) with respect to the Seller Fundamental Representations or (b) in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz); provided, that the facts and circumstances were presented in the Virtual Data Room in such a manner and detail and in a context where such information would reasonably be expected to be contained, it being further understood that disclosure shall have been made in the Virtual Data Room before 5:00 p.m., New York City time, on November 8, 2025. Notwithstanding anything to the contrary contained herein, the facts and circumstances in the documents disclosed as set forth in any Purchaser Reports (excluding, in each Purchaser Report, any disclosures contained therein under the captions “Risk Factors” or “Forward-Looking Statements” and any other disclosures contained therein that are predictive, cautionary or forward-looking in nature, in each case other than any specific factual information contained therein, which shall not be excluded) filed prior to the date of this Agreement (excluding any amendments or supplements filed after the date hereof) are deemed to be expressly disclosed as if they were included in Purchaser’s Disclosure Letter, except (a) with respect to the Purchaser Fundamental Representations or (b) in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz); provided, that the facts and circumstances were presented in the Purchaser Reports in such a manner and detail and in a context where such information would reasonably be expected to be contained, it being further understood that disclosure shall have been made in the Purchaser Reports before 5:00 p.m., New York City time, on November 8, 2025.
“Earn-Out Amount” has the meaning set forth in the Peak Mining Purchase Agreement.
“Escrow Amount” has the meaning set forth in the Peak Mining Purchase Agreement.
Sch A-4
“Employee Benefit Plan” means any “employee benefit plan” within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA, and any other material employee benefit or compensation plan, program, policy, practice, agreement, Contract, arrangement or other obligation, whether or not in writing, whether or not tax-qualified and whether or not funded, including any Multiemployer Plans, pension, retirement, savings, bonus, commission, profit-sharing, deferred compensation, incentive, performance award, phantom equity, stock or other equity or stock- or other equity-based, employment, individual consulting or contractor, change in control, retention, redundancy, severance, separation, medical, health, life insurance, disability or other welfare benefit, vacation, paid time off, material fringe benefit or other material benefit or compensation plan, program, policy, practice, agreement, contract, arrangement or other obligation, in each case, (i) which is sponsored, established or maintained by, contributed to or required to be contributed to, or with respect to which any current or potential Liability may be borne by Parent or its ERISA Affiliates or (ii) which covers one or more officers, employees or independent contractors (who are natural persons) of Parent or the Transferred Subsidiaries, other than plans established pursuant to statute and maintained by a Government Authority.
“Encumbrance” means any mortgage, deed of trust, title defect, easement, license, lien, right-of-way, levy, security interest, assignment, restriction, charge, pledge, hypothecation, preemptive right, preference, participation interest, claim, option, or right of first refusal.
“Environmental Laws” means any Law relating to: (i) pollution or the protection, restoration or remediation of the environment, including natural resources, (ii) the protection of human health and safety as it relates to any Hazardous Substance; or (iii) the manufacture, processing, registration, distribution, handling, packaging or labeling of Hazardous Substances or products containing Hazardous Substances; (iv) transport, use, presence, generation, treatment, storage, presence, landfilling or disposal, Release or threatened Release of, or exposure to, any Hazardous Substance; or (v) recordkeeping, notification, disclosure and reporting requirements respecting Hazardous Substances.
“Environmental Permit” means any Permit required under any applicable Environmental Law.
“Equity Interest” means, with respect to any Person, any share of capital stock of, or any general, limited or other partnership interest, membership interest or similar ownership or equity interest in, such Person.
“Equity Plans” means Parent’s Stock Option Program 2020, Stock Option Program 2021, Stock Option Program 2021/II, Stock Option Program 2023 and Stock Option Program 2024.
“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as the same may be amended or supplemented from time to time, and any successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect.
“ERISA Affiliate” means any Person engaged in a trade or business (whether or not incorporated) that is at any relevant time considered as a single employer with Parent or the Transferred Subsidiaries under Section 414 of the Code or Section 4001 of ERISA.
“Exchange Act” means the Securities Exchange Act of 1934.
“ExchangeCo Shares” has the meaning set forth in Section 8.2(a).
Sch A-5
“Excluded Liabilities” means any and all Liabilities relating to or arising from (i) the Peak Mining Business or the operation thereof or any assets, employees or other service providers used in connection therewith prior to closing of the Peak Mining Purchase Agreement (but, for the avoidance of doubt, excluding any payments to be made in connection with a CC Sale or CC Purchase), (ii) the business activities of the Historical Operation Entities that took place prior to the Closing, (iii) the liquidation and winding down of the Historical Operation Entities, and (iv) any Taxes incurred (A) as a result of the sale of the Peak Mining Business pursuant to the Peak Mining Purchase Agreement and (B) in respect of the Historical Operation Entities, provided that (x) any Liabilities arising in connection with any Tax restructuring or other changes to the Parent Group structure initiated after Closing and (y) any liabilities, including tax liabilities, in connection with a CC Sale or CC Purchase, shall not constitute Excluded Liabilities.
“Excess Additional Shares” has the meaning set forth in Section 9.10(e).
“Export and Sanctions Regulations” means all applicable trade embargoes or economic or financial sanctions, anti-boycott Laws, and export and import control Laws, imposed, administered, or enforced by the United States (including the U.S. International Traffic in Arms Regulations, the U.S. Export Administration Regulations, U.S. sanctions Laws and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) and the U.S. Department of State), the United Nations Security Council, the European Union, or his Majesty’s Treasury of the United Kingdom.
“FCPA” means the U.S. Foreign Corrupt Practices Act of 1977, as amended.
“Filing” means any registration, petition, statement, application, schedule, form, declaration, notice, notification, report, submission or information or other filing.
“Foreign Benefit Plan” has the meaning set forth in Section 6.9(g).
“GAAP” means U.S. generally accepted accounting principles.
“Government Authority” means any foreign or domestic, federal, state, county, city or local government or legislative, enforcement, administrative or regulatory authority, agency, department, court, tribunal, legislature, executive, official, instrumentality, commission, body, or other judicial, administrative, or arbitral entity, body, or instrumentality, in each case, with competent jurisdiction, including any supranational body and any Self-Regulatory Organization.
“Government Order” means any order, writ, judgment, injunction, approval, decree, declaration, stipulation, settlement, ruling, decision, determination, verdict or award, in each case, that is of or entered by any Government Authority.
“GPU” means all Nvidia H100 and H200 and any other material graphics processing units.
“Hazardous Substance” means (i) any constituent, substance, material, chemical or waste that is listed, defined, classified or regulated as toxic, or hazardous, explosive, corrosive, infectious, carcinogenic as a pollutant or contaminant, or terms of similar meaning, under, or for which Liability or standards of conduct are imposed by, any Environmental Laws or the presence of which requires investigation, clean up, removal, abatement, remediation or other corrective or remedial action under any Environmental Laws, and (ii) any petroleum or petroleum distillate, radon, radioactive materials or wastes, per- and polyfluoroalkyl substances, asbestos or asbestos-containing materials, lead or lead-containing materials, radioactive materials, urea formaldehyde foam insulation and polychlorinated biphenyls.
Sch A-6
“Historical Operation Entities” means (1) Bitfield N.V.; (2) Minondo Ltd.; (3) 1277963 BC, Ltd.; (4) Decentric Europe B.V.; (5) Northern Data Reserve, Inc.; (6) Northern Data PA, LLC; (7) Northern Data NY, LLC; and (8) Northern Data (CH) AG.
“Holdback Release Date” means the date that falls 18 months after the Closing Date.
“Holdback Rumble Share Consideration” means a portion of the Rumble Share Consideration that equals the quotient (rounded down) of (i) EUR 25,000,000.00 divided by (ii) the Purchaser Common Stock Price.
“HPC Segment” means the Parent’s and the Transferred Subsidiaries’ high performance computing segment for Data Centers.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
“IFRS” means the international financial reporting standards promulgated by the European Union, as amended, together with the interpretations of the International Financial Reporting Standards Interpretations Committee as adopted by the European Union and in accordance with application of commercial law provisions pursuant to Section 315e para. 1 of the German Commercial Code (Handelsgesetzbuch).
“Indemnified Party” has the meaning set forth in Section 11.1(b).
“Indemnifying Party” has the meaning set forth in Section 11.1(c).
“Information Security Program” means a commercially reasonable information security program comprised of physical, technical, and administrative measures and safeguards that is designed to protect the security, confidentiality, availability, operation, and integrity of any Personal Data Processed against Security Incidents.
“Intellectual Property” means any intellectual property rights of any kind, type or nature in any and all jurisdictions throughout the world, including any intellectual property rights in or to: (a) trademarks, service marks, trade dress and trade names, logos, registrations and applications for registration of the foregoing, and the goodwill associated therewith and symbolized thereby (“Trademarks”); (b) patents and patent applications, including divisionals, revisions, continuations, continuations-in-part, renewals, extensions, substitutes, re-issues and re-examinations; (c) trade secrets, and any other intellectual property rights in confidential information and non-public information, know-how, processes, formulae, customer, supplier and vendor lists, discoveries, improvements, blue prints, designs, ideas, specifications, drawings, methodologies, models, algorithms, systems, technology, inventions and marketing information (“Trade Secrets”); (d) published and unpublished works of authorship, whether copyrightable or not, copyrights, including copyrights in Software, website and mobile content, all other intellectual property rights in works of authorship, and all intellectual property rights in data and other compilations of information, and all registrations and applications for registration therefor; and (e) internet domain name registrations and any intellectual property rights in social media handles.
Sch A-7
“Interconnected Carriers” means, collectively, the telecommunication carriers or other, internet, cloud or utility providers that have brought their respective networks to or otherwise maintain a point of presence (“PoP”) within the meet-me-rooms of the Data Centers, or have made such networks or PoPs available to the customers at the Data Centers through the meet-me-rooms or otherwise.
“Interim Financial Statements” has the meaning set forth in Section 6.3(b).
“Initial Acceptance Period” has the meaning set forth in the Business Combination Agreement.
“International Transfer” means any cross-border transfer of Personal Data that is subject to specific provisions regarding international transfers and/or data export requirements under the Privacy Requirements. For the avoidance of doubt, a transfer within the European Economic Area is not considered an International Transfer.
“IRS” means the U.S. Internal Revenue Service.
“IT Systems” means hardware, software, firmware, middleware, equipment, electronics, computers, platforms, servers, workstations, routers, hubs, switches, endpoints, interfaces, data, databases, data communication lines, network and telecommunications equipment, websites and internet-related information technology infrastructure, wide area network and all other information technology equipment and assets.
“Knowledge” means:
(a) with respect to Seller exclusively, (i) the actual knowledge (positive Kenntnis) on the date hereof or Closing Date (as the case may be) of the sole administrator of Seller and (ii) the knowledge Seller would reasonably be expected to have obtained after reasonable due enquiry of Aroosh Thillainathan (Chief Executive Officer), John Hoffman (Chief Operating Officer), Rudolf Haas (Chief Legal Officer), Elliot Jordan (Chief Financial Officer) and Charlotte Park (Chief People Officer); and
(b) with respect to Purchaser, the actual knowledge of the individuals listed in Section 1.1(a) of Purchaser’s Disclosure Letter and the knowledge such individuals would reasonably be expected to have after reasonable due inquiry, including any information which such individuals are or should reasonably be aware of in the ordinary course of the performance of their responsibilities on behalf of Purchaser.
“Latest Balance Sheet Date” has the meaning set forth in Section 6.3(b).
“Law” means any law, statute, common law, ordinance, rule, regulation, code, Government Order, award, judgment, injunction, decree, directive, ruling, writ, declaration, approval, or other requirement, obligation, duty or rule of law enacted, adopted, issued, promulgated or enforced by a Government Authority.
Sch A-8
“Leased Real Property” has the meaning set forth in Section 6.12(c).
“Liabilities” means any debt, liability, claim, demand, expense or obligation of whatever kind or nature.
“Lock-Up Period” has the meaning set forth in Section 9.4(a).
“Lock-Up Shares” has the meaning set forth in Section 9.4(a).
“Malicious Code” means any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” “ransomware” or “worm” (as such terms are commonly understood in the software industry) or any other code designed or intended to have any of the following functions: (a) disrupting, disabling, harming, interfering with or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system or network or other device on which such code is stored or installed; or (b) damaging or destroying any data or file without the user’s consent.
“Multiemployer Plan” means each Employee Benefit Plan that is a “multiemployer plan” as defined in Section 3(37) or 4001(a)(3) of ERISA.
“NASDAQ” means the Nasdaq Stock Market.
“Non-Party Affiliates” has the meaning set forth in Section 13.3(b).
“Notice” has the meaning set forth in Section 13.1(a).
“OFAC” has the meaning set forth in the definition of Export and Sanctions Regulations.
“Offer Conditions” means the conditions to closing of the Tender Offer;
“Offer Ratio” has the meaning set forth in the Business Combination Agreement.
“Open Source Software” means Software that is distributed as “free software” or “open source software” or under similar licensing or distribution terms (including any license approved by the Open Source Initiative and listed at http://www.opensource.org/licenses). Open Source Software includes without limitation Software that is licensed under any versions of the following: the GNU General Public License, GNU Lesser General Public License, Mozilla License, Common Public License, Apache License, BSD License, Artistic License, MIT License or similar terms.
“Operational Data Centers” means the data centers (or portions thereof) owned, leased or managed by Parent or the Transferred Subsidiaries that are in operation.
“Option” means any option to purchase Shares granted under an Equity Plan or otherwise.
“ordinary course” or “ordinary course of business” means, with respect to any Person, the ordinary course of such Person’s normal day-to-day operations, consistent with such Person’s past practices.
Sch A-9
“Outside Date” means December 31, 2026, provided that such date may be extended by the mutual written consent of Seller and Purchaser.
“Owned Intellectual Property” means any Intellectual Property (i) owned or purported to be owned by Parent or the Transferred Subsidiaries, or (ii) owned or purported to be owned by Parent or its Affiliates and included in the Target Assets.
“Owned Real Property” has the meaning set forth in Section 6.12(a).
“Ownership Limitation” has the meaning set forth in Section 2.3(b).
“Parent” has the meaning set forth in the Recitals to this Agreement.
“Parent Data” means all confidential data or information, private keys, and data compilations contained in the Parent IT Systems that are, in each case, used in the conduct of Parent or any Transferred Subsidiary.
“Parent Equity Commitment Agreement” means that certain Equity Commitment Agreement, dated as of the date hereof, between Purchaser, Seller and Parent, in the form attached hereto as Exhibit K.
“Parent Financial Statements” has the meaning set forth in Section 6.3(b).
“Parent Group” means any “affiliated group” (as defined in Section 1504(a) of the Code without regard to the limitations contained in Section 1504(b) of the Code) that, at any time on or before the Closing Date, includes or has included Parent or the Transferred Subsidiaries or any direct or indirect predecessor of Parent or the Transferred Subsidiaries, or any other group of corporations filing Tax Returns on a combined, consolidated, unitary or similar basis that, at any time on or before the Closing Date, includes or has included Parent or the Transferred Subsidiaries or any direct or indirect predecessor of Parent or the Transferred Subsidiaries.
“Parent Indebtedness” shall mean, without duplication, the following of Parent or the Transferred Subsidiaries (including the principal amount, accrued and unpaid interest and fees, expenses and prepayment premiums or penalties or termination or breakage fees, change of control payments or penalties required to be paid or offered on prepayment or repayment, as applicable), but excluding the following (A) if incurred in the ordinary course of business, or (B) to the extent the following comprises intra-group liabilities solely involving Parent and the Transferred Subsidiaries: (a) obligations in respect of indebtedness for borrowed money; (b) obligations in respect of accounts payable outstanding and aged over 90 days; (c) obligations in respect of indebtedness evidenced by any note, bond, debenture or other similar instruments or debt securities (but excluding, for the avoidance of doubt, current trade payables in the ordinary course of business); (d) obligations under any off balance sheet financing; (e) obligations in respect of deferred indebtedness or other payments for the purchase price of property, assets, goods or services, including any earn out payments or contingent consideration payment obligations (but excluding, for the avoidance of doubt, current trade payables in the ordinary course of business); (f) obligations to return or repay (whether before, at or after the Closing) loans, subsidies, grants, incentives or other similar payments; (g) obligations for the Tax Liability Amount; (h) obligations in respect of banker’s acceptances, letters of credit and similar facilities (but only to the extent drawn and unpaid); (i) all payment obligations under any interest rate swap agreements, interest rate hedge agreements or any other financial hedging or swap arrangements or similar agreements to which Parent or the Transferred Subsidiaries is party (including any obligations that may arise upon the termination thereof) that are terminated prior to, or contemporaneously with, Closing; and (j) all obligations of the types referred to in clauses (a) through (i) of another Person the payment of which Parent or the Transferred Subsidiaries has guaranteed or for which Parent or the Transferred Subsidiaries is responsible or liable, directly or indirectly, jointly or severally, as obligor or guarantor.
Sch A-10
“Parent Insurance Policies” means all insurance policies or self-insurance programs in the name of or maintained by or for the benefit of Parent or the Transferred Subsidiaries.
“Parent IT Systems” means any IT Systems owned, leased by or licensed to Parent or any of the Transferred Subsidiaries, including to process Parent Data.
“Parent Material Adverse Effect” means any change, effect, development, condition, matter, event, fact, circumstance or occurrence that, individually or when considered in the aggregate with any other change, effect, development, condition, matter, event, fact, circumstance or occurrence, (i) has had or would reasonably be expected to have a material and adverse effect on Parent or any Transferred Subsidiary or, as of the Closing, the business, assets, financial condition or results of operations of Parent and the Transferred Subsidiaries, taken as a whole, or (ii) has prevented or materially impaired, or would reasonably be expected to prevent or materially impair, the ability of any of Seller, Parent, any of the Transferred Subsidiaries or any of their respective Affiliates to perform its obligations under this Agreement, and the other Transaction Documents in which such party is a party, or to consummate the transactions contemplated hereby and thereby in a timely manner; provided, that none of the following, either alone or in combination with any other changes, effects, developments, conditions, matters, events, facts, circumstances or occurrences shall constitute or cause a Parent Material Adverse Effect:
(a) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from a change in applicable accounting principles or any change in Law (including any Law in respect of Taxes), or any interpretation thereof by any Government Authority, or change in GAAP, IFRS or authoritative interpretations thereof;
(b) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from changes in global, national or regional political or social conditions (including protests, strikes, riots, public demonstrations, civil unrest, acts of terrorism or war (including cyberattacks as acts of war)) or in general global, national or regional economic, business or regulatory conditions or in national or global financial or capital markets;
(c) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from conditions generally affecting the industries or market sectors in which Parent or the Transferred Subsidiaries operate, in particular any technical changes in the way data centers are designed or operated, including any technological innovation and improvement of cooling systems, telecommunication and connectivity systems and equipment, servers, software and chips;
Sch A-11
(d) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from or arising out of hurricanes, earthquakes, floods or other natural disasters, force majeure events or any outbreak of an epidemic or pandemic or other public health event or any Law or regulatory policy, recommendation, or pronouncement issued by a Government Authority, the Centers for Disease Control and Prevention or the World Health Organization or “sheltering in place,” curfew or other restrictions, in each case that relate to, or arise out of, an epidemic or pandemic, or any change in such Law, recommendation, pronouncement or interpretation thereof;
(e) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting solely from the announcement or performance of the Transaction Documents or consummation of the transactions contemplated thereby or any third-party litigation relating to the Transaction Documents or the transactions contemplated thereby, including any loss of, or adverse change, effect, event, development, condition, matter, fact, circumstance or occurrence in or with respect to, the relationship of Parent or the Transferred Subsidiaries, contractual or otherwise, with customers, Government Authorities, employees, labor unions, labor organizations, works councils or similar organizations, suppliers, distributors, financing sources, partners or similar relationship directly caused by the entry into this Agreement and the transactions contemplated by this Agreement, or resulting or arising from the identity of, or any actions taken or failed to be taken by, Purchaser or any of its Affiliates;
(f) the failure of Parent or the Transferred Subsidiaries to meet any internal or external projections, forecasts or estimates of performance, revenues or earnings (provided that this clause (f) shall not be construed as providing that any changes, effects, developments, conditions, matters, events, facts, circumstances or occurrences underlying or giving rise to such failure do not constitute, cause or contribute to, or shall not be taken into account in determining whether there has been, a Parent Material Adverse Effect); or
(g) any action taken (or omitted to be taken) by Seller as expressly required pursuant to this Agreement; provided, further, that, in the case of each of the foregoing clauses (a) through (d), only to the extent that any such change, effect, development, condition, matter, event, fact, circumstance or occurrence has not had, and would not reasonably be expected to have, individually or in the aggregate, a disproportionate effect on Parent and the Transferred Subsidiaries, taken as a whole, relative to other companies in Parent’s and the Transferred Subsidiaries’ industry.
“Parent Party” has the meaning set forth in Section 6.15(a).
“Parent Service Provider” means any current or former managing director (Geschäftsführer) (or equivalent thereof) or employee of Parent or any of the Transferred Subsidiaries.
“Parties” means Purchaser and Seller.
“Peak Mining Business” has the meaning set forth in the Recitals.
“Peak Mining Purchase Agreement” has the meaning set forth in the Recitals.
Sch A-12
“Permits” means licenses, permits, certificates, franchises, certificates, immunities, exemptions, registrations and other authorizations and approvals that are issued by or obtained from any Government Authority.
“Permitted Encumbrances” means: (a) Encumbrances for Taxes not yet due and payable (or which may be paid without interest or penalties) that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP; (b) statutory, common law or customary contractual carriers’, warehousemen’s, mechanics’ and bank’s liens arising in the ordinary course which secure payment of obligations that are not yet delinquent; (c) in the case of Real Property, (i) zoning, building, entitlement or other land use regulations imposed by Government Authorities having jurisdiction over such Real Property that do not materially and adversely affect, impair or interfere with the current use, occupancy and operation of such Real Property or the operation of the business of the Parent thereon and are not violated by the current use, occupancy and operation of such Real Property, and (ii) easements, quasi-easements, licenses, covenants, rights-of-way, rights of re-entry or other restrictions and similar non-monetary matters of record affecting title to such Real Property, (iii) matters that would be disclosed on a current survey or by inspection of such Real Property, (iv) all matters that would be disclosed as exceptions on current title commitments obtained by Purchaser prior to the date hereof or are otherwise filed or recorded in the applicable property records, in particular in land registries or other registries of any public authorities, (v) Encumbrances on Real Property constituting a lease, sublease, license or occupancy agreement that gives any third party any right to occupy any real property or arising from the provisions of the applicable leases, subleases, licenses or occupancy agreements that are not violated in any material respect by the current use, occupancy and operation of such Real Property or the operation of the business of Parent as currently conducted thereon, (vi), statutory Encumbrances creating a security interest in favor of landlords with respect to property of Parent which do not and would not materially and adversely affect, impair or interfere with the current use, occupancy and operation of such Real Property or the operation of the business of Parent as currently conducted thereon; (vii) subdivision, site plan control, development, reciprocal, servicing, facility, facility cost sharing or similar agreements currently existing or entered into, which do not and would not materially and adversely affect, impair or interfere with the current use, occupancy and operation of such Real Property or the operation of the business of Parent as currently conducted thereon, (d) transfer restrictions arising under applicable securities Laws or restrictions arising under the Transaction Documents; (e) non-exclusive licenses of Intellectual Property entered in the ordinary course of business; (f) Encumbrances that will be discharged or released prior to or at the Closing; and (g) the Encumbrances set forth in Section 1.1(g) of Seller’s Disclosure Letter, with respect to Parent, or in Section 1.1(g) of Purchaser’s Disclosure Letter, with respect to Purchaser.
“Person” means any individual, bank, corporation, general or limited partnership, association, limited liability company, business trust, unincorporated organization or similar organization, whether domestic or foreign, or any Government Authority.
“Personal Data” means information that identifies, relates to, describes, or is reasonably capable of being linked, directly or indirectly, with an identified or identifiable person and includes all “personal data,” “personal information,” “protected health information,” “nonpublic personal information” or other similar terms as defined by applicable Laws.
Sch A-13
“Physical Network” means fibers and related infrastructure (including poles, ducts, and highway shoulders) owned or leased (whether pursuant to a lease, indefeasible right of use or otherwise) by Parent or any of the Transferred Subsidiaries.
“Pre-Funded Warrant” has the meaning set forth in Section 2.3(b).
“Pre-Operational Data Center” means the data centers (or portions thereof) owned, leased or managed by Parent or any of the Transferred Subsidiaries that are under construction or development (including the buildout of any shell space).
“Privacy Requirements” means (a) any applicable Laws, in each case, relating to the protection or Processing of Personal Data, data privacy, data security, cross-border data transfer, data breach notification, general U.S. consumer protection laws applied in the context of data privacy, electronic communication, telephone and text message communications, marketing by email or other channels, and other similar Laws applicable to Parent or the Transferred Subsidiaries; (b) binding written commitments embodied in any Specified Contract with material indemnity related to the protection or Processing of Personal Data, data privacy, data security, or cross-border data transfer applicable to the parent or the Transferred Subsidiaries; and (c) industry standards binding on Parent or the Transferred Subsidiaries, including but not limited to the Payment Card Industry Data Security Standard.
“Processing,” “Process” or “Processed” means, with respect to Personal Data or IT Systems, (a) any collection, access, acquisition, storage, protection, use, recording, maintenance, operation, dissemination, re-use, disposal, disclosure, re-disclosure, deletion, destruction, sale, transfer, modification or any other processing of such Parent Data or IT Systems, or (b) “processing,” “process,” “processed,” “control,” “controlled,” or other similar terms as defined by any Privacy Requirement.
“Purchaser” has the meaning set forth in the Preamble.
“Purchaser Balance Sheet” means the audited consolidated balance sheet of Purchaser as of December 31, 2024, and the footnotes thereto set forth in Purchaser’s annual report on Form 10-K for the fiscal year ended December 31, 2024.
“Purchaser Balance Sheet Date” means December 31, 2024.
“Purchaser Common Shares” means shares of Class A Common Stock.
“Purchaser Common Stock Price” means the volume-weighted average price per share taken to four decimal places of Purchaser Common Shares on the NASDAQ over the consecutive three day trading period prior to the Closing Date, as calculated by Bloomberg Financial LP under the function “VWAP” (or, if not available, in another authoritative source mutually selected by Purchaser and Seller).
“Purchaser Custodian Bank” means Cantor Fitzgerald Europe.
“Purchaser ESPP” means the Purchaser 2024 Employee Stock Purchase Plan.
Sch A-14
“Purchaser Equity Awards” means, collectively, Purchaser Options and Purchaser RSUs.
“Purchaser Equity Plans” means, collectively, Purchaser Options, Purchaser RSUs and all other equity-based award under any Purchaser Equity Plan.
“Purchaser Fundamental Representations” means Section 8.1(a) (Organization), Section 8.1(b) (Corporate Authorization), Section 8.1(d) (Binding Effect), Section 8.1(e) (i) (Non-Contravention), Section 8.2 (Capitalization), Section 8.9 (Securities Law Compliance), Section 8.17 (Finder’s Fees; Brokerage) and Section 8.23 (Sale of Securities).
“Purchaser Indemnitees” means, collectively, (a) Purchaser, (b) Purchaser’s Affiliates (including, following the Closing, the Transferred Subsidiaries), (c) the respective Representatives of Purchaser (including, following the Closing, the Transferred Subsidiaries) and (d) the respective successors and assigns of the Persons referred to in the foregoing clauses (a) through (c).
“Purchaser Material Adverse Effect” means any change, effect, development, condition, matter, event, fact, circumstance or occurrence that, individually or when considered in the aggregate with any other change, effect, development, condition, matter, event, fact, circumstance or occurrence, (i) has had or would reasonably be expected to have a material and adverse effect on the business, assets, financial condition or results of operations of Purchaser and its Subsidiaries, taken as a whole, or (ii) has prevented or materially impaired, or would reasonably be expected to prevent or materially impair, the ability of Purchaser or any of its Affiliates to consummate the transactions contemplated by this Agreement or any other Transaction Document to which Purchaser is a party; provided, that none of the following, either alone or in combination with any other changes, effects, developments, conditions, matters, events, facts, circumstances or occurrences shall constitute or cause a Purchaser Material Adverse Effect:
(a) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from a change in applicable accounting principles or any change in Law (including any Law in respect of Taxes), or any interpretation thereof by any Government Authority, or change in GAAP or authoritative interpretations thereof;
(b) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from changes in global, national or regional political or social conditions (including protests, strikes, riots, public demonstrations, civil unrest, acts of terrorism or war (including cyberattacks as acts of war)) or in general global, national or regional economic, business or regulatory conditions or in national or global financial or capital markets;
(c) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from conditions generally affecting the industries or market sectors in which Purchaser or its Subsidiaries operate;
(d) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from or arising out of hurricanes, earthquakes, floods or other natural disasters, force majeure events or any outbreak of an epidemic or pandemic or other public health event or any Law or regulatory policy, recommendation, or pronouncement issued by a Government Authority, the Centers for Disease Control and Prevention or the World Health Organization or “sheltering in place,” curfew or other restrictions, in each case that relate to, or arise out of, an epidemic or pandemic, or any change in such Law, recommendation, pronouncement or interpretation thereof;
Sch A-15
(e) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting solely from the announcement or performance of the Transaction Documents or consummation of the transactions contemplated thereby or any third-party litigation relating to the Transaction Documents or the transactions contemplated thereby, including any loss of, or adverse change, effect, event, development, condition, matter, fact, circumstance or occurrence in or with respect to, the relationship of Purchaser or its Subsidiaries, contractual or otherwise, with customers, Government Authority, employees, labor unions, labor organizations, works councils or similar organizations, suppliers, distributors, financing sources, partners or similar relationship directly caused by the entry into this Agreement and the transactions contemplated by this Agreement, or resulting or arising from the identity of, or any actions taken or failed to be taken by, Parent or any of its Affiliates;
(f) the failure of Purchaser or any of its Subsidiaries to meet any internal or external projections, forecasts or estimates of performance, revenues or earnings (provided that this clause (f) shall not be construed as providing that any changes, effects, developments, conditions, matters, events, facts, circumstances or occurrences underlying or giving rise to such failure do not constitute, cause or contribute to, or shall not be taken into account in determining whether there has been, a Purchaser Material Adverse Effect); or
(g) any action taken (or omitted to be taken) upon the written request or instruction of Seller consistent with the terms hereof, to consummate the transactions contemplated hereby;
(h) any action taken (or omitted to be taken) by Purchaser or any of its Subsidiaries as expressly required pursuant to this Agreement; provided, further, that, in the case of each of the foregoing clauses (a) through (d), only to the extent that any such change, effect, development, condition, matter, event, fact, circumstance or occurrence has not had, and would not reasonably be expected to have, individually or in the aggregate, a disproportionate effect on Purchaser and its Subsidiaries, taken as a whole, relative to other companies in Purchaser’s and its Subsidiaries’ industry.
“Purchaser Option” means any outstanding option to purchase Purchaser Common Shares granted under the Purchaser Equity Plans, as applicable.
“Purchaser Plan” means any benefit or compensation plan, program, policy, practice, agreement, Contract, arrangement or other obligation, as defined in Section 3(2) of ERISA (whether or not subject to ERISA and whether or not in writing and whether or not funded), in each case, which is sponsored or maintained by, contributed to, or required to be contributed to, or with respect to which any potential Liability is borne by Purchaser or any of its Affiliates for the benefit of their employees, including on account of any ERISA Affiliate of the Purchaser or any of its Affiliates.
“Purchaser Protected Person” has the meaning set forth in Section 9.22.
“Purchaser Reports” has the meaning set forth in Section 8.6(a).
Sch A-16
“Purchaser RSU” means any outstanding restricted stock unit granted under the Purchaser Equity Plans, as applicable.
“Purchaser Securities” has the meaning set forth in Section 8.2(d).
“Purchaser Warrants” means all warrants issued by Purchaser, including warrants issued pursuant to that certain Warrant Agreement, dated February 18, 2021, by and between Continental Stock Transfer & Trust Company, as warrant agent and CF Acquisition Corp. VI, predecessor to Purchaser.
“Real Property” means, collectively, the Owned Real Property and the Leased Real Property.
“Real Property Leases” has the meaning set forth in Section 6.15(a)(xiii).
“Reference Price” means the product of (x) the Offer Ratio, (y) the volume-weighted average-price per Share taken to four decimal places of Purchaser Common Shares on the NASDAQ over the three consecutive trading days immediately preceding the applicable purchase date, as calculated by Bloomberg Financial LP under the function “VWAP” (or, if not available, in another authoritative source mutually selected by Purchaser and Seller), and (z) the exchange rate as promulgated by the European Central Bank on the last trading day prior to the applicable purchase date.
“Registration Rights Agreement” means that certain Registration Rights Agreement, to be dated the Closing Date, between Purchaser and Seller, in the form attached hereto as Exhibit H.
“Registered Intellectual Property” means Intellectual Property that is issued by, registered or filed with, or the subject of a pending application before any Government Authority or internet domain name registrar.
“Related Party Contract” has the meaning set forth in Section 6.15(a)(xiv).
“Release” means any actual or threatened release, spill, emission, leaking, pumping, pouring, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Substances into or through the indoor or outdoor environment or into or out of any property, including the movement of Hazardous Substances through or in the air, soil, surface water or groundwater or property.
“Remedies Exception” means the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and other Laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at Law).
“Representatives” means, with respect to any Person, such Person’s Affiliates, directors, managers, officers, employees, accountant, legal or financial advisors, investment bankers, consultants, agents or other representatives, or anyone acting on behalf of them or such Person.
“Required HSR Act Clearance” has the meaning set forth in Section 8.4.
Sch A-17
“Rumble Equity Commitment Agreement” means that certain Equity Commitment Agreement, dated as of the date hereof, between Purchaser and Seller, in the form attached hereto as Exhibit L.
“Rumble Share Consideration” has the meaning set forth in Section 2.3.
“RWI Policy” means the purchaser-side representations and warranties insurance policy issued by the RWI Provider to Purchaser in connection with this Agreement.
“RWI Provider” means Euclid Transaction, LLC.
“Sanctioned Country” means any country or region that is the subject of comprehensive, territorial sanctions (currently Cuba, Iran, North Korea, the Crimea region of Ukraine, and the so-called Donetsk People’s Republic, so-called Luhansk People’s Republic, Kherson, and Zaporizhzhia regions of Ukraine).
“Sanctioned Person” means any (a) Person listed in any Sanctions-related list of designated persons maintained by OFAC (including the OFAC List of Specially Designated Nationals, OFAC’s Foreign Sanctions Evaders List, OFAC’s Sectoral Sanctions Identifications List), or the U.S. Department of State, the United Nations Security Council, the European Union, or the United Kingdom; (b) the government of a Sanctioned Country or the Government of Venezuela; or (c) any Person owned or controlled fifty percent (50%) or more by any Person or Persons or acting for or on behalf of such Person or Persons described in clause (a) or (b).
“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.
“SEC” means the U.S. Securities and Exchange Commission.
“Secured Shares” means: (a) any Shares held by Purchaser or any of its Affiliates; (b) any Shares validly tendered into the Tender Offer; (c) any Shares held by Seller; (d) any Shares subject to the CEO Purchase Agreement and the Apeiron Purchase Agreement; and (e) any Shares with respect to which Purchaser or any of its Affiliates have entered into a binding agreement allowing Purchaser or any of its Affiliates to acquire such Shares or request such Shares be transferred to the Purchaser or any of its Affiliates.
“Securities Act” means the Securities Act of 1933.
“Security Incident” means any unauthorized access, acquisition, use, modification, disclosure, or other Processing of Personal Data, any unauthorized access to IT Systems, or any other security incident that requires notification to any Government Authority under the Privacy Requirements.
“Self-Regulatory Organization” means (a) any “self-regulatory organization” as defined in Section 3(a)(26) of the Exchange Act, and (b) any other United States or foreign securities exchange, futures exchange, commodities exchange or contract market.
“Seller” has the meaning set forth in the Preamble.
Sch A-18
“Seller Custodian Bank” means Joh. Berenberg, Gossler & Co. KG.
“Seller Fundamental Representations” means Section 5.1(a) (Organization), Section 5.1(b) (Authorization), Section 5.1(c)(i) (Non-Contravention), Section 5.3 (Title to Sold Shares) and Section 5.5 (Securities Law Compliance).
“Seller Indemnitees” means, collectively, (a) Seller, (b) Seller’s Affiliates (not including, following the Closing, Parent or the Transferred Subsidiaries), (c) the respective Representatives of Seller (not including, following the Closing, Parent or the Transferred Subsidiaries) and (d) the respective successors and assigns of the Persons referred to in the foregoing clauses (a) through (c).
“Seller Material Adverse Effect” means a material adverse effect on a Seller’s ability to consummate the transactions contemplated by this Agreement or any of the other Transaction Documents to which it is a party.
“Seller Protected Person” has the meaning set forth in Section 9.21.
“Shares” has the meaning set forth in the Recitals.
“Shareholder Loan Agreement” means the shareholder loan agreement, dated November 2, 2023 between Parent and Seller.
“Shareholder Loan Amendment Agreement” means the amendment agreement regarding the Shareholder Loan Agreement to be entered into between Seller and Parent on the day hereof in the form attached hereto as Exhibit I.
“Signing Form 8-K” has the meaning set forth in Section 9.8.
“SLA” has the meaning in Section 6.15(b).
“SLA Credit” means any SLA credit, rebate, refund, service extension, fee waiver or other accommodation owed, issued, or granted to a customer pursuant to the terms of a service level agreement or other uptime or performance guarantee, including credits arising from failure to meet availability, performance, response time or other contractual service levels.
“Software” means computer software programs and software systems, in both source code and object code format, including databases, compilations, compilers, higher level or “proprietary” languages, data files, application programming interfaces, algorithms, tool sets, user interfaces, manuals and other specifications and documentation and all know-how related thereto, including websites, HTML code, and firmware and other software embedded in hardware devices, developed or currently being developed.
“Sold Shares” has the meaning set forth in the Recitals.
“Solvent” when used with respect to any Person, means that, as of any date of determination, (a) the amount of the fair saleable value of the assets of such Person will, as of such date, not be less than (i) the value of all Liabilities of such Person (including contingent and other Liabilities) as of such date and (ii) the amount that will be required to pay the probable Liabilities of such Person as its debts existing as of such date become absolute and mature, (b) such Person will not have, as of such date, an unreasonably small amount of capital for the operation of the businesses in which it is engaged and (c) such Person will be able to pay its Liabilities existing as of such date as they mature.
Sch A-19
“Specified Contracts” has the meaning set forth in Section 6.15(a).
“Subject Materials” has the meaning set forth in Section 11.6(c).
“Subsidiary” means any Person who is a dependent entity within the meaning of Section 17 para. 1 AktG, provided that the members of Parent Group shall not be considered Subsidiaries of Seller.
“Survival Date” has the meaning set forth in Section 11.1(b).
“Surviving Provisions” means Article I (Definitions and Terms), Section 9.7 (Confidentiality), Article XII (Termination) and Article XIII (Miscellaneous).
“Target Assets” means all assets held or to be held by Parent and the Transferred Subsidiaries as of the date hereof. For the avoidance of doubt, the Target Assets shall exclude any assets sold under the Peak Mining Purchase Agreement.
“Target Shareholding” means a number of Shares that corresponds to 90.0% of the Shares outstanding upon expiration of the Acceptance Period, excluding any treasury Shares (i.e., 57,777,010 Shares as of the date hereof).
“Tax” and “Taxes” means all governmental, state, community, municipal or regional taxes, levies, imposts, duties, charges, deductions, withholdings and social security or national insurance contributions of any kind arising in any part of the world which is collected or assessed by, or payable to, a Government Authority or other Person as a result of any enactment relating to tax and all penalties, surcharges and interest included in or relating to any such taxes, levies, imposts, duties, charges, deductions, withholdings and social security or national insurance contributions, provided, however, the definition of Tax and Taxes shall not include deferred taxes and loss, credit, or interest carryforwards.
“Tax Liability Amount” means, without duplication, an amount (which shall in no event be an amount less than zero ($0) in the aggregate, in any jurisdiction, with respect to any particular taxpayer, or with respect to any particular type of Tax) equal to any amounts that would be properly accrued as current Liabilities of Parent and the Transferred Subsidiaries for unpaid income Taxes for the then-current period for which Tax Returns have not yet been filed as of the Closing Date, in each case calculated (i) as of the end of the day on the Closing Date, (ii) by taking into account all Tax deductions and similar benefits of Parent and the Transferred Subsidiaries arising out of the transactions contemplated by the Transaction Documents which are more likely-than-not currently deductible, (iii) in accordance with the past practice of Parent and the Transferred Subsidiaries (or of Parent with respect to the businesses of Parent and the Transferred Subsidiaries), (iv) by excluding any Tax Liabilities resulting from any elections pursuant to Section 336 or 338 of the Code (or corresponding provisions of other Tax Law) or from other actions taken by Parent or its Affiliates (including, after the Closing, Parent and the Transferred Subsidiaries) after the Closing that are not expressly contemplated by this Agreement, (v) by taking into account any Tax payments (including estimated payments, overpayments and prepayments) made before the Closing and any losses, credits and other attributes that are available under applicable Law with respect to the relevant income Taxes and (vi) by excluding all deferred Tax Liabilities, all reserves for contingent Taxes or uncertain tax positions, and all deferred Tax assets. For the avoidance of doubt, the Tax Liability Amount shall in no event be less than zero.
Sch A-20
“Tax Returns” means all returns, reports or similar statement required to be filed (including elections, declarations, disclosures, schedules, estimates, amended returns and information returns) with a Government Authority relating to Taxes.
“Tender Offer” has the meaning set forth in the Recitals.
“Third Party” means any Person, including as defined in Section 13(d) of the Exchange Act, other than a Party or any of their respective Affiliates.
“Third-Party Claim” has the meaning set forth in Section 11.6(a).
“Title Insurance Policy” means an owner’s title insurance policy insuring good and valid fee simple or leasehold title (as the case may be) to the applicable Real Property.
“Top-Up Shares” has the meaning set forth in Section 9.5.
“Top Ten Customers” has the meaning set forth in Section 6.15(a)(i).
“Trade Secrets” has the meaning set forth in the definition of Intellectual Property.
“Trademarks” has the meaning set forth in the definition of Intellectual Property.
“Transaction Agreement Amendment” means an amendment to be dated the Closing Date, in the form attached hereto as Exhibit J, to that certain transaction agreement between Purchaser and Seller, dated as of December 20, 2024.
“Transaction Documents” means this Agreement, the Confidentiality Agreement, the Registration Rights Agreement, the Customer Agreement, the Transaction Agreement Amendment, the Business Combination Agreement, the CEO Purchase Agreement, the Apeiron Purchase Agreement, the Pre-Funded Warrant, the Shareholder Loan Amendment Agreement, the Parent Equity Commitment Agreement and the Rumble Equity Commitment Agreement and each other document delivered or required to be delivered pursuant to the aforementioned agreements.
Sch A-21
“Transfer” means (a) any transfer, assignment, encumbrance, pledge, hypothecation or disposition (by operation of Law or otherwise), either voluntary or involuntary, or entry into any option or other Contract, arrangement or understanding with respect to any transfer, assignment, encumbrance, pledge, hypothecation or disposition (by operation of Law or otherwise), of any Sold Shares, or any interest in any such Shares (in each case other than under the Transaction Documents), (b) the deposit of such Shares into a voting trust, the entry into a voting agreement or arrangement (other than this Agreement) with respect to such Shares or the grant of any proxy or power of attorney (other than this Agreement) with respect to such Shares, or (c) any Contract or commitment (whether or not in writing) to take any of the actions referred to in the foregoing clauses (a) or (b) above.
“Transfer Taxes” has the meaning set forth in Section 10.2.
“Transferred Subsidiaries” means any direct or indirect Subsidiary of Parent, except for the entities sold under the Peak Mining Purchase Agreement.
“US Owned Real Property” means any Owned Real Property located in the United States.
“VAT” means any consumption or transfer-based Tax levied on the sale of goods and services imposed (including sales tax, use tax, consumption tax and goods and services tax) arising in any part of the world which is collected or assessed by, or payable to, a Government Authority or other Person.
“Virtual Data Room” means the virtual data room containing documents and information relating to, among other things, Parent, the Transferred Subsidiaries, and the Sold Shares made available by Parent in electronic form to Purchaser and its Representatives and maintained by Datasite LLC.
“Written Consent” has the meaning set forth in Section 8.1(b).
Sch A-22
Exhibit A
CEO Purchase Agreement
[Omitted.]
Exhibit B
Apeiron Purchase Agreement
[Omitted.]
Exhibit C
Peak Mining Purchase Agreement
[Omitted.]
Exhibit D
Business Combination Agreement
[Omitted.]
Exhibit E
Form of Pre-Funded Warrant
[Omitted.]
Exhibit F
Form of Written Consent
[Omitted.]
Exhibit G
Form of Customer Agreement
[Omitted.]
Exhibit H
Form of Registration Rights Agreement
[Omitted.]
Exhibit I
Shareholder Loan Amendment Agreement
[Omitted.]
Exhibit J
Form of Transaction Agreement Amendment
[Omitted.]
Exhibit K
Parent Equity Commitment Agreement
[Omitted.]
Exhibit L
Rumble Equity Commitment Agreement
[Omitted.]
Exhibit 10.2
Execution Version
Transaction Support Agreement
by and among
Art Holding GmbH,
Aroosh Thillainathan,
and
Rumble Inc.
Dated as of November 10, 2025
TABLE OF CONTENTS
| Page | |||
| Article I. DEFINITIONS AND TERMS | 2 | ||
| Section 1.1 | Certain Definitions | 2 | |
| Article II. SALE AND PURCHASE OF THE SOLD SHARES | 2 | ||
| Section 2.1 | Sale and Purchase of the Sold Shares | 2 | |
| Section 2.2 | Transfer of the Sold Shares | 3 | |
| Section 2.3 | Consideration | 3 | |
| Section 2.4 | Rumble Share Consideration | 3 | |
| Article III. CONDITIONS TO CLOSING | 4 | ||
| Section 3.1 | Conditions to Closing | 4 | |
| Section 3.2 | Waiver of Conditions to Closing | 4 | |
| Article IV. CLOSING | 5 | ||
| Section 4.1 | Closing Time | 5 | |
| Section 4.2 | Closing Actions | 5 | |
| Section 4.3 | Holdback Rumble Share Consideration | 6 | |
| Article V. REPRESENTATIONS AND WARRANTIES OF the SELLERs WITH RESPECT TO the SELLERs | 6 | ||
| Section 5.1 | Organization, Authorization, Enforceability, Non-Contravention | 6 | |
| Section 5.2 | Governmental Authorization | 8 | |
| Section 5.3 | Title to Sold Shares | 8 | |
| Section 5.4 | Litigation or Government Order | 8 | |
| Section 5.5 | Securities Law Compliance | 8 | |
| Section 5.6 | Stock Ownership | 9 | |
| Section 5.7 | Independent Investment Decision | 9 | |
| Section 5.8 | AML | 9 | |
| Article VI. REPRESENTATIONS AND WARRANTIES OF Each SELLER WITH RESPECT TO PARENT | 9 | ||
| Section 6.1 | Organization, Authorization, Enforceability, Non-Contravention | 9 | |
| Section 6.2 | Capital Structure; Subsidiaries | 11 | |
| Section 6.3 | Financial Statements; Controls | 12 | |
| Section 6.4 | No Undisclosed Liabilities; Indebtedness | 13 | |
| Section 6.5 | Absence of Changes | 14 | |
| Section 6.6 | No Litigation or Government Orders | 16 | |
| Section 6.7 | Governmental and Third-Party Approvals, Consents and Notices | 17 | |
| Section 6.8 | Taxes | 17 | |
| Section 6.9 | Employee Benefit Plans | 18 | |
| Section 6.10 | Labor Matters | 21 | |
| Section 6.11 | No Violation of Law; Regulatory Matters; Required Licenses and Permits | 22 | |
i
| Section 6.12 | Real Property | 24 | |
| Section 6.13 | Intellectual Property | 25 | |
| Section 6.14 | Information Security; Data Privacy | 28 | |
| Section 6.15 | Specified Contracts | 29 | |
| Section 6.16 | Assets | 31 | |
| Section 6.17 | Insurance | 32 | |
| Section 6.18 | Environmental Matters | 32 | |
| Section 6.19 | Data Centers | 33 | |
| Section 6.20 | Purchase Orders and Commitments | 34 | |
| Section 6.21 | Relationships with Related Persons | 35 | |
| Section 6.22 | Peak Mining Purchase Agreement; Legacy Liabilities | 35 | |
| Section 6.23 | Finder’s Fees; Brokerage | 35 | |
| Section 6.24 | No Other Representations or Warranties | 35 | |
| Article VII. LIMITATIONS OF LIABILITY | 36 | ||
| Section 7.1 | Limited Scope of Representations | 36 | |
| Section 7.2 | RWI Policy | 37 | |
| Section 7.3 | Exclusion of other Remedies | 38 | |
| Article VIII. REPRESENTATIONS AND WARRANTIES OF PURCHASER | 39 | ||
| Section 8.1 | Organization, Authorization, Enforceability, Non-Contravention | 39 | |
| Section 8.2 | Capitalization | 41 | |
| Section 8.3 | Available Funds | 43 | |
| Section 8.4 | Governmental and Third-Party Approvals, Consents and Notices | 43 | |
| Section 8.5 | No Litigation or Governmental Orders | 43 | |
| Section 8.6 | Purchaser Reports; Financial Statements | 44 | |
| Section 8.7 | Controls | 45 | |
| Section 8.8 | No Violation of Law; Regulatory Matters; Required Licenses and Permits | 46 | |
| Section 8.9 | Securities Law Compliance | 47 | |
| Section 8.10 | Due Diligence by Purchaser | 47 | |
| Section 8.11 | Solvency | 47 | |
| Section 8.12 | Absence of Changes | 48 | |
| Section 8.13 | Taxes | 48 | |
| Section 8.14 | Investment Company | 49 | |
| Section 8.15 | Properties | 49 | |
| Section 8.16 | Form S-3 | 49 | |
| Section 8.17 | Finder’s Fees; Brokerage | 49 | |
| Section 8.18 | Intellectual Property | 49 | |
| Section 8.19 | Employee Benefits Plans | 49 | |
| Section 8.20 | Labor Matters | 50 | |
| Section 8.21 | Environmental Matters | 50 | |
| Section 8.22 | Material Contracts | 50 | |
| Section 8.23 | Sale of Securities | 50 | |
| Section 8.24 | Antitakeover Statutes and Rights Agreement | 50 | |
| Section 8.25 | Written Consent | 50 | |
| Section 8.26 | No Other Representations or Warranties | 51 | |
ii
| Article IX. COVENANTS | 51 | ||
| Section 9.1 | Conduct of Business | 51 | |
| Section 9.2 | Notice of Certain Events | 53 | |
| Section 9.3 | Peak Mining Sale | 53 | |
| Section 9.4 | Lock-Up | 53 | |
| Section 9.5 | No Solicitation; Other Offers | 54 | |
| Section 9.6 | Confidentiality | 54 | |
| Section 9.7 | Announcements | 55 | |
| Section 9.8 | Cooperation | 55 | |
| Section 9.9 | Stock Exchange Listing | 56 | |
| Section 9.10 | Takeover Statutes | 56 | |
| Section 9.11 | Written Consent | 56 | |
| Section 9.12 | Reporting Status | 56 | |
| Section 9.13 | No Deregistration | 56 | |
| Section 9.14 | Affiliate Transfers | 57 | |
| Section 9.15 | Title Insurance Policy; Survey | 57 | |
| Section 9.16 | Fiduciary Duties | 57 | |
| Section 9.17 | Non-Compete; Non-Solicitation | 57 | |
| Article X. TAX MATTERS | 58 | ||
| Section 10.1 | VAT | 58 | |
| Section 10.2 | Other Tax Matters | 58 | |
| Article XI. SURVIVAL; INDEMNIFICATION | 58 | ||
| Section 11.1 | Survival | 58 | |
| Section 11.2 | Indemnification of Purchaser Indemnitees | 59 | |
| Section 11.3 | Indemnification of the Seller Indemnitees | 60 | |
| Section 11.4 | Limitation on Indemnification Obligations | 60 | |
| Section 11.5 | Determination of Damages | 61 | |
| Section 11.6 | Claim Procedures | 61 | |
| Section 11.7 | No Double Recovery | 63 | |
| Section 11.8 | Mitigation of Losses | 64 | |
| Section 11.9 | Tax Treatment of Indemnification Claims | 64 | |
| Article XII. TERMINATION | 64 | ||
| Section 12.1 | Termination | 64 | |
| Section 12.2 | Notice of Termination | 64 | |
| Section 12.3 | Effect of Termination | 65 | |
| Article XIII. MISCELLANEOUS | 65 | ||
| Section 13.1 | Notices | 65 | |
| Section 13.2 | Assignment | 66 | |
| Section 13.3 | No Third-Party Beneficiaries; No Recourse Against Non-Parties | 66 | |
| Section 13.4 | Whole Agreement; Conflict with Other Transaction Documents | 67 | |
| Section 13.5 | Costs | 67 | |
| Section 13.6 | Governing Law; Consent to Jurisdiction; Specific Performance | 67 | |
| Section 13.7 | Counterparts | 67 | |
| Section 13.8 | Severability | 68 | |
| Section 13.9 | Amendments; Waiver | 68 | |
| Section 13.10 | Payments | 68 | |
| Section 13.11 | No Admission | 68 | |
| Section 13.12 | Interpretation | 69 | |
iii
Schedules and Exhibits
| Schedule A | Definitions and Terms |
| Exhibit A | Tether Purchase Agreement |
| Exhibit B | Apeiron Purchase Agreement |
| Exhibit C | Peak Mining Purchase Agreement |
| Exhibit D | Business Combination Agreement |
| Exhibit E | Form of Written Consent |
Disclosure Letters
| Sellers’ Disclosure Letter |
| Purchaser’s Disclosure Letter |
iv
TRANSACTION SUPPORT AGREEMENT
This TRANSACTION SUPPORT AGREEMENT, dated as of November 10, 2025 (this “Agreement”), is made by and among, ART Holding GmbH, Switzerland (“ART Holding”), and Aroosh Thillainathan, the sole owner of ART Holding (“Thillainathan and, together with ART Holding, collectively, the “Sellers”), and Rumble Inc., a corporation incorporated under the laws of the State of Delaware (“Purchaser”).
RECITALS
WHEREAS, Northern Data AG is a German stock corporation (Aktiengesellschaft) with its registered seat at An der Welle 3, 60322 Frankfurt am Main, Germany, registered with the commercial register of the local court (Amtsgericht) of Frankfurt am Main, Germany, under HRB 106465 (“Parent”), and has an outstanding share capital of EUR 64,196,677.00 comprising 64,196,677 no par-value bearer shares, each with a nominal amount of EUR 1.00 (the “Shares”). The Shares are securitized in one or more permanent global certificate(s) (Dauerglobalurkunde(n)) held in collective safe custody (Girosammelverwahrung) at Clearstream Banking Aktiengesellschaft, Frankfurt am Main, Germany (“Clearstream”);
WHEREAS, as of the date hereof, the Sellers own 744,150 Shares. Sellers’ ownership of the Shares is recorded as co-ownership in fractions (Miteigentum nach Bruchteilen) in the permanent global share certificate(s);
WHEREAS, concurrent with the execution of this Agreement, Purchaser has entered into (i) that certain Transaction Support Agreement, dated as of the date hereof, by and between Tether Investments, S.A. de C.V., a Salvadoran Sociedad Anónima de Capital Variable (“Tether”), and Purchaser in the form attached hereto as Exhibit A (as may be amended in accordance with the terms thereof and hereof, the “Tether Purchase Agreement”), pursuant to which, subject to the terms and conditions set forth therein, at the closing of the transactions contemplated thereby, Purchaser will acquire 41,887,766 Shares from Tether in exchange for the consideration set forth therein and (ii) that certain Transaction Support Agreement, dated as of the date hereof, by and between Apeiron Investment Group Ltd., Malta (“Apeiron”), and Purchaser in the form attached hereto as Exhibit B (as may be amended in accordance with the terms thereof and hereof, the “Apeiron Purchase Agreement”), pursuant to which, subject to the terms and conditions set forth therein, at the closing of the transactions contemplated thereby, Purchaser will acquire 2,246,399 Shares from Apeiron in exchange for the consideration set forth therein;
WHEREAS, on November 3, 2025, Parent sold its Bitcoin mining business (the “Peak Mining Business”) pursuant to that certain merger and equity purchase agreement, dated as of November 3, 2025, by and among Highland Group Mining Inc., a British Virgin Islands business company (“Buyer Parent”), Appalachian Energy LLC, a Delaware limited liability company and a direct, wholly owned subsidiary of Buyer Parent (“Merger Sub”), 2750418 Alberta ULC, an Alberta unlimited liability corporation, (“CA Buyer”, and together with Buyer Parent, “Buyers”), Northern Data US, Inc., a Delaware corporation (“ND US”) and Parent, attached hereto as Exhibit C (the “Peak Mining Purchase Agreement”), pursuant to which (i) CA Buyer purchased certain Canadian subsidiaries of Parent and (ii) Merger Sub merged with and into ND US whereupon the separate corporate existence of Merger Sub ceased and ND US continued as the surviving corporation with US Buyer as the sole shareholder, as set forth in the Peak Mining Purchase Agreement in exchange for the consideration set forth therein;
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WHEREAS, concurrent with the execution of this Agreement, Purchaser has entered into that certain Business Combination Agreement, dated as of the date hereof, by and between Parent and Purchaser in the form attached hereto as Exhibit D (as may be amended in accordance with the terms thereof and hereof, the “Business Combination Agreement”), pursuant to which, subject to the terms and conditions set forth therein, Purchaser will launch a tender offer to acquire all outstanding Shares (the “Tender Offer”) other than those Shares to be purchased pursuant to the terms of this Agreement, the Tether Purchase Agreement and the Apeiron Purchase Agreement and/or any other Shares that Purchaser may acquire from other shareholders outside the Tender Offer;
WHEREAS, on the terms and subject to the conditions set forth herein, the Sellers desire to sell to Purchaser, and Purchaser desires to purchase from the Sellers, all of the Shares owned by the Sellers as of immediately prior to the Closing, which, for the avoidance of doubt, shall include the 744,150 Shares owned by the Sellers as of the date hereof (collectively, the “Sold Shares”) and the Parties desire that such Shares shall be transferred at the Closing; and
NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and undertakings contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
Article
I.
DEFINITIONS AND TERMS
Section 1.1 Certain Definitions. Capitalized terms used in this Agreement shall have the meanings set forth on Schedule A.
Article
II.
SALE AND PURCHASE OF THE SOLD SHARES
Section 2.1 Sale and Purchase of the Sold Shares.
(a) On the terms and subject to the conditions set forth herein, the Sellers hereby sell to Purchaser, and Purchaser hereby accepts such sale and purchases from the Sellers, the Sold Shares.
(b) The Sold Shares are sold to Purchaser with economic effect as of the Closing Date, with all rights and obligations pertaining thereto, including the right to receive dividends for any fiscal year of the Parent that is not yet completed on the Closing Date as well as for previous financial years of the Parent to the extent such dividends are not yet distributed prior to or on the date hereof. To the extent the Parent pays any dividends or makes any other distributions between the date hereof and Closing, the Sellers shall pass on such dividends to Purchaser for no additional compensation at the Closing.
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Section 2.2 Transfer of the Sold Shares. At the Closing, the Sellers shall deliver the Sold Shares to Purchaser as set forth in Section 4.2.
Section 2.3 Consideration. The consideration payable by Purchaser for each Sold Share sold hereunder shall be a number of Purchaser Common Shares equal to the Offer Ratio (the total number of Purchaser Common Shares issued hereunder, being the “Rumble Share Consideration”); provided that Purchaser shall be entitled to withhold the entire Holdback Rumble Share Consideration from the Rumble Share Consideration issued to the Sellers on the Closing Date, as contemplated by Section 4.3.
Section 2.4 Rumble Share Consideration.
(a) By reason of a specific exemption from the registration provisions of the Securities Act, the Sellers understand that the Rumble Share Consideration has not been, and prior to the Closing will not be, registered under the Securities Act. The Sellers understand that the Rumble Share Consideration will consist of “restricted securities” under applicable U.S. federal and state securities Laws and that, pursuant to these Laws, the Sellers may dispose of the Rumble Share Consideration only pursuant to an effective registration statement with the Securities and Exchange Commission and in compliance with applicable requirements of state authorities, or an exemption from such registration and requirements. The Sellers acknowledge that Purchaser has no obligation to register or qualify the Rumble Share Consideration.
(b) Any certificate(s) representing the Rumble Share Consideration will be imprinted, and any Rumble Share Consideration issued in non-certificated book-entry form will have a notation in Purchaser’s stock ledger and other appropriate books and records, with a legend in substantially the following form (in the case of Rumble Share Consideration issued in non-certificated book-entry form, reflecting conforming changes consistent with the non-certificated book-entry form):
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A PRIVATE PLACEMENT, WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION UNDER THE ACT COVERING SUCH SALE, ASSIGNMENT OR TRANSFER OR AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE ISSUER, THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED.”
(c) Notwithstanding anything to the contrary set forth in this Agreement, if, between the date hereof and the earlier of the Closing and the termination of this Agreement in accordance with its terms, the issued and outstanding Purchaser Common Shares or securities convertible or exchangeable into or exercisable for Purchaser Common Shares, as applicable, shall have been changed into a different number of shares or a different class (including by reason of any reclassification, recapitalization, stock split (including reverse stock split) or combination, exchange or readjustment of shares, or stock dividend thereon with a record date during such period or otherwise, then the Rumble Share Consideration shall be appropriately adjusted; provided, however, that nothing in this Section 2.4(c) shall be construed to permit Purchaser or any other Person to take any action to the extent such action is limited or prohibited by the terms and conditions of this Agreement.
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Section 2.5 Cash Payment. If a Cash Consideration Amount (as defined in the Business Combination Agreement) is to be paid to shareholders of the Parent who have accepted the Tender Offer pursuant to Section 3.8 of the Business Combination Agreement, the Purchaser shall make a corresponding cash payment per Sold Share to the Seller. Such cash payment shall be due and payable at Closing.
Article
III.
CONDITIONS TO CLOSING
Section 3.1 Conditions to Closing. The obligations of each of the Parties to consummate (vollziehen) the transactions contemplated by this Agreement are subject to the satisfaction (or valid written waiver) of each of the following conditions to Closing (Vollzugsbedingungen):
(a) No Prohibition. There shall be no Government Order or other Law in any jurisdiction in which either the Purchaser, the Sellers or Parent has material business operations in effect enjoining, restraining, or otherwise prohibiting or making illegal the consummation of the transactions contemplated by this Agreement.
(b) Exchange Authorization. The Rumble Share Consideration to be issued pursuant to this Agreement shall be duly authorized for listing by NASDAQ, subject to official notice of issuance, to the extent required by the rules of NASDAQ.
(c) Tender Offer. All Offer Conditions shall have been satisfied or waived on the date the Acceptance Period expires.
(d) Written Consent. Purchaser shall have delivered to the Sellers a true and correct copy of the Written Consent in accordance with the terms of this Agreement.
(e) Ownership of Shares. The Sold Shares are owned of record and beneficially by the Sellers, free and clear of all Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents).
Section 3.2 Waiver of Conditions to Closing.
(a) The Sellers may in their sole discretion decide to waive the condition to Closing pursuant to Section 3.1(b) in writing in full or in part, and, as a result thereof, such conditions shall be waived.
(b) Purchaser may in its sole discretion decide to waive the condition to Closing pursuant to Section 3.1(e) in writing in full or in part, and, as a result thereof, such condition shall be waived.
(c) All other conditions to Closing may only be waived by mutual written agreement in full or in part.
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Article
IV.
CLOSING
Section 4.1 Closing Time. The transfer of the Sold Shares against provision of the Rumble Share Consideration contemplated hereby (the “Closing”) will take place electronically through the exchange of documents via e-mail or facsimile, at 9:00 a.m., New York City time, on the Business Day immediately preceding the anticipated closing date of the Tender Offer, provided that the last of the conditions set forth in Section 3.1 has been satisfied or waived prior to such date, or on such other date or at such other time and place as the Sellers and Purchaser may mutually agree in writing.
Section 4.2 Closing Actions.
(a) At the Closing, the Parties shall take the following actions (“Closing Actions”) in the order set forth below:
(i) The Sellers shall deliver to Purchaser a customary bring-down certificate, dated the Closing Date and signed by Thillainathan and a duly authorized officer of ART Holding, in which each Seller declares whether it has (after the date hereof) become aware of any breaches of the representations and warranties of the Sellers that are given as of the date hereof and the Closing Date, and without personal liability of the persons signing/delivering such certificate (the “Bring-Down Certificate”). Purchaser acknowledges and agrees that the Bring-Down Certificate will only be given to Knowledge of each Seller. To the extent any facts, matters or circumstances are disclosed in the Bring-Down Certificate, each Seller shall not be liable for any representations and warranties being untrue as a result of such disclosure of facts, matters or circumstances. This shall not affect each Seller’s liability for any breaches of representations and warranties given as of the date hereof;
(ii) Purchaser shall deliver to Thillainathan evidence of the issuance of Purchaser Common Shares equal to the Rumble Share Consideration (less the Holdback Rumble Share Consideration) in Direct Registration System (DRS) non-certificated book-entry form by Purchaser’s transfer agent and registered in the name of Thillainathan, in form and substance reasonably satisfactory;
(iii) Purchaser shall deliver to the Sellers a certificate, dated the Closing Date and duly executed by the Secretary of Purchaser (or a comparable officer of Purchaser), in form and substance reasonably satisfactory to the Sellers, as to: (A) the certificate of incorporation of Purchaser, certified as of a recent date by the Secretary of State of the State of Delaware, and that there have been no amendments to the certificate of incorporation of Purchaser since such certification; and (B) the bylaws of Purchaser in effect as of the Closing Date; and
(iv) The Sellers shall deliver to Purchaser copies of duly executed irrevocable instructions of the Sellers to the Seller Custodian Banks to transfer the Sold Shares to the securities account of Purchaser Custodian Bank via Clearstream.
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(b) The Closing Actions may only be waived by mutual written agreement of the Parties.
(c) After all Closing Actions have been taken or duly waived, the Parties shall confirm in a written document that (i) if true, all conditions to Closing pursuant to Section 3.1 have been duly fulfilled or waived, (ii) all Closing Actions have been duly taken or waived, and (iii) Closing has occurred (“Closing Protocol”). The execution of the Closing Protocol shall not limit or prejudice the rights of a Party under this Agreement or Law.
Section 4.3 Holdback Rumble Share Consideration. Without limitation to the rights and remedies of Purchaser, Purchaser shall have the right, upon compliance with the procedures and other requirements set forth in this Article IV to satisfy the amount of any Damages that the Sellers are obligated to indemnify Purchaser for pursuant to Section 11.2 by deducting from the Holdback Rumble Share Consideration a number of Purchaser Common Shares equal in value (based on the Purchaser Common Stock Price) to such Damages; provided, however, that the Sellers may, at their sole discretion, elect to satisfy the amount of any Damages in cash rather than a deduction from the Holdback Rumble Share Consideration pursuant to this Section 4.3. In the event any Purchaser Common Shares have not been deducted from the Holdback Rumble Share Consideration (if any) on or prior to the later of (i) the Holdback Release Date and (ii) the resolution of all claims made by the Purchaser in accordance with the notice provisions of Section 11.6 prior to the Holdback Release Date that remain pending as of such date, then Purchaser shall promptly issue and release to the Sellers such remaining Holdback Rumble Share Consideration and deliver to the Sellers evidence of such issuance in DRS non-certificated book-entry form by Purchaser’s transfer agent and registered in the name of Thillainathan, in form and substance reasonably satisfactory to Thillainathan; provided, however, on the Holdback Release Date, Purchaser shall promptly issue and release to Thillainathan such portion of the Holdback Rumble Share Consideration that is not subject to any pending indemnification claim made on or prior to the Holdback Release Date.
Article
V.
REPRESENTATIONS AND WARRANTIES OF the SELLERs WITH RESPECT TO the SELLERs
The Sellers hereby jointly and severally represent and warrant to Purchaser in the form of an independent guarantee (selbstständiges Garantieversprechen) pursuant to Section 311 para. 1 BGB and irrespective of fault that the following statements are true and correct as of the date hereof and as of the Closing Date (except to the extent any such representation and warranty is expressly made as of a specific date, in which case each Seller hereby makes to Purchaser such representation and warranty only as of such date), provided that for the avoidance of doubt, Parent and its Subsidiaries shall not be considered Affiliates of any Seller for purposes of this Agreement:
Section 5.1 Organization, Authorization, Enforceability, Non-Contravention.
(a) Organization. ART Holding is a limited liability company under Swiss law, in each case, such entities are duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and have all corporate powers and all Permits necessary to enable it to use its legal or other business name, to own, lease or otherwise hold and operate its properties and other assets and to carry on its business as presently conducted.
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(b) Authorization. The execution, delivery and performance by each Seller of this Agreement, and the execution, delivery and performance by each Seller and its Affiliates of each other Transaction Document to which a Seller or any of such Affiliates is a party, and the consummation by each Seller and such Affiliates of the transactions contemplated hereby and thereby, are within the corporate or other organizational powers of each of Seller and such Affiliates and have been duly and validly authorized by all necessary corporate action. This Agreement and each other Transaction Document to which a Seller or any such Affiliate is a party constitutes a valid and binding agreement of a Seller or such Affiliate, as applicable, enforceable against a Seller or such Affiliate in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity).
(c) Non-Contravention. The execution, delivery and performance by each Seller of this Agreement, and the execution, delivery and performance by each Seller and its Affiliates of each other Transaction Document to which a Seller or any such Affiliate is a party, and the consummation by a Seller and such Affiliates of the transactions contemplated hereby and thereby, do not and will not (i) contravene, conflict with, or result in any violation or breach of any provision of the organizational documents of a Seller or its Affiliates, (ii) contravene, conflict with or result in a violation or breach of any provision of any applicable Law, (iii) require any consent or other action by any Person under, constitute a default (or constitute an event that, with or without notice or lapse of time or both, would constitute a default) under, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which a Seller or any of its Affiliates is entitled under any provision of any Contract binding upon, or any Permit of, a Seller or any of its Affiliates (or any Contract to which any of their respective assets is subject) or (iv) result in the creation or imposition of any Encumbrance on any asset of a Seller or any of its Affiliates (including the Sold Shares), with only such exceptions, in the case of clauses (ii) through (iv), as would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect.
(d) Not Fraudulent Conveyance. No Seller is entering into this Agreement or the other Transaction Documents to which it is a party or consummating the transactions contemplated hereby or thereby with the intent to hinder, delay or defraud any creditor. The consideration received by the Sellers in connection with the transactions contemplated by this Agreement and the other Transaction Documents to which they are a party constitutes reasonably equivalent value and fair consideration for the securities or other assets being transferred. The Sellers transferring securities pursuant to this Agreement or the other Transaction Documents are Solvent as of the Closing Date and will not be rendered insolvent as a result of the transactions contemplated by this Agreement or the other Transaction Documents. No transfer of securities or other assets pursuant to this Agreement or any of the other Transaction Documents to which a Seller is a party is or may be subject to avoidance under any applicable Laws relating to fraudulent transfers, fraudulent conveyance and similar doctrines, whether under state or federal Law.
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Section 5.2 Governmental Authorization. Except as set forth on Section 6.7 of Sellers’ Disclosure Letter, the execution, delivery and performance by the Sellers of this Agreement, and the execution, delivery and performance by the Sellers and their Affiliates (except, for the avoidance of doubt, Parent) of each other Transaction Document to which a Seller or any of such Affiliates (except, for the avoidance of doubt, Parent) is a party, and the consummation by a Seller and such Affiliates of the transactions contemplated hereby and thereby, require no action by or in respect of, or filing with, any Government Authority, other than (i) compliance with any applicable requirements of the Securities Act, the Exchange Act and any other U.S. state or federal securities Laws or AktG, any (ii) such actions and filings specifically contemplated under this Agreement or any other Transaction Document, and (iii) any actions or filings the absence of which would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect.
Section 5.3 Title to Sold Shares. As of the date hereof, the Sellers own and have good and valid title to 744,150 Shares, in each case, free and clear of any Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents). As of the Closing, the Sellers will own and have good and valid title to all the Sold Shares, in each case, free and clear of any Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents). Upon the consummation of the transactions contemplated hereby, good and valid title to all the Sold Shares will pass to Purchaser free and clear of any Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents). There are no outstanding options, warrants, rights of conversion, pledges, exchange or purchase or any similar rights under which a Seller is or may become obligated to sell, or giving any Person a right to acquire, or in any way dispose of, the Sold Shares.
Section 5.4 Litigation or Government Order. There is no Action pending or threatened in writing against any Seller, any of their Affiliates or Subsidiaries, any of their respective assets or properties, any of their respective present or former officers, directors or employees in their capacities as such, or any Person for whom a Seller or any of their respective Affiliates or Subsidiaries may be liable before (or, in the case of threatened Actions, would be before) or by any Government Authority or arbitrator that, assuming such Actions were determined or resolved adversely in accordance with the opposing party’s demands, would reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect. No Seller is a party to or subject to the provisions of any Government Order that has or would reasonably be expected to, individually or in the aggregate, (i) materially and adversely affect the legality, validity or enforceability of this Agreement or any other Transaction Document to which a Seller is a party, (ii) prevent or materially impair the ability of a Seller to consummate the transactions contemplated by this Agreement and the other Transaction Documents to which a Seller is a party or (iii) have a Seller Material Adverse Effect.
Section 5.5 Securities Law Compliance. Each Seller is financially sophisticated and is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act. Each Seller understands that the Rumble Share Consideration has not been registered under the securities laws of any jurisdiction, including the Securities Act, and may only be transferred pursuant to registration or an applicable exemption under all applicable Laws. Pursuant to this Agreement, each Seller is acquiring the Rumble Share Consideration for its own account, for the purpose of investment only and not with a view to, or for sale in connection with, any distribution thereof in violation of applicable Law. No Seller has, directly or indirectly, offered the Rumble Share Consideration to anyone or solicited any offer to buy the Rumble Share Consideration from anyone, in each case that would have the effect of bringing to such offer and sale of the Rumble Share Consideration by a Seller within the registration requirements of the Securities Act or the securities Laws of any other jurisdiction.
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Section 5.6 Stock Ownership. As of the date hereof, no Seller owns, beneficially or legally, any Purchaser Common Shares (or any securities convertible, exercisable or exchangeable for, or rights to purchase or acquire, any Purchaser Common Shares).
Section 5.7 Independent Investment Decision. Each Seller has independently evaluated the merits of its decision to acquire the Rumble Share Consideration pursuant hereto. Each Seller understands that nothing in this Agreement or any other materials presented by or on behalf of Purchaser to the Sellers in connection with the acquisition of the Rumble Share Consideration constitutes legal, tax or investment advice. Each Seller has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its acquisition of the Rumble Share Consideration.
Section 5.8 AML. Since the January 1, 2022, no Seller or its Representatives (acting in their capacities as such) have violated or taken any act in furtherance of violating Anti Money Laundering Laws. No Seller or any of its Representatives (acting in their capacities as such) is involved in any Action, or have since January 1, 2022 received a written request for information or any other form of communication from any Government Authority, had any judgments imposed (or threatened to be imposed) upon a Seller by or before a Government Authority, or made a voluntary or involuntary disclosure to a Government Authority in connection with any actual or alleged violation of any Anti-Money Laundering Laws. Each Seller is in compliance with all applicable Anti-Money Laundering Laws and maintains policies and procedures reasonably designed to ensure compliance therewith.
Article
VI.
REPRESENTATIONS AND WARRANTIES OF Each SELLER WITH RESPECT TO PARENT
Each Seller hereby jointly and severally represents and warrants to Purchaser in the form of an independent guarantee (selbstständiges Garantieversprechen) pursuant to Section 311 para. 1 BGB and irrespective of fault that except as set forth in Sellers’ Disclosure Letter, the following statements are true and correct, as of the date hereof and as of the Closing Date (except to the extent any such representation and warranty is expressly made as of a specific date, in which case the Sellers hereby make to Purchaser such representation and warranty only as of such date):
Section 6.1 Organization, Authorization, Enforceability, Non-Contravention.
(a) Organization. Parent is a German stock corporation (Aktiengesellschaft) duly incorporated, and validly under the Laws of Germany and has the requisite corporate power and authority to conduct its business as presently conducted. Each Transferred Subsidiary is duly incorporated or formed, and validly existing, and in good standing under the Laws of the state or country of incorporation to the extent such concept exists in the relevant jurisdiction, and has the requisite corporate power and authority to conduct its business as presently conducted. Section 6.1(a) of Sellers’ Disclosure Letter, as of the date hereof, sets forth for Parent and each Transferred Subsidiary the jurisdiction of incorporation. True and complete copies of the Constituent Documents of Parent and all Transferred Subsidiaries have been made available in the Virtual Data Room. Neither Parent nor any of the Transferred Subsidiaries has taken any action that is inconsistent in any material respect with any resolution adopted by its respective equityholders, supervisory board, management board (or other similar governing body) or any committee of its supervisory board (or other similar governing body).
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(b) Management. Section 6.1(b) of Sellers’ Disclosure Letter, as of the date hereof, sets forth a true and complete list of all members of the management board (Vorstand) and supervisory board (Aufsichtsrat) of Parent. All members of the management board or supervisory board or managing directors (Geschäftsführer) (or equivalents thereof) of Parent and the Transferred Subsidiaries have been duly elected or appointed and since January 1, 2022, all former members of the management board or supervisory board or managing directors (Geschäftsführer) (or equivalent thereof) of each of Parent and the Transferred Subsidiaries have been duly dismissed or removed, except as would not reasonably be expected to have a Parent Material Adverse Effect.
(c) Corporate Authorization. Parent and each of the Transferred Subsidiaries have the requisite corporate or other organizational power and authority to execute and deliver the Transaction Documents to which they are a party and each certificate and other instrument required to be executed and delivered by Parent or each such Transferred Subsidiary pursuant thereto and to perform their obligations thereunder, and to consummate the transactions contemplated thereby. The execution, delivery and performance of the Transaction Documents to which they are a party, and the consummation of the transactions contemplated thereby, by Parent and each Transferred Subsidiary have been duly and validly authorized by all necessary corporate action on the part of Parent and the Transferred Subsidiaries.
(d) Binding Effect. The Transaction Documents to which they are a party have been duly executed and delivered by Parent and each Transferred Subsidiary. Each Transaction Document to which they are a party is a legal, valid and binding obligation of Parent and each Transferred Subsidiary enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(e) Non-Contravention. The execution, delivery and performance of the Transaction Documents to which Parent and the Transferred Subsidiaries are a party, and the consummation of the transactions contemplated thereby, do not (i) violate or conflict with any provision of the Constituent Documents of Parent and the Transferred Subsidiaries, (ii) violate or conflict with any Law, Government Order or Permit applicable to Parent or any of the Transferred Subsidiaries or by which any property or asset of Parent or such Subsidiary is bound, except in case of clause (ii) of this Section 6.1(e), for any such conflicts, violations, breaches, defaults, terminations, modifications, losses, diminutions of rights, accelerations, cancellations or creations that would not reasonably be expected to have a Parent Material Adverse Effect.
(f) Insolvency. No insolvency or similar proceedings have been, or have been threatened to be, opened or applied for regarding the assets of Parent, and there are no circumstances which would require the opening of or application for such proceedings. Parent is neither illiquid (zahlungsunfähig) nor over-indebted (überschuldet).
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Section 6.2 Capital Structure; Subsidiaries.
(a) As of the date hereof, the outstanding share capital of Parent amounts to EUR 64,196,677.00 and is divided into 64,196,677 no-par value bearer shares, each with a nominal amount of EUR 1.00. Other than such outstanding shares and the Options pursuant to Section 6.2(e), there are no shares or other equity securities of Parent or securities convertible or exchangeable into such shares issued, reserved for issuance or outstanding. The Sold Shares have been duly authorized and validly issued, are fully paid and non-assessable and were not issued in violation of any preemptive or other similar rights.
(b) Other than the Options, (i) Parent has not granted any preemptive rights or authorized, issued or outstanding options, warrants, rights of conversion, exchange or purchase, stock appreciation rights or other rights, obligations, agreements, arrangements or commitments of any kind relating to, obligating Parent to issue or to sell, convertible or exchangeable into or exercisable for, valued by reference to or giving any Person a right to subscribe for or acquire any Equity Interests of Parent or other securities of Parent, (ii) there are no contractual obligations of Parent to repurchase, redeem or otherwise acquire any Equity Interests of Parent and (iii) there are no Contracts (except for the Business Combination Agreement) to which the Parent is a party or by which Parent is bound with respect to the issuance, voting, sale or transfer of its Equity Interests. There are no accrued and unpaid dividends or distributions with respect to any Equity Interests of Parent.
(c) Section 6.2(c) of Sellers’ Disclosure Letter sets forth the jurisdiction of organization and issued and outstanding Equity Interests of the Transferred Subsidiaries. Parent directly or indirectly owns and has good and valid title to all the issued and outstanding Equity Interests of the Transferred Subsidiaries, free and clear of any Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents). The issued and outstanding Equity Interests of the Transferred Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and were not issued in violation of any preemptive or other similar right. There are no preemptive rights or authorized, issued or outstanding options, warrants, rights of conversion, exchange or purchase, profits interests or other rights, obligations, agreements, arrangements or commitments of any kind relating to, obligating the Transferred Subsidiaries to issue or to sell, convertible or exchangeable into or exercisable for, valued by reference to or giving any Person a right to subscribe for or acquire any Equity Interests of the Transferred Subsidiaries. There are no contractual obligations of the Transferred Subsidiaries to repurchase, redeem or otherwise acquire any Equity Interests of the Transferred Subsidiaries. Parent is not party to any Contracts relating to the Equity Interests of the Transferred Subsidiaries (except for this Agreement), including with respect to the issuance, voting, sale or transfer of the Equity Interests of the Transferred Subsidiaries.
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(d) Except as set forth on Section 6.2(d) of Sellers’ Disclosure Letter, there are no Equity Interests or joint venture interests in any Person (other than the Transferred Subsidiaries) owned, directly or indirectly, by Parent or the Transferred Subsidiaries. There are no contractual obligations of Parent or the Transferred Subsidiaries to provide funds to, or make any investment in, any other Person.
(e) Section 6.2(e) of Sellers’ Disclosure Letter sets forth a correct and complete list of each holder of an outstanding Option as of the date hereof, which schedule shows for each such Option, the date such Option was granted, the number of Shares to be issued per Option, the relevant exercise price, the applicable vesting schedule, the current or former employer entity within the Parent Group (if any) of each Option holder and the applicable Equity Plan under which such Option was granted. With respect to each Option, (i) each such grant was duly authorized by all necessary corporate action, (ii) each such grant was made in compliance in all material respects with all applicable Laws (including all applicable securities Laws) and all of the material terms and conditions of the applicable Equity Plan, (iii) no material modifications have been made to any Option following the grant date except for the repricing of certain Options, the effects of which are already reflected in Sellers’ Disclosure Letter, and (iv) each Option has an exercise price that is equal to or greater than the fair market value of the underlying Share on the applicable grant date, or, with respect to any Options that were repriced, on the applicable repricing date. All Options are evidenced by award agreements in a form materially consistent with forms made available in the Virtual Data Room. Except for the Equity Plans, there are no commitments in any offer letter, Contract, Employee Benefit Plan or otherwise that contemplate a grant of, or right to purchase or receive share options, restricted share units, phantom units or other equity of Parent.
Section 6.3 Financial Statements; Controls.
(a) Section 6.3(a) of Sellers’ Disclosure Letter sets forth a true and complete copy of the audited consolidated financial statements of Parent as of and for the fiscal year ended December 31, 2024, together with the notes thereto (the “Audited Financial Statements”). The Audited Financial Statements in all material respects (i) have been prepared in accordance with IFRS applied on a consistent basis (except as indicated therein or in the notes thereto) and (ii) provide, based on IFRS, a true and fair view of the assets and liabilities (Vermögenslage), financial position (Finanzlage), and results of operations (Ertragslage) for Parent and the other entities consolidated therein as of the dates and for the periods to which they relate.
(b) Section 6.3(b) of Sellers’ Disclosure Letter sets forth a true and complete copy of the unaudited consolidated financial statements of Parent (for the avoidance of doubt, such unaudited consolidated financial statements comprise only the four primary statements — statement of financial position, statement of comprehensive income, statement of changes in equity, and statement of cash flows — and do not include notes or other disclosures required by IFRS for a complete set of financial statements) as of and for the six-month period ended June 30, 2025 (the “Latest Balance Sheet Date”) (such financial statements the “Interim Financial Statements”, and the Interim Financial Statements together with the Audited Financial Statements, the “Parent Financial Statements”). The Interim Financial Statements (i) have in all material respects been prepared in accordance with IFRS, and (ii) have been prepared in good faith and do in all material respects not misstate the assets and liabilities (Vermögenslage), financial position (Finanzlage), or results of operations (Ertragslage) for Parent and the other entities consolidated therein as of the dates and for the periods to which they relate.
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(c) The Parent Financial Statements have been derived from the accounting systems of Parent and the other entities consolidated therein, and such accounting systems, since the Applicable Date, have been maintained in all material respects in accordance with applicable Law. Since the Applicable Date, Parent and the Transferred Subsidiaries have maintained internal accounting controls that are reasonably necessary to provide reasonable assurance that, in all material respects, (i) transactions are executed in accordance with management’s general or specific authorization, and (ii) transactions are recorded as reasonably necessary to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets. Since the Applicable Date, there has been no change in any material respect with respect to the accounting policies, principles, methods or practices of Parent and the Transferred Subsidiaries, except as set forth in the Parent Financial Statements and/or required under IFRS.
(d) The books and records of Parent and the Transferred Subsidiaries (i) are true, complete and correct in all material respects, (ii) have been maintained in all material respects in accordance with applicable Law and (iii) in all material respects accurately present and reflect all of the Parent transactions and actions related thereto.
(e) None of the statements pursuant to this Section 6.3 shall be construed or interpreted as an objective guarantee (objektive Bilanzgarantie), and where reference is made to a specific accounting standard, only such accounting standard shall be relevant to determine whether or not and how any facts objectively existing as of the relevant reference date are to be reflected therein, including as regards the question as to whether and as of which time the subjective knowledge of such facts by a relevant person is decisive, and the question whose knowledge is relevant shall also solely be determined by the relevant accounting standard used in the preparation of the Parent Financial Statements.
Section 6.4 No Undisclosed Liabilities; Indebtedness.
(a) Except (i) as set forth on Section 6.4(a) of Sellers’ Disclosure Letter, (ii) as reflected or reserved against in the Parent Financial Statements or disclosed in the notes thereto, (iii) for Liabilities incurred by Parent or the Transferred Subsidiaries since the Latest Balance Sheet Date in the ordinary course of their respective businesses (none of which arises out of, relates to, or results from any breach of contract, tort, violation of Law or infringement), (iv) for SLA Credits due by Parent or the Transferred Subsidiaries as a result of any breach of data centers SLAs in instances where Parent or the Transferred Subsidiaries are providers of data center services to their customers, and (v) for Liabilities expressly contemplated by the Transaction Documents, there are no other Liabilities of Parent or any of the Transferred Subsidiaries.
(b) Except as expressly reflected or expressly reserved against in the Parent Financial Statements or expressly disclosed in the notes thereto, Section 6.4(b) of Sellers’ Disclosure Letter sets forth a true and complete list of each item of Parent Indebtedness with a value exceeding EUR 500,000.00 as of the date hereof. None of Parent or any of the Transferred Subsidiaries has received notice of a default or payments past due with respect to any such Parent Indebtedness, in each case, in any material respect.
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Section 6.5 Absence of Changes. Except as (A) contemplated by the Transaction Documents, (B) disclosed in the Parent Financial Statements, or (C) disclosed in Section 6.5 of Sellers’ Disclosure Letter, since the Applicable Date, (i) Parent and the Transferred Subsidiaries have conducted and operated their businesses in the ordinary course in all material respects, (ii) there has not been any change, effect, development, condition, matter, event, fact, circumstance or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect and (iii) neither Parent nor any of the Transferred Subsidiaries has:
(a) amended or waived any rights under any provision of its Constituent Documents in any manner;
(b) split, combined or reclassified any Equity Interests;
(c) declared, set aside or paid any dividend, or otherwise made any distribution to the Sellers or any of their respective Affiliates, with respect to any Equity Interests;
(d) issued, sold, pledged, transferred or disposed of, or agreed to issue, sell pledge, transfer or dispose of, any Equity Interests or issued any Equity Interests of any class or issued or become a party to any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to the issued or unissued equity interests of Parent or any of the Transferred Subsidiaries, or granted any stock appreciation or similar rights;
(e) redeemed, purchased or otherwise acquired any outstanding Equity Interests or declared or paid any non-cash dividend or made any other non cash distribution of assets to any Person;
(f) made any material change in its policies with respect to the payment of accounts payable or accrued expenses or the collection of the accounts receivable or other receivables, including any acceleration or deferral of the payment or collection thereof, as applicable, in each case, other than in the ordinary course of business;
(g) made any change in any method of accounting or auditing practice, including any working capital procedures or practices, other than changes required as a result of changes in IFRS or applicable Law;
(h) except in any case as may be required by applicable Law, (A) prepared or filed any income or other material Tax Return inconsistent with past practice, (B) made or changed any Tax election (except in the ordinary course of business), (C) adopted or changed any accounting method relating to Taxes, (D) entered into any closing agreement or requested any ruling or similar guidance relating to Taxes, (E) settled any claim for any material amount of Taxes or assessments relating to Taxes, (F) surrendered any right to claim a refund of any material amount of Taxes paid, (G) consented to any extension or waiver of the limitation period applicable to any claim for any material amount of Taxes or assessments relating to any material amount of Taxes (other than automatic extensions or extensions in the ordinary course of business), or (H) amended any income or other material Tax Return, in each case, if such Tax Return, change, adoption, agreement, settlement, surrender, consent or amendment would reasonably be expected to bind, materially adversely affect or materially increase the liability of Purchaser, Parent, the Transferred Subsidiaries or any of their respective Affiliates;
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(i) other than in the ordinary course of business or as required by an Employee Benefit Plan or any obligation under applicable Law or due to an amendment of collective bargaining agreement, works council agreement or other similar labor Contract or as explicitly contemplated hereunder, (A) materially increased the compensation or benefits of any employee or other Parent Service Provider, (B) accelerated the vesting or payment of any compensation or benefits of any Parent Service Provider, (C) entered into, amended or terminated any material Employee Benefit Plan (or any plan, program, agreement or arrangement that would be an Employee Benefit Plan if in effect on the date hereof), (D) made any loan to any present or former Parent Service Provider (other than advancement of expenses in the ordinary course of business consistent with past practices), (E) entered, amended or terminated into any collective bargaining agreement or other agreement with a labor union or labor organization, or (F) commenced any collective redundancy process;
(j) (A) adopted, established, entered into, amended, modified or terminated any collective bargaining agreement, works council agreement or other similar labor Contract, (B) recognized any union, works council, labor organization or other workers’ group as the bargaining representative of any employees, or (C) been the subject of any "relevant transfer" (as defined in the Transfer of Undertakings) Protection of Employment) Regulations 2006 (as amended));
(k) (i) received any written claim of unfair labor practices involving Parent or any Transferred Subsidiary or (ii) given or received any written resignation, termination, or removal of, or commenced disciplinary proceedings in respect of, any managing director (Geschäftsführer) (or equivalent thereof) or other employee with an annual fixed compensation exceeding EUR 300,000.00 of Parent or any Transferred Subsidiary or made any material change in the terms and conditions of the employment of any such Person;
(l) received any written notice of an investigation or other proceeding by a Government Authority directed against Parent or any Transferring Subsidiary (and which is pending as of the date hereof);
(m) sold, licensed, leased, transferred, assigned, abandoned or otherwise disposed of any assets with a value exceeding EUR 100,000.00 (or any portion thereof) or mortgaged, pledged, permitted or imposed any Encumbrance (other than Permitted Encumbrances) upon any such assets (or any portion thereof), in each case, other than in the ordinary course of business;
(n) incurred, assumed or guaranteed any Parent Indebtedness with a value exceeding EUR 500,000.00;
(o) deferred any capital expenditures with a value exceeding EUR 250,000.00;
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(p) made any investment or acquisition either by purchase of stock or securities, contributions to capital, property transfers, merger or purchase of all or substantially all of the property or assets of any Person, in each case with a value exceeding EUR 50,000.00;
(q) materially changed the manner in which Parent generally extends discounts or credits to customers, other than in the ordinary course of business;
(r) suffered any extraordinary casualty loss, except for any such casualty loss covered by insurance;
(s) accelerated, terminated, modified or cancelled any Specified Contract;
(t) with the exception of Permitted Encumbrances, committed to or entered into any contract, agreement, or other understanding to sell, transfer, lease, sublease, license, or otherwise dispose of any Owned Real Property;
(u) with the exception of Permitted Encumbrances, committed to or entered into any contract, agreement, or other understanding to amend, cancel, terminate, or modify any Real Property Lease;
(v) with the exception of Permitted Encumbrances, sold, assigned, transferred, granted, pledged, allowed to lapse, abandoned, dedicated to the public domain or otherwise encumbered or disposed of any Intellectual Property;
(w) entered into, amended, modified, waived, released, extended, transferred or terminated any Related Party Contract; or
(x) agreed in writing to do any of the foregoing.
Section 6.6 No Litigation or Government Orders.
(a) Except as set for on Section 6.6 of Sellers’ Disclosure Letter, since the Applicable Date, there has been no Action pending or, to the Knowledge of the Sellers, threatened in writing against Parent or any of the Transferred Subsidiaries with a value in dispute exceeding EUR 150,000.00. There is no Action pending or, to the Knowledge of the Sellers, threatened in writing against Parent or any of the Transferred Subsidiaries or against or applicable to any of the Target Assets that (a) if adversely determined, would reasonably be expected to materially and adversely affect the legality, validity or enforceability of this Agreement or the other Transaction Documents, (b) if adversely determined, would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impair the ability of Parent to consummate the transactions contemplated by this Agreement or the other Transaction Documents, or (c) if adversely determined, would reasonably be expected to, individually or in the aggregate, have a Parent Material Adverse Effect.
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(b) Since the Applicable Date, there have been no unsatisfied or outstanding material Government Orders against or applicable to Parent or any of the Transferred Subsidiaries or against or applicable to any of the Target Assets. None of Parent or the Transferred Subsidiaries is a party to or subject to any Government Order that would, individually or in the aggregate, reasonably be expected to (i) materially and adversely affect the legality, validity or enforceability of this Agreement or the other Transaction Documents or (ii) prevent, materially delay or materially impair the ability of Parent to consummate the transactions contemplated by this Agreement or the other Transaction Documents.
Section 6.7 Governmental and Third-Party Approvals, Consents and Notices. Assuming the truth and accuracy of the representations and warranties of Purchaser set forth in Article VIII, other than with respect to the matters disclosed in Section 6.7 of Sellers’ Disclosure Letter, Parent is not required to (a) obtain any authorization, waiver, consent or approval of, (b) make any filing, report or registration with or (c) give any notice to any Government Authority in connection with or as a condition to the execution, delivery and performance of any of the Transaction Documents or the consummation of the transactions contemplated thereby, except as would not reasonably be expected to have a Parent Material Adverse Effect, or prevent or materially impair the ability of Parent to consummate the transactions contemplated hereby.
Section 6.8 Taxes.
(a) Except as set forth in Section 6.8(a) of Sellers’ Disclosure Letter, all income and other material Tax Returns that are required to be filed under applicable Laws on or before the Closing (taking into account any timely filed automatic extensions of time in which to file) by Parent or the Transferred Subsidiaries have been or will be timely filed on or before the Closing Date, and all such Tax Returns are complete and accurate in all material respects.
(b) Since the Applicable Date, each of Parent and the Transferred Subsidiaries has timely paid all income and other material Taxes.
(c) Except as set forth in Section 6.8(c) of Sellers’ Disclosure Letter, there is no audit, examination, investigation, action, proceeding or assessment pending or proposed or threatened in writing by a Government Authority with respect to material Taxes for which Parent or the Transferred Subsidiaries would be liable.
(d) Since the Applicable Date, all material Taxes which Parent or the Transferred Subsidiaries are required by Law to withhold or to collect for payment have been duly withheld and collected and have been timely paid to the appropriate Government Authority.
(e) Since the Applicable Date, all material deficiencies asserted or assessments made in writing by a Government Authority of Parent or the Transferred Subsidiaries as a result of any audit, examination, investigation, action, proceeding or assessment have been paid in full or otherwise finally resolved.
(f) No agreement, consent or waiver of any statute of limitations or extension of time is in effect with respect to any material Taxes of Parent or the Transferred Subsidiaries (other than automatic extensions of the due date for filing any Tax Return obtained in the ordinary course of business), and no written request covering any such matter is outstanding.
(g) Parent and the Transferred Subsidiaries have not received or requested any Tax rulings from any Government Authority that would apply for any taxable period ending after the Closing Date.
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(h) None of Parent or the Transferred Subsidiaries will be required to include or accelerate the recognition of any material item in income, or exclude or defer any material deduction, in each case in any taxable period (or portion thereof) after the Closing, as a result of any change in method of accounting, closing agreement, intercompany transaction, or installment sale, in each case prior to the Closing.
(i) Since the Applicable Date, none of Parent or the Transferred Subsidiaries has been informed in writing by any Government Authority that such Government Authority believes that such Person was required to file any material Tax Return that was not filed, which claim has not been resolved.
(j) Since the Applicable Date, none of Parent nor any of the Transferred Subsidiaries (i) has been a member of any Parent Group other than each Parent Group of which it is presently a member or (ii) has any Liability for Taxes of any Person (other than Parent or the Transferred Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of Tax Law), as a transferee or successor or by Contract (other than commercial agreements that do not primarily relate to Taxes).
(k) There are no Encumbrances for material Taxes (other than Permitted Encumbrances) on any of the Target Assets.
(l) None of Parent or any of the Transferred Subsidiaries has been, in the last two (2) years, a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(m) Since the Applicable Date, none of Parent or any of the Transferred Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
Section 6.9 Employee Benefit Plans.
(a) Section 6.9(a) of Sellers’ Disclosure Letter sets forth an accurate and complete list of each material Employee Benefit Plan in effect as of the date hereof. With respect to each such Employee Benefit Plan, Parent has made available in the Virtual Data Room, to the extent applicable, accurate and complete copies of (1) the plan document, including any amendments thereto, (2) a written description of such Employee Benefit Plan if it is not set forth in a written document, (3) the most recent annual reports on IRS Form 5500 (including all schedules and attachments thereto) filed with the U.S. Department of Labor, (4) the most recently prepared financial statements or actuarial report, (5) the most recent summary plan description together with any summaries of all material modifications thereto, (6) the most recent IRS determination or opinion letter, (7) the most recent written results of all required compliance testing, and (8) copies of any material non-routine correspondence with the IRS, U.S. Department of Labor or other Government Authority within the preceding three (3) years. Notwithstanding the foregoing, Section 6.9(a) of Sellers’ Disclosure Letter need not identify any employment or consulting agreement or offer letter that is on substantially the same form as the Company’s standard template(s) made available to Parent in the Virtual Data Room, or which relates to an individual whose base salary or annual consulting fee does not exceed $200,000, or can be terminated at-will upon one hundred and eighty (180) days’ notice or less without cost or liabilities in excess of such notice period, and does not provide for any change of control, retention, or other transaction bonus. Since the Applicable Date, there has been no announcement by Parent or any of the Transferred Subsidiaries relating to any Employee Benefit Plan which would increase materially the expense of maintaining such Employee Benefit Plan above the level of the expense incurred therefore for the most recent fiscal year.
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(b) Since the Applicable Date (i) each Employee Benefit Plan has been established, administered and maintained in all material respects in accordance with its terms and is in compliance in all material respects with all applicable Laws, and (ii) none of Parent or any of the Transferred Subsidiaries, or Parent or the Transferred Subsidiaries has engaged in a transaction with respect to any Employee Benefit Plan that would reasonably be expected to subject Parent or the Transferred Subsidiaries to a Tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA in an amount which could be material. There are no complaints, investigations, claims or disputes in progress, pending or, to the Knowledge of the Sellers, threatened relating to any Employee Benefit Plan, its related assets or trusts, or any fiduciary, administrator or sponsor thereof (other than routine claims for benefits). Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the IRS to be qualified under Section 401(a) of the Code and nothing has occurred that would adversely affect the qualification or tax exemption of any such Employee Benefit Plan. No stock or other securities issued by Parent or any of the Transferred Subsidiaries forms or has formed any part of the assets of any Employee Benefit Plan that is intended to qualify under Section 401(a) of the Code. No Employee Benefit Plan is presently under audit or examination (nor has written notice been received of a potential audit or examination) by any Government Authority. All material payments required to be made by Parent or any of the Transferred Subsidiaries under, or with respect to, any Employee Benefit Plan (including all contributions, distributions, reimbursements, or premium payments) with respect to all periods prior to the Closing Date have been made on or before their respective due dates or, for any such payments that are not yet due, accrued and reflected in the most recent consolidated balance sheet prior to the date hereof, in each case in accordance with the provisions of each of the Employee Benefit Plans, applicable Law and IFRS. There is not now, nor do any circumstances exist that could give rise to, any requirement for the posting of security with respect to an Employee Benefit Plan or the imposition of any lien under ERISA or the Code.
(c) No Employee Benefit Plan is, and none of Parent or any of the Transferred Subsidiaries, nor any ERISA Affiliate thereof or any of their respective predecessors, has since January 1, 2024 established, maintained, sponsored, contributed to, or had an obligation to contribute to or any other Liability (whether on account of an ERISA Affiliate or otherwise), or has since January 1, 2024, maintained, sponsored, contributed to, or had an obligation to contribute to or any other Liability, under or with respect to: (i) a plan that is subject to Section 412 or 430 of the Code or Section 302 or Title IV of ERISA or a “defined benefit” plan within the meaning of Section 3(35) of ERISA; (ii) a Multiemployer Plan; (iii) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210(a) of ERISA; (iv) a multiple employer welfare arrangement (as defined in Section 3(40)(A) of ERISA); or (v) a plan maintained in connection with any trust described in Section 501(c)(9) of the Code. None of Parent, any of the Transferred Subsidiaries or any ERISA Affiliate thereof has withdrawn since January 1, 2024 from any Multiemployer Plan, or incurred any withdrawal liability which remains unsatisfied.
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(d) Except as required by Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code and any other applicable Law, no Employee Benefit Plan provides retiree or post-employment medical, disability, life insurance or other welfare benefits to any Parent Service Provider. None of Parent or any of the Transferred Subsidiaries has incurred (whether or not assessed), or is reasonably expected to incur or to be subject to, any Tax or other penalty with respect to the reporting requirements under Sections 6055 and 6056 of the Code, as applicable, or under Section 4980B, 4980D or 4980H of the Code. None of Parent or any of the Transferred Subsidiaries has any Liability on account of a material violation of the Affordable Care Act.
(e) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement either alone or together with another event, will (i) entitle any Parent Service Provider to severance pay, any other payment or benefit, any cancellation of indebtedness or any increase in compensation or benefits (other than as required by Law), (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation due to any such individual, or (iii) result in an obligation to fund or otherwise set aside assets to secure to any extent any of the obligations under any Employee Benefit Plan. No Person is entitled to any gross-up, make-whole, or other additional payment by Parent or any of the Transferred Subsidiaries in respect of any Tax or interest or penalty related thereto under Section 409A of the Code, Section 4999 of the Code, or otherwise.
(f) No amount or benefit paid or payable (whether in cash, in property or in the form of benefits) by Parent or any of the Transferred Subsidiaries in connection with any of the transactions contemplated by this Agreement (either alone or together with another event) will result in, an “excess parachute payment” within the meaning of Section 280G of the Code.
(g) All Employee Benefit Plans subject to the Laws of any jurisdiction outside of the United States or that covers any Parent Service Provider residing or working outside of the United States (each, a “Foreign Benefit Plan”) (i) if they are intended to qualify for special tax treatment, meet all requirements for such treatment and there are no existing circumstances or events that have occurred that would reasonably be expected to affect adversely the special tax treatment with respect to such Foreign Benefit Plan, (ii) if they are intended to be funded and/or book-reserved, are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions, and (iii) if intended or required to be qualified, approved or registered with a Government Authority, is and has been so qualified, approved or registered.
(h) No Foreign Benefit Plan in the UK is a defined benefit pension plan, and none of the Transferred Subsidiaries in the UK has at any time employed a member of, or been associated or connected (as defined in Section 51(3) of the UK Pensions Act 2004) with an employer which employed a member of, an occupational defined benefit pension plan.
(i) No Foreign Benefit Plan of each of the Transferred Subsidiaries in the UK provides retirement benefits which are not “money purchase benefits” as defined in Section 181 of the UK Pension Schemes Act 1993 and each of the Transferred Subsidiaries in the UK: (i) has at all times complied with its auto-enrolment obligations under the UK Pensions Act 2008; (ii) has not at any time employed an employee whose contract of employment transferred to it from another employer under the UK Transfer of Undertakings (Protection of Employment) Regulations 1981 or 2006, where this employee has a right to benefits which are not benefits on old age invalidity or death.
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Section 6.10 Labor Matters.
(a) Section 6.10(a) of Sellers’ Disclosure Letter sets out an anonymized list of all Parent Service Providers with particulars of the date of commencement of employment, employing entity, location, fixed annual salary, type of contract and all material benefits provided, in each case as of the date hereof.
(b) The Virtual Data Room contains a representative sample of standard terms and conditions of employment used for each grade of employee of Parent and staff handbooks and material employment policies which apply to Parent Service Providers.
(c) Section 6.10(c) of Sellers’ Disclosure Letter contains details of any consultants, workers, independent contractors, freelancers, outworkers, agency workers or persons treated as self-employed or contracted labor as of the date hereof, providing services to Parent for a compensation exceeding EUR 100,000.00 p.a. Copies of their agreements or particulars of their engagement have been placed in the Virtual Data Room.
(d) Since the Applicable Date, none of Parent or the Transferred Subsidiaries is or has been a party to, is or has been bound by, is or has been negotiating or, to the Knowledge of the Sellers, has been asked to negotiate, any labor agreements, works council agreements, union Contracts or collective bargaining agreements. There is not currently, nor has there been since the Applicable Date, any organized effort by any labor union to organize any Parent Service Provider into one or more collective bargaining unions.
(e) None of Parent or the Transferred Subsidiaries is, or since January 1, 2024 has been, a party to any dispute or controversy with a labor union or with respect to unionization or collective bargaining involving any of their current or former Parent Service Provider, including any actual or threatened in writing, strike, lockout, walkout, work stoppage, slowdown, picketing, boycott, or other dispute involving union or other labor organization or with respect to unionization or collective bargaining. Additionally, Parent and the Transferred Subsidiaries have not received a written notice informing them that (i) there are unfair labor practice charges or complaints pending against Parent or any Transferred Subsidiary before any applicable Government Authority relating to any Parent Service Provider; (ii) there are material representation claims or petitions pending before any applicable Government Authority; or (iii) there are material charges with respect to or relating to Parent or any of the Transferred Subsidiaries pending before any applicable Government Authority responsible for the prevention of unlawful employment practices.
(f) Each of Parent and the Transferred Subsidiaries is and has since the Applicable Date been in material compliance with all applicable Laws which relate to labor, employment and employment practices, terms and conditions of employment, wages, hours, overtime, wage payment, payment of holiday pay, classification of employees and other service providers (including independent contractors), record keeping, fair employment practices, workers’ compensation, withholding of Taxes, discrimination in employment, harassment, disability rights or benefits, immigration (including applicable Form I-9 Laws and prevention of illegal working Laws), reasonable accommodations, employee leave issues, unemployment insurance, and occupational safety and health, except as would not be expected to have a Parent Material Adverse Effect.
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(g) There is no pending or, to the Knowledge of the Sellers, threatened in writing material claim or litigation against Parent or the Transferred Subsidiaries with respect to allegations of sexual harassment, sexual misconduct or a hostile work environment, and, since January 1, 2024, (i) there have been no reported internal or external complaints accusing any Parent Service Provider of sexual harassment, sexual misconduct or creating a hostile work environment, and since the Applicable Date (ii) there has been no settlement of, or payment arising out of or related to, any litigation with respect to sexual harassment, sexual misconduct or a hostile work environment against Parent or the Transferred Subsidiaries.
(i) Each sponsor license held in the UK which is utilized to sponsor UK employees of Parent or the Transferred Subsidiaries is valid, subsisting and A-rated. In relation to any UK employee who requires a certificate of sponsorship in order to remain and work in the UK, the relevant sponsoring entity has at all relevant times been a licensed sponsor.
Section 6.11 No Violation of Law; Regulatory Matters; Required Licenses and Permits.
(a) Since the Applicable Date, each of Parent or its Subsidiaries has been in compliance in all material respects with (i) all applicable Laws and (ii) all Government Orders against Parent or any of the Transferred Subsidiaries or the Target Assets or their respective businesses, and none of Parent or any of the Transferred Subsidiaries, has received any written notice alleging that Parent or any of the Transferred Subsidiaries is not in compliance in any material respect with any Law or Government Order, in each case except as would not be expected to have a Parent Material Adverse Effect.
(b) Since the Applicable Date, none of Parent or the Transferred Subsidiaries or any of their respective Representatives (acting in their capacities as such) has violated the Anti-Money Laundering Laws in any material respect.
(c) None of Parent or the Transferred Subsidiaries is subject to regulation as a “public utility,” “utility,” “electric utility,” “retail electric provider” or “transmission and distribution utility”.
(d) Other than as set forth in Section 6.11(d) of Sellers’ Disclosure Letter, (i) Parent and the Transferred Subsidiaries and each of their respective Representatives (acting in their capacities as such) are, and have been, since January 1, 2022, in compliance with the Export and Sanctions Regulations in all material respects; (ii) none of Parent or the Transferred Subsidiaries or any of their respective Representatives (acting in their capacities as such) has been, since January 1, 2022 and continuing to the present (A) organized in, operating from or resident in a Sanctioned Country or (B) directly engaged in any dealings or transactions in a Sanctioned Country in violation of applicable Export and Sanctions Regulations, or (C) a Sanctioned Person; (iii) none of Parent or the Transferred Subsidiaries or any of their respective Representatives is or has been a Sanctioned Person; (iv) none of Parent or the Transferred Subsidiaries or any of their respective Representatives (acting in their capacities as such) is involved in any Action, or has since January 1, 2022, received a written request for information or any other form of communication from any Government Authority, or has since January 1, 2022, had any judgments imposed (or threatened to be imposed) upon Parent or any of the Transferred Subsidiaries by or before a Government Authority, in each case in connection with any actual or alleged material violation of any Export and Sanctions Regulations; and (v) the Parent and any of the Transferred Subsidiaries maintain policies and procedures reasonably designed to ensure compliance with and to prevent violations of Export and Sanctions Regulations.
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(e) Since January 1, 2022, (i) none of Parent or any of the Transferred Subsidiaries or any of their respective Representatives (acting in their capacities as such) has taken any action, or engaged in any activity, practice or conduct, that would violate the FCPA, the U.K. Bribery Act, or any other applicable Law regarding anti-corruption, (ii) none of Parent or any of the Transferred Subsidiaries or any of their respective Representatives (acting in their capacities as such) has (A) used any corporate funds of Parent or any of the Transferred Subsidiaries for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (B) authorized, offered, promised or made any unlawful payment to any foreign or domestic governmental officials or (C) paid any bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment to any Person, private or public, regardless of form, whether in money, property or services, to obtain favorable treatment in securing business or to obtain special concessions for Parent or any of the Transferred Subsidiaries, in the case of the foregoing clauses (A), (B) and (C) which would or would reasonably be expected to result in a material violation of the FCPA, the U.K. Bribery Act, or any other applicable Laws regarding anti-corruption, (iii) there are no pending or, to the Knowledge of the Sellers, threatened in writing Actions against Parent or any of the Transferred Subsidiaries with respect to the FCPA, the U.K. Bribery Act, or any other applicable Law regarding anti-corruption, nor has Parent nor any of the Transferred Subsidiaries received any written notice, request, or citation of any allegation with regards to a violation or potential violation of the FCPA, the U.K. Bribery Act, or any other applicable anti-corruption Laws, and (iv) Parent and the Transferred Subsidiaries maintain policies and procedures reasonably designed to ensure compliance with and to prevent breaches of the FCPA, the U.K. Bribery Act, and other applicable anti-corruption Laws.
(f) Since the Applicable Date, Parent and the Transferred Subsidiaries have owned, held or possessed all Permits necessary for the conduct of Parent’s and the Transferred Subsidiaries’ businesses as currently conducted and Parent and the Transferred Subsidiaries’ businesses have been conducted in compliance in all material respects with such Permits, except as would not be expected to have a Parent Material Adverse Effect. Since the Applicable Date none of Parent or the Transferred Subsidiaries has received any written notice alleging that Parent or any of the Transferred Subsidiaries are not in compliance in any material respect with any terms or requirements of any Permit or regarding the potential revocation, withdrawal, suspension, cancellation, termination or modification of any Permit.
(g) Parent is and has since January 1, 2024 been in compliance with the Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation), as amended, and Parent has not received any written notice alleging that Parent or any of the members of its management board or supervisory board is not in compliance in any material respect therewith.
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Section 6.12 Real Property.
(a) Section 6.12(a) of Sellers’ Disclosure Letter, as of the date hereof, sets forth a true and complete list of all real property owned by Parent or the Transferred Subsidiaries (the “Owned Real Property”), all of which are owned by Parent or any of the Transferred Subsidiaries or are expected to be owned by them as of the Closing. The title in the Owned Real Property of Parent and each of the Transferred Subsidiaries is good and valid and free and clear of any Encumbrances, except for Permitted Encumbrances. There are no leases, subleases, licenses, occupancy agreements or other agreements by, through or under Parent or any of the Transferred Subsidiaries granting to any other Person the right of use or occupancy of any Owned Real Property or any portion thereof other than the Data Center Leases. There are no tax reduction proceedings pending (rechtshängig) with respect to all or any portion of the Owned Real Property. No Person other than Parent and the Transferred Subsidiaries is currently in possession of any portion of the US Owned Real Property.
(b) (i) there is no existing material breach or material default by any party under any easements or restrictive covenants affecting any Owned Real Property which material breach or material default has not yet been cured, (ii) neither Parent nor any of the Transferred Subsidiaries has received written notice of any material default under any easements or restrictive covenants affecting the Owned Real Property which material default has not yet been cured, and (iii) there does not exist any condition or event that with the lapse of time or the giving of notice, or both, would constitute such a material breach or material default under any easements or restrictive covenants affecting any Owned Real Property. There are no existing unrecorded (but recordable) deeds, land contracts, leases, rights of first offer, rights of first refusal, options to purchase, mortgages, agreements or other instruments, in each case adversely affecting title to the Owned Real Property or any portion thereof or interests therein, which are not reflected in the public records of the jurisdiction where the Owned Real Property is located.
(c) Section 6.12(c) of Sellers’ Disclosure Letter, as of the date hereof, sets forth a true and complete list of all real property in which Parent or the Transferred Subsidiaries holds a leasehold, subleasehold or license interest (the “Leased Real Property”), or for which Parent or the Transferred Subsidiaries have entered into a binding agreement to hold a leasehold, subleasehold or license interest as of the Closing. None of the Real Property Leases have been modified by Parent or any of the Transferred Subsidiaries, other than pursuant to a written agreement. Since the Applicable Date, no rights or claims have been asserted in writing under any Encumbrance (other than Permitted Encumbrances) against Parent or the Transferred Subsidiaries that would reasonably be expected to materially and adversely interfere with the use, occupancy or operation of any Leased Real Property (other than the Data Center Leases) as currently used, occupied or operated. There are no uncured material disputes with respect to the Real Property Leases that would entitle the holder thereof to materially interfere with or materially disturb the tenant’s use and enjoyment of the Leased Real Property or the exercise of the tenant’s rights thereunder so long as the tenant is not in default under the applicable Real Property Lease. There is no pledge or security interest granted in any of the Real Property Leases (other than Permitted Encumbrances), and, except as disclosed in the public records of the jurisdiction wherein the Leased Real Property is located, no Real Property Lease is subject to any ground lease, mortgage, deed of trust or other superior Encumbrance or interests (including, for the avoidance of doubt, any present or future right to occupy any portion of the Leased Real Property) that would entitle the holder thereof to materially interfere with or materially disturb tenant’s use and enjoyment of the Leased Real Property or the exercise of the tenant’s rights thereunder so long as the tenant is not in default under the applicable Real Property Lease. Except as set forth in Sellers’ Disclosure Letter, there are no leases, subleases, licenses, occupancy agreements or other agreements (other than the Real Property Leases) by, through or under Parent or any of the Transferred Subsidiaries granting to any other Person the right of use or occupancy of any Leased Real Property (other than the Data Center Leases). No material obligations of any landlord, sublandlord or licensor thereunder are delinquent. As of the date hereof, neither Parent nor any of the Transferred Subsidiaries has received written notice of any material default that would constitute a material default pursuant to a Real Property Lease other than defaults that have been cured or waived in writing.
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(d) The Real Property constitutes all of the real property used by Parent and the Transferred Subsidiaries for their current operations. There is currently no ongoing material construction work in, on, or about any Real Property (other than the Data Centers) other than routine maintenance and repairs as well as tenant-fit outs being performed in the ordinary course of business. There are no leasing commissions due from Parent or any of the Transferred Subsidiaries with respect to any Real Property (other than the Data Centers) that remain outstanding or unpaid. Other than the Data Centers, the buildings, structures and facilities on the Owned Real Property are in good operating condition and repair (ordinary wear and tear excepted), are suitable for the purposes for which they are currently being used and for the current operations of Parent and the Transferred Subsidiaries. No Government Authority having jurisdiction over any Real Property (other than the Data Centers) has issued towards Parent or the Transferred Subsidiaries any written notice, Government Order or Action that would reasonably be expected to materially and adversely impair the use, occupancy or operation of any Real Property as currently used, occupied or operated.
(e) There is no condemnation or eminent domain proceeding that would materially impair the use, occupancy or operation of any Real Property or any part thereof as currently used, occupied or operated.
(f) Neither Parent nor any of the Transferred Subsidiaries owns or holds, or is obligated under or party to, any option, right of first offer, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any Real Property or any portion thereof.
Section 6.13 Intellectual Property.
(a) Section 6.13(a) of Sellers’ Disclosure Letter contains a true, accurate and complete list, as of the date hereof, of all (A) Registered Intellectual Property used by Parent and the Transferred Subsidiaries, indicating for each item of such Registered Intellectual Property the (i) applicable owner, (ii) registration, patent or application number, (iii) date of registration, issuance or application and (iv) applicable filing jurisdiction and (B) all Software included in the Owned Intellectual Property (as defined below (such Software, “Business Software”). The Registered Intellectual Property is enforceable subsisting and all registered or issued Registered Intellectual Property is valid. Parent and the Transferred Subsidiaries, as applicable, exclusively own all Owned Intellectual Property, free and clear of any Encumbrance (other than Permitted Encumbrances). Parent and the Transferred Subsidiaries exclusively owns or have a valid right to use in the manner currently used in all material aspects all Intellectual Property used in or held for use in or necessary for the conduct of Parent’s and the Transferred Subsidiaries’ businesses as presently conducted (collectively, the “Business Intellectual Property”).
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(b) The execution, delivery and performance of this Agreement and each of the other Transaction Documents to which it is a party by Parent and each Transferred Subsidiary, and the consummation by Parent and each Transferred Subsidiary of the transactions contemplated hereby and thereby, will not result in the loss, termination or impairment of any rights of Parent or the Transferred Subsidiaries to own or use any material Business Intellectual Property. Except as set forth in Disclosure Letter, no material Owned Intellectual Property is subject to any proceeding or outstanding order, Contract or stipulation restricting the use, transfer or licensing thereof by Parent or any Transferred Subsidiary.
(c) Except as set for on Section 6.13(c) of Sellers’ Disclosure Letter, neither Parent nor any of the Transferred Subsidiaries have, since the Applicable Date, infringed, misappropriated, diluted or otherwise violated the Intellectual Property of any third party and Parent’s and the Transferred Subsidiaries’ operations as currently conducted or as previously conducted since the Applicable Date do not infringe, misappropriate, dilute or otherwise violate (or have infringed, misappropriated, diluted or otherwise violated the Intellectual Property rights of any third party. Except as set forth in Sellers’ Disclosure Letter, no Person has, since the Applicable Date, asserted in writing received by Parent or any of the Transferred Subsidiaries that Parent or any of the Transferred Subsidiaries have infringed, misappropriated or otherwise violated the Intellectual Property of any third party. No third party has, since the Applicable Date, infringed, diluted, violated or misappropriated any material Owned Intellectual Property. There is no Action threatened in writing or pending (i) alleging that Parent or any of the Transferred Subsidiaries have infringed, diluted, misappropriated or otherwise violated the Intellectual Property rights of any third party (including an assertion of an ownership interest in any Intellectual Property rights, any invitation to license or request or demand to refrain from using any Intellectual Property rights of any Person) in any material respect; or (ii) challenging the validity, enforceability, or ownership of any material Owned Intellectual Property.
(d) Since the Applicable Date, Parent and the Transferred Subsidiaries take and have taken commercially reasonable measures to protect the Intellectual Property rights, including to protect confidential nature of any of the Trade Secrets owned or used by Parent or the Transferred Subsidiaries. All Persons granted access to such Trade Secrets are subject to contractual, legal, or enforceable ethical obligations that require such Persons to protect the confidentiality of such Trade Secret. No Person having access to Trade Secrets and material confidential information has misappropriated any material Trade Secret or other material confidential information in the course of his or her duties.
(e) To the extent that any material third-party owned Intellectual Property is incorporated into, integrated or bundled with, or used by any Parent or any Transferred Subsidiary in the development, manufacture, compilation, use, or other exploitation of any Business Intellectual Property, such Parent or Transferred Subsidiary has all necessary rights to use or exploit all such material third-party owned Intellectual Property, subject to the terms of any applicable license agreement.
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(f) No funding, facilities, personnel or other resources of any Government Authority or any academic institution were used by Parent and the Transferred Subsidiaries to develop or create any material Owned Intellectual Property.
(g) All Parent Service Providers who have contributed to the conception, authorship, or development of any material Intellectual Property rights that are purported to be owned by Parent or any of the Transferred Subsidiaries or in connection with his, her or its employment by Parent or any of the Transferred Subsidiaries have executed and delivered to Parent or any of the Transferred Subsidiaries, or Parent or any of the Transferred Subsidiaries, as applicable, a written agreement sufficient to vest Parent and the Transferred Subsidiaries with full ownership of such Intellectual Property to the extent Parent or any of the Transferred Subsidiaries did not acquire ownership of such Intellectual Property rights by operation of Law. To the extent a full assignment of ownership is not possible for reasons of applicable copyright law, the term “ownership” shall mean that each Parent Service Provider has granted to Parent or any of the Transferred Subsidiaries the exclusive, worldwide, perpetual, unrestricted, royalty-free, transferable and sublicensable rights which allow for the unrestricted economic exploitation of the Intellectual Property rights. With respect to the software, the term “ownership” shall mean that the Parent or any of the Transferred Subsidiaries holds rights in accordance with Section 69b of the Germany Copyright Act (Urheberrechtsgesetz) or any comparable provision in any other jurisdiction, if applicable. Parent and the Transferring Subsidiaries have since the Applicable Date duly complied with the provisions of the German Act on Employee Inventions (Arbeitnehmererfindungsgesetz) or any comparable provision in any other jurisdiction, if applicable. Except as would not be expected to have Parent Material Adverse Effect, Parent and the Transferring Subsidiaries have exclusive and unrestrictive rights to all inventions and developments which were made by the Parent Service Providers on behalf of Parent and the Transferring Subsidiaries in connection with a job at or the work performed for them.
(h) Neither Parent nor any of the Transferred Subsidiaries has disclosed, delivered, licensed or made available to any escrow agent or other Person any Business Source Code or Business Software, except for disclosures to employees, consultants, agents and independent contractors for Parent or one of the Transferred Subsidiaries that are subject to confidentiality obligations to maintain the confidentiality of such Business Source Code and who have had such access in connection with their employment or engagement by Parent or any of the Transferred Subsidiaries, as applicable. Neither Parent nor any Transferred Subsidiary has any duty or obligation (whether present, contingent or otherwise) to deliver, license or make available any Business Source Code or Business Software to any escrow agent or other Person who is the beneficiary of any escrow agreement pursuant to which any Business Source Code or Business Software has been deposited.
(i) Except as would not be material and adverse to Parent or the Transferred Subsidiaries, Parent and the Transferred Subsidiaries, as applicable maintain machine readable copies of all material Business Software owned by Parent or the Transferred Subsidiaries that is incorporated in or distributed as part of any product sold, distributed or made commercially available by Parent or any of the Transferred Subsidiaries to a customer (including Business Source Code and system specifications, but expressly excluding any shrink wrap, click-wrap or commercial off the shelf software licenses).
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(j) The manner in which any Open Source Software is incorporated into, used in, linked to or called by, or otherwise combined or distributed with Business Software does not, according to the terms of the license applicable to such Open Source Software, obligate Parent or any of the Transferred Subsidiaries to: (A) disclose, make available, offer or deliver all or any portion of any source code of any such Business Software to any third party, other than the applicable Open Source Software, or (B) create obligations for Parent or its Transferred Subsidiaries, as applicable, to grant to any third party any rights or immunities under any Intellectual Property (including any agreement not to assert patents), or impose any limitations or restrictions on Parent’s or any of the Transferred Subsidiaries’ use, distribution or exploitation thereof, other than with respect to the applicable Open Source Software itself.
(k) The Parent IT Systems (including the Business Software), (i) operate and perform in all material respects as required by Parent and the Transferred Subsidiaries; (ii) are sufficient in all material respects for the conduct of the business of Parent and the Transferred Subsidiaries being transferred pursuant to this Agreement as presently conducted; and (iii) have not malfunctioned or failed in any material respect since the Applicable Date, except for failures or defects of individual systems in the ordinary course of business. Since the Applicable Date, none of Parent or any of the Transferred Subsidiaries have been subjected to a license audit of any kind in connection with any Contract pursuant to which they use any material third-party Parent IT System, nor received any notice of intent to conduct any such audit. Except as would not be material and adverse to Parent and the Transferred Subsidiaries, Parent and the Transferred Subsidiaries possess sufficient seat licenses to use the Parent IT Systems for its businesses as currently conducted.
Section 6.14 Information Security; Data Privacy.
(a) Since the Applicable Date, Parent and the Transferred Subsidiaries have established, implemented and maintained an Information Security Program that is appropriate to the nature of the Personal Data Processed by Parent or the Transferred Subsidiaries and, has included assessment and testing, and remediation of all material risks and vulnerabilities identified by such assessments and/or tests. The Information Security Program is compliant with Privacy Requirements in all material respects. The Parent IT Systems (including the Business Software) are in good working condition, do not contain any known Malicious Code or significant defect, and in all material respects operate and perform as necessary for the conduct of Parent’s and the Transferred Subsidiaries’ business.
(b) Neither the execution, delivery nor performance of this Agreement or any other Transaction Document violate any Privacy Requirement, except as would not be reasonably be expected to be material to any Parent or the Transferred Subsidiaries.
(c) Parent and the Transferred Subsidiaries comply and have since the Applicable Date processed Personal Data in compliance with all Privacy Requirements in all material respects, including with respect to any contracts, terms of service, or similar agreements, Parent or Transferred Subsidiaries have in place with processor or service providers (as those and similar terms are defined in the Privacy Requirements). To the extent required by Privacy Requirements, Personal Data is securely deleted or destroyed. Parent and Transferred Subsidiaries do not sell, and have not sold (as defined in the California Consumer Privacy Act, as amended by the California Privacy Rights Act, and its implementing regulations, or, in reference to any Privacy Requirement, in a comparable definition embodied in that particular Privacy Requirement with comparable exceptions) any Personal Data. Any International Transfers by Parent or any of the Transferred Subsidiaries in all material aspects comply with Privacy Requirements.
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(d) Except as set forth in Section 6.14(d)(i) of Sellers’ Disclosure Letter, none of Parent or the Transferred Subsidiaries or third parties processing Personal Data on their behalf have, since the Applicable Date, suffered a Security Incident. Except as set forth in Section 6.14(d)(ii) Sellers’ Disclosure Letter, none of Parent or the Transferred Subsidiaries has received a written notice, letter, or complaint from a Government Authority or any Person alleging noncompliance or potential noncompliance with any Privacy Requirements and has not been subject to any Action relating to noncompliance or potential noncompliance with Privacy Requirements or Parent’s or any Transferred Subsidiaries’ Processing of Personal Data.
Section 6.15 Specified Contracts.
(a) Except for purchase orders, other than the purchase orders listed in Section 6.15(a)(xvi), and invoices, Employee Benefit Plans and Parent Insurance Policies, Section 6.15(a) of Sellers’ Disclosure Letter lists, as of the date hereof, the following Contracts to which Parent or a Transferred Subsidiary is a party (other than the Transaction Documents, collectively, the “Specified Contracts” and references to the “Parent Party” below refer to Parent or any Transferred Subsidiaries party to the Contract):
(i) Top Ten Customers. Contracts with the top ten (10) largest customers of Parent (measured by revenue received) during the fiscal year ended December 31, 2024 (the “Top Ten Customers”);
(ii) Top Fifteen Suppliers. Contracts with the top fifteen (15) largest suppliers of Parent (measured by aggregate dollars spent) during the fiscal year ended December 31, 2024;
(iii) Future Payment Obligations. Any Contract (or group of related Contracts or group of Contracts with the same counterparty or related counterparties), except Real Property Leases, involving the payment by the Parent Party of more than EUR 250,000.00 and which are not cancelable (without penalty, cost or other Liability) upon notice of ninety (90) days or less;
(iv) Energy. Any Contract involving annual payments in excess of EUR 250,000.00, providing for or relating to the purchase, sale, transmission, distribution or management of power or energy, including any retail and wholesale supply, offtake, and demand response agreements, interconnection, transmission service, distribution facility extension and shared facility agreements and management, consulting, advisory and brokerage agreements;
(v) Capital Expenditures. Any Contract (or group of Contracts relating to the same project or subject matter) providing for or requiring any capital expenditure by the Parent Party in excess of EUR 1,500,000.00;
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(vi) Government Authorities. Any Contract with any Government Authority;
(vii) Restrictive Covenants. Any Contract containing covenants materially limiting the freedom of any Parent Party to compete or engage in any line of business or operate in any geographical area;
(viii) Exclusivity. Any Contract pursuant to which any Parent Party has agreed to purchase or sell goods or services exclusively from or to any Person (or group of Persons) or granted “most favored nation” pricing provisions;
(ix) Licenses. Any Contract containing (A) any inbound licenses of material Intellectual Property to the Parent Party (except for (1) shrink-wrap, click-wrap or commercial off-the-shelf software licenses, or (2) any other non-exclusive licenses of software that is commercially available to the public generally for which the aggregate fees payable by the Parent Party in any 12-month period do not exceed EUR 250,000) and (B) any outbound licenses of material Owned Intellectual Property (except for agreements with customers, suppliers or third-party contractors entered into in the ordinary course of business);
(x) Indebtedness. Any Contract (A) for or relating to any Parent Indebtedness having an outstanding principal amount in excess of EUR 250,000.00, (B) under which any Parent Party has made advances or loans to any Person that is not a Parent or Transferred Subsidiary having an outstanding principal amount in excess of EUR 250,000.00; (C) for a capital lease determined in accordance with IFRS or a sale-and-leaseback transaction or (D) containing any interest rate swap agreement, forward rate agreement, interest rate cap or collar agreement;
(xi) Acquisitions and Dispositions. Any Contract contemplating or relating to the acquisition or disposition (whether by merger or sale of stock) of any Person or Equity Interests;
(xii) Joint Ventures. Any partnership, strategic alliance or joint venture agreement with a third party (in each case, other than with respect to wholly owned Subsidiaries of Parent);
(xiii) Real Property Leases. Any leases (including any Data Center Lease), subleases, licenses, concessions, occupancy agreements and other Contracts, in each case (A) granting the Parent Party the right of use or occupancy of the Leased Real Property (together with all amendments, guarantees and modifications thereto, collectively, the “Real Property Leases”) and (B) involves annual payments in excess of EUR 250,000.00;
(xiv) Related Party Contract. Any Contract between (A) on the one hand, Parent or any of its Subsidiaries and (B) on the other hand, any Affiliates (other than Subsidiaries) of Parent or any member of the management board (Vorstand) or supervisory board (Aufsichtsrat) of Parent (collectively, the “Related Party Contracts”);
(xv) Purchase Orders. Any outstanding purchase order of Parent involving the purchase of (A) inventory, materials, supplies, equipment, services or other items from third parties, which involves payments or performance by a Parent Party in excess of EUR 250,000.00 and (B) GPUs (including, for the avoidance of doubt, equipment incorporating GPUs); and
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(xvi) Intellectual Property. Any Contract entered into outside the ordinary course of business containing a covenant not to use, sue or assert, escrow, co-existence, or settlement agreements with respect to any Intellectual Property granted by or to Parent or any Transferred Subsidiary.
(b) Except as set for on Section 6.15(b) of Sellers’ Disclosure Letter, as of the date hereof, each Specified Contract is (i) in full force and effect, and (ii) a legal, valid and binding obligation of, and is an enforceable obligation against, the applicable Parent Party, subject to the Remedies Exception. No Parent Party or any other party to a Specified Contract is in breach of a Specified Contract in any material respect, save, for the avoidance of doubt, in respect of any SLA breach. As of the date hereof, neither Parent nor any of the Transferred Subsidiaries has received or given notice in writing of an intent to terminate, or accelerate the performance of material obligations, modify, amend or otherwise materially and adversely alter the terms and conditions of any Specified Contract or has received any claim in writing of material breach or default under any Specified Contract save, for the avoidance of doubt, in respect of any breach under a service level agreement (a “SLA”).
(c) True and complete copies of the Specified Contracts have been made available in the Virtual Data Room.
(d) The execution, delivery and performance of the Transaction Documents to which Parent and the Transferred Subsidiaries are a party, and the consummation of the transactions contemplated thereby, do not (i) conflict with, constitute a violation of or breach or default under or give any third party any rights of termination, modification, loss, diminution of rights, acceleration or cancellation of or under any Specified Contract or (ii) result in the creation of any Encumbrance (other than Permitted Encumbrances) under any Specified Contract or upon any of the Target Assets, except for any such conflicts, violations, breaches, defaults, terminations, modifications, losses, diminutions of rights, accelerations, cancellations or creations that would not reasonably be expected to have a Parent Material Adverse Effect.
Section 6.16 Assets.
(a) Parent or the Transferred Subsidiaries hold good and valid title to, or a valid leaseholder or license interest in all material Target Assets, including all GPUs, free and clear of all Encumbrances other than Permitted Encumbrances.
(b) The material equipment included in the Target Assets, which includes all GPUs, is in all material respects in good operating condition and repair (except for wear and tear in the ordinary course), and is useable for the purposes to which it is being put, and none of such equipment is in need of maintenance or repair other than ordinary, routine maintenance or repair conducted in the ordinary course of business, in each case except as would not be expected to have a Parent Material Adverse Effect.
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(c) Parent or any of the Transferred Subsidiaries owns all right, title and interest in and to 20,320 H100 GPUs and 2,032 H200 GPUs, free and clear of all Encumbrances (other than Permitted Encumbrances).
Section 6.17 Insurance. Section 6.17 of Sellers’ Disclosure Letter, as of the date hereof, sets forth a true and complete list of the Parent Insurance Policies, specifying the insurer and type of insurance. All of the Parent Insurance Policies are in full force and effect as of the date hereof, and since the Applicable Date, all insurance premiums due thereon have been paid, except as would not be material to Parent. Since the Applicable Date, none of Parent or any of the Transferred Subsidiaries has received in writing any notice of a material premium increase with respect to any such Parent Insurance Policy, or notice in writing of denial of coverage with respect to any such policy, except to the extent such policy has expired. There are no outstanding claims related to Parent exceeding an amount of EUR 250,000.00 under any Parent Insurance Policy.
Section 6.18 Environmental Matters.
(a) Parent and the Transferred Subsidiaries are, and since the Applicable Date have been, in compliance in all material respects with Environmental Laws.
(b) Parent and the Transferred Subsidiaries hold all Environmental Permits that are necessary to own, lease or operate the Target Assets and to conduct their business in all material respects as presently operated, and Parent and the Transferred Subsidiaries are, and since the Applicable Date have been, in compliance in all material respects with all such Environmental Permits.
(c) Since the Applicable Date or as is otherwise unresolved, none of Parent or any of the Transferred Subsidiaries has received any written notice, demand, request for information, order or claim that alleges that Parent or any of the Transferred Subsidiaries is not or was not in material compliance with any Environmental Law or is or was subject to material liability under any Environmental Law.
(d) There are no Actions pending or, to the Knowledge of the Sellers, threatened in writing against Parent or any of the Transferred Subsidiaries relating to compliance with or any material liability or obligation under any Environmental Law or to the investigation, remediation or cleanup of or exposure of any Person to any Hazardous Substance that could form the basis of any Actions, orders or claims against Parent or any of the Transferred Subsidiaries.
(e) Hazardous Substances are not present, and since the Applicable Date there has been no Release or exposure of any Person to any Hazardous Substance on, at, under, upon, to or from any property currently or formerly owned or leased by Parent or any of the Transferred Subsidiaries which could reasonably be expected to have a Parent Material Adverse Effect.
(f) True and complete copies of all material studies, audits, assessments, memoranda, soil, air, groundwater or similar sampling data or other material written information in the possession or reasonable control of Parent or any of the Transferred Subsidiaries that relate to Parent, any of the Transferred Subsidiaries, or the Target Assets, or any property currently or formerly owned or leased by Parent or any of the Transferred Subsidiaries related to compliance with or liability under Environmental Laws have been made available in the Virtual Data Room.
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Section 6.19 Data Centers.
(a) Operational Data Centers.
(i) Section 6.19(a)(i) of Sellers’ Disclosure Letter, as of November 1, 2025, sets forth a list of (A) all Operational Data Centers, (B) all Interconnected Carriers present and available to customers at the Operational Data Centers, (C) the current Capacity built at the Operational Data Centers, (D) the amount of Capacity committed to or reserved to each customer, and (E) the amount of any additional colocation space at the Data Centers subject to rights of first refusal granted in favor of existing customers.
(ii) SLAs in effect with those of the Top Ten Customers present at the Operational Data Centers are set forth in the Data Center Leases. Except as disclosed in Section 6.19(a)(ii) of Sellers’ Disclosure Letter, since the Applicable Date, neither Parent nor any of the Transferred Subsidiaries have (A) experienced any material service outage with those of the Top Ten Customers present at the Operational Data Centers that has triggered SLA Credit representing an aggregate annual amount per service order of more than EUR 250,000.00, or (B) experienced any material security breaches triggering SLA Credits at any of the Operational Data Centers.
(iii) Part I of Section 6.19(a)(iii) of Sellers’ Disclosure Letter sets forth each SLA that is in effect at such Operational Data Center. At all times during operation since the Applicable Date, the entire Capacity of the Operational Data Center has been operated pursuant to a SLA. Except as disclosed in Part II of Section 6.19(a)(iii) of Sellers’ Disclosure Letter, since the Applicable Date, neither Parent nor any of the Transferred Subsidiaries have (A) experienced any material interruption in the transmission of Capacity to any of the Operational Data Centers that has triggered SLA Credits representing an aggregate annual amount per service order of more than EUR 50,000.00, or (B) experienced any material security breaches at any of the Operational Data Centers.
(iv) The Virtual Data Room contains a true and complete copy of all service performance and service incidents logs or records reflecting all high priority or critical service outage events affecting any data hall since the Applicable Date.
(v) Subject to disclosures made under Section 6.19(a)(v) of Sellers’ Disclosure Letter, neither Parent nor any of the Transferred Subsidiaries have made contractual commitments to customers on an aggregate basis per data hall in excess of the power deployed and available to such Person at such data hall, including the utilities, uninterruptible power supply, backup generators and mechanical systems. The electrical utility entrance facility, power system and cooling system capacity and utilization levels disclosed on Section 6.19(a)(v) of Sellers’ Disclosure Letter on a per data hall basis are true and accurate as of the date hereof.
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(b) Pre-Operational Data Centers.
(i) Section 6.19(b)(i) of Sellers’ Disclosure Letter, as of the date hereof, sets forth a true, correct and complete list of all Pre-Operational Data Centers together (A) with their projected power capacity and (B) the indicative date on which such Pre-Operational Data Center is reasonably expected to achieve commercial operation for the full projected power capacity. Except as would not reasonably be expected to have a Parent Material Adverse Effect, each Pre-Operational Data Center is projected to be constructed or developed with (i) a fire suppression system to the extent required by Law; (ii) functioning equipment and facilities, adequate for such Pre-Operational Data Center to receive electric energy from the applicable utility up to the applicable peak contractual demand of such Pre-Operational Data Center; (iii) an executed Contract for the purchase of electric energy from a utility or third-party supplier, up to the applicable peak demand, but excluding any onsite power generation or any other emergency sources of power listed in paragraph (iv); (iv) functioning sources of emergency power, sufficient to permit such Pre-Operational Data Center to maintain substantially normal operations in the event of short-term utility power interruptions; and (v) functioning cooling, power, humidity, network and security facilities and equipment to the extent required by Law and as required to fulfill the requirements of the applicable Contract.
(ii) Section 6.19(b)(ii) of Sellers’ Disclosure Letter, as of the date hereof, sets forth the approved specifications for the Physical Network.
(iii) Section 6.19(b)(iii) of Sellers’ Disclosure Letter, as of the date hereof, sets forth the power availability to be made available to each Pre-Operational Data Center under the applicable power agreements.
(iv) Section 6.19(b)(iv) of Sellers’ Disclosure Letter contains a true and correct list, as of the date hereof, of all Data Center Leases, along with the amount of power leased or licensed, or anticipated to be leased or licensed, pursuant to each such Data Center Lease as of the date hereof.
(v) Parent and the Transferred Subsidiaries have obtained all Permits required under applicable Law for the construction and development that is ongoing at the applicable Pre-Operational Data Center, and such Permits and entitlements are in full force and effect, subject to any pending appeal, except where the failure to obtain such Permits or entitlements would not reasonably be expected to have a Parent Material Adverse Effect.
Section 6.20 Purchase Orders and Commitments.
(a) Section 6.20(a) of Sellers’ Disclosure Letter sets forth a true, complete and accurate list, as of the date hereof, of all outstanding purchase orders, contracts, and other written commitments of Parent other than the Data Center Leases (collectively, “Commitments”) involving the purchase of inventory, materials, supplies, equipment (including GPUs), services or other items from third parties, which (i) individually require future payments or performance by Parent in excess of EUR 1,000,000.00 or (ii) in the aggregate with other similar commitments with the same counterparty exceed EUR 2,500,000.00, and includes for each such Commitment the name of the counterparty, the amount committed (including both paid and unpaid amounts), a description of the goods or services ordered, the dates on which payment is due (or performance is required), whether such Commitment is cancellable or non-cancellable, and whether any disputes exist with respect to such Commitment. Copies of the agreements relating to the Commitments have been made available in the Virtual Data Room.
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(b) There are no material defaults by Parent or by any other party to any such Commitment, nor has any written notice of termination or intent to cancel any such Commitment been received or delivered by Parent.
Section 6.21 Relationships with Related Persons. Except (i) for the Transaction Documents, (ii) as contemplated under the Transaction Documents, or (iii) as set forth in Sellers’ Disclosure Letter, as of the date hereof, none of Parent or any of the Transferred Subsidiaries are bound by any Related Party Contract.
Section 6.22 Peak Mining Purchase Agreement; Legacy Liabilities. The Peak Mining Purchase Agreement is a legal, valid and binding obligation of the parties thereto, enforceable in accordance with its terms and is in full force and effect, subject to the Remedies Exception. No party to the Peak Mining Purchase Agreement is in breach or default thereunder. Parent has not received any written notice of any intention by any party to terminate, rescind, or materially amend the Peak Mining Purchase Agreement.
Section 6.23 Finder’s Fees; Brokerage. Except as disclosed in Sellers’ Disclosure Letter, none of Parent or any of the Transferred Subsidiaries has employed or has any understanding with any broker, finder or investment bank, has incurred or will incur any obligation or Liability for any brokerage fees, commissions or finders fees, or has provided, promised or will provide or promise, any payment or other incentive to any Person, in each case in connection with any of the Transaction Documents or the transactions contemplated thereby.
Section 6.24 No Other Representations or Warranties. Except for the representations and warranties contained in Article V and this Article VI (as qualified by the applicable items disclosed in Sellers’ Disclosure Letter and the Bring-Down Certificate), and the other Transaction Documents, and any certificate delivered hereto or thereto, none of Parent, the Sellers, any of their respective Affiliates or Representatives or any other Person makes any express or implied representation or warranty on behalf of Parent, the Sellers or their respective Affiliates, and Parent and the Sellers hereby disclaim any other representations or warranties, with respect to the subject matter of this Agreement. Furthermore, without limiting the foregoing sentence, except for the representations and warranties contained in Article V and this Article VI (as qualified by Sellers’ Disclosure Letter and the Bring-Down Certificate), any of the other Transaction Documents, and any certificate delivered hereto or thereto, Parent and the Sellers do not give or make any warranty or representation as to (and shall have no indemnification obligation or, in the absence of deceit (arglistige Täuschung) or willful misconduct (Vorsatz), other liabilities in respect of) the accuracy or reasonableness of any forecasts, estimates, projections, statements of intent or statements of opinion provided to Purchaser, any of its Affiliates, or any of their respective Representatives on or prior to the date of this Agreement in connection with this Agreement, including in any “Confidential Information Presentation” relating to Parent or the Sellers, any management presentations, and any other information made available in the Virtual Data Room. Purchaser acknowledges and agrees that, except for the representations and warranties contained in Article V and this Article VI (as qualified by Sellers’ Disclosure Letter and the Bring-Down Certificate), the other Transaction Documents, and any certificate delivered hereto or thereto, none of Parent, the Sellers or any of their respective Affiliates is making any representation or warranty regarding any documents, projections, forecasts, statement or other information made, communicated or furnished (orally, in writing, in the Virtual Data Room, in management presentations (including any questions posed and answers given and any related discussions, whether formal or informal) or otherwise) to Purchaser, any of its Affiliates, or any of their respective Representatives (including any opinion, information, projection or advice that may have been or may be provided to such Person by any Representatives of Parent, the Sellers or any of their respective Affiliates), in connection with this Agreement.
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Article
VII.
LIMITATIONS OF LIABILITY
Section 7.1 Limited Scope of Representations.
(a) Prior to the date hereof, each Seller and Parent made available to Purchaser detailed information with regard to the commercial, technical, financial and legal (including tax) circumstances of Parent Group and its business. Furthermore, Purchaser had the opportunity to review material information concerning Parent Group in the Virtual Data Room. In addition, Purchaser had the opportunity to visit and inspect the business operations of Parent Group with its Representatives and was given the opportunity to discuss any issues in detail with Parent. Against this background Purchaser explicitly acknowledges and agrees:
(ii) to purchase and acquire the Sold Shares based upon its own inspection, examination and determination of all circumstances with respect to the Sold Shares, Parent Group and its business, and to undertake the transactions contemplated in the Transaction Documents based upon Purchaser’s own inspection, examination and determination without reliance upon any express or implied representations, warranties of any nature made by each Seller, except for the representations and warranties explicitly made by each Seller under Article V and Article VI;
(iii) that each Seller does not make any representations or warranties as to the future development of Parent Group or as to budgets, business plans or other forward-looking statements or other projections of a financial, technical or business nature relating to the business of Parent Group;
(iv) that each Seller and its Representatives have not and shall not be under any obligation to make any independent examinations or verifications of whatever nature (such as a review of any of the books or other records of any of Parent Group or any research with any publicly available register or enquiry of Representatives of Parent Group; and
(v) that the lack of any independent examination or verification by each Seller and its Representatives shall in no event be regarded as acting in a fraudulent manner (keine Arglist aufgrund von Angaben “ins Blaue hinein”) as Purchaser is fully aware of and accepts these circumstances.
(b) Each Seller’s liability for breaches of any of the representations and warranties of Sellers contained in Article VI shall be limited to EUR 1.00, provided that this shall not apply in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz) by each Seller and except as in relation to any breach of 6.6, 6.8 or 6.11 in relation to which each Seller’s liability shall be limited to the value of the Rumble Share Consideration (based on the Purchaser Common Stock Price) actually received by the Sellers.
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Section 7.2 RWI Policy.
(a) Purchaser has entered into a binder agreement with the RWI Provider with respect to the RWI Policy covering certain of the representations and warranties of the Sellers contained in Article VI. The Parties agree that the representations and warranties of the Sellers contained in Article VI are made on the grounds (Geschäftsgrundlage) that (i) they solely serve for risk allocation purposes in accordance with the rights and remedies of the Purchaser for any incorrectness of representations and warranties of a representation of the Sellers contained in Article V and Article VI (other than the Sellers’ Fundamental Representations and Parent Fundamental Representations), and (ii) for the purpose of giving these representations, neither the Sellers nor any of Seller’s Representatives has independently examined or verified the underlying facts, matters, circumstances or statements made in these representations or Seller’s Disclosure Schedule as prepared by Parent Group.
(b) True and complete copies of the binder agreement with the RWI Provider and the RWI Policy have been made available to the Sellers. Purchaser guarantees to the Sellers that the provisions of the RWI Policy include terms to the effect that the RWI Provider waives any right of subrogation against Seller in connection with this Agreement and the transactions contemplated hereby, except in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz) by the Sellers. The RWI Policy is or will be agreed on a non-recourse basis and, therefore, Purchaser shall ensure that under the RWI Policy and under applicable Law the RWI Provider shall only be able to raise claims against Seller in the event of any payments by the RWI Provider to Purchaser in connection with the RWI Policy in case of a deceit (arglistige Täuschung) or willful misconduct (Vorsatz) by Seller.
(c) Purchaser and its Affiliates will not, directly or indirectly, (i) terminate, cancel, amend, waive or modify the RWI Policy in a manner adverse to the Sellers during its policy term, or (ii) assign or to be obliged to assign any claim Purchaser might have against Seller to the RWI Provider, in each case without prior written consent of the Sellers. Purchaser and its Affiliates shall refrain from any actions or omissions that could adversely affect Purchaser’s coverage position under, or the continuation of, the RWI Policy.
(d) The cost of the premiums, together with all Taxes and application, underwriting or similar fees or expenses, in connection with the RWI Policy shall be paid 100% by Purchaser.
(e) To the extent legally permissible, Purchaser hereby bindingly waives (i) any and all claims against the Sellers in respect of and in connection with breaches of representations and warranties made by the Sellers under Article V and Article VI, in each case save for any claims of Purchaser arising in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz) by Seller, and provided that this shall not affect Purchaser’s claims vis-à-vis the RWI Provider.
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(f) Save for any claims of Purchaser arising in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz) by the Sellers, it is expressively agreed between the Parties and acknowledged by Purchaser that even in the event that the RWI Policy should actually not have been validly concluded or the RWI Provider is not willing to grant coverage or rejects payment for all or specific claims in respect of breaches of representations and warranties made by the Sellers under Article V and Article VI, or claims can for any other reason not be enforced or collected under the RWI Policy, this shall have no impact on the exclusion or limitations of liability provided for in this Agreement and any event leading to the RWI Provider not being willing or able to pay shall not be considered as a reason for rescission or a cessation of the basis of such limitations (Wegfall der Geschäftsgrundlage) or for any other claim. Purchaser expressly acknowledges, and the Parties agree, that the risk to successfully claim and/or recover from the RWI Provider any losses of Purchaser under or in connection with the Transaction Documents and the transactions contemplated thereunder shall solely and irrevocably rest with Purchaser.
(g) From the date of this Agreement until the Closing, the Sellers shall use reasonable efforts to fully cooperate with Purchaser and its Representatives in connection with Purchaser’s efforts to remove any “exclusions” under the RWI Policy based on incomplete information provided to the RWI Provider as of the date of the RWI Policy. Such cooperation shall include, without limitation, providing access to and participation in due diligence sessions, reconsenting fully and accurately to information and document requests, making relevant personnel reasonably available for interviews and meeting (including with the underwriters and their advisors), and executing and delivering such customary authorizations, certificates, or consents as may be required by the underwriters of such insurance.
Section 7.3 Exclusion of other Remedies.
(a) The Parties agree that the warranties and remedies explicitly provided for by this Agreement shall be the exclusive warranties and remedies available to Purchaser against Sellers or their Affiliates in respect of any circumstances relating to the status and condition of the Parent Group and its assets, liabilities and business. Unless explicitly otherwise provided for in this Agreement, any further claims and remedies for Purchaser against Sellers or their Affiliates relating to the status and condition of the Parent Group and its assets, liabilities and business, irrespective of which nature, amount or legal basis, are hereby expressly waived and excluded, in particular, without limitation (i) any right of Purchaser to rescind (zurücktreten) from this Agreement or any other Transaction Document or to require the unwinding of the transactions contemplated therein (e.g., by way of damages instead of performance (Schadensersatz statt der Leistung), (ii) any claims arising from statutory warranty provisions (gesetzliche Gewährleistungsbestimmungen), for example pursuant to Sections 437 thorough 441 BGB, (iii) any claim for breach of pre-contractual obligations (culpa in contrahendo) pursuant to Sections 241 para. 2, 311 paras. 2 and 3 BGB), (iv) any claim for frustration of contract pursuant to Section 313 BGB (Störung der Geschäftsgrundlage), (v) any claims of Purchaser arising from the rescission of this Agreement (Rücktritt vom Vertrag), (vi) any rights to reduce the Rumble Share Consideration or any parts thereof (Kaufpreis mindern) or to appeal (anfechten) this Agreement, and (vii) any other rights of Purchaser to cause the termination, invalidity or unwinding (Rückabwicklung) of this Agreement or any other Transaction Document, a change of their content or a reimbursement or reduction of the Rumble Share Consideration or any parts thereof shall be excluded, save for any remedies of Purchaser based on deceit (arglistige Täuschung) or willful misconduct (Vorsatz).
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(b) The Parties agree that the warranties and remedies explicitly provided for by this Agreement shall be the exclusive warranties and remedies available to the Sellers in respect of any circumstances relating to the status and condition of Purchaser and its Subsidiaries and their respective assets, liabilities and business. Unless explicitly otherwise provided for in this Agreement, any further claims and remedies for the Sellers relating to the status and condition of Purchaser and its Subsidiaries and their respective assets, liabilities and business, irrespective of which nature, amount or legal basis, are hereby expressly waived and excluded, in particular, without limitation (i) any right of the Sellers to rescind (zurücktreten) from this Agreement or any other Transaction Document or to require the unwinding of the transactions contemplated therein (e.g., by way of damages instead of performance (Schadensersatz statt der Leistung), (ii) any claims arising from statutory warranty provisions (gesetzliche Gewährleistungsbestimmungen), for example pursuant to Sections 437 thorough 441 BGB, (iii) any claim for breach of pre-contractual obligations (culpa in contrahendo) pursuant to Sections 241 para. 2, 311 paras. 2 and 3 BGB), (iv) any claim for frustration of contract pursuant to Section 313 BGB (Störung der Geschäftsgrundlage), (v) any claims of the Sellers arising from the rescission of this Agreement (Rücktritt vom Vertrag), and (vi) any other rights of the Sellers to cause the termination, invalidity or unwinding (Rückabwicklung) of this Agreement or any other Transaction Document, a change of their content, save for any remedies of the Sellers based on deceit (arglistige Täuschung) or willful misconduct (Vorsatz).
Article
VIII.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Sellers in the form of an independent guarantee (selbstständiges Garantieversprechen) pursuant to Section 311 para. 1 BGB and irrespective of fault that except as set forth in Purchaser’s Disclosure Letter, the following statements are true and correct, as of the date hereof and as of the Closing Date (except to the extent any such representation and warranty is expressly made as of a specific date, in which case Purchaser hereby makes to the Sellers such representation and warranty only as of such date):
Section 8.1 Organization, Authorization, Enforceability, Non-Contravention.
(a) Organization. Purchaser is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has the requisite corporate or other organizational power to own, lease or operate the properties and assets owned, operated or leased by it and to conduct its business as presently conducted. Purchaser is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character or location of its owned, operated or leased properties and assets makes such licensing or qualification necessary, except where the failure to be so licensed or qualified or in good standing has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.
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(b) Corporate Authorization. Purchaser has full corporate power and authority to execute and deliver each of the Transaction Documents and each certificate and other instrument required to be executed and delivered by Purchaser pursuant hereto and to perform its obligations under, and consummate the transactions contemplated by, each such Transaction Document and each such certificate or other instrument required to be executed and delivered by Purchaser pursuant hereto. Purchaser is required by NASDAQ rules to obtain the affirmative vote (in person or by written consent, including by obtaining the Written Consent) of holders of a majority of the votes cast in favor of approving and adopting this Agreement. In lieu of calling a meeting of shareholders, Purchaser submitted to, and immediately after the execution of this Agreement obtained from, Chris Pavlovski, in his capacity as the record and beneficial owner of at least a majority of the voting power of the outstanding Class A Common Stock, Class C Common Stock and Class D Common Stock, a duly executed written consent to approve and adopt this Agreement, which is attached hereto as Exhibit E (the “Written Consent”). The Written Consent satisfies all of Purchaser’s obligations relating to obtaining shareholder approval of this Agreement and the transactions contemplated hereunder under the NASDAQ rules and it is the only vote of shareholders of Purchaser necessary in connection with the consummation of the transactions contemplated by this Agreement or by the other Transaction Documents. The execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby (including the issuance of the Rumble Share Consideration), by Purchaser have been duly and validly authorized by all necessary corporate action on the part of Purchaser. The execution, delivery and performance of the other Transaction Documents to which it is a party and each certificate and other instrument required to be executed and delivered by Purchaser pursuant hereto, and the consummation of the transactions contemplated thereby, have been, or prior to the Closing will have been, duly and validly authorized by all necessary corporate or other action on the part of Purchaser. None of the execution, delivery and performance of the Transaction Documents and each certificate and other instrument required to be executed and delivered by Purchaser pursuant to this Agreement, and the consummation of the transactions contemplated thereby, by Purchaser requires any authorization, vote or other approval of the shareholders of Purchaser (other than the Written Consent) pursuant to the Constituent Documents of Purchaser or applicable Law.
(c) Issuance of Securities. The issuance of all Purchaser Common Shares that may be issued pursuant to the Transaction Documents (including the Rumble Share Consideration) has been duly authorized and, upon issuance in accordance with the terms of the Transaction Documents, will be validly issued, fully paid and non-assessable and in each case, free and clear of any Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents). As of the Closing, Purchaser shall have reserved from its duly authorized capital stock not less than the sum of the number of Purchaser Common Shares equal to the Offer Ratio multiplied by the number of Shares to be transferred pursuant to this Agreement, the Tether Purchase Agreement, the Apeiron Purchase Agreement and the Tender Offer. Upon issuance in accordance with the terms of the Transaction Documents, the Sellers will have good and marketable title to the Rumble Share Consideration.
(d) Binding Effect. This Agreement has been, and the other Transaction Documents to which it is a party, will at the Closing be, duly executed and delivered by Purchaser. This Agreement is a legal, valid and binding obligation of Purchaser enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. The other Transaction Documents to which Purchaser is a party, when executed and delivered by Purchaser, will be a legal, valid and binding obligation of Purchaser enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
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(e) Non-Contravention. Assuming satisfaction of the other requirements set forth in Section 8.4, the execution, delivery and performance of the Transaction Documents by Purchaser, and the consummation by Purchaser of the transactions contemplated thereby, do not and will not (with or without notice or passage of time or both) (i) violate or conflict with any provision of the Constituent Documents of Purchaser, (ii) violate or conflict with any Law, Government Order or Permit applicable to Purchaser or by which any property or asset of Purchaser is bound, (iii) conflict with, constitute a violation of or breach or default under or give any third-party any rights of termination, modification, loss, diminution of rights, acceleration or cancellation of or under any material Contract to which Purchaser is a party or by which Purchaser is bound or (iv) result in the creation of any Encumbrance (other than Permitted Encumbrances) on any of the assets or properties of Purchaser, except in the case of clauses (ii) through (iv) of this Section 8.1(e), for any such conflicts, violations, breaches, defaults, terminations, modifications, losses, diminutions of rights, accelerations, cancellations or creations that would not and would not reasonably be expected to, individually or in the aggregate, have a Purchaser Material Adverse Effect.
(f) Management; Books and Records. All senior officers, senior managers and directors (or equivalents thereof) of Purchaser have been duly elected or appointed and all former senior officers, senior managers or directors (or equivalent thereof) of Purchaser have been duly dismissed or removed, in each case in accordance with its Constituent Documents and applicable Law, except as would not reasonably be expected to, individually or in the aggregate, have a Purchaser Material Adverse Effect.
Section 8.2 Capitalization.
(a) As of the date hereof, the authorized capital stock of Purchaser consists of 700,000,000 shares of Class A Common Stock par value $0.0001 per share (“Class A Common Stock”), 170,000,000 shares of Class C Common Stock, par value $0.0001 per share (“Class C Common Stock”), 110,000,000 shares of Class D Common Stock, par value $0.0001 per share (“Class D Common Stock”), and 20,000,000 shares of preferred stock, par value $0.0001 per share. As of November 5, 2025, there were outstanding (i) 215,380,826 shares of Class A Common Stock (20,800,886 of which are held in escrow subject to earn-out conditions and 1,963,750 of which are held by the former SPAC sponsor subject to forfeiture, in each case as further described in the Purchaser Reports), (ii) 123,690,477 shares of Class C Common Stock, (iii) 95,791,120 shares of Class D Common Stock and (iv) no shares of preferred stock. Each share of Class C Common Stock is issued “in tandem” with an exchangeable share of 1000045728 Ontario Inc. (“ExchangeCo Shares”), a corporation formed under the laws of the Province of Ontario, Canada, and an indirect, wholly owned subsidiary of Purchaser. As of the date hereof, there were 123,690,477 ExchangeCo Shares outstanding (55,611,718 of which are held in escrow subject to earn-out conditions as described in the Purchaser Reports). As of the date hereof, there were 89,105,079 shares of Class A Common Stock reserved and available for future issuance under the Purchaser Equity Plans, and there were 1,795,823 shares of Class A Common Stock reserved and available for future issuance under the Purchaser ESPP. All outstanding shares of capital stock of Purchaser have been, and all Purchaser Common Shares issued hereunder will be, when issued at the Closing in accordance with Article II, duly authorized and validly issued, fully paid and nonassessable, free and clear of any Encumbrances and free of any preemptive or similar rights.
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(b) As of the date hereof, there were (i) 44,147,954 shares of Class A Common Stock issuable under Purchaser Options outstanding, (ii) an additional 28,587,400 shares of Class A Common Stock issuable under Purchaser Options that are subject to earn-out conditions as described in the Purchaser Reports, (iii) 2,461,784 shares of Class A Common Stock issuable upon settlement of Purchaser RSUs outstanding, and (iv) no other Purchaser Equity Award outstanding. Section 8.2(b) of the Purchaser’s Disclosure Letter contains a complete and accurate list of each outstanding Purchaser Equity Award as of the date hereof, including, for each such award: (A) the name of the holder of such award, (B) the date each such award was granted, (C) the number of shares of Class A Common Stock subject to each such award, (D) with respect to any award of Purchaser Options, the price at which such Purchaser Option may be exercised, and (E) a description of the vesting conditions relating to such award, including any time-based vesting schedule and a description of any terms under any Purchaser Equity Plan or award agreement thereunder which provide for accelerated vesting with respect to such award as a result of the consummation of the transactions contemplated by this Agreement. Other than the Purchaser Options and Purchaser RSUs listed in Section 8.2(b) of the Purchaser’s Disclosure Letter or that may be issued after the date hereof, there are no equity or equity-based awards outstanding under any Purchaser Equity Plans. The exercise price of each Purchaser Option is not less than the fair market value of a share of Class A Common Stock on the date of grant of such Purchaser Option.
(c) As of November 5, 2025, there were 8,046,032 shares of Class A Common Stock issuable under the Purchaser Warrants outstanding.
(d) There are no outstanding bonds, debentures, notes or other indebtedness of Purchaser having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of Purchaser may vote. Except as set forth in this Section 8.2 and for changes since November 5, 2025 resulting from the exercise of Purchaser Options, ExchangeCo Shares, Purchaser Warrants or settlement of Purchaser RSUs outstanding on such date, or the issuance of equity awards after the date hereof, there are no issued, reserved for issuance or outstanding (i) shares of capital stock or other voting securities of or ownership interests in Purchaser, (ii) securities of Purchaser convertible into or exchangeable or exercisable for shares of capital stock or other voting securities of or ownership interests in Purchaser, (iii) warrants, calls, options or other rights to acquire from Purchaser, or other obligation of Purchaser to issue, any capital stock or other voting securities or ownership interests in or any securities convertible into or exchangeable or exercisable for capital stock or other voting securities or ownership interests in Purchaser or (iv) restricted shares, restricted stock units, stock appreciation rights, performance units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based on, directly or indirectly, the value or price of, any capital stock or voting securities of Purchaser (the items in clauses (i) through (iv) being referred to collectively as the “Purchaser Securities”). There are no outstanding obligations of Purchaser or any of its subsidiaries to repurchase, redeem or otherwise acquire any of the Purchaser Securities. As of the date hereof, neither Purchaser nor any of its subsidiaries is a party to any voting agreement with respect to the voting of any Purchaser Securities. There are no Purchaser Securities or instruments containing anti-dilution, adjustments, modifications or similar provisions that will be triggered by the transactions contemplated by this Agreement. The Purchaser Reports contain true, correct and complete descriptions of the terms of all Purchaser Securities convertible into, or exercisable or exchangeable for, shares of Class A Common Stock and the material rights of the holders thereof.
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Section 8.3 Available Funds. Purchaser has immediately available funds sufficient to pay all fees and expenses to be paid by Purchaser in connection with this Agreement and the other Transaction Documents to which it is a party, and the transactions contemplated hereby and thereby, and to satisfy all other payment obligations of Purchaser contemplated by this Agreement and the other Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby on the terms and subject to the conditions hereof and thereof.
Section 8.4 Governmental and Third-Party Approvals, Consents and Notices. Other than in connection with (a) the requirements of the federal securities Laws or any U.S. state securities or “blue sky” Laws and (b) the notification and listing authorization requirements under the rules of NASDAQ, neither Purchaser nor any of its Affiliates is required to (i) obtain any authorization, waiver, consent or approval of, (ii) make any filing, report or registration with or (iii) give any notice to any Government Authority or any other Person in connection with or as a condition to the execution, delivery and performance of any of the Transaction Documents or the consummation of the transactions contemplated thereby, other than any authorization, waiver, consent, approval, filing, report, registration or notice the failure of which to obtain, make or give has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.
Section 8.5 No Litigation or Governmental Orders. Since January 1, 2022, there has been no material Action pending or, to Purchaser’s Knowledge, threatened against, by or on behalf of Purchaser or its Subsidiaries. There is no Action pending or, to Purchaser’s Knowledge, threatened against Purchaser or any of its Affiliates that (a) if adversely determined, would reasonably be expected to materially and adversely affect the legality, validity or enforceability of this Agreement or any other Transaction Document, (b) if adversely determined, would reasonably be expected to, individually or in the aggregate, prevent or materially impair the ability of Purchaser to consummate the transactions contemplated by the Transaction Documents or (c) if adversely determined, would reasonably be expected to, individually or in the aggregate, have a Purchaser Material Adverse Effect. Since January 1, 2022, there have been no unsatisfied or outstanding material Government Orders against or applicable to Purchaser or any of its Subsidiaries or against or applicable to any of the properties, assets or businesses of Purchaser and its Subsidiaries. Purchaser and its Affiliates are not a party to or subject to the provisions of any Government Order that have or would reasonably be expected to, individually or in the aggregate, (i) materially and adversely affect the legality, validity or enforceability of this Agreement or any other Transaction Document or (ii) prevent or materially impair the ability of Purchaser to consummate the transactions contemplated by the Transaction Documents.
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Section 8.6 Purchaser Reports; Financial Statements.
(a) Except as set forth in Section 8.6(a) of Purchaser’s Disclosure Letter, Purchaser has filed or furnished, as applicable, on a timely basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with the SEC under the Exchange Act or the Securities Act since January 1, 2022 (the forms, statements, reports and documents filed or furnished since January 1, 2022 (including notes, exhibits and schedules thereto and all other information incorporated by reference therein and any amendments and supplements thereto) and, unless otherwise expressly stated in this Agreement, those filed or furnished subsequent to the date hereof, the “Purchaser Reports”).
(b) Each of the Purchaser Reports filed prior to the date hereof, at the time of its filing or being furnished (or, if amended prior to the date hereof, as of the date of such last amendment) complied, or if to be filed or furnished subsequent to the date hereof and prior to the Closing, will comply, in all material respects with the applicable requirements of NASDAQ, the Securities Act, the Exchange Act and the Sarbanes-Oxley Act, and any rules and regulations promulgated thereunder applicable to the Purchaser Reports, each as in effect on the date so filed or furnished (or amended). As of their respective dates (or, if amended prior to the date hereof, as of the date of such last amendment), and except to the extent that information in any Purchaser Report has been revised or superseded by another Purchaser Report, the Purchaser Reports did not, and any of the Purchaser Reports filed or furnished with the SEC prior to the Closing will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. The Purchaser Common Shares are registered pursuant to Section 12(b) of the Exchange Act and listed on the NASDAQ and the Purchaser has taken no action designed to, or which to the Knowledge of Purchaser is reasonably likely to have the effect of, terminating the registration of the Purchaser Common Shares under the Exchange Act or delisting the Purchaser Common Shares from the NASDAQ, nor has the Purchaser received any notification that the SEC or the NASDAQ is contemplating terminating such registration or listing. The Purchaser is, and will be as a result of the closing of the transactions contemplated by this Agreement and the Transaction Documents, in compliance in all material respects with applicable continued listing requirements of NASDAQ.
(c) Except as set forth in Section 8.6(c) of Purchaser’s Disclosure Letter, there are no outstanding or unresolved comments in any comment letters received from the SEC staff with respect to any Purchaser Report and, to Purchaser’s Knowledge, none of the Purchaser Reports is the subject of ongoing SEC review. There are no internal investigations and Purchaser has not received written notice of any SEC inquiries or investigations or other inquiries or investigations conducted by a Government Authority pending or, to Purchaser’s Knowledge, threatened, in each case, regarding any accounting practices of Purchaser.
(d) None of the Subsidiaries of Purchaser is subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
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(e) Purchaser’s audited consolidated financial statements and unaudited interim financial statements (including, in each case, any notes thereto) contained in the Purchaser Reports were prepared and between the date hereof and the Closing Date, will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto or, in the case of unaudited or interim consolidated financial statements, where information and footnotes contained in such financial statements are not required to be in compliance with GAAP), were prepared and, between the date hereof and the Closing Date, will be prepared from and in accordance with the books and records of Purchaser and its Subsidiaries, and in each case such consolidated financial statements fairly presented and, between the date hereof and the Closing Date, will fairly present in all material respects, the consolidated financial position, results of operations, changes in stockholders’ equity and cash flows of Purchaser and the consolidated Subsidiaries of Purchaser as of the respective dates thereof and for the respective periods covered thereby, as applicable (subject, in the case of unaudited statements, to normal year-end adjustments).
Section 8.7 Controls.
(a) Purchaser maintains disclosure controls and procedures and internal control over financial reporting required and as defined by Rule 13a-15 and 15d-15, as applicable, under the Exchange Act, and reasonably necessary to provide reasonable assurance that, in all material respects, (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as reasonably necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (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. Purchaser’s disclosure controls and procedures are designed to ensure that all information required to be disclosed by Purchaser or any of its Subsidiaries in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to Purchaser’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act. Purchaser’s management has completed an assessment of the effectiveness of Purchaser’s internal control over financial reporting in compliance with the requirements of Section 404(a) of the Sarbanes-Oxley Act, and the conclusions of the most recent such assessment are disclosed in the applicable Purchaser Report. Since the date of such assessment, there have been no changes in Purchaser’s internal control over financial reporting that, individually or in the aggregate, have materially and adversely affected or would reasonably be expected to materially and adversely affect Purchaser’s internal control over financial reporting.
(b) Purchaser has disclosed, since January 1, 2022, to Purchaser’s outside auditors and audit committee (i) any identified significant deficiencies and material weaknesses in the design or operation of internal controls that would be reasonably expected to adversely affect Purchaser’s ability to record, process, summarize and report financial information for inclusion in the applicable consolidated financial statements and (ii) any identified fraud, whether or not material, that involves management or any other current or former employees who have (or had) a significant role in Purchaser’s internal controls over financial reporting.
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(c) Since January 1, 2022, (i) neither Purchaser nor any of its Subsidiaries, nor, to Purchaser’s Knowledge, any Representative of Purchaser or any of its Subsidiaries, has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods (including with respect to loan loss reserves, write-downs, charge-offs and accruals) of Purchaser or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that Purchaser or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and (ii) no attorney representing Purchaser or any of its Subsidiaries, whether or not employed by Purchaser or any of its Subsidiaries, has reported evidence of a material violation of securities Laws, breach of fiduciary duty or similar violation by Purchaser or any of its officers, directors, employees or agents to the board of directors of Purchaser or any committee thereof or to any director or officer of Purchaser.
Section 8.8 No Violation of Law; Regulatory Matters; Required Licenses and Permits.
(a) Since January 1, 2022, Purchaser and each of its Subsidiaries (i) have been in compliance with all applicable Laws (including Laws related to activities in connection with cryptocurrency and digital assets) and (ii) are not party or subject to any Government Order with any Government Authority with jurisdiction over Purchaser or any of its Subsidiaries, as applicable, which imposes any restrictions on the business of Purchaser or its Subsidiaries, except in each case of the foregoing clauses (i) and (ii) as has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect. Purchaser and its Subsidiaries, since January 1, 2022, have owned, held or possessed, and, currently, own, hold, or possess, all Permits necessary for the conduct of their respective businesses and the business of Purchaser and its Subsidiaries is being conducted in compliance with all such Permits, except in each case as has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.
(b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect, since January 1, 2022, neither Purchaser nor any of its Subsidiaries nor any of their respective Representatives (acting in their capacities as such) has violated or taken any material act in furtherance of violating the Anti-Money Laundering Laws.
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect: (i) Purchaser and each of its Subsidiaries and each of their respective Representatives (acting in their capacities as such) are, and since January 1, 2022 have been, in compliance with the Export and Sanctions Regulations; (ii) since January 1, 2022, neither Purchaser nor any of its Subsidiaries nor any of their respective Representatives (acting in their capacities as such) has (A) been organized, operated or resided in or (B) engaged, directly or indirectly, in any dealings or transactions in a Sanctioned Country (or with any Sanctioned Persons); and (iii) neither Purchaser nor any of its Subsidiaries nor any of their respective Representatives (acting in their capacities as such) is involved in any Action, or since January 1, 2022 has received a written request for information or any other form of communication from any Government Authority, or has had any judgments imposed (or threatened to be imposed) upon Purchaser or any of its Subsidiaries by or before a Government Authority, in each case in connection with any actual or alleged material violation of any Export and Sanctions Regulations.
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(d) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect: (i) since January 1, 2022, none of Purchaser or any of its Subsidiaries or any of their respective Representatives (acting in their capacities as such) has taken any action, or engaged in any activity, practice or conduct, that would violate the FCPA, the U.K. Bribery Act, or any other applicable Law regarding anti-corruption; (ii) none of Purchaser, any of its Subsidiaries or any of their respective Representatives (acting in their capacities as such) has (A) used any corporate funds of Purchaser or any of its Subsidiaries for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (B) authorized, offered, promised or made any unlawful payment to any foreign or domestic governmental officials, or (C) paid any bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment to any Person, private or public, regardless of form, whether in money, property or services, to obtain favorable treatment in securing business or to obtain special concessions for Purchaser or any of its Subsidiaries, in the case of the foregoing clauses (A), (B) and (C) which would or would reasonably be expected to result in a material violation of the FCPA, the U.K. Bribery Act, or any other applicable Laws regarding anti-corruption; (iii) there are no pending or, to Purchaser’s Knowledge, threatened in writing Actions against Purchaser or any of its Subsidiaries with respect to the FCPA, the U.K. Bribery Act, or any other applicable Law regarding anti-corruption.
Section 8.9 Securities Law Compliance. Purchaser is financially sophisticated and is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act. Purchaser understands that the Sold Shares have not been registered under the Securities Act and may only be transferred pursuant to registration or an applicable exemption under all applicable Laws. Pursuant to this Agreement, Purchaser is acquiring the Sold Shares for its own account, for the purpose of investment only and not with a view to, or for sale in connection with, any distribution thereof in violation of applicable Law. Purchaser has not, directly or indirectly, offered the Sold Shares to anyone or solicited any offer to buy the Sold Shares from anyone, in each case that would have the effect of bringing to such offer and sale of the Sold Shares by Purchaser within the registration requirements of the Securities Act or the securities Laws of any other jurisdiction.
Section 8.10 Due Diligence by Purchaser. Purchaser acknowledges that it has, as of the Closing, conducted an independent investigation of Parent and the operations, assets, Liabilities and financial condition of Parent and the Transferred Subsidiaries in making the determination to proceed with the transactions contemplated by the Transaction Documents and has relied solely on the results of its own independent investigation and the representations and warranties in Article V and Article VI in connection with Parent and the Transferred Subsidiaries and the subject matter of this Agreement. Purchaser and its Representatives, collectively, have, among other things, had access to the Virtual Data Room and Purchaser has received Sellers’ Disclosure Letter.
Section 8.11 Solvency. Assuming the accuracy of the representations and warranties contained in Article V and Article VI and assuming that immediately prior to the Closing Parent and the Transferred Subsidiaries are Solvent, after giving effect to the payment of all amounts required to be paid pursuant to the terms of this Agreement in connection with the consummation of the transactions contemplated by this Agreement, Purchaser will be Solvent as of and immediately following the Closing.
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Section 8.12 Absence of Changes. Except as contemplated by the Transaction Documents, since January 1, 2022 through the date hereof, (a) there has not been any change, effect, development, condition, matter, event, fact, circumstance or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect and (b) neither Purchaser nor any of its Subsidiaries has taken any action that would have been prohibited or restricted under Article IX had such action been taken between the date hereof and the earlier of the Closing and the termination of this Agreement in accordance with its terms.
Section 8.13 Taxes.
(a) All income and other material Tax Returns that are required to be filed under applicable Laws during the Applicable Purchaser Period (taking into account any timely filed automatic extensions of time in which to file) by Purchaser and its Subsidiaries have been or will be timely filed on or before the Closing, and all such Tax Returns are complete and accurate in all material respects.
(b) Each of Purchaser and its Subsidiaries has timely paid all income and other material Taxes of Purchaser or relevant Subsidiary, as applicable, at all times during the Applicable Purchaser Period.
(c) All material Taxes which Purchaser or any of its Subsidiaries is required by Law to withhold or to collect for payment have been duly withheld and collected and have been timely paid to the appropriate Government Authority during the Applicable Purchaser Period.
(d) There is no audit, examination, investigation, action, proceeding or assessment pending or proposed or threatened in writing with respect to material Taxes for which Purchaser or its Subsidiaries may be liable. All material deficiencies asserted or assessments made in writing of Purchaser or its Subsidiaries as a result of any audit, examination, investigation, action, proceeding or assessment have been paid in full or otherwise finally resolved.
(e) No agreements, consents or waivers of any statute of limitations or extension of time is in effect with respect to any material Taxes of Purchaser or any of its Subsidiaries (other than automatic extensions of the due date for filing any Tax Return of Purchaser or any of its Subsidiaries obtained in the ordinary course of Purchaser’s or its Subsidiaries’ business), and no written request covering any such matter is outstanding.
(f) There are no Encumbrances for material Taxes (other than Permitted Encumbrances) on any of the assets of Purchaser or any of its Subsidiaries.
(g) Neither Purchaser nor any of its Subsidiaries has been, in the last two (2) years, a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(h) At any time during the Applicable Purchaser Period, neither Purchaser nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
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(i) Purchaser is not a “United States real property holding corporation” within the meaning of Section 897(e)(2) of the Code and the Treasury Regulations thereunder, and does not expect to become a “United States real property holding corporation” in the foreseeable future.
(j) At any time during the Applicable Purchaser Period, neither Purchaser nor any of its Subsidiaries was, or will be, a member of any Tax group with a corporation filing Tax Returns on a combined, consolidated, unitary or similar basis (except with respect to a Tax group which Purchaser is a common parent), and neither Purchaser nor any of its Subsidiaries has any Liability for Taxes of any other Person (other than Purchaser and its Subsidiaries) as a transferee or successor, or by Contract (other than commercial agreements that do not primarily relate to Taxes).
Section 8.14 Investment Company. As of the date hereof, neither Purchaser nor any of its Subsidiaries is an “investment company” as such term is defined in the U.S. Investment Company Act of 1940.
Section 8.15 Properties. Except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect, Purchaser and its Subsidiaries have in all material respects good title to, or valid leasehold interests in, all property and assets reflected on the Purchaser Balance Sheet, or acquired or leased after the Purchaser Balance Sheet Date, except as have been disposed of since the Purchaser Balance Sheet Date in the ordinary course of business consistent with past practice.
Section 8.16 Form S-3. As of the date of this Agreement, Purchaser satisfies the eligibility requirements for, and complies with the conditions for, the use of Form S-3 under the Securities Act and other securities Laws.
Section 8.17 Finder’s Fees; Brokerage. Except as set forth in Section 8.17 of Purchaser’s Disclosure Letter, neither Purchaser nor any of its Affiliates has employed or has any understanding with any broker, finder or investment bank, has incurred or will incur any obligation or Liability for any brokerage fees, commissions or finders fees, or has provided, promised or will provide or promise any payment or other incentive to any Person, in each case in connection with any of the Transaction Documents or the transactions contemplated thereby.
Section 8.18 Intellectual Property. Except as set forth in Section 8.18 of Purchaser’s Disclosure Letter and except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect: (i) Purchaser and each of its Subsidiaries is the sole and exclusive owner of, or has a valid and legally enforceable license to use, all Intellectual Property used or held for use in, or necessary for, the conduct of its business as currently conducted; (ii) to the Knowledge of Purchaser, neither Purchaser nor any of its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property rights of any Person; and (iii) to the Knowledge of Purchaser, no Person has challenged, infringed, misappropriated or otherwise violated any Intellectual Property rights owned by and/or exclusively licensed to Purchaser or any of its Subsidiaries.
Section 8.19 Employee Benefits Plans. Except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect, the Purchaser Plans and the Purchaser Equity Awards are as disclosed in the Purchaser Reports.
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Section 8.20 Labor Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect, Purchaser and its Subsidiaries are in compliance with all applicable Laws relating to labor and employment, including those relating to labor management relations, wages, hours, overtime, worker classification, discrimination, sexual harassment, civil rights, affirmative action, work authorization, immigration, safety and health, information privacy and security, worker’s compensation, continuation coverage under group health plans, wage payment and the payment and withholding of Taxes.
Section 8.21 Environmental Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect, Purchaser and its Subsidiaries are in compliance with all Environmental Laws.
Section 8.22 Material Contracts. As of the date of this Agreement, neither Purchaser nor any of its Subsidiaries is a party to or bound by any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) except as disclosed in the Purchaser Reports.
Section 8.23 Sale of Securities. Assuming the accuracy of the representations and warranties set forth in Section 5.5, the offer, sale and issuance of the Rumble Share Consideration pursuant to this Agreement is exempt from the registration and prospectus delivery requirements of the Securities Act. Without limiting the foregoing, neither Purchaser nor, to the knowledge of Purchaser, any other Person authorized by Purchaser to act on its behalf, has engaged in a general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) of investors with respect to offers or sales of the Rumble Share Consideration pursuant to this Agreement, and neither Purchaser nor, to the knowledge of Purchaser, any Person acting on its behalf has made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the offering or issuance of the Rumble Share Consideration under this Agreement to be integrated with prior offerings by Purchaser for purposes of the Securities Act that would result in none of Regulation D or any other applicable exemption from registration under the Securities Act to be available, nor will the Purchaser take any action or steps that would cause the offering or issuance of the Rumble Share Consideration under this Agreement to be integrated with other offerings by Purchaser.
Section 8.24 Antitakeover Statutes and Rights Agreement. Purchaser has no “rights plan,” “rights agreement,” or “poison pill” in effect. Purchaser has taken all action necessary to exempt the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement, the issuance of the Rumble Share Consideration and any other transaction contemplated by this Agreement or any other Transaction Document from Section 203 of the DGCL, and, accordingly, neither Section 203 of the DGCL nor any other “control share acquisition,” “fair price,” “moratorium” or other antitakeover or similar applicable Law enacted under U.S. state or federal laws apply to this Agreement or any other Transaction Document or any of the transactions contemplated hereby or thereby.
Section 8.25 Written Consent. Purchaser has delivered to Parent a true and correct copy of the Written Consent.
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Section 8.26 No Other Representations or Warranties.
(a) Except for the representations and warranties contained in Section 8.1 through Section 8.25 (as qualified by the applicable items disclosed in Purchaser’s Disclosure Letter), none of Purchaser or any of its Affiliates or Representatives or any other Person makes any express or implied representation or warranty on behalf of Purchaser or any of its Affiliates, and Purchaser hereby disclaims any other representations or warranties, with respect to the subject matter of this Agreement. Furthermore, without limiting the foregoing sentence, except for the representations and warranties contained in Section 8.1 through Section 8.25 (as qualified by the applicable items disclosed in Purchaser’s Disclosure Letter), any of the other Transaction Documents, and any certificate delivered hereto or thereto, Purchaser does not give or make any warranty or representation as to (and shall have no indemnification obligation or, in the absence of deceit (arglistige Täuschung) or willful misconduct (Vorsatz), other liabilities in respect of) the accuracy or reasonableness of any forecasts, estimates, projections, statements of intent or statements of opinion provided to the Sellers, any of its Affiliates, or any of their respective Representatives on or prior to the date of this Agreement in connection with this Agreement, including in any “Confidential Information Presentation” relating to Purchaser, any management presentations, and any other information made available in the Virtual Data Room.
(b) The Sellers acknowledge and agree that, except for the representations and warranties contained in Section 8.1 through Section 8.25 (as qualified by Purchaser’s Disclosure Letter), neither Purchaser nor any of its Affiliates is making any representation or warranty regarding any documents, projections, forecasts, statement or other information made, communicated or furnished (orally, in writing, in the Virtual Data Room, in management presentations (including any questions posed and answers given and any related discussions, whether formal or informal) or otherwise) to the Sellers, any of its Affiliates, or any of the Sellers’ Representatives (including any opinion, information, projection or advice that may have been or may be provided to such Person by any Representatives of Purchaser or any of its Affiliates), in connection with this Agreement.
Article
IX.
COVENANTS
Section 9.1 Conduct of Business.
(a) Except as consented to in writing by Purchaser in advance, between the date hereof and the earlier of the Closing or the termination of this Agreement in accordance with its terms, each Seller shall not, and shall cause any of its Affiliates not to, directly or indirectly vote (or execute any written consent with respect to) any Equity Interests of Parent beneficially owned by a Seller or their respective Affiliates in favor of, or otherwise consent to, any matter presented for approval at any annual general meeting or extraordinary general meeting of Parent (or any action by written consent of the shareholders in lieu thereof), including, without limitation, any resolution to (i) declare or pay any dividend or make any other distribution with respect to any Equity Interests of Parent, (ii) amend, modify or restate any of Parent’s Constituent Documents (including any capital increase or reduction of share capital), (iii) approve any split or consolidation of Equity Interests of Parent, a consolidation of any Equity Interests of Parent, or any alteration of the rights pertaining to Parent’s Equity Interests, including the acceleration of vesting or exercisability of any Option, or (iv) approve any matter that would result in a breach by Parent of its obligations under the Business Combination Agreement. Until Closing, each Seller and its Affiliates shall not take action to cause Parent to breach or fail to perform or comply with any covenant, agreement or obligation of Parent under the Business Combination Agreement. Nothing contained in this Agreement is intended to, or shall be deemed to, give Purchaser, directly or indirectly, any rights to control or direct the business of Parent or any other member of Parent Group.
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(b) Between the date hereof and the earlier of the Closing or the termination of this Agreement in accordance with its terms, each Seller shall not Transfer (or cause or permit the Transfer of) any Shares, other than with the prior written consent of Purchaser. If any involuntary Transfer of any such Shares shall occur prior to the Closing, each Seller shall procure that any transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until the Closing.
(c) Subject to the terms and conditions of this Agreement, Purchaser and the Sellers shall use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to (i) prepare and file as promptly as practicable with any Government Authority all documentation to effect all necessary Filings and (ii) obtain and maintain all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Government Authority that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement; provided that the parties hereto understand and agree that neither any Seller nor Purchaser shall be required to (A) divest or otherwise hold separate (including by establishing a trust or otherwise), or take, cause to be taken or refrain from taking any other action (or otherwise agreeing to do any of the foregoing) with respect to, any of the Sellers’ or Purchaser’s or any of their respective Affiliates’ businesses, assets or properties, (B) enter into any settlement, undertaking, consent decree, stipulation or agreement with any Government Authority in connection with the transactions contemplated hereby, (C) litigate, challenge or take any action with respect to any Action by any Government Authority or (D) agree to do any of the foregoing.
(d) To the extent permitted by applicable Law, each Seller and Purchaser shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any Filing and in connection with any investigation or other inquiry, including any Action initiated by a private party, (ii) promptly inform the other party of any Filing or communication received from, or intended to be given to, any Government Authority and of any material communication received or intended to be given in connection with any Action by a private party, in each case regarding any of the transactions contemplated hereby, and prior to submitting any Filing, substantive written communication, correspondence or other information or response by such party to any Government Authority (or members of the staff of any Government Authority) or in connection with any Action by a private party, the submitting party shall permit the other party and its counsel the opportunity to review as reasonably in advance as practicable under the circumstances, and consider in good faith the comments of the other party in connection with, any such Filing, communication or inquiry and further each of Purchaser and each Seller shall furnish each other with a copy of any Filing, communication or, if in written form, inquiry, it or any of its Affiliates makes to or receives from any Government Authority or in connection with any proceeding by private party, in each case regarding any of the transactions contemplated hereby, and (iii) consult with each other in advance of any meeting or conference with any such Government Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent reasonably practicable, give the other party the opportunity to attend and participate in such meetings and conferences.
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Section 9.2 Notice of Certain Events. Purchaser and each Seller shall promptly notify the other of:
(a) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement or any other Transaction Document;
(b) any notice or other communication received by Purchaser or any of its Affiliates or a Seller or any of its Affiliates from any Government Authority in connection with the transactions contemplated by this Agreement or any other Transaction Document;
(c) any Actions commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting Purchaser or any of its Subsidiaries or any Seller and any of their respective Subsidiaries, as the case may be, (i) that, if pending on the date of this Agreement, would have been required to have been disclosed by such Person pursuant to any Section of this Agreement or (ii) that relate to this Agreement or the consummation of the transactions contemplated hereby;
(d) any inaccuracy of any representation or warranty of such Party contained in this Agreement at any time during the term hereof that could reasonably be expected to cause any conditions to the Closing not to be satisfied; and
(e) any failure of a Party to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it hereunder;
provided that the delivery of any notice pursuant to this Section 9.2 shall not limit or otherwise affect the remedies available hereunder to the Party receiving such notice.
Section 9.3 Peak Mining Sale. Each Seller shall not cause any Person that is a party to the Peak Mining Purchase Agreement to amend, modify or waive any provision or term of the Peak Mining Purchase Agreement in any manner that is adverse to Purchaser as compared to the terms set forth in the Peak Mining Purchase Agreement.
Section 9.4 Lock-Up.
(a) Subject to Section 9.4(b), each Seller hereby agrees that it shall not, without the prior written consent of Purchaser, Transfer any Purchaser Common Shares comprising the Rumble Share Consideration (collectively, the “Lock-Up Shares”) until six months following the Closing Date (the “Lock-Up Period”).
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(b) Notwithstanding any other provision of this Agreement, each Seller may Transfer the Purchaser Common Shares during the Lock-Up Period (i) to any Affiliate of a Seller or (ii) in connection with a third-party tender or exchange offer to acquire any securities of Purchaser or in any other business combination, acquisition, merger, joint venture, recapitalization, restructuring or similar transaction involving Purchaser, in each case, approved by Purchaser’s board of directors; provided, however, that in the case of clause (i), such Affiliate must enter into a written agreement with Purchaser and each Seller agreeing (x) to be bound by this Section 9.4 and (y) that at any time such transferee ceases to qualify as an Affiliate of a Seller, to promptly transfer any such Lock-Up Shares back to a Seller or other Person that qualifies as an Affiliate of a Seller.
(c) If any Transfer of Lock-Up Shares is made or attempted contrary to the provisions of this Agreement, such purported Transfer shall be null and void ab initio, and Purchaser may refuse to recognize any such purported transferee of the Lock-Up Shares. In order to enforce this Section 9.4, Purchaser may impose stop-transfer instructions with respect to the Lock-Up Shares until the end of the Lock-Up Period.
Section 9.5 No Solicitation; Other Offers. From the date hereof until the earlier of the Closing and the termination of this Agreement in accordance with its terms, each Seller shall not and shall cause its respective Affiliates not to, nor shall a Seller authorize or permit any of its or their respective Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly assist, facilitate or encourage the submission of any Acquisition Proposal; (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to Parent or any Transferred Subsidiaries or request Parent to provide access to the business, properties, assets, books or records of Parent or any Transferred Subsidiaries, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, is seeking to make or would be reasonably expected to make an Acquisition Proposal; (iii) recommend an Acquisition Proposal other than the transactions contemplated by this Agreement, the Tether Purchase Agreement, the Apeiron Purchase Agreement or the Business Combination Agreement; or (iv) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal. The Parties acknowledge and agree that this Section 9.5 shall not apply to the sale of the Peak Mining Business in accordance with the terms of the Peak Mining Purchase Agreement. It is agreed that any violation of the restrictions on a Seller set forth in this Section 9.5 by any Representative of a Seller acting on behalf of or at the direction of a Seller or any of its Affiliates shall be a breach of this Section 9.5 by a Seller.
Section 9.6 Confidentiality. Each Party acknowledges that the information being provided to it and its Representatives in connection with the transactions contemplated by the Transaction Documents is subject to the terms of the Confidentiality Agreement, which shall remain in full force and effect on and after the date hereof; provided that actions taken by either Party to the extent necessary in order to comply with their respective obligations under Section 9.1 shall not be deemed to be in violation of this Section 9.6 or the Confidentiality Agreement. The confidentiality and information non-use obligations under the Confidentiality Agreement shall automatically be deemed terminated and cease to have any force or effect as of the Closing.
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Section 9.7 Announcements. Promptly following the execution and delivery hereof (and in any event within four (4) Business Days thereafter), Purchaser shall prepare and file a Current Report on Form 8-K pursuant to the Exchange Act to report the execution of this Agreement (the “Signing Form 8-K”) and the parties hereto shall issue a mutually agreeable press release announcing the execution of this Agreement and the other Transaction Documents. Purchaser shall provide the Sellers with a reasonable opportunity to review and comment on the Signing Form 8-K prior to its filing and shall consider such comments in good faith. Following such initial press release, neither any Seller nor Purchaser shall, and they shall cause their respective Affiliates not to, issue any press release or make any public announcement relating to the existence or subject matter of this Agreement or any agreement entered into pursuant to this Agreement, or the provisions hereof or thereof or the transactions contemplated hereby or thereby, without the prior review and written approval of the other Party (which approval shall not be unreasonably withheld, conditioned or delayed); provided, however, that the foregoing shall not prohibit such disclosure if required by Law, any Government Authority or any recognized stock exchange on which the Equity Interests of either a Seller or Purchaser or any of their respective Affiliates are listed (in which case the applicable Party will use its commercially reasonable efforts to consult with the other Party before making the disclosure and to allow such other Party to review the text of the disclosure before it is made, to the extent practicable); provided, further, that the foregoing shall not prohibit such disclosure if made following the Closing and consistent in tone and substance in all material respects with any press release previously issued or public announcement previously made in accordance with the terms hereof; provided, further, that the Parties may disclose such matters to their respective employees, accountants, advisors, investors and other Representatives who have a need to know and as necessary in connection with the ordinary conduct of their respective businesses (so long as such Persons agree to, or are bound by Contract or professional or fiduciary obligations to, keep the terms of this Agreement confidential and so long as the Parties shall be responsible to the other Parties for breach of this Section 9.7 or such confidentiality obligations by the recipients of its disclosure).
Section 9.8 Cooperation.
(a) The Sellers shall cooperate and shall, to the extent legally permitted, use its influence as a shareholder of Parent to ensure that Parent cooperates, with Purchaser on any publications required in connection with the transactions contemplated by this Agreement and the other Transaction Documents to which a Seller is a party.
(b) Purchaser shall (i) provide the Sellers and their Representatives, as soon as reasonably practicable, with drafts of any intended disclosures or publications, including registration statements, offer documents, or security prospectuses for their review and approval, which such approval shall not be unreasonably withheld, conditioned or delayed, (ii) keep the Sellers reasonably informed regarding, and shall provide relevant drafts sufficiently in advance for the Sellers and their advisors to review and comment with respect to: (A) preparing, filing and bringing effective a registration statement/prospectus on Form S-4 registering the sale of the Purchaser Common Shares issued as consideration in the Tender Offer and including an information statement relating to the execution of the Written Consent, (B) preparing, filing with and obtaining approval from the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin) for an offer prospectus (including any supplements thereof), (C) ensuring the Purchaser Common Shares issued as consideration are admitted to trading on NASDAQ as soon as reasonably practicable, (D) preparing any other disclosure legally required in connection with the issuance of the Purchaser Common Shares and the Tender Offer, including any security prospectus and (E) the squeeze-out of the minority shareholders of Parent.
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(c) Purchaser shall use reasonable efforts to comply with all applicable provisions of, and rules under, the Securities Act and Exchange Act, the certificate of incorporation, bylaws or other similar organizational documents of Purchaser and all applicable Laws of the State of Delaware and Germany, European Laws and regulations and NASDAQ regulations in the preparation, filing and distribution of the publications set forth in Section 9.8(b), as applicable.
Section 9.9 Stock Exchange Listing. Purchaser shall use its reasonable best efforts to cause the Rumble Share Consideration to be issued at the Closing pursuant to Article II to be listed on NASDAQ at such time of issuance, subject to official notice of issuance, but in no event later than the Closing.
Section 9.10 Takeover Statutes. Purchaser shall (a) take all actions necessary so that no “control share acquisition,” “fair price,” “moratorium” or other antitakeover or similar statute or regulation becomes applicable to the transactions contemplated or permitted by this Agreement or the other Transaction Documents and (b) if any such antitakeover or similar statute or regulation becomes applicable to the transactions contemplated or permitted by this Agreement or the other Transaction Documents, take all actions necessary so that such transactions may be consummated as promptly as practicable and otherwise to take all such other actions as are reasonably necessary to eliminate or minimize to the greatest extent possible the effects of any such statute or regulation on such transactions.
Section 9.11 Written Consent. In connection with the Written Consent, Purchaser shall take all actions necessary to comply in all material respects with Section 228 of the DGCL.
Section 9.12 Reporting Status. Until the second year anniversary of the Closing Date, for so long as the Sellers continue to hold Purchaser Common Shares, Purchaser shall use commercially reasonable efforts to file all reports required to be filed with the SEC pursuant to the Exchange Act (or, if Purchaser is not required to file such reports, it will, upon the reasonable request of Seller, make publicly available such necessary information for so long as is necessary to permit sales pursuant to Rule 144 under the Securities Act, as such rules may be amended from time to time), and, except as part of transaction of the type contemplated by the definition of Acquisition Proposal (replacing references to: (i) “Parent or the Transferred Subsidiaries” with “Purchaser”; (ii) “Sold Shares” with “Rumble Share Consideration”; and (iii) “20%” therein with “50%”), Purchaser shall not terminate its status as an issuer required to file reports under the Exchange Act even if the Exchange Act or the rules and regulations thereunder would no longer require registration or otherwise permit such termination.
Section 9.13 No Deregistration. Until the second anniversary of the Closing Date, for so long as the Sellers continue to hold Purchaser Common Shares, Purchaser shall use its reasonable best efforts to maintain the listing of the Purchaser Common Shares on NASDAQ or the New York Stock Exchange, and shall not effect any voluntary delisting of the Purchaser Common Shares from NASDAQ except, in either case, as part of a transaction of the type contemplated by the definition of Acquisition Proposal (replacing references to: (i) “Parent or the Transferred Subsidiaries” with “Purchaser”; (ii) “Sold Shares” with “Rumble Share Consideration”; and (iii) “20%” therein with “50%”).
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Section 9.14 Affiliate Transfers. For so long as a Seller has obligations under Article XI, in the event that a Seller transfers all or any portion of the Rumble Share Consideration to any of its Affiliates or to a spouse, parent, sibling, descendant or other immediate family member or to any trust or other estate-planning vehicle, or to any other Person through which a Seller has a direct or indirect pecuniary interest in the Rumble Share Consideration, as a condition to such transfer, such Affiliate shall execute and deliver to Purchaser a joinder agreement, in the form and substance reasonably acceptable to Purchaser, pursuant to which such Affiliate shall agree to be bound by, and shall assume, on a joint and several basis with the transferor, all obligations of such transferor under Article XI (Survival; Indemnification) of this Agreement with respect to the Rumble Share Consideration so transferred.
Section 9.15 Title Insurance Policy; Survey. Prior to Closing, each Seller shall not prevent or seek to prevent the applicable Transferred Subsidiary from reasonably cooperating with Purchaser to obtain any Title Insurance Policy that Purchaser elects to obtain, in its sole and absolute discretion, with respect to any Real Property. Purchaser may, at its sole option and expense, obtain an American Land Title Association (ALTA) (or equivalent) survey on each parcel of Real Property and such other reports or documents customarily obtained by purchasers of real property.
Section 9.16 Fiduciary Duties. Nothing in this Agreement shall conflict with Thillainathan’s fiduciary duties as member of Parent’s management board and compliance with his statutory obligations pursuant to Section 93 AktG.
Section 9.17 Non-Compete; Non-Solicitation.
(a) For a period of two (2) years from the Closing, each of the Sellers shall not, and shall procure that its Affiliates will not, compete, directly or indirectly, with any member of the Parent Group or any of their full legal successors (Gesamtrechtsnachfolger) with respect to the scope of business (including the business territory) as conducted or planned to be conducted as of Closing “Current Business”. This obligation shall include, without limitation, that Thillainathan shall not serve as a director, officer, employee, consultant, contractor or otherwise for any entity conducting a business competing with the Current Business. The obligations pursuant to this Section 9.18(a) shall not preclude the Sellers and their Affiliates from acquiring any passive participation (i.e. does not participate in the management or operation or have any special governance rights such as board representation) in entities conducting a business competing with the Current Business, provided that such participation does not exceed 19.9% of the share capital or voting rights of the entity.
(b) For a period of two (2) years from the Closing, each of the Sellers shall not, and shall procure that their Affiliates will not, actively solicit the service or employment of any employee of any member of the Parent Group or any of their full legal successors (Gesamtrechtsnachfolger), provided that the foregoing shall not prevent Sellers and their Affiliates from hiring any such person that approaches Sellers or any Affiliates of the Sellers on his or her own initiative or by responding to a general job advertisement or recruitment campaign that is not specifically targeted at persons engaged by the relevant member of the Parent Group or its full legal successor (Gesamtrechtsnachfolger).
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Article
X.
TAX MATTERS
Section 10.1 VAT. The Parties share the understanding that the transactions contemplated under this Agreement are not subject to and otherwise exempt from value added tax (VAT) and therefore the transfer of the Sold Shares and the Rumble Share Consideration are exclusive of VAT. The Parties undertake not to waive any exemption from VAT with regard to any transaction contemplated under this Agreement. To the extent any transaction contemplated under this Agreement does trigger VAT contrary to the Parties’ shared view and without a Party having waived an exemption from VAT, the recipient of the respective delivery or service shall pay the amount of statutory VAT to the Party providing the respective delivery or service subject to receipt of an invoice in accordance with applicable VAT Laws.
Section 10.2 Other Tax Matters. Any transfer, documentary, registration, stamp, excise, recording, or other similar Taxes (collectively, “Transfer Taxes”) arising from the transactions contemplated by this Agreement, if any, shall be borne by Purchaser. All Tax Returns with respect to such Transfer Taxes shall be filed by the Party required to file the Tax Return under applicable Law, and the non-filing Party shall cooperate in the filing and join in the execution of any such Tax Returns and other required documentation and Purchaser shall reimburse Sellers for any such Transfer Taxes that are paid by the Sellers.
Article
XI.
SURVIVAL; INDEMNIFICATION
Section 11.1 Survival. (a) The Parties, intending to modify any applicable statute of limitations, each agree that:
(i) any claims for breaches of Sellers’ Fundamental Representations, Parent Fundamental Representations or the Purchaser Fundamental Representations shall expire 18 months after Closing;
(ii) the representations and warranties of each Seller contained in Article V and Article VI (other than the Sellers’ Fundamental Representations and Parent Fundamental Representations) and the representations or warranties of Purchaser contained in Article VIII (other than the Purchaser Fundamental Representations) shall expire at the Closing and thereafter there shall be no liability on the part of, nor shall any claim be made by, any Party or its Affiliates with respect to these representations and warranties regardless of whether such liability accrued prior to, on or after the Closing, other than as expressly set forth in this Article XI or in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz); and
(iii) any covenants and agreements contained in this Agreement to be performed at or prior to Closing shall expire three (3) months following the Closing;
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(iv) any covenants and agreements contained in this Agreement to be performed after the Closing shall survive the Closing until fully performed in accordance with their terms; and
(v) any claims pursuant to Section 11.2(d) and Section 11.2(e) shall survive eighteen (18) months after the Closing.
(b) No Purchaser Indemnitee nor Seller Indemnitee (as applicable, the “Indemnified Party”) shall have the right to recover any amounts pursuant to this Article XI unless on or before the last day of the relevant expiration period specified in Section 11.1(a) 0(the applicable “Survival Date”), the Indemnified Party notifies the respective other Party of a claim specifying the factual basis of that claim in reasonable detail (to the extent then known by such Indemnified Party).
(c) Notwithstanding anything to the contrary set forth herein, obligations to indemnify hereunder shall not terminate with respect to any claim as to which the Indemnified Party shall have, before the applicable Survival Date, delivered notice of such claim for indemnification (without having to commence a legal proceeding) from the Sellers or Purchaser, respectively (as applicable, the “Indemnifying Party”) in accordance with Section 11.6 until such claim is fully and finally resolved, provided that the delivering Party shall continuously pursue its claim in good faith.
(d) Notwithstanding anything to the contrary set forth herein, the limitations set forth in this Section 11.1 shall not apply in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz).
(e) Neither this Section 11.1 nor anything else in this Agreement shall in any way inhibit Purchaser from recovering or otherwise obtaining any remedies, or shall otherwise limit any rights Purchaser may have against the RWI Provider or any other Person under the RWI Policy.
Section 11.2 Indemnification of Purchaser Indemnitees. From and after the Closing, the Sellers shall jointly and severally, subject to the limitations in this Article XI and Article VII, indemnify and hold harmless the Purchaser Indemnitees from and against all Damages suffered, sustained or incurred by any of them until the expiration of the applicable Survival Date resulting from:
(a) any inaccuracy in or breach of any of the representations and warranties of each Seller contained in Article V and Article VI (other than the Sellers’ Fundamental Representations and Parent Fundamental Representations) or in any certificate delivered by the Sellers pursuant hereto;
(b) any inaccuracy in or breach of any of the Sellers’ Fundamental Representations made by Seller in Article V or the Parent Fundamental Representations made in Article VI or in any certificate delivered by the Sellers pursuant hereto;
(c) any breach of, or failure to perform or comply with, any covenant, agreement or obligation of the Sellers under this Agreement;
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(d) any Excluded Liability; and
(e) any Action by any securityholder of Parent solely in connection with the sale of the Peak Mining Business.
Section 11.3 Indemnification of the Seller Indemnitees. From and after the Closing, Purchaser shall, subject to the limitations in this Article XI, indemnify, save, defend and hold harmless the Seller Indemnitees from and against all Damages suffered, sustained or incurred by any of them until the expiration of the applicable Survival Date resulting from:
(a) any inaccuracy in or breach of any Purchaser Fundamental Representation made by Purchaser in Article VIII or in any certificate delivered by Purchaser pursuant hereto; and
(b) any breach of, or failure to perform or comply with, any covenant, agreement or obligation of Purchaser under this Agreement or any other Transaction Document;
Section 11.4 Limitation on Indemnification Obligations.
(a) The maximum aggregate amount of indemnifiable Damages that may be recovered by the Purchaser Indemnitees under Section 11.2(a) shall be the value of the Rumble Share Consideration (based on the Purchaser Common Stock Price) actually received by the Sellers.
(b) The maximum aggregate amount of indemnifiable Damages that may be recovered by the Seller Indemnitees under Section 11.3 shall be the value of the Rumble Share Consideration (based on the Purchaser Common Stock Price) actually delivered to the Sellers.
(c) Notwithstanding anything to the contrary set forth herein, the limitations set forth in this Section 11.4 shall not apply in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz). Neither this Section 11.4 nor anything else in this Agreement shall in any way inhibit Purchaser from recovering or otherwise obtaining any remedies, or shall otherwise limit the rights that Purchaser may have against the RWI Provider or any other Person under the RWI Policy.
(d) Notwithstanding anything in this Article XI or elsewhere in this Agreement to the contrary, except in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz), Purchaser agrees that the Purchaser Indemnitees shall first use reasonable best efforts to seek recovery under the RWI Policy, if recovery is available for the applicable Damages under the RWI Policy, before seeking recovery directly from the Sellers under Section 11.2(a). In the event that any Damages are actually recovered by the Purchaser Indemnitees under the RWI Policy, the Purchaser Indemnitees shall not be entitled to make any claim for indemnification under this Article XI for the same Damages.
(e) No Party shall be entitled to be indemnified, defended, held harmless or reimbursed for, from or against any Damages pursuant to this Article XI, if such Damages are accounted for in the calculation of the Offer Ratio as previously communicated between the Parties. No Purchaser Indemnitee shall be entitled to be indemnified, defended, held harmless or reimbursed for, from or against any Damages under this Article XI to the extent with respect to the relevant claim:
(i) the matter (other than an Excluded Liability) is disclosed, accrued or reserved for in the Parent Financial Statements (including, where applicable, the notes thereto); provided, that such disclosure shall not be deemed to apply if it is contained only in a general category, except to the extent such matter is expressly and specifically disclosed; or
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(ii) such claim would not have arisen (or would have been reduced) but for any act or omission of Parent Group on or before Closing carried out at the express request of Purchaser on or before Closing, or any act or omissions of Purchaser or Parent Group after the Closing; or
(iii) such claim is attributable to, or the amount of such claim results from or is increased by, the passing of, or any change in any Law after the date hereof.
(f) Notwithstanding anything herein to the contrary, no Party shall be entitled to be indemnified, defended, held harmless or reimbursed for, from or against any Damages: (i) relating to any Taxes directly relating to actions outside the ordinary course of business taken by any Indemnified Party (including actions taken by Purchaser with regard to the Parent) at any time on the Closing Date after the Closing or (ii) arising as a result of any election with respect to Taxes made after the Closing.
Section 11.5 Determination of Damages. The Parties acknowledge and agree that qualifications or limitations as to materiality, “material adverse effect,” Parent Material Adverse Effect, Seller Material Adverse Effect or Purchaser Material Adverse Effect (or any similar qualifications or limitations as to materiality) in any representation or warranty set forth herein shall be ignored and disregarded both for the purpose of determining whether inaccuracy or breach of any representation or warranty has occurred and for determining the amount of applicable Damages, which shall be calculated without regard to any such qualifications or limitations contained in any such representation or warranty.
Section 11.6 Claim Procedures.
(a) Third-Party Claims. In order for an Indemnified Party to be entitled to any indemnification from the Indemnifying Party, provided for under this Article XI in respect of, arising out of, relating to or involving a claim made or threatened by any Person not a Party against such Indemnified Party (a “Third-Party Claim”), such Indemnified Party shall notify the Indemnifying Party in writing of such Third-Party Claim (setting forth in reasonable detail the facts giving rise to such Third-Party Claim (to the extent known), the amount or good faith estimated amount (to the extent reasonably estimable) of Damages in respect of, arising out of, relating to or involving such Third-Party Claim, a description of any other remedy sought in connection therewith, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto) (a “Claim Notice”) promptly after receipt by such Indemnified Party of written notice of such Third-Party Claim (and in any event not later than the date that is ten (10) Business Days preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal, or an answer or similar pleading is required to be filed in a litigation or other proceeding, with respect to such Third-Party Claim); provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent that the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure. The Indemnified Party shall keep the Indemnifying Party reasonably and promptly informed of factual and procedural developments in connection with the allegations made in the Claim Notice and, to the extent reasonable practicable, provide the Indemnifying Party the information with respect to the Claim Notice upon reasonable request of the Indemnifying Party subject to the confidentiality provisions set forth herein, as applicable.
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(b) Assumption. If a Third-Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to assume the defense thereof (unless the Indemnifying Party indicates it is not willing to defend such Third-Party Claim), if the Indemnifying Party so chooses, with counsel selected by the Indemnifying Party, which counsel must be reasonably satisfactory to the Indemnified Party, by giving written notice thereof to the Indemnified Party within 20 Business Days after the Indemnified Party provides a Claim Notice to the Indemnifying Party of such Third-Party Claim. If the Indemnifying Party assumes the defense of a Third-Party Claim in accordance with this Section 11.6(b), the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. Any such participation or assumption shall not constitute a waiver by any Party of any attorney-client privilege in connection with such Third-Party Claim. If the Indemnifying Party assumes the defense of a Third-Party Claim in accordance with this Section 11.6(b), the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel reasonably satisfactory to the Indemnifying Party, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy related to such Third-Party Claim subject to the other terms hereof. If the Indemnifying Party chooses to assume the defense of a Third-Party Claim, the Indemnified Party shall cooperate in the defense or prosecution thereof. If a Claim Notice is given to the Indemnifying Party of a Third-Party Claim in accordance with this Section 11.6(b) and the Indemnifying Party does not, within 20 Business Days after such Claim Notice is given, give notice in writing to the Indemnified Party of its election to assume the defense of such Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to assume its own defense, provided that the Indemnified Party may not settle any such Third-Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided, further, that any such consent provided by an Indemnifying Party shall not prejudice such Indemnifying Party’s ability to dispute whether an Indemnified Party is entitled to indemnification for such Third-Party Claim under this Article XI. If the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party shall use its commercially reasonable efforts to defend such Third-Party Claim vigorously and diligently to final conclusion or settlement of such Third-Party Claim; provided, however, that the Indemnifying Party shall not settle such Third-Party Claim without the consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) if such settlement would result in (i) a finding or admission of any violation of Law or the rights of any Person that would have any adverse effect on any other claims that may be made against any Person, (ii) any relief other than monetary damages paid in full by the Indemnifying Party or any of its Affiliates or (iii) no complete, final and unconditional release of the Indemnified Party in connection with such Third-Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third-Party Claim if (i) the Third-Party Claim seeks an injunction or other equitable relief or relief other than monetary damages for which the Indemnified Party would be entitled to indemnification under this Agreement, (ii) the Third-Party Claim is a criminal or administrative proceeding, or relates to such a proceeding, or the underlying facts or circumstances of which could reasonably be expected to give rise to such a proceeding or (iii) in the case of a Purchaser Indemnitee, a Purchaser Indemnitee is seeking full recovery relating to the Third-Party Claim under the RWI Policy.
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(c) Privilege. If an Indemnifying Party chooses to assume the defense of a Third-Party Claim in accordance with the terms hereof, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), cause, or agree to, the waiver of the attorney-client privilege, attorney work-product immunity or any other privilege or protection in respect of confidential legal memoranda and other privileged materials drafted by, or otherwise reflecting the legal advice of, internal or outside counsel of an Indemnified Party (the “Subject Materials”) relating to such Third-Party Claim (consistent with applicable Law). Each Party acknowledges and agrees, on behalf of itself and its Affiliates, that (i) each shares a common legal interest in preparing for the defense of legal proceedings, or potential legal proceedings, arising out of, relating to or in respect of any actual or threatened Third-Party Claim or any related claim or counterclaim, (ii) the sharing of Subject Materials will further such common legal interest and (iii) by disclosing any Subject Materials to and/or sharing any Subject Materials with the Indemnifying Party, the Indemnified Party shall not waive the attorney-client privilege, attorney work-product immunity or any other privilege or protection; provided, however, that nothing herein shall prohibit the Indemnifying Party that does not choose to assume the defense of a Third-Party Claim from utilizing Subject Materials to defend itself against a claim by the Party seeking indemnification hereunder. The Indemnified Party shall not be required to make available to the Indemnifying Party any information that is subject to an attorney-client or other applicable legal privilege that, based on the advice of outside counsel, would be impaired by such disclosure or any confidentiality restriction under applicable Law.
(d) Other Claims. In the event an Indemnified Party has a claim against an Indemnifying Party under this Article XI that does not involve a Third-Party Claim, the Indemnified Party shall notify the Indemnifying Party in writing of such claim (setting forth in reasonable detail the facts giving rise to such claim (to the extent known), the amount or good faith estimated amount (to the extent reasonably estimable) of Damages arising out of, involving or otherwise in respect of such claim, a description of any other remedy sought in connection therewith, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto) with reasonable promptness after becoming aware of such claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent that the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure.
Section 11.7 No Double Recovery. No Indemnified Party shall be entitled to recover from any Indemnifying Party under this Article XI, the RWI Policy or under any other Transaction Document more than once in respect of the same Damages (notwithstanding that such Damages may result from breaches of multiple provisions of this Agreement).
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Section 11.8 Mitigation of Losses. Section 254 BGB shall apply to the obligations of any Indemnified Party to mitigate Damages.
Section 11.9 Tax Treatment of Indemnification Claims. Purchaser and each Seller agree to report each indemnification payment made in respect of any Damages hereunder as an adjustment to the value of the Rumble Share Consideration for income Tax purposes unless otherwise required by applicable Law.
Article
XII.
TERMINATION
Section 12.1 Termination. Notwithstanding anything to the contrary herein, this Agreement may be terminated prior to the Closing:
(a) Consent. By the mutual written consent of the Sellers and Purchaser;
(b) Delay. By either the Sellers or Purchaser if the Closing has not occurred on or before the Outside Date; provided, however, that the right to terminate this Agreement under this Section 12.1(b) shall not be available to the Sellers or Purchaser, as applicable, if the failure to fulfill any of such Party’s obligations under this Agreement has been the primary cause of, or resulted in, the failure of the Closing to occur on or before the Outside Date;
(c) Breach. By either the Sellers or Purchaser in the event of a material breach of any representation, warranty, covenant or agreement contained in this Agreement on the part of the respective other Party, which breach would, individually or in the aggregate, result in, if occurring or continuing on the Closing Date, the failure of any condition to the terminating Party’s obligations set forth in Article III to be satisfied, and which cannot be or has not been cured within 30 days after the giving of written notice to the breaching Party of such breach (or by the Outside Date, if earlier); provided, however, that the right to terminate this Agreement under this Section 12.1(c) shall not be available to a would-be terminating Party if such Party is then in material breach of any of its representations, warranties, agreements and covenants hereunder;
(d) Prohibition. By either the Sellers or Purchaser if any final and non-appealable Government Order or other Law shall have been issued, entered, enacted, or promulgated having the effect of permanently enjoining, restraining, or otherwise prohibiting or making illegal the consummation of the transactions contemplated by this Agreement; provided, however, that the right to terminate this Agreement under this Section 12.1(d) shall not be available to the Sellers or Purchaser, as applicable, if the failure to fulfill any of such Party’s obligations under this Agreement has been the primary cause of, or resulted in, such Government Order or other Law;
(e) Purchaser Shareholder Approval. By the Sellers if the Written Consent is not duly executed and delivered to the Sellers within twenty-four (24) hours of the date hereof in accordance with the terms of this Agreement.
Section 12.2 Notice of Termination. If the Sellers or Purchaser desires to terminate this Agreement pursuant to Section 12.1, it shall give written notice of such termination to (in the case of termination by the Sellers) Purchaser or to (in the case of termination by Purchaser) the Sellers setting forth the basis and provision(s) of Section 12.1 being relied upon to terminate this Agreement.
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Section 12.3 Effect of Termination. Upon a termination of this Agreement in accordance with Section 12.1, each Party’s further rights and obligations hereunder, other than the Surviving Provisions (which shall survive such termination and remain in full force and effect), shall terminate without any Liability of any Party to any other Party, but termination shall not affect any rights or obligations of a Party which may have accrued prior to such termination and shall not relieve any Party from Liability for any breach based on deceit (arglistige Täuschung) or willful misconduct (Vorsatz) prior to such termination.
Article
XIII.
MISCELLANEOUS
Section 13.1 Notices.
(a) Any notice, request, claim, demand or other communication in connection with this Agreement (each, a “Notice”) shall be:
(i) in writing in English; and
(ii) delivered by hand, registered mail or by courier using an internationally recognized courier company, or transmitted by email.
(b) A Notice to any Party shall be sent to such Party at the following address, or such other Person or address as such Party may designate by delivery of Notice to each other Party in accordance herewith.
If to the Sellers, to:
ART Holding GmbH, Lindenstrasse 8, c/o
AMZ, Ando-Management AG,
6340 Baar, Switzerland;
Attention:
With a copy to (which shall not constitute a Notice):
Latham & Watkins LLP
Reuterweg 20
60323 Frankfurt am Main
Germany
Attention: Dr.
Alexander Stefan Rieger; alexander.rieger@lw.com;
Dr. Camilla Kehler-Weiss; camilla.kehler-weiss@lw.com
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If to Purchaser or, following the Closing, to:
Rumble, Inc.
444 Gulf of Mexico Dr.
Longboat Key, Florida 34228
Attention:
With a copy to (which shall not constitute a Notice):
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019-6099
Attention: Russell L. Leaf, Sean M. Ewen
Email: rleaf@willkie.com; sewen@willkie.com
(c) A Notice shall be effective upon receipt and shall be deemed to have been received:
(i) at the time of delivery, if delivered by hand, registered post or courier; or
(ii) when sent by email (with email confirmation of receipt, including automated electronic confirmation of receipt).
Section 13.2 Assignment. Except as otherwise expressly provided in this Agreement, no Party may, without the prior written consent of the other Parties, directly or indirectly assign, grant any security interest over, hold on trust or otherwise transfer the benefit of the whole or any part of this Agreement, except that Purchaser may transfer or assign, in whole or from time to time in part, its rights under this Agreement to any of its Affiliates, but any such transfer or assignment will not relieve Purchaser of any of its obligations hereunder. Any attempted assignment in violation of this Section 13.2 shall be null and void. This Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the Parties and their successors and permitted assigns.
Section 13.3 No Third-Party Beneficiaries; No Recourse Against Non-Parties.
(a) Except as provided in Article XI and Section 13.3(b), this Agreement is for the sole benefit of the Parties and their successors and permitted assigns, and nothing herein expressed or implied shall give or be construed to give to any Person, other than the Parties and such successors and assigns, any legal or equitable rights or remedies (including third-party beneficiary rights) hereunder.
(b) (i) All claims or causes of action (whether in contract or in tort, in law or in equity) that may be based upon, arise out of or relate to this Agreement or any other Transaction Document, or the negotiation, execution or performance of this Agreement or any other Transaction Document (including any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement or any Transaction Document), may be made only against (and subject to the terms and conditions thereof) the entities that are expressly identified as parties hereto and thereto and (ii) no Person who is not a named party to this Agreement or any other Transaction Document, including any past, present or future director, officer, employee, incorporator, member, manager, partner, equityholder, Affiliate, agent, attorney or Representative of any named party to this Agreement or any other Transaction Document (“Non-Party Affiliates”), shall have any liability (whether in contract or in tort, in law or in equity, or based upon any theory that seeks to impose liability of an entity party against its owners or Affiliates) for any obligations or liabilities arising under, in connection with or related to this Agreement or any other Transaction Document or for any claim based on, in respect of, or by reason of this Agreement or any other Transaction Document or its negotiation or execution, and each party hereto waives and releases all such liabilities, claims and obligations against any such Non-Party Affiliates. Non-Party Affiliates are expressly intended as third-party beneficiaries of this provision of this Agreement.
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Section 13.4 Whole Agreement; Conflict with Other Transaction Documents. This Agreement (including all Schedules and Exhibits hereto), Sellers’ Disclosure Letter, Purchaser’s Disclosure Letter, the other Transaction Documents, and the other agreements and deliverables in connection herewith referred to herein constitute the whole agreement among the Parties relating to the subject matter hereof and thereof to the exclusion of any terms implied by Law which may be excluded by Contract and supersede any prior understandings, negotiations, agreements, statements, or representations among the Parties or any of their respective Affiliates of any nature, whether written or oral, to the extent they relate to the subject matter hereof and thereof.
Section 13.5 Costs. Except as otherwise expressly provided herein and therein, each Party shall bear all costs incurred by it in connection with the preparation, negotiation, execution and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby.
Section 13.6 Governing Law; Consent to Jurisdiction; Specific Performance.
(a) This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany, without recourse to any conflicts of law provisions.
(b) All disputes arising under or in connection with this Agreement (including any dispute in connection with the breach, termination or its validity) shall be finally settled, under exclusion of any state court’s competence, by three (3) arbitrators in accordance with the Arbitration Rules of the German Institution of Arbitration e.V. (Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS)), as applicable as of the filing of the claim. Each arbitrator shall be eligible for the office of a judge in Germany and have proven expertise and professional expertise as is required for the relevant dispute at hand. The venue of the arbitration shall be Frankfurt am Main, Germany. The language of the arbitral proceedings shall be English. Documents already existing as at the date of this Agreement may also be submitted in the German language.
(c) If mandatory applicable Law requires any matter arising from or in connection with this Agreement or its consummation to be decided upon by a court of Law, the competent courts in and for Frankfurt am Main, Germany, shall have the exclusive jurisdiction.
Section 13.7 Counterparts. This Agreement, and the other Transaction Documents and the other agreements referred to herein may be executed in any number of counterparts, each of which shall be deemed to constitute an original and all of which shall together constitute one and the same instrument. This Agreement shall become binding when any number of counterparts, individually or taken together, shall bear the signatures of and be delivered by all Parties. This Agreement may be executed and delivered by facsimile or any other electronic means, including “.pdf” or “.tiff” files, DocuSign, and any facsimile or electronic signature shall constitute an original for all purposes.
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Section 13.8 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid, void or unenforceable, (a) a suitable and equitable provision shall be negotiated by the Parties in good faith in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
Section 13.9 Amendments; Waiver. Any provision of this Agreement may be amended or modified if, and only if, such amendment is in writing and signed by and on behalf of each Party. Any provision of this Agreement may be waived if, and only if, such waiver is in writing and signed by and on behalf of the Party against whom such waiver is to be enforced. No waiver of any breach of this Agreement or right or remedy under this Agreement will be implied from any delay, forbearance or failure of a Party to take action thereon. Any such waiver described in the preceding sentence may, at any time prior to the Closing, (a) extend the time for performance of any of the obligations or other acts of the other Parties hereto, (b) waive any inaccuracies in the representations and warranties of the other Parties contained in this Agreement or in any document delivered pursuant to this Agreement or (c) waive compliance by the other Parties with any term or provision of this Agreement on the part of such other Party to be performed or complied with. The waiver by any Party of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach. No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other further exercise thereof or the exercise of any other right, power or privilege.
Section 13.10 Payments. Except to the extent otherwise expressly provided in Section 2.3 and Section 4.3 and otherwise in this Agreement, all payments to be made under this Agreement shall be made in full, without any setoff or deduction for or on account of any counterclaim. Any payment to be made under this Agreement shall be effected by crediting for same-day value the account specified by the Party entitled to the payment before the due date for payment as set forth herein.
Section 13.11 No Admission. Nothing herein shall be deemed an admission by any Party or any of their respective Affiliates, in any Action or Action by or on behalf of a third party, that any Party or any of their respective Affiliates, or that such third party or any of its Affiliates, is or is not in breach or violation of, or in default in, the performance or observance of any term or provisions of any Contract.
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Section 13.12 Interpretation.
(a) Unless the context otherwise specifically requires:
(i) the words “hereof,” “herein,” “hereby” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
(ii) the word “including” and words of similar import when used in this Agreement and the Transaction Documents shall mean “including without limitation,” unless otherwise specified;
(iii) all terms defined in the singular have a comparable meaning when used in the plural, and vice versa;
(iv) the terms “Dollars” and “$” mean United States Dollars;
(v) references to words of inclusion herein shall not be construed as terms of limitation, and thus references to “included” matters or items shall be regarded as non-exclusive, non-characterizing illustrations;
(vi) references herein to either gender shall include the other gender;
(vii) references to this Agreement shall include Sellers’ Disclosure Letter, Purchaser’s Disclosure Letter, the Preamble and any Recitals, Schedules and Exhibits to this Agreement;
(viii) references herein to the Preamble or to any Recital, Article, Section, Subsection, Exhibit or Schedule shall refer, respectively, to the Preamble or to a Recital, Article, Section, Subsection, Exhibit or Schedule of or to this Agreement;
(ix) references to Law shall be deemed to refer to such Law as amended through the date hereof and to any rules or regulations promulgated thereunder as amended through the date hereof, provided, however, that for purposes of representations and warranties contained in this Agreement that are made as of a specific date, references to any Law shall be deemed to refer to such Law and any rules or regulations promulgated thereunder as amended through such specific date;
(x) references to any Government Authority include any successor to such Government Authority;
(xi) references to any Person include such Person’s successors and permitted assigns;
(xii) references to any agreement or other document are to such agreement or document as amended, modified, supplemented or replaced from time to time;
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(xiii) references to books, records or other information mean books, records or other information in any form including, paper, electronically stored data, magnetic media, film and microfilm;
(xiv) references to a time of day are, unless otherwise specified, references to New York City time;
(xv) references to writing shall include any mode of reproducing words in a legible and non-transitory form, including in electronic form;
(xvi) the rule known as the ejusdem generis rule shall not apply and, accordingly, general words introduced by the word “other” shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things;
(xvii) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase shall not simply mean “if”;
(xviii) the word “will” shall be construed to have the same meaning and effect as the word “shall”; and
(xix) the word “or” shall be construed as disjunctive but not exclusive.
(b) The table of contents and headings contained in this Agreement and the other Transaction Documents are for reference purposes only and do not limit or otherwise affect any of the provisions of this Agreement.
(c) No rule of construction against the draftsperson shall be applied in connection with the interpretation or enforcement of this Agreement, as this Agreement is the product of negotiation between sophisticated parties advised by counsel. Each of the Parties has participated in the negotiation and drafting of this Agreement and the Transaction Documents and if an ambiguity or question of interpretation should arise, this Agreement and the Transaction Documents shall be construed as if drafted jointly by the parties thereto.
(d) Whenever a provision of this Agreement provides that an action is to be effected as of, on or by a certain date, and such date is not a Business Day, this Agreement shall be read so that such action is required to be effected as of, on or by (as applicable) the next succeeding Business Day.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
| Art Holding GmbH | ||
| By: | /s/ Aroosh Thillainathan | |
| Name: | Aroosh Thillainathan | |
| Title: | Managing Director | |
| /s/ Aroosh Thillainathan | ||
| Aroosh Thillainathan | ||
| RUMBLE INC. | ||
| By: | /s/ Christopher Pavlovski | |
| Name: | Christopher Pavlovski | |
| Title: | Chief Executive Officer | |
[Signature Page to Transaction Support Agreement]
Schedule
A
Definitions and Terms
“Acceptance Period” means the Initial Acceptance Period together with any Additional Acceptance Period.
“Action” means any civil, criminal or administrative action, suit, demand, claim, case, litigation, mediation, arbitration, opposition, objection, cancellation, inquiry, charge, subpoena, audit, examination, hearing, dispute, investigation or other proceeding (whether civil, criminal or administrative).
“Acquisition Proposal” means, other than the transactions contemplated by this Agreement, the Tether Purchase Agreement, the Apeiron Purchase Agreement or the Business Combination Agreement, any Third Party offer, proposal or inquiry relating to, or any Third Party indication of interest in, (a) any acquisition or purchase of any of the Sold Shares, (b) any acquisition, purchase or exclusive license, directly or indirectly, of 20% or more of the consolidated assets of Parent or the Transferred Subsidiaries or 20% or more of any class of equity or voting securities of Parent or the Transferred Subsidiaries, (c) any tender offer or exchange offer that, if consummated, would result in such Third Party beneficially owning 20% or more of any class of equity or voting securities of Parent or the Transferred Subsidiaries, or (d) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Parent or the Transferred Subsidiaries.
“Additional Acceptance Period” has the meaning set forth in the Business Combination Agreement.
“Affiliate” means, with respect to any Person, any other Person who is an affiliated enterprise (verbundenes Unternehmen) of Person within the meaning of Sections 15 et seq. AktG, provided that the Parent and its Subsidiaries shall not be considered Affiliates of the Sellers or any other Person that is an Affiliate of the Sellers for purposes of this Agreement.
“Agreement” has the meaning set forth in the Preamble.
“AktG” means the German Stock Corporation Act (Aktiengesetz).
“Anti-Money Laundering Laws” means all anti-money laundering and counter-terrorist financing Laws and financial recordkeeping, reporting and registration requirements administered or enforced by any Government Authority.
“ART Holding” has the meaning set forth in the Preamble.
“Apeiron” has the meaning set forth in the Recitals.
“Apeiron Purchase Agreement” has the meaning set forth in the Recitals.
“Applicable Date” means January 1, 2025.
Sch A-1
“Applicable Purchaser Period” means, with respect to Purchaser and any of its Subsidiaries, periods beginning after December 31, 2021 and continuing through the Closing Date.
“Audited Financial Statements” has the meaning set forth in Section 6.3(a).
“BGB” means the German Civil Code (Bürgerliches Gesetzbuch).
“Bring-Down Certificate” has the meaning set forth in Section 4.2(a)(i).
“Business Combination Agreement” has the meaning set forth in the Recitals.
“Business Day” means any day other than a Saturday, a Sunday, on which banks located in New York, New York, United States, and Frankfurt am Main, Germany, are generally open for business.
“Business Intellectual Property” has the meaning set forth in Section 6.13(a).
“Business Software” has the meaning set forth in Section 6.13(a).
“Business Source Code” means source code of any Business Software which is incorporated in or distributed as part of any product sold, distributed or made commercially available by Parent or any of the Transferred Subsidiaries.
“Capacity” means the total (in kilowatts) of: (a) backup generators capacity, (b) uninterruptible power supply (UPS), and (c) cooling measured at the Data Centers, but excluding, in each case, any amounts required for redundancy.
“Claim Notice” has the meaning set forth in Section 11.6(a).
“Class A Common Stock” has the meaning set forth in Section 8.2(a).
“Class C Common Stock” has the meaning set forth in Section 8.2(a).
“Class D Common Stock” has the meaning set forth in Section 8.2(a).
“Clearstream” has the meaning set forth in the Recitals.
“Closing” has the meaning set forth in Section 4.1.
“Closing Actions” has the meaning set forth in Section 4.2(a).
“Closing Date” means the date on which the Closing occurs.
“Closing Protocol” has the meaning set forth in Section 4.2(c).
“Code” means the U.S. Internal Revenue Code of 1986, as the same may be amended or supplemented from time to time, and any successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect.
Sch A-2
“Commitments” has the meaning set forth in Section 6.20(a).
“Confidentiality Agreement” means that certain letter agreement, dated as of February 14, 2025, between Purchaser and Parent.
“Constituent Documents” means, with respect to any corporation, its charter and bylaws; with respect to any partnership, its certificate of partnership and partnership agreement; with respect to any limited liability company, its certificate of formation and limited liability company or operating agreement; and, with respect to each other Person, its comparable constitutional instruments or documents (and, in each case, such similar instruments or documents as applicable under the relevant jurisdiction).
“Contract” means any contract, agreement, undertaking, commitment, purchase order, loan, guarantee, indenture, lease or license.
“Damages” means any damages, costs, or actual out-of-pocket expenses and amounts paid in settlement (including reasonable attorneys’ fees and expenses), but excluding indirect damages, consequential damages, loss of profits (entgangener Gewinn), frustrated expenses (vergebliche Aufwendungen) within the meaning of Section 284 BGB, exemplary and punitive damages, and any damages based upon any type of multiple, except for (i) such damages that are paid to a third party in connection with a Third-Party Claim and (ii) consequential damages, loss of profits or frustrated expenses that are reasonably foreseeable.
“Data Center Lease” means any master service agreement, colocation agreement, lease, sublease, license or other Contract or Real Property Lease (including service or similar orders thereunder) in respect of the HPC Segment to which Parent or any of the Transferred Subsidiaries grants or agrees to grant a Person a leasehold estate, leasehold interest, subleasehold estate, sublease interest, license or the right to use or occupy space in, or to receive power or ancillary services related to, any high performance computing data center, together with all amendments, guarantees and modifications thereto.
“Data Centers” mean the Operational Data Centers and the Pre-Operational Data Centers.
“DGCL” means the General Corporation Law of the State of Delaware.
Sch A-3
“Disclosure Letter” means, with respect to each Party, a letter delivered by such Party to the respective other Party contemporaneously with the execution and delivery of this Agreement setting forth, among other things, items the disclosure of which is necessary or appropriate either in response to an express disclosure requirement contained in a provision hereof or as an exception to one or more representations, warranties or covenants of such Party contained in this Agreement; provided that the mere inclusion of an item in a Disclosure Letter as an exception to a representation, warranty or covenant shall not be deemed an admission by the disclosing Party that such item (or any non-disclosed item or information of comparable or greater significance) represents a material exception or fact, event or circumstance or that such item has had or is reasonably likely or expected to result in a Parent Material Adverse Effect or a Purchaser Material Adverse Effect, as applicable; provided, further, that each Disclosure Letter has been arranged as separate sections corresponding to the subsections of this Agreement, and a disclosure in any section of such Party’s Disclosure Letter shall be deemed to be a disclosure for all other sections of such Party’s Disclosure Letter in respect of which it is reasonably apparent on its face that such disclosure is applicable, whether or not repeated or cross-referenced in such other section. Notwithstanding anything to the contrary contained herein, the facts and circumstances in the documents disclosed in the Virtual Data Room are deemed to be expressly disclosed as if they were included in Sellers’ Disclosure Letter, except (a) with respect to the Sellers’ Fundamental Representations or Parent Fundamental Representations or (b) in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz); provided, that the facts and circumstances were presented in the Virtual Data Room in such a manner and detail and in a context where such information would reasonably be expected to be contained, it being further understood that disclosure shall have been made in the Virtual Data Room before 5:00 p.m., New York City time, on November 8, 2025. Notwithstanding anything to the contrary contained herein, the facts and circumstances in the documents disclosed as set forth in any Purchaser Reports (excluding, in each Purchaser Report, any disclosures contained therein under the captions “Risk Factors” or “Forward-Looking Statements” and any other disclosures contained therein that are predictive, cautionary or forward-looking in nature, in each case other than any specific factual information contained therein, which shall not be excluded) filed prior to the date of this Agreement (excluding any amendments or supplements filed after the date hereof) are deemed to be expressly disclosed as if they were included in Purchaser’s Disclosure Letter, except (a) with respect to the Purchaser Fundamental Representations or (b) in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz); provided, that the facts and circumstances were presented in the Purchaser Reports in such a manner and detail and in a context where such information would reasonably be expected to be contained, it being further understood that disclosure shall have been made in the Purchaser Reports before 5:00 p.m., New York City time, on November 8, 2025.
“Employee Benefit Plan” means any “employee benefit plan” within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA, and any other material employee benefit or compensation plan, program, policy, practice, agreement, Contract, arrangement or other obligation, whether or not in writing, whether or not tax-qualified and whether or not funded, including any Multiemployer Plans, pension, retirement, savings, bonus, commission, profit-sharing, deferred compensation, incentive, performance award, phantom equity, stock or other equity or stock- or other equity-based, employment, individual consulting or contractor, change in control, retention, redundancy, severance, separation, medical, health, life insurance, disability or other welfare benefit, vacation, paid time off, material fringe benefit or other material benefit or compensation plan, program, policy, practice, agreement, contract, arrangement or other obligation, in each case, (i) which is sponsored, established or maintained by, contributed to or required to be contributed to, or with respect to which any current or potential Liability may be borne by Parent or its ERISA Affiliates or (ii) which covers one or more officers, employees or independent contractors (who are natural persons) of Parent or the Transferred Subsidiaries, other than plans established pursuant to statute and maintained by a Government Authority.
“Encumbrance” means any mortgage, deed of trust, title defect, easement, license, lien, right-of-way, levy, security interest, assignment, restriction, charge, pledge, hypothecation, preemptive right, preference, participation interest, claim, option, or right of first refusal.
“Environmental Laws” means any Law relating to: (i) pollution or the protection, restoration or remediation of the environment, including natural resources, (ii) the protection of human health and safety as it relates to any Hazardous Substance; or (iii) the manufacture, processing, registration, distribution, handling, packaging or labeling of Hazardous Substances or products containing Hazardous Substances; (iv) transport, use, presence, generation, treatment, storage, presence, landfilling or disposal, Release or threatened Release of, or exposure to, any Hazardous Substance; or (v) recordkeeping, notification, disclosure and reporting requirements respecting Hazardous Substances.
Sch A-4
“Environmental Permit” means any Permit required under any applicable Environmental Law.
“Equity Interest” means, with respect to any Person, any share of capital stock of, or any general, limited or other partnership interest, membership interest or similar ownership or equity interest in, such Person.
“Equity Plans” means Parent’s Stock Option Program 2020, Stock Option Program 2021, Stock Option Program 2021/II, Stock Option Program 2023 and Stock Option Program 2024.
“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as the same may be amended or supplemented from time to time, and any successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect.
“ERISA Affiliate” means any Person engaged in a trade or business (whether or not incorporated) that is at any relevant time considered as a single employer with Parent or the Transferred Subsidiaries under Section 414 of the Code or Section 4001 of ERISA.
“Exchange Act” means the Securities Exchange Act of 1934.
“ExchangeCo Shares” has the meaning set forth in Section 8.2(a).
“Excluded Liabilities” means any and all Liabilities relating to or arising from (i) the Peak Mining Business or the operation thereof or any assets, employees or other service providers used in connection therewith prior to closing of the Peak Mining Purchase Agreement (but, for the avoidance of doubt, excluding any payments to be made in connection with a CC Sale or CC Purchase), (ii) the business activities of the Historical Operation Entities that took place prior to the Closing, (iii) the liquidation and winding down of the Historical Operation Entities, and (iv) any Taxes incurred (A) as a result of the sale of the Peak Mining Business pursuant to the Peak Mining Purchase Agreement and (B) in respect of the Historical Operation Entities, provided that (x) any Liabilities arising in connection with any Tax restructuring or other changes to the Parent Group structure initiated after Closing and (y) any liabilities, including tax liabilities, in connection with a CC Sale or CC Purchase, shall not constitute Excluded Liabilities.
“Export and Sanctions Regulations” means all applicable trade embargoes or economic or financial sanctions, anti-boycott Laws, and export and import control Laws, imposed, administered, or enforced by the United States (including the U.S. International Traffic in Arms Regulations, the U.S. Export Administration Regulations, U.S. sanctions Laws and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) and the U.S. Department of State), the United Nations Security Council, the European Union, or his Majesty’s Treasury of the United Kingdom.
Sch A-5
“FCPA” means the U.S. Foreign Corrupt Practices Act of 1977, as amended.
“Filing” means any registration, petition, statement, application, schedule, form, declaration, notice, notification, report, submission or information or other filing.
“Foreign Benefit Plan” has the meaning set forth in Section 6.9(g).
“GAAP” means U.S. generally accepted accounting principles.
“Government Authority” means any foreign or domestic, federal, state, county, city or local government or legislative, enforcement, administrative or regulatory authority, agency, department, court, tribunal, legislature, executive, official, instrumentality, commission, body, or other judicial, administrative, or arbitral entity, body, or instrumentality, in each case, with competent jurisdiction, including any supranational body and any Self-Regulatory Organization.
“Government Order” means any order, writ, judgment, injunction, approval, decree, declaration, stipulation, settlement, ruling, decision, determination, verdict or award, in each case, that is of or entered by any Government Authority.
“GPU” means all Nvidia H100 and H200 and any other material graphics processing units.
“Hazardous Substance” means (i) any constituent, substance, material, chemical or waste that is listed, defined, classified or regulated as toxic, or hazardous, explosive, corrosive, infectious, carcinogenic as a pollutant or contaminant, or terms of similar meaning, under, or for which Liability or standards of conduct are imposed by, any Environmental Laws or the presence of which requires investigation, clean up, removal, abatement, remediation or other corrective or remedial action under any Environmental Laws, and (ii) any petroleum or petroleum distillate, radon, radioactive materials or wastes, per- and polyfluoroalkyl substances, asbestos or asbestos-containing materials, lead or lead-containing materials, radioactive materials, urea formaldehyde foam insulation and polychlorinated biphenyls.
“Historical Operation Entities” means (1) Bitfield N.V.; (2) Minondo Ltd.; (3) 1277963 BC, Ltd.; (4) Decentric Europe B.V.; (5) Northern Data Reserve, Inc.; (6) Northern Data PA, LLC; (7) Northern Data NY, LLC; and (8) Northern Data (CH) AG.
“Holdback Release Date” means the date that falls eighteen (18) months after the Closing Date.
“Holdback Rumble Share Consideration” means a portion of the Rumble Share Consideration that equals the quotient (rounded down) of (i) EUR 5,000,000.00 divided by (ii) the Purchaser Common Stock Price.
“HPC Segment” means the Parent’s and the Transferred Subsidiaries’ high performance computing segment for Data Centers.
“IFRS” means the international financial reporting standards promulgated by the European Union, as amended, together with the interpretations of the International Financial Reporting Standards Interpretations Committee as adopted by the European Union and in accordance with application of commercial law provisions pursuant to Section 315e para. 1 of the German Commercial Code (Handelsgesetzbuch).
Sch A-6
“Indemnified Party” has the meaning set forth in Section 11.1(b).
“Indemnifying Party” has the meaning set forth in Section 11.1(c).
“Information Security Program” means a commercially reasonable information security program comprised of physical, technical, and administrative measures and safeguards that is designed to protect the security, confidentiality, availability, operation, and integrity of any Personal Data Processed against Security Incidents.
“Intellectual Property” means any intellectual property rights of any kind, type or nature in any and all jurisdictions throughout the world, including any intellectual property rights in or to: (a) trademarks, service marks, trade dress and trade names, logos, registrations and applications for registration of the foregoing, and the goodwill associated therewith and symbolized thereby (“Trademarks”); (b) patents and patent applications, including divisionals, revisions, continuations, continuations-in-part, renewals, extensions, substitutes, re-issues and re-examinations; (c) trade secrets, and any other intellectual property rights in confidential information and non-public information, know-how, processes, formulae, customer, supplier and vendor lists, discoveries, improvements, blue prints, designs, ideas, specifications, drawings, methodologies, models, algorithms, systems, technology, inventions and marketing information (“Trade Secrets”); (d) published and unpublished works of authorship, whether copyrightable or not, copyrights, including copyrights in Software, website and mobile content, all other intellectual property rights in works of authorship, and all intellectual property rights in data and other compilations of information, and all registrations and applications for registration therefor; and (e) internet domain name registrations and any intellectual property rights in social media handles.
“Interconnected Carriers” means, collectively, the telecommunication carriers or other, internet, cloud or utility providers that have brought their respective networks to or otherwise maintain a point of presence (“PoP”) within the meet-me-rooms of the Data Centers, or have made such networks or PoPs available to the customers at the Data Centers through the meet-me-rooms or otherwise.
“Interim Financial Statements” has the meaning set forth in Section 6.3(b).
“Initial Acceptance Period” has the meaning set forth in the Business Combination Agreement.
“International Transfer” means any cross-border transfer of Personal Data that is subject to specific provisions regarding international transfers and/or data export requirements under the Privacy Requirements. For the avoidance of doubt, a transfer within the European Economic Area is not considered an International Transfer.
“IRS” means the U.S. Internal Revenue Service.
“IT Systems” means hardware, software, firmware, middleware, equipment, electronics, computers, platforms, servers, workstations, routers, hubs, switches, endpoints, interfaces, data, databases, data communication lines, network and telecommunications equipment, websites and internet-related information technology infrastructure, wide area network and all other information technology equipment and assets.
Sch A-7
“Knowledge” means:
(a) with respect to the Sellers exclusively, the actual knowledge (positive Kenntnis) on the date hereof or Closing Date (as the case may be) of Aroosh Thillainathan and (ii) the knowledge the Sellers would reasonably be expected to have obtained after reasonable due enquiry of John Hoffman (Chief Operating Officer), Rudolf Haas (Chief Legal Officer), Elliot Jordan (Chief Financial Officer) and Charlotte Park (Chief People Officer); and
(b) with respect to Purchaser, the actual knowledge of the individuals listed in Section 1.1(a) of Purchaser’s Disclosure Letter and the knowledge such individuals would reasonably be expected to have after reasonable due inquiry, including any information which such individuals are or should reasonably be aware of in the ordinary course of the performance of their responsibilities on behalf of Purchaser.
“Latest Balance Sheet Date” has the meaning set forth in Section 6.3(b).
“Law” means any law, statute, common law, ordinance, rule, regulation, code, Government Order, award, judgment, injunction, decree, directive, ruling, writ, declaration, approval, or other requirement, obligation, duty or rule of law enacted, adopted, issued, promulgated or enforced by a Government Authority.
“Leased Real Property” has the meaning set forth in Section 6.12(c).
“Liabilities” means any debt, liability, claim, demand, expense or obligation of whatever kind or nature.
“Lock-Up Period” has the meaning set forth in Section 9.4(a).
“Lock-Up Shares” has the meaning set forth in Section 9.4(a).
“Malicious Code” means any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” “ransomware” or “worm” (as such terms are commonly understood in the software industry) or any other code designed or intended to have any of the following functions: (a) disrupting, disabling, harming, interfering with or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system or network or other device on which such code is stored or installed; or (b) damaging or destroying any data or file without the user’s consent.
“Multiemployer Plan” means each Employee Benefit Plan that is a “multiemployer plan” as defined in Section 3(37) or 4001(a)(3) of ERISA.
“NASDAQ” means the Nasdaq Stock Market.
“Non-Party Affiliates” has the meaning set forth in Section 13.3(b).
Sch A-8
“Notice” has the meaning set forth in Section 13.1(a).
“OFAC” has the meaning set forth in the definition of Export and Sanctions Regulations.
“Offer Conditions” means the conditions to closing of the Tender Offer;
“Offer Ratio” has the meaning set forth in the Business Combination Agreement.
“Open Source Software” means Software that is distributed as “free software” or “open source software” or under similar licensing or distribution terms (including any license approved by the Open Source Initiative and listed at http://www.opensource.org/licenses). Open Source Software includes without limitation Software that is licensed under any versions of the following: the GNU General Public License, GNU Lesser General Public License, Mozilla License, Common Public License, Apache License, BSD License, Artistic License, MIT License or similar terms.
“Operational Data Centers” means the data centers (or portions thereof) owned, leased or managed by Parent or the Transferred Subsidiaries that are in operation.
“Option” means any option to purchase Shares granted under an Equity Plan or otherwise.
“ordinary course” or “ordinary course of business” means, with respect to any Person, the ordinary course of such Person’s normal day-to-day operations, consistent with such Person’s past practices.
“Outside Date” means December 31, 2026, provided that such date may be extended by the mutual written consent of the Sellers and Purchaser.
“Owned Intellectual Property” means any Intellectual Property (i) owned or purported to be owned by Parent or the Transferred Subsidiaries, or (ii) owned or purported to be owned by Parent or its Affiliates and included in the Target Assets.
“Owned Real Property” has the meaning set forth in Section 6.12(a).
“Parent” has the meaning set forth in the recitals to this Agreement.
“Parent Data” means all confidential data or information, private keys, and data compilations contained in the Parent IT Systems that are, in each case, used in the conduct of Parent or any Transferred Subsidiary.
“Parent Financial Statements” has the meaning set forth in Section 6.3(b).
“Parent Fundamental Representations” means Section 6.1 (Organization, Authorization, Enforceability, Non Contravention), Section 6.2 (Capital Structure; Subsidiaries) and Section 6.24 (Finder’s Fees; Brokerage).
“Parent Group” means any “affiliated group” (as defined in Section 1504(a) of the Code without regard to the limitations contained in Section 1504(b) of the Code) that, at any time on or before the Closing Date, includes or has included Parent or the Transferred Subsidiaries or any direct or indirect predecessor of Parent or the Transferred Subsidiaries, or any other group of corporations filing Tax Returns on a combined, consolidated, unitary or similar basis that, at any time on or before the Closing Date, includes or has included Parent or the Transferred Subsidiaries or any direct or indirect predecessor of Parent or the Transferred Subsidiaries.
Sch A-9
“Parent Indebtedness” shall mean, without duplication, the following of Parent or the Transferred Subsidiaries (including the principal amount, accrued and unpaid interest and fees, expenses and prepayment premiums or penalties or termination or breakage fees, change of control payments or penalties required to be paid or offered on prepayment or repayment, as applicable), but excluding the following (A) if incurred in the ordinary course of business, or (B) to the extent the following comprises intra-group liabilities solely involving Parent and the Transferred Subsidiaries: (a) obligations in respect of indebtedness for borrowed money; (b) obligations in respect of accounts payable outstanding and aged over 90 days; (c) obligations in respect of indebtedness evidenced by any note, bond, debenture or other similar instruments or debt securities (but excluding, for the avoidance of doubt, current trade payables in the ordinary course of business); (d) obligations under any off balance sheet financing; (e) obligations in respect of deferred indebtedness or other payments for the purchase price of property, assets, goods or services, including any earn out payments or contingent consideration payment obligations (but excluding, for the avoidance of doubt, current trade payables in the ordinary course of business); (f) obligations to return or repay (whether before, at or after the Closing) loans, subsidies, grants, incentives or other similar payments; (g) obligations for the Tax Liability Amount; (h) obligations in respect of banker’s acceptances, letters of credit and similar facilities (but only to the extent drawn and unpaid); (i) all payment obligations under any interest rate swap agreements, interest rate hedge agreements or any other financial hedging or swap arrangements or similar agreements to which Parent or the Transferred Subsidiaries is party (including any obligations that may arise upon the termination thereof) that are terminated prior to, or contemporaneously with, Closing; and (j) all obligations of the types referred to in clauses (a) through (i) of another Person the payment of which Parent or the Transferred Subsidiaries has guaranteed or for which Parent or the Transferred Subsidiaries is responsible or liable, directly or indirectly, jointly or severally, as obligor or guarantor.
“Parent Insurance Policies” means all insurance policies or self-insurance programs in the name of or maintained by or for the benefit of Parent or the Transferred Subsidiaries.
“Parent IT Systems” means any IT Systems owned, leased by or licensed to Parent or any of the Transferred Subsidiaries, including to process Parent Data.
“Parent Material Adverse Effect” means any change, effect, development, condition, matter, event, fact, circumstance or occurrence that, individually or when considered in the aggregate with any other change, effect, development, condition, matter, event, fact, circumstance or occurrence, (i) has had or would reasonably be expected to have a material and adverse effect on Parent or any Transferred Subsidiary or, as of the Closing, the business, assets, financial condition or results of operations of Parent and the Transferred Subsidiaries, taken as a whole, or (ii) has prevented or materially impaired, or would reasonably be expected to prevent or materially impair, the ability of any of the Sellers, Parent, any of the Transferred Subsidiaries or any of their respective Affiliates to perform its obligations under this Agreement, and the other Transaction Documents in which such party is a party, or to consummate the transactions contemplated hereby and thereby in a timely manner; provided, that none of the following, either alone or in combination with any other changes, effects, developments, conditions, matters, events, facts, circumstances or occurrences shall constitute or cause a Parent Material Adverse Effect:
(a) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from a change in applicable accounting principles or any change in Law (including any Law in respect of Taxes), or any interpretation thereof by any Government Authority, or change in GAAP, IFRS or authoritative interpretations thereof;
Sch A-10
(b) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from changes in global, national or regional political or social conditions (including protests, strikes, riots, public demonstrations, civil unrest, acts of terrorism or war (including cyberattacks as acts of war)) or in general global, national or regional economic, business or regulatory conditions or in national or global financial or capital markets;
(c) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from conditions generally affecting the industries or market sectors in which Parent or the Transferred Subsidiaries operate, in particular any technical changes in the way data centers are designed or operated, including any technological innovation and improvement of cooling systems, telecommunication and connectivity systems and equipment, servers, software and chips;
(d) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from or arising out of hurricanes, earthquakes, floods or other natural disasters, force majeure events or any outbreak of an epidemic or pandemic or other public health event or any Law or regulatory policy, recommendation, or pronouncement issued by a Government Authority, the Centers for Disease Control and Prevention or the World Health Organization or “sheltering in place,” curfew or other restrictions, in each case that relate to, or arise out of, an epidemic or pandemic, or any change in such Law, recommendation, pronouncement or interpretation thereof;
(e) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting solely from the announcement or performance of the Transaction Documents or consummation of the transactions contemplated thereby or any third-party litigation relating to the Transaction Documents or the transactions contemplated thereby, including any loss of, or adverse change, effect, event, development, condition, matter, fact, circumstance or occurrence in or with respect to, the relationship of Parent or the Transferred Subsidiaries, contractual or otherwise, with customers, Government Authorities, employees, labor unions, labor organizations, works councils or similar organizations, suppliers, distributors, financing sources, partners or similar relationship directly caused by the entry into this Agreement and the transactions contemplated by this Agreement, or resulting or arising from the identity of, or any actions taken or failed to be taken by, Purchaser or any of its Affiliates;
(f) the failure of Parent or the Transferred Subsidiaries to meet any internal or external projections, forecasts or estimates of performance, revenues or earnings (provided that this clause (f) shall not be construed as providing that any changes, effects, developments, conditions, matters, events, facts, circumstances or occurrences underlying or giving rise to such failure do not constitute, cause or contribute to, or shall not be taken into account in determining whether there has been, a Parent Material Adverse Effect); or
Sch A-11
(g) any action taken (or omitted to be taken) by the Sellers as expressly required pursuant to this Agreement; provided, further, that, in the case of each of the foregoing clauses (a) through (d), only to the extent that any such change, effect, development, condition, matter, event, fact, circumstance or occurrence has not had, and would not reasonably be expected to have, individually or in the aggregate, a disproportionate effect on Parent and the Transferred Subsidiaries, taken as a whole, relative to other companies in Parent’s and the Transferred Subsidiaries’ industry.
“Parent Party” has the meaning set forth in Section 6.15(a).
“Parent Service Provider” means any current or former managing director (Geschäftsführer) (or equivalent thereof) or employee of Parent or any of the Transferred Subsidiaries.
“Parties” means Purchaser and the Sellers.
“Peak Mining Business” has the meaning set forth in the Recitals.
“Peak Mining Purchase Agreement” has the meaning set forth in the Recitals.
“Permits” means licenses, permits, certificates, franchises, certificates, immunities, exemptions, registrations and other authorizations and approvals that are issued by or obtained from any Government Authority.
“Permitted Encumbrances” means: (a) Encumbrances for Taxes not yet due and payable (or which may be paid without interest or penalties) that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP; (b) statutory, common law or customary contractual carriers’, warehousemen’s, mechanics’ and bank’s liens arising in the ordinary course which secure payment of obligations that are not yet delinquent; (c) in the case of Real Property, (i) zoning, building, entitlement or other land use regulations imposed by Government Authorities having jurisdiction over such Real Property that do not and would not materially and adversely affect, impair or interfere with the current use, occupancy and operation of such Real Property or the operation of the business of the Parent thereon and are not violated by the current use, occupancy and operation of such Real Property, and (ii) easements, quasi-easements, licenses, covenants, rights-of-way, rights of re-entry or other restrictions and similar non-monetary matters of record affecting title to such Real Property, (iii) matters that would be disclosed on a current survey or by inspection of such Real Property, (iv) all matters that would be disclosed as exceptions on current title commitments obtained by Purchaser prior to the date hereof or are otherwise filed or recorded in the applicable property records, in particular in land registries or other registries of any public authorities, (v) Encumbrances on Real Property constituting a lease, sublease, license or occupancy agreement that gives any third party any right to occupy any real property or arising from the provisions of the applicable leases, subleases, licenses or occupancy agreements that are not violated in any material respect by the current use, occupancy and operation of such Real Property or the operation of the business of Parent as currently conducted thereon, (vi), statutory Encumbrances creating a security interest in favor of landlords with respect to property of Parent which do not and would not materially and adversely affect, impair or interfere with the current use, occupancy and operation of such Real Property or the operation of the business of Parent as currently conducted thereon; (vii) subdivision, site plan control, development, reciprocal, servicing, facility, facility cost sharing or similar agreements currently existing or entered into, which do not and would not materially and adversely affect, impair or interfere with the current use, occupancy and operation of such Real Property or the operation of the business of Parent as currently conducted thereon, (d) transfer restrictions arising under applicable securities Laws or restrictions arising under the Transaction Documents; (e) non-exclusive licenses of Intellectual Property entered in the ordinary course of business; (f) Encumbrances that will be discharged or released prior to or at the Closing; and (g) the Encumbrances set forth in Section 1.1(g) of Sellers’ Disclosure Letter, with respect to Parent, or in Section 1.1(g) of Purchaser’s Disclosure Letter, with respect to Purchaser.
Sch A-12
“Person” means any individual, bank, corporation, general or limited partnership, association, limited liability company, business trust, unincorporated organization or similar organization, whether domestic or foreign, or any Government Authority.
“Personal Data” means information that identifies, relates to, describes, or is reasonably capable of being linked, directly or indirectly, with an identified or identifiable person and includes all “personal data,” “personal information,” “protected health information,” “nonpublic personal information” or other similar terms as defined by applicable Laws.
“Physical Network” means fibers and related infrastructure (including poles, ducts, and highway shoulders) owned or leased (whether pursuant to a lease, indefeasible right of use or otherwise) by Parent or any of the Transferred Subsidiaries.
“Pre-Operational Data Center” means the data centers (or portions thereof) owned, leased or managed by Parent or any of the Transferred Subsidiaries that are under construction or development (including the buildout of any shell space).
“Privacy Requirements” means (a) any applicable Laws, in each case, relating to the protection or Processing of Personal Data, data privacy, data security, cross-border data transfer, data breach notification, general U.S. consumer protection laws applied in the context of data privacy, electronic communication, telephone and text message communications, marketing by email or other channels, and other similar Laws applicable to Parent or the Transferred Subsidiaries; (b) binding written commitments embodied in any Specified Contract with material indemnity related to the protection or Processing of Personal Data, data privacy, data security, or cross-border data transfer applicable to the parent or the Transferred Subsidiaries; and (c) industry standards binding on Parent or the Transferred Subsidiaries, including but not limited to the Payment Card Industry Data Security Standard.
“Processing,” “Process” or “Processed” means, with respect to Personal Data or IT Systems, (a) any collection, access, acquisition, storage, protection, use, recording, maintenance, operation, dissemination, re-use, disposal, disclosure, re-disclosure, deletion, destruction, sale, transfer, modification or any other processing of such Parent Data or IT Systems, or (b) “processing,” “process,” “processed,” “control,” “controlled,” or other similar terms as defined by any Privacy Requirement.
Sch A-13
“Purchaser” has the meaning set forth in the Preamble.
“Purchaser Balance Sheet” means the audited consolidated balance sheet of Purchaser as of December 31, 2024, and the footnotes thereto set forth in Purchaser’s annual report on Form 10-K for the fiscal year ended December 31, 2024.
“Purchaser Balance Sheet Date” means December 31, 2024.
“Purchaser Common Shares” means shares of Class A Common Stock.
“Purchaser Common Stock Price” means the volume-weighted average price per share taken to four decimal places of Purchaser Common Shares on the NASDAQ over the consecutive three day trading period prior to the Closing Date, as calculated by Bloomberg Financial LP under the function “VWAP” (or, if not available, in another authoritative source mutually selected by Purchaser and the Sellers).
“Purchaser Custodian Bank” means Cantor Fitzgerald Europe.
“Purchaser ESPP” means the Purchaser 2024 Employee Stock Purchase Plan.
“Purchaser Equity Awards” means, collectively, Purchaser Options and Purchaser RSUs.
“Purchaser Equity Plans” means, collectively, Purchaser Options, Purchaser RSUs and all other equity-based award under any Purchaser Equity Plan.
“Purchaser Fundamental Representations” means Section 8.1(a) (Organization), Section 8.1(b) (Corporate Authorization), Section 8.1(d) (Binding Effect), Section 8.1(e)(i) (Non-Contravention), Section 8.2 (Capitalization), Section 8.9 (Securities Law Compliance), Section 8.17 (Finder’s Fees; Brokerage) and Section 8.23 (Sale of Securities).
“Purchaser Indemnitees” means, collectively, (a) Purchaser, (b) Purchaser’s Affiliates (including, following the Closing, the Transferred Subsidiaries), (c) the respective Representatives of Purchaser (including, following the Closing, the Transferred Subsidiaries) and (d) the respective successors and assigns of the Persons referred to in the foregoing clauses (a) through (c).
“Purchaser Material Adverse Effect” means any change, effect, development, condition, matter, event, fact, circumstance or occurrence that, individually or when considered in the aggregate with any other change, effect, development, condition, matter, event, fact, circumstance or occurrence, (i) has had or would reasonably be expected to have a material and adverse effect on the business, assets, financial condition or results of operations of Purchaser and its Subsidiaries, taken as a whole, or (ii) has prevented or materially impaired, or would reasonably be expected to prevent or materially impair, the ability of Purchaser or any of its Affiliates to consummate the transactions contemplated by this Agreement or any other Transaction Document to which Purchaser is a party; provided, that none of the following, either alone or in combination with any other changes, effects, developments, conditions, matters, events, facts, circumstances or occurrences shall constitute or cause a Purchaser Material Adverse Effect:
Sch A-14
(a) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from a change in applicable accounting principles or any change in Law (including any Law in respect of Taxes), or any interpretation thereof by any Government Authority, or change in GAAP or authoritative interpretations thereof;
(b) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from changes in global, national or regional political or social conditions (including protests, strikes, riots, public demonstrations, civil unrest, acts of terrorism or war (including cyberattacks as acts of war)) or in general global, national or regional economic, business or regulatory conditions or in national or global financial or capital markets;
(c) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from conditions generally affecting the industries or market sectors in which Purchaser or its Subsidiaries operate;
(d) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from or arising out of hurricanes, earthquakes, floods or other natural disasters, force majeure events or any outbreak of an epidemic or pandemic or other public health event or any Law or regulatory policy, recommendation, or pronouncement issued by a Government Authority, the Centers for Disease Control and Prevention or the World Health Organization or “sheltering in place,” curfew or other restrictions, in each case that relate to, or arise out of, an epidemic or pandemic, or any change in such Law, recommendation, pronouncement or interpretation thereof;
(e) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting solely from the announcement or performance of the Transaction Documents or consummation of the transactions contemplated thereby or any third-party litigation relating to the Transaction Documents or the transactions contemplated thereby, including any loss of, or adverse change, effect, event, development, condition, matter, fact, circumstance or occurrence in or with respect to, the relationship of Purchaser or its Subsidiaries, contractual or otherwise, with customers, Government Authority, employees, labor unions, labor organizations, works councils or similar organizations, suppliers, distributors, financing sources, partners or similar relationship directly caused by the entry into this Agreement and the transactions contemplated by this Agreement, or resulting or arising from the identity of, or any actions taken or failed to be taken by, Parent or any of its Affiliates;
(f) the failure of Purchaser or any of its Subsidiaries to meet any internal or external projections, forecasts or estimates of performance, revenues or earnings (provided that this clause (f) shall not be construed as providing that any changes, effects, developments, conditions, matters, events, facts, circumstances or occurrences underlying or giving rise to such failure do not constitute, cause or contribute to, or shall not be taken into account in determining whether there has been, a Purchaser Material Adverse Effect); or
(g) any action taken (or omitted to be taken) upon the written request or instruction of the Sellers consistent with the terms hereof, to consummate the transactions contemplated hereby;
Sch A-15
(h) any action taken (or omitted to be taken) by Purchaser or any of its Subsidiaries as expressly required pursuant to this Agreement; provided, further, that, in the case of each of the foregoing clauses (a) through (d), only to the extent that any such change, effect, development, condition, matter, event, fact, circumstance or occurrence has not had, and would not reasonably be expected to have, individually or in the aggregate, a disproportionate effect on Purchaser and its Subsidiaries, taken as a whole, relative to other companies in Purchaser’s and its Subsidiaries’ industry.
“Purchaser Option” means any outstanding option to purchase Purchaser Common Shares granted under the Purchaser Equity Plans, as applicable.
“Purchaser Plan” means any benefit or compensation plan, program, policy, practice, agreement, Contract, arrangement or other obligation as defined in Section 3(2) of ERISA (whether or not subject to ERISA and whether or not in writing and whether or not funded), in each case, which is sponsored or maintained by, contributed to, or required to be contributed to, or with respect to which any potential Liability is borne by Purchaser or any of its Affiliates for the benefit of their employees, including on account of any ERISA Affiliate of the Purchaser or any of its Affiliates.
“Purchaser Reports” has the meaning set forth in Section 8.6(a).
“Purchaser RSU” means any outstanding restricted stock unit granted under the Purchaser Equity Plans, as applicable.
“Purchaser Securities” has the meaning set forth in Section 8.2(d).
“Purchaser Warrants” means all warrants issued by Purchaser, including warrants issued pursuant to that certain Warrant Agreement, dated February 18, 2021, by and between Continental Stock Transfer & Trust Company, as warrant agent and CF Acquisition Corp. VI, predecessor to Purchaser.
“Real Property” means, collectively, the Owned Real Property and the Leased Real Property.
“Real Property Leases” has the meaning set forth in Section 6.15(a)(xiii).
“Registered Intellectual Property” means Intellectual Property that is issued by, registered or filed with, or the subject of a pending application before any Government Authority or internet domain name registrar.
“Related Party Contract” has the meaning set forth in Section 6.15(a)(xiv).
“Release” means any actual or threatened release, spill, emission, leaking, pumping, pouring, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Substances into or through the indoor or outdoor environment or into or out of any property, including the movement of Hazardous Substances through or in the air, soil, surface water or groundwater or property.
Sch A-16
“Remedies Exception” means the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and other Laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at Law).
“Representatives” means, with respect to any Person, such Person’s Affiliates, directors, managers, officers, employees, accountant, legal or financial advisors, investment bankers, consultants, agents or other representatives, or anyone acting on behalf of them or such Person.
“Rumble Share Consideration” has the meaning set forth in Section 2.3.
“RWI Policy” means the purchaser-side representations and warranties insurance policy issued by the RWI Provider to Purchaser in connection with this Agreement.
“RWI Provider” means Euclid Transaction, LLC.
“Sanctioned Country” means any country or region that is the subject of comprehensive, territorial sanctions (currently Cuba, Iran, North Korea, the Crimea region of Ukraine, and the so-called Donetsk People’s Republic, so-called Luhansk People’s Republic, Kherson, and Zaporizhzhia regions of Ukraine).
“Sanctioned Person” means any (a) Person listed in any Sanctions-related list of designated persons maintained by OFAC (including the OFAC List of Specially Designated Nationals, OFAC’s Foreign Sanctions Evaders List, OFAC’s Sectoral Sanctions Identifications List), or the U.S. Department of State, the United Nations Security Council, the European Union, or the United Kingdom; (b) the government of a Sanctioned Country or the Government of Venezuela; or (c) any Person owned or controlled fifty percent (50%) or more by any Person or Persons or acting for or on behalf of such Person or Persons described in clause (a) or (b).
“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933.
“Security Incident” means any unauthorized access, acquisition, use, modification, disclosure, or other Processing of Personal Data, any unauthorized access to IT Systems, or any other security incident that requires notification to any Government Authority under the Privacy Requirements.
“Self-Regulatory Organization” means (a) any “self-regulatory organization” as defined in Section 3(a)(26) of the Exchange Act and (b) any other United States or foreign securities exchange, futures exchange, commodities exchange or contract market.
“Seller Custodian Banks” means COMMERZBANK Aktiengesellschaft and EFG Bank.
Sch A-17
“Sellers’ Fundamental Representations” means Section 5.1(a) (Organization), Section 5.1(b) (Authorization), Section 5.1(c)(i) (Non-Contravention), Section 5.3 (Title to Sold Shares) and Section 5.5 (Securities Law Compliance).
“Seller Indemnitees” means, collectively, (a) the Sellers, (b) Sellers’ Affiliates (not including, following the Closing, Parent or the Transferred Subsidiaries), (c) the respective Representatives of the Sellers (not including, following the Closing, Parent or the Transferred Subsidiaries) and (d) the respective successors and assigns of the Persons referred to in the foregoing clauses (a) through (c).
“Seller Material Adverse Effect” means a material adverse effect on a Seller’s ability to consummate the transactions contemplated by this Agreement or any of the other Transaction Documents to which it is a party.
“Sellers” has the meaning set forth in the Preamble.
“Shares” has the meaning set forth in the Recitals.
“Signing Form 8-K” has the meaning set forth in Section 9.7.
“SLA” has the meaning in Section 6.15(b).
“SLA Credit” means any SLA credit, rebate, refund, service extension, fee waiver or other accommodation owed, issued, or granted to a customer pursuant to the terms of a service level agreement or other uptime or performance guarantee, including credits arising from failure to meet availability, performance, response time or other contractual service levels.
“Software” means computer software programs and software systems, in both source code and object code format, including databases, compilations, compilers, higher level or “proprietary” languages, data files, application programming interfaces, algorithms, tool sets, user interfaces, manuals and other specifications and documentation and all know-how related thereto, including websites, HTML code, and firmware and other software embedded in hardware devices, developed or currently being developed.
“Sold Shares” has the meaning set forth in the Recitals.
“Solvent” when used with respect to any Person, means that, as of any date of determination, (a) the amount of the fair saleable value of the assets of such Person will, as of such date, not be less than (i) the value of all Liabilities of such Person (including contingent and other Liabilities) as of such date and (ii) the amount that will be required to pay the probable Liabilities of such Person as its debts existing as of such date become absolute and mature, (b) such Person will not have, as of such date, an unreasonably small amount of capital for the operation of the businesses in which it is engaged and (c) such Person will be able to pay its Liabilities existing as of such date as they mature.
“Specified Contracts” has the meaning set forth in Section 6.15(a).
“Subject Materials” has the meaning set forth in Section 11.6(c).
“Subsidiary” means any Person who is a dependent entity within the meaning of Section 17 para. 1 AktG, provided that the members of Parent Group shall not be considered Subsidiaries of a Seller.
“Survival Date” has the meaning set forth in Section 11.1(b).
Sch A-18
“Surviving Provisions” means Article I (Definitions and Terms), Section 9.6, (Confidentiality), Article XII (Termination) and Article XIII (Miscellaneous).
“Target Assets” means all assets held or to be held by Parent and the Transferred Subsidiaries as of the date hereof. For the avoidance of doubt, the Target Assets shall exclude any assets sold under the Peak Mining Purchase Agreement.
“Tax” and “Taxes” means all governmental, state, community, municipal or regional taxes, levies, imposts, duties, charges, deductions, withholdings and social security or national insurance contributions of any kind arising in any part of the world which is collected or assessed by, or payable to, a Government Authority or other Person as a result of any enactment relating to tax and all penalties, surcharges and interest included in or relating to any such taxes, levies, imposts, duties, charges, deductions, withholdings and social security or national insurance contributions, provided, however, the definition of Tax and Taxes shall not include deferred taxes and loss, credit, or interest carryforwards.
“Tax Liability Amount” means, without duplication, an amount (which shall in no event be an amount less than zero ($0) in the aggregate, in any jurisdiction, with respect to any particular taxpayer, or with respect to any particular type of Tax) equal to any amounts that would be properly accrued as current Liabilities of Parent and the Transferred Subsidiaries for unpaid income Taxes for the then-current period for which Tax Returns have not yet been filed as of the Closing Date, in each case calculated (i) as of the end of the day on the Closing Date, (ii) by taking into account all Tax deductions and similar benefits of Parent and the Transferred Subsidiaries arising out of the transactions contemplated by the Transaction Documents which are more likely-than-not currently deductible, (iii) in accordance with the past practice of Parent and the Transferred Subsidiaries (or of Parent with respect to the businesses of Parent and the Transferred Subsidiaries), (iv) by excluding any Tax Liabilities resulting from any elections pursuant to Section 336 or 338 of the Code (or corresponding provisions of other Tax Law) or from other actions taken by Parent or its Affiliates (including, after the Closing, Parent and the Transferred Subsidiaries) after the Closing that are not expressly contemplated by this Agreement, (v) by taking into account any Tax payments (including estimated payments, overpayments and prepayments) made before the Closing and any losses, credits and other attributes that are available under applicable Law with respect to the relevant income Taxes and (vi) by excluding all deferred Tax Liabilities, all reserves for contingent Taxes or uncertain tax positions, and all deferred Tax assets. For the avoidance of doubt, the Tax Liability Amount shall in no event be less than zero.
“Tax Returns” means all returns, reports or similar statement required to be filed (including elections, declarations, disclosures, schedules, estimates, amended returns and information returns) with a Government Authority relating to Taxes.
“Tender Offer” has the meaning set forth in the Recitals.
Sch A-19
“Tether” has the meaning set forth in the Recitals.
“Tether Purchase Agreement” has the meaning set forth in the Recitals.
“Thillainathan” has the meaning set forth in the Preamble.
“Third Party” means any Person, including as defined in Section 13(d) of the Exchange Act, other than a Party or any of their respective Affiliates.
“Third-Party Claim” has the meaning set forth in Section 11.6(a).
“Title Insurance Policy” means an owner’s title insurance policy insuring good and valid fee simple or leasehold title (as the case may be) to the applicable Real Property.
“Top Ten Customers” has the meaning set forth in Section 6.15(a)(i).
“Trade Secrets” has the meaning set forth in the definition of Intellectual Property.
“Trademarks” has the meaning set forth in the definition of Intellectual Property.
“Transaction Documents” means this Agreement, the Confidentiality Agreement, the Business Combination Agreement, the Tether Purchase Agreement, the Apeiron Purchase Agreement, and each other document delivered or required to be delivered pursuant to the aforementioned agreements.
“Transfer” means (a) any transfer, assignment, encumbrance, pledge, hypothecation or disposition (by operation of Law or otherwise), either voluntary or involuntary, or entry into any option or other Contract, arrangement or understanding with respect to any transfer, assignment, encumbrance, pledge, hypothecation or disposition (by operation of Law or otherwise), of any Sold Shares, or any interest in any such Shares (in each case other than under the Transaction Documents), (b) the deposit of such Shares into a voting trust, the entry into a voting agreement or arrangement (other than this Agreement) with respect to such Shares or the grant of any proxy or power of attorney (other than this Agreement) with respect to such Shares, or (c) any Contract or commitment (whether or not in writing) to take any of the actions referred to in the foregoing clauses (a) or (b) above.
“Transfer Taxes” has the meaning set forth in Section 10.2.
“Transferred Subsidiaries” means any direct or indirect Subsidiary of Parent, except for the entities sold under the Peak Mining Purchase Agreement.
“US Owned Real Property” means any Owned Real Property located in the United States.
“VAT” means any consumption or transfer-based Tax levied on the sale of goods and services imposed (including sales tax, use tax, consumption tax and goods and services tax) arising in any part of the world which is collected or assessed by, or payable to, a Government Authority or other Person.
“Virtual Data Room” means the virtual data room containing documents and information relating to, among other things, Parent, the Transferred Subsidiaries, and the Sold Shares made available by Parent in electronic form to Purchaser and its Representatives and maintained by Datasite LLC.
“Written Consent” has the meaning set forth in Section 8.1(b).
Sch A-20
Exhibit
A
Tether Purchase Agreement
[Omitted.]
Exhibit
B
Apeiron Purchase Agreement
[Omitted.]
Exhibit
C
Peak Mining Purchase Agreement
[Omitted.]
Exhibit
D
Business Combination Agreement
[Omitted.]
Exhibit
E
Form of Written Consent
[Omitted.]
Exhibit 10.3
Execution Version
Transaction Support Agreement
by and between
APEIRON INVESTMENT GROUP LTD., MALTA
and
Rumble Inc.
Dated as of November 10, 2025
TABLE OF CONTENTS
| Page | ||
| Article I. DEFINITIONS AND TERMS | 2 | |
| Section 1.1 | Certain Definitions | 2 |
| Article II. SALE AND PURCHASE OF THE SOLD SHARES | 2 | |
| Section 2.1 | Sale and Purchase of the Sold Shares | 2 |
| Section 2.2 | Transfer of the Sold Shares | 3 |
| Section 2.3 | Consideration. | 3 |
| Section 2.4 | Rumble Share Consideration | 3 |
| Section 2.5 | Most-Favored-Terms. | 4 |
| Section 2.6 | Cash Payment | 4 |
| Article III. CONDITIONS TO CLOSING | 4 | |
| Section 3.1 | Conditions to Closing | 4 |
| Section 3.2 | Waiver of Conditions to Closing. | 5 |
| Article IV. CLOSING | 5 | |
| Section 4.1 | Closing Time | 5 |
| Section 4.2 | Closing Actions | 6 |
| Section 4.3 | Holdback Rumble Share Consideration | 7 |
| Article V. REPRESENTATIONS AND WARRANTIES OF SELLER WITH RESPECT TO SELLER | 7 | |
| Section 5.1 | Organization, Authorization, Enforceability, Non-Contravention | 7 |
| Section 5.2 | Governmental Authorization | 8 |
| Section 5.3 | Title to Sold Shares | 8 |
| Section 5.4 | Litigation or Government Order | 9 |
| Section 5.5 | Securities Law Compliance | 9 |
| Section 5.6 | Purpose of Investment | 9 |
| Section 5.7 | Stock Ownership | 9 |
| Section 5.8 | Independent Investment Decision | 10 |
| Article VI. REPRESENTATIONS AND WARRANTIES OF SELLER WITH RESPECT TO PARENT | 10 | |
| Section 6.1 | Organization, Authorization, Enforceability, Non-Contravention | 10 |
| Section 6.2 | Capital Structure; Subsidiaries | 11 |
| Section 6.3 | Financial Statements; Controls | 13 |
| Section 6.4 | No Undisclosed Liabilities; Indebtedness | 14 |
| Section 6.5 | Absence of Changes | 14 |
| Section 6.6 | No Litigation or Government Orders. | 17 |
| Section 6.7 | Governmental and Third-Party Approvals, Consents and Notices | 17 |
| Section 6.8 | Taxes | 17 |
| Section 6.9 | Employee Benefit Plans | 19 |
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| Section 6.10 | Labor Matters | 21 |
| Section 6.11 | No Violation of Law; Regulatory Matters; Required Licenses and Permits | 22 |
| Section 6.12 | Real Property | 24 |
| Section 6.13 | Intellectual Property | 26 |
| Section 6.14 | Information Security; Data Privacy | 29 |
| Section 6.15 | Specified Contracts | 30 |
| Section 6.16 | Assets | 32 |
| Section 6.17 | Insurance | 32 |
| Section 6.18 | Environmental Matters | 32 |
| Section 6.19 | Data Centers | 33 |
| Section 6.20 | Purchase Orders and Commitments | 35 |
| Section 6.21 | Relationships with Related Persons | 35 |
| Section 6.22 | Peak Mining Purchase Agreement; Legacy Liabilities | 35 |
| Section 6.23 | Finder’s Fees; Brokerage | 36 |
| Section 6.24 | No Other Representations or Warranties | 36 |
| Article VII. LIMITATIONS OF LIABILITY | 37 | |
| Section 7.1 | Limited Scope of Representations. | 37 |
| Section 7.2 | RWI Policy. | 38 |
| Section 7.3 | Exclusion of other Remedies. | 39 |
| Article VIII. REPRESENTATIONS AND WARRANTIES OF PURCHASER | 40 | |
| Section 8.1 | Organization, Authorization, Enforceability, Non-Contravention | 40 |
| Section 8.2 | Capitalization | 42 |
| Section 8.3 | Available Funds | 44 |
| Section 8.4 | Governmental and Third-Party Approvals, Consents and Notices | 44 |
| Section 8.5 | No Litigation or Governmental Orders | 44 |
| Section 8.6 | Purchaser Reports; Financial Statements | 45 |
| Section 8.7 | Controls | 46 |
| Section 8.8 | No Violation of Law; Regulatory Matters; Required Licenses and Permits | 47 |
| Section 8.9 | Securities Law Compliance | 48 |
| Section 8.10 | Due Diligence by Purchaser | 48 |
| Section 8.11 | Solvency | 48 |
| Section 8.12 | Absence of Changes | 49 |
| Section 8.13 | Taxes | 49 |
| Section 8.14 | Investment Company | 50 |
| Section 8.15 | Properties | 50 |
| Section 8.16 | Form S-3 | 50 |
| Section 8.17 | Finder’s Fees; Brokerage | 50 |
| Section 8.18 | Intellectual Property | 50 |
| Section 8.19 | Employee Benefits Plans | 50 |
| Section 8.20 | Labor Matters | 51 |
| Section 8.21 | Environmental Matters | 51 |
| Section 8.22 | Material Contracts | 51 |
ii
| Section 8.23 | Sale of Securities | 51 |
| Section 8.24 | Antitakeover Statutes and Rights Agreement | 51 |
| Section 8.25 | Written Consent | 51 |
| Section 8.26 | Tether Transaction Documents | 52 |
| Section 8.27 | No Other Representations or Warranties | 52 |
| Article IX. COVENANTS | 52 | |
| Section 9.1 | Conduct of Business | 52 |
| Section 9.2 | Notice of Certain Events | 55 |
| Section 9.3 | Peak Mining Sale | 56 |
| Section 9.4 | Lock-Up | 56 |
| Section 9.5 | No Solicitation; Other Offers | 56 |
| Section 9.6 | Confidentiality | 57 |
| Section 9.7 | Announcements | 57 |
| Section 9.8 | Cooperation | 57 |
| Section 9.9 | Stock Exchange Listing | 58 |
| Section 9.10 | Takeover Statutes | 58 |
| Section 9.11 | Written Consent | 58 |
| Section 9.12 | Other Purchase Agreements | 58 |
| Section 9.13 | Reporting Status | 59 |
| Section 9.14 | No Deregistration | 59 |
| Section 9.15 | Affiliate Transfers | 59 |
| Section 9.16 | Release of Seller Protected Person | 60 |
| Section 9.17 | Release of Purchaser Protected Person | 60 |
| Section 9.18 | Title Insurance Policy; Survey. | 60 |
| Section 9.19 | Registration Rights | 61 |
| Article X. TAX MATTERS | 61 | |
| Section 10.1 | VAT | 61 |
| Section 10.2 | Other Tax Matters | 61 |
| Article XI. SURVIVAL; INDEMNIFICATION | 61 | |
| Section 11.1 | Survival. | 61 |
| Section 11.2 | Indemnification of Purchaser Indemnitees | 62 |
| Section 11.3 | Indemnification of the Seller Indemnitees | 63 |
| Section 11.4 | Limitation on Indemnification Obligations | 63 |
| Section 11.5 | Determination of Damages | 65 |
| Section 11.6 | Claim Procedures | 65 |
| Section 11.7 | No Double Recovery | 67 |
| Section 11.8 | Mitigation of Losses | 67 |
| Section 11.9 | Tax Treatment of Indemnification Claims | 67 |
| Article XII. TERMINATION | 67 | |
| Section 12.1 | Termination | 67 |
| Section 12.2 | Notice of Termination | 68 |
| Section 12.3 | Effect of Termination | 68 |
iii
| Article XIII. MISCELLANEOUS | 69 | |
| Section 13.1 | Notices. | 69 |
| Section 13.2 | Assignment | 70 |
| Section 13.3 | No Third-Party Beneficiaries; No Recourse Against Non-Parties. | 70 |
| Section 13.4 | Whole Agreement; Conflict with Other Transaction Documents | 70 |
| Section 13.5 | Costs | 71 |
| Section 13.6 | Governing Law; Consent to Jurisdiction; Specific Performance. | 71 |
| Section 13.7 | Counterparts | 71 |
| Section 13.8 | Severability | 71 |
| Section 13.9 | Amendments; Waiver | 72 |
| Section 13.10 | Payments | 72 |
| Section 13.11 | No Admission | 72 |
| Section 13.12 | Interpretation | 72 |
Schedules and Exhibits
| Schedule A | Definitions and Terms |
| Exhibit A | CEO Purchase Agreement |
| Exhibit B | Tether Purchase Agreement |
| Exhibit C | Peak Mining Purchase Agreement |
| Exhibit D | Business Combination Agreement |
| Exhibit E | Form of Written Consent |
Disclosure Letters
| Tether’s Disclosure Letter |
| Purchaser’s Disclosure Letter |
iv
TRANSACTION SUPPORT AGREEMENT
This TRANSACTION SUPPORT AGREEMENT, dated as of November 10, 2025 (this “Agreement”), is made by and among Apeiron Investment Group Ltd., Malta (“Seller”), and Rumble Inc., a corporation incorporated under the laws of the State of Delaware (“Purchaser”).
RECITALS
WHEREAS, Northern Data AG is a German stock corporation (Aktiengesellschaft) with its registered seat at An der Welle 3, 60322 Frankfurt am Main, Germany, registered with the commercial register of the local court (Amtsgericht) of Frankfurt am Main, Germany, under HRB 106465 (“Parent”), and has an outstanding share capital of EUR 64,196,677.00 comprising 64,196,677 no par-value bearer shares, each with a nominal amount of EUR 1.00 (the “Shares”). The Shares are securitized in one or more permanent global certificate(s) (Dauerglobalurkunde(n)) held in collective safe custody (Girosammelverwahrung) at Clearstream Banking Aktiengesellschaft, Frankfurt am Main, Germany (“Clearstream”);
WHEREAS, as of the date hereof, Seller owns the Sold Shares (as defined below), corresponding to approximately 3.5% of the outstanding share capital of the Parent. Seller’s ownership of the Sold Shares is recorded as co-ownership in fractions (Miteigentum nach Bruchteilen) in the permanent global share certificate(s);
WHEREAS, concurrent with the execution of this Agreement, Purchaser has entered into (i) that certain Transaction Support Agreement, dated as of the date hereof, by and among ART Holding GmbH, Switzerland and Aroosh Thillainathan, and Purchaser in the form attached hereto as Exhibit A (as may be amended in accordance with the terms thereof and hereof, the “CEO Purchase Agreement”), pursuant to which, subject to the terms and conditions set forth therein, at the closing of the transactions contemplated thereby, Purchaser will acquire 744,150 Shares from ART Holding GmbH in exchange for the consideration set forth therein and (ii) that certain Transaction Support Agreement, dated as of the date hereof, by and between Tether Investments, S.A. de C.V., a Salvadoran Sociedad Anónima de Capital Variable (“Tether”), and Purchaser in the form attached hereto as Exhibit B (as may be amended in accordance with the terms thereof and hereof, the “Tether Purchase Agreement”), pursuant to which, subject to the terms and conditions set forth therein, at the closing of the transactions contemplated thereby, Purchaser will acquire 41,887,766 Shares, corresponding to approximately 65.2% of the outstanding share capital of the Parent, from Tether in exchange for the consideration set forth therein;
WHEREAS, on November 3, 2025, Parent sold its Bitcoin mining business (the “Peak Mining Business”) pursuant to that certain merger and equity purchase agreement, dated as of November 3, 2025, by and among Highland Group Mining Inc., a British Virgin Islands business company (“Buyer Parent”), Appalachian Energy LLC, a Delaware limited liability company and a direct, wholly owned subsidiary of Buyer Parent (“Merger Sub”), 2750418 Alberta ULC, an Alberta unlimited liability corporation, (“CA Buyer”, and together with Buyer Parent, “Buyers”), Northern Data US, Inc., a Delaware corporation (“ND US”) and Parent, attached hereto as Exhibit C (the “Peak Mining Purchase Agreement”), pursuant to which (i) CA Buyer purchased certain Canadian subsidiaries of Parent and (ii) Merger Sub merged with and into ND US whereupon the separate corporate existence of Merger Sub ceased and ND US continued as the surviving corporation with US Buyer as the sole shareholder, as set forth in the Peak Mining Purchase Agreement in exchange for the consideration set forth therein;
1
WHEREAS, concurrent with the execution of this Agreement, Purchaser has entered into that certain Business Combination Agreement, dated as of the date hereof, by and between Parent and Purchaser in the form attached hereto as Exhibit D (as may be amended in accordance with the terms thereof and hereof, the “Business Combination Agreement”), pursuant to which, subject to the terms and conditions set forth therein, Purchaser will launch a tender offer to acquire all outstanding Shares (the “Tender Offer”) other than those Shares to be purchased pursuant to the terms of this Agreement, the CEO Purchase Agreement and the Tether Purchase Agreement and/or any other Shares that Purchaser may acquire from other shareholders outside the Tender Offer;
WHEREAS, on the terms and subject to the conditions set forth herein, Seller desires to sell to Purchaser, and Purchaser desires to purchase from Seller, all of the Shares owned by Seller as of immediately prior to the Closing, which, for the avoidance of doubt, shall include the 2,246,399 Shares owned by Seller as of the date hereof (collectively, the “Sold Shares”) and the Parties desire that such Shares shall be transferred at Closing;
WHEREAS, it is the Parties’ mutual understanding that the Seller shall not be placed in a less favorable position than under the Tender Offer and shall, in all material respects, have rights, benefits, and protections equivalent to those granted to Tether with respect to its Shares, with the intent that the Seller be subject to, and benefit from, substantially the same terms as those applicable to Tether with respect to its Shares pursuant to the Tether Purchase Agreement; and
NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and undertakings contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
Article
I.
DEFINITIONS AND TERMS
Section 1.1 Certain Definitions. Capitalized terms used in this Agreement shall have the meanings set forth on Schedule A.
Article
II.
SALE AND PURCHASE OF THE SOLD SHARES
Section 2.1 Sale and Purchase of the Sold Shares.
(a) On the terms and subject to the conditions set forth herein, Seller hereby sells to Purchaser, and Purchaser hereby accepts such sale and purchases from Seller, the Sold Shares.
(b) The Sold Shares are sold to Purchaser with economic effect as of the Closing Date, with all rights and obligations pertaining thereto, including the right to receive dividends for any fiscal year of the Parent that is not yet completed on the Closing Date as well as for previous financial years of the Parent to the extent such dividends are not yet distributed prior to or on the date hereof. To the extent the Parent pays any dividends or makes any other distributions between the date hereof and Closing, Seller shall pass on such dividends to Purchaser for no additional compensation at Closing.
2
Section 2.2 Transfer of the Sold Shares. At Closing, Seller shall deliver the Sold Shares to Purchaser as set forth in Section 4.2.
Section 2.3 Consideration.
(a) The consideration payable by Purchaser for each Sold Share sold hereunder shall be a number of Purchaser Common Shares equal to the Offer Ratio, subject to adjustment pursuant to Section 9.10(e) (the total number of Purchaser Common Shares issued hereunder being the “Rumble Share Consideration”); provided that Purchaser shall be entitled to withhold the Holdback Rumble Share Consideration from the Rumble Share Consideration issued to Seller on the Closing Date, as contemplated by Section 4.3.
Section 2.4 Rumble Share Consideration.
(a) By reason of a specific exemption from the registration provisions of the Securities Act, Seller understands that the Rumble Share Consideration has not been, and prior to the Closing will not be, registered under the Securities Act. Seller understands that the Rumble Share Consideration will consist of “restricted securities” under applicable U.S. federal and state securities Laws and that, pursuant to these Laws, Seller may dispose of the Rumble Share Consideration only pursuant to an effective registration statement with the Securities and Exchange Commission and in compliance with applicable requirements of state authorities, or an exemption from such registration and requirements. Seller acknowledges that Purchaser has no obligation to register or qualify the Rumble Share Consideration.
(b) Any certificate(s) representing the Rumble Share Consideration will be imprinted, and any Rumble Share Consideration issued in non-certificated book-entry form will have a notation in Purchaser’s stock ledger and other appropriate books and records, with a legend in substantially the following form (in the case of Rumble Share Consideration issued in non-certificated book-entry form, reflecting conforming changes consistent with the non-certificated book-entry form):
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A PRIVATE PLACEMENT, WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION UNDER THE ACT COVERING SUCH SALE, ASSIGNMENT OR TRANSFER OR AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE ISSUER, THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED.”
(c) Notwithstanding anything to the contrary set forth in this Agreement, if, between the date hereof and the earlier of the Closing and the termination of this Agreement in accordance with its terms, the issued and outstanding Purchaser Common Shares or securities convertible or exchangeable into or exercisable for Purchaser Common Shares, as applicable, shall have been changed into a different number of shares or a different class (including by reason of any reclassification, recapitalization, stock split (including reverse stock split) or combination, exchange or readjustment of shares, or stock dividend thereon with a record date during such period or otherwise, but excluding any change that results from any issuance of shares permitted by Section 9.1(c)), then the Rumble Share Consideration shall be appropriately adjusted; provided, however, that nothing in this Section 2.4(c) shall be construed to permit Purchaser or any other Person to take any action to the extent such action is limited or prohibited by the terms and conditions of this Agreement.
3
Section 2.5 Most-Favored-Terms.
(a) If, as of the date of this Agreement or at any time thereafter, (i) the Tender Offer in its current form or as may be amended, modified, or otherwise improved, provides more favorable terms or consideration being offered to the shareholders generally or to any particular shareholder, or (ii) Tether (or any affiliate thereof) receives, whether directly or indirectly, any terms, rights, benefits, or consideration (including under any side letter, ancillary agreement, or other arrangement) that are more favorable, in each case of (i) and (ii), economically or otherwise, than those granted to the Seller under this Agreement, then the Seller shall be entitled to receive the same (or economically equivalent) improved terms, rights, benefits, or consideration, unless such improved terms, rights, benefits, or considerations are based on circumstances specific to Tether and not relevant for Seller with respect to the transactions contemplated by this Agreement.
(b) The Purchaser shall promptly notify the Seller in writing of any such amendment, modification, or grant of more favorable terms, and shall provide all information reasonably necessary for the Seller to assess and confirm the equivalence of such terms. Any adjustments to the terms of this Agreement required to give effect to this clause shall be deemed to have occurred automatically as of the effective date of such improvement or grant of more favorable terms towards any other shareholder or Tether.
Section 2.6 Cash Payment. If a Cash Consideration Amount (as defined in the Business Combination Agreement) is to be paid to shareholders of the Parent who have accepted the Tender Offer pursuant to Section 3.8 of the Business Combination Agreement, the Purchaser shall make a corresponding cash payment per Sold Share to the Seller. Such cash payment shall be due and payable at Closing.
Article
III.
CONDITIONS TO CLOSING
Section 3.1 Conditions to Closing. The obligations of each of the Parties to consummate (vollziehen) the transactions contemplated by this Agreement are subject to the satisfaction (or valid written waiver) of each of the following conditions to Closing (Vollzugsbedingungen):
(a) No Prohibition. There shall be no Government Order or other Law in any jurisdiction in which either the Purchaser, Seller or Parent has material business operations in effect enjoining, restraining, or otherwise prohibiting or making illegal the consummation of the transactions contemplated by this Agreement.
4
(b) Exchange Authorization. The Rumble Share Consideration to be issued pursuant to this Agreement shall be duly authorized for listing by NASDAQ, subject to official notice of issuance, to the extent required by the rules of NASDAQ.
(c) Regulatory Approvals. The consents, clearances, authorizations and approvals, in each case that are required to be obtained in connection with the consummation of the Closing from any Government Authorities set forth on Schedule 3.1(d) shall have been obtained.
(d) Tender Offer. All Offer Conditions shall have been satisfied or waived on the date the Acceptance Period expires.
(e) Written Consent. Purchaser shall have delivered to Seller a true and correct copy of the Written Consent in accordance with the terms of this Agreement.
(f) Ownership of Shares. The Sold Shares are owned of record and beneficially by Seller, free and clear of all Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents).
(g) Tether Transaction. The satisfaction (or valid written waiver) of all conditions to closing under the Tether Purchase Agreement has occurred.
Section 3.2 Waiver of Conditions to Closing.
(a) Seller may in its sole discretion decide to waive the condition to Closing pursuant to Section 3.1(c) or Section 3.1(g) in writing in full or in part, and, as a result thereof, such conditions shall be waived.
(b) Purchaser may in its sole discretion decide to waive the condition to Closing pursuant to Section 3.1(h) in writing in full or in part, and, as a result thereof, such condition shall be waived.
(c) All other conditions to Closing may only be waived by mutual written agreement in full or in part.
Article
IV.
CLOSING
Section 4.1 Closing Time. The transfer of the Sold Shares against provision of the Rumble Share Consideration contemplated hereby (the “Closing”) will take place electronically through the exchange of documents via e-mail or facsimile, at 9:00 a.m., New York City time, on the Business Day immediately preceding the anticipated closing date of the Tender Offer, provided that the last of the conditions set forth in Section 3.1 has been satisfied or waived prior to such date, or on such other date or at such other time and place as Seller and Purchaser may mutually agree in writing.
5
Section 4.2 Closing Actions.
(a) At the Closing, the Parties shall take the following actions (“Closing Actions”) in the order set forth below:
(i) Seller shall deliver to Purchaser a customary bring-down certificate, dated the Closing Date and signed by a duly authorized officer of Seller, in which Seller declares whether it has (after the date hereof) become aware of any breaches of the representations and warranties of Sellers that are given as of the date hereof and the Closing Date, and without personal liability of the persons signing/delivering such certificate (the “Bring-Down Certificate”). Purchaser acknowledges and agrees that the Bring-Down Certificate will only be given to the Knowledge of Seller. To the extent any facts, matters or circumstances are disclosed in the Bring-Down Certificate, Seller shall not be liable for any representations and warranties being untrue as a result of such disclosure of facts, matters or circumstances. This shall not affect Seller’s liability for any breaches of representations and warranties given as of the date hereof;
(ii) Purchaser shall deliver to Seller evidence of the issuance of Purchaser Common Shares equal to the Rumble Share Consideration (less the Holdback Rumble Share Consideration) in Direct Registration System (DRS) non-certificated book-entry form by Purchaser’s transfer agent and registered in the name of Seller, in form and substance reasonably satisfactory;
(iii) Purchaser shall deliver to Seller a certificate, dated the Closing Date and duly executed by the Secretary of Purchaser (or a comparable officer of Purchaser), in form and substance reasonably satisfactory to Seller, as to: (A) the certificate of incorporation of Purchaser, certified as of a recent date by the Secretary of State of the State of Delaware, and that there have been no amendments to the certificate of incorporation of Purchaser since such certification; and (B) the bylaws of Purchaser in effect as of the Closing Date;
(iv) Purchaser shall pay to Seller the aggregate earnout payment pursuant to Section 2.5, if any; and
(v) Seller shall deliver to Purchaser a copy of the duly executed irrevocable instruction of Seller to the Seller Custodian Bank to transfer the Sold Shares to the securities account of Purchaser Custodian Bank via Clearstream.
(b) The Closing Actions may only be waived by mutual written agreement of the Parties.
(c) After all Closing Actions have been taken or duly waived, the Parties shall confirm in a written document that (i) if true, all conditions to Closing pursuant to Section 3.1 have been duly fulfilled or waived, (ii) all Closing Actions have been duly taken or waived, and (iii) Closing has occurred (“Closing Protocol”). The execution of the Closing Protocol shall not limit or prejudice the rights of a Party under this Agreement or Law.
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Section 4.3 Holdback Rumble Share Consideration. Without limitation to the rights and remedies of Purchaser, Purchaser shall have the right, upon compliance with the procedures and other requirements set forth in this Article IV to satisfy the amount of any Damages that Seller is obligated to indemnify Purchaser for pursuant to Section 11.2 by deducting from the Holdback Rumble Share Consideration a number of Purchaser Common Shares equal in value (based on the Purchaser Common Stock Price) to such Damages; provided, however, that Seller may, at its sole discretion, elect to satisfy the amount of any Damages in cash rather than a deduction from the Holdback Rumble Share Consideration pursuant to this Section 4.3. In the event any Purchaser Common Shares have not been deducted from the Holdback Rumble Share Consideration (if any) on or prior to the later of (i) the Holdback Release Date and (ii) the resolution of all claims made by the Purchaser in accordance with the notice provisions of Section 11.6 prior to the Holdback Release Date that remain pending as of such date, then Purchaser shall promptly issue and release to Seller such remaining Holdback Rumble Share Consideration and deliver to Seller evidence of such issuance in DRS non-certificated book-entry form by Purchaser’s transfer agent and registered in the name of Seller, in form and substance reasonably satisfactory to Seller; provided, however, on the Holdback Release Date, Purchaser shall promptly issue and release to Seller such portion of the Holdback Rumble Share Consideration that is not subject to any pending indemnification claim made on or prior to the Holdback Release Date.
Article
V.
REPRESENTATIONS AND WARRANTIES OF SELLER WITH RESPECT TO SELLER
Seller hereby represents and warrants to Purchaser in the form of an independent guarantee (selbstständiges Garantieversprechen) pursuant to Section 311 para. 1 BGB and irrespective of fault that the following statements are true and correct as of the date hereof and as of the Closing Date (except to the extent any such representation and warranty is expressly made as of a specific date, in which case Seller hereby makes to Purchaser such representation and warranty only as of such date), provided that for the avoidance of doubt, Parent and its Subsidiaries shall not be considered Affiliates of Seller for purposes of this Agreement:
Section 5.1 Organization, Authorization, Enforceability, Non-Contravention.
(a) Organization. Seller is a Limited Liability Company, duly organized, validly existing and in good standing under the laws of Malta and has all corporate powers and all Permits necessary to enable it to use its legal or other business name, to own, lease or otherwise hold and operate its properties and other assets and to carry on its business as presently conducted.
(b) Authorization. The execution, delivery and performance by Seller of this Agreement, and the execution, delivery and performance by Seller and its Affiliates of each other Transaction Document to which Seller or any of such Affiliates is a party, and the consummation by Seller and such Affiliates of the transactions contemplated hereby and thereby, are within the corporate or other organizational powers of each of Seller and such Affiliates and have been duly and validly authorized by all necessary corporate action. This Agreement and each other Transaction Document to which Seller or any such Affiliate is a party constitutes a valid and binding agreement of Seller or such Affiliate, as applicable, enforceable against Seller or such Affiliate in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity).
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(c) Non-Contravention. The execution, delivery and performance by Seller of this Agreement, and the execution, delivery and performance by Seller and its Affiliates of each other Transaction Document to which Seller or any such Affiliate is a party, and the consummation by Seller and such Affiliates of the transactions contemplated hereby and thereby, do not and will not (i) contravene, conflict with, or result in any violation or breach of any provision of the organizational documents of Seller or its Affiliates, (ii) contravene, conflict with or result in a violation or breach of any provision of any applicable Law, (iii) require any consent or other action by any Person under, constitute a default (or constitute an event that, with or without notice or lapse of time or both, would constitute a default) under, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which Seller or any of its Affiliates is entitled under any provision of any Contract binding upon, or any Permit of, Seller or any of its Affiliates (or any Contract to which any of their respective assets is subject) or (iv) result in the creation or imposition of any Encumbrance on any asset of Seller or any of its Affiliates (including the Sold Shares), with only such exceptions, in the case of clauses (ii) through (iv), as would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect.
(d) Not Fraudulent Conveyance. Seller is not entering into this Agreement or the other Transaction Documents to which it is a party or consummating the transactions contemplated hereby or thereby with the intent to hinder, delay or defraud any creditor. The consideration received by Seller in connection with the transactions contemplated by this Agreement and the other Transaction Documents to which it is a party constitutes reasonably equivalent value and fair consideration for the securities or other assets being transferred. Seller transferring securities pursuant to this Agreement or the other Transaction Documents is Solvent as of the Closing Date and will not be rendered insolvent as a result of the transactions contemplated by this Agreement or the other Transaction Documents. No transfer of securities or other assets pursuant to this Agreement or any of the other Transaction Documents to which Seller is a party is or may be subject to avoidance under any applicable Laws relating to fraudulent transfers, fraudulent conveyance and similar doctrines, whether under state or federal Law.
Section 5.2 Governmental Authorization. Except as set forth on Section 6.7 of Tether’s Disclosure Letter, the execution, delivery and performance by Seller of this Agreement, and the execution, delivery and performance by Seller and its Affiliates of each other Transaction Document to which Seller or any of such Affiliates is a party, and the consummation by Seller and such Affiliates of the transactions contemplated hereby and thereby, require no action by or in respect of, or filing with, any Government Authority, other than (i) compliance with any applicable requirements of the Securities Act, the Exchange Act and any other U.S. state or federal securities Laws or AktG, any (ii) such actions and filings specifically contemplated under this Agreement or any other Transaction Document, and (iii) any actions or filings the absence of which would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect.
Section 5.3 Title to Sold Shares. As of the date hereof, Seller owns and has good and valid title to the Sold Shares, in each case, free and clear of any Encumbrances (except for the German law governed Share and Account Pledge Agreement between the Seller and Tether (the “Tether Pledge”) and any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents). As of the Closing, Seller will own and have good and valid title to all the Sold Shares, in each case, free and clear of any Encumbrances (except for the Tether Pledge and any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents). Upon the consummation of the transactions contemplated hereby, good and valid title to all the Sold Shares will pass to Purchaser free and clear of any Encumbrances (except for the Tether Pledge and any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents). There are no outstanding options, warrants, rights of conversion, pledges, exchange or purchase or any similar rights under which Seller is or may become obligated to sell, or giving any Person a right to acquire, or in any way dispose of, the Sold Shares.
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Section 5.4 Litigation or Government Order. There is no Action pending or threatened in writing against Seller, any of their its Affiliates or Subsidiaries, any of their respective assets or properties, any of their respective present or former officers, directors or employees in their capacities as such, or any Person for whom Seller or any of their respective Affiliates or Subsidiaries may be liable before (or, in the case of threatened Actions, would be before) or by any Government Authority or arbitrator that, assuming such Actions were determined or resolved adversely in accordance with the opposing party’s demands, would reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect. Seller is not a party to or subject to the provisions of any Government Order that has or would reasonably be expected to, individually or in the aggregate, (i) materially and adversely affect the legality, validity or enforceability of this Agreement or any other Transaction Document to which Seller is a party, (ii) prevent or materially impair the ability of Seller to consummate the transactions contemplated by this Agreement and the other Transaction Documents to which Seller is a party or (iii) have a Seller Material Adverse Effect.
Section 5.5 Securities Law Compliance. Seller is financially sophisticated and is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act. Seller understands that the Rumble Share Consideration has not been registered under the securities laws of any jurisdiction, including the Securities Act, and may only be transferred pursuant to registration or an applicable exemption under all applicable Laws. Pursuant to this Agreement, Seller is acquiring the Rumble Share Consideration for its own account, for the purpose of investment only and not with a view to, or for sale in connection with, any distribution thereof in violation of applicable Law. Seller has not, directly or indirectly, offered the Rumble Share Consideration to anyone or solicited any offer to buy the Rumble Share Consideration from anyone, in each case that would have the effect of bringing to such offer and sale of the Rumble Share Consideration by Seller within the registration requirements of the Securities Act or the securities Laws of any other jurisdiction.
Section 5.6 Purpose of Investment. Seller intends to hold the Rumble Share Consideration, together with any Purchaser Common Shares held by Seller as of the date hereof, “solely for purposes of investment” as such term is defined by 16 C.F.R. Section 801.1(i), and interpreted under 16 C.F.R. Section 802.9.
Section 5.7 Stock Ownership. As of the date hereof, Seller does not own, beneficially or legally, any Purchaser Common Shares (or any securities convertible, exercisable or exchangeable for, or rights to purchase or acquire, any Purchaser Common Shares.
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Section 5.8 Independent Investment Decision. Seller has independently evaluated the merits of its decision to acquire the Rumble Share Consideration pursuant hereto. Seller understands that nothing in this Agreement or any other materials presented by or on behalf of Purchaser to Seller in connection with the acquisition of the Rumble Share Consideration constitutes legal, tax or investment advice. Seller has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its acquisition of the Rumble Share Consideration.
Article
VI.
REPRESENTATIONS AND WARRANTIES OF SELLER WITH RESPECT TO PARENT
Seller hereby represents and warrants to Purchaser in the form of an independent guarantee (selbstständiges Garantieversprechen) pursuant to Section 311 para. 1 BGB and irrespective of fault that except as set forth in Tether’s Disclosure Letter, the following statements are true and correct, as of the date hereof and as of the Closing Date (except to the extent any such representation and warranty is expressly made as of a specific date, in which case Seller hereby makes to Purchaser such representation and warranty only as of such date):
Section 6.1 Organization, Authorization, Enforceability, Non-Contravention.
(a) Organization. Parent is a German stock corporation (Aktiengesellschaft) duly incorporated, and validly under the Laws of Germany and has the requisite corporate power and authority to conduct its business as presently conducted. Each Transferred Subsidiary is duly incorporated or formed, and validly existing, and in good standing under the Laws of the state or country of incorporation to the extent such concept exists in the relevant jurisdiction, and has the requisite corporate power and authority to conduct its business as presently conducted. Section 6.1(a) of Tether’s Disclosure Letter, as of the date hereof, sets forth for Parent and each Transferred Subsidiary the jurisdiction of incorporation. True and complete copies of the Constituent Documents of Parent and all Transferred Subsidiaries have been made available in the Virtual Data Room. Neither Parent nor any of the Transferred Subsidiaries has taken any action that is inconsistent in any material respect with any resolution adopted by its respective equityholders, supervisory board, management board (or other similar governing body) or any committee of its supervisory board (or other similar governing body).
(b) Management. Section 6.1(b) of Tether’s Disclosure Letter, as of the date hereof, sets forth a true and complete list of all members of the management board (Vorstand) and supervisory board (Aufsichtsrat) of Parent. All members of the management board or supervisory board or managing directors (Geschäftsführer) (or equivalents thereof) of Parent and the Transferred Subsidiaries have been duly elected or appointed and since January 1, 2024, all former members of the management board or supervisory board or managing directors (Geschäftsführer) (or equivalent thereof) of each of Parent and the Transferred Subsidiaries have been duly dismissed or removed, except as would not reasonably be expected to have a Parent Material Adverse Effect.
(c) Corporate Authorization. Parent and each of the Transferred Subsidiaries have the requisite corporate or other organizational power and authority to execute and deliver the Transaction Documents to which they are a party and each certificate and other instrument required to be executed and delivered by Parent or each such Transferred Subsidiary pursuant thereto and to perform their obligations thereunder, and to consummate the transactions contemplated thereby. The execution, delivery and performance of the Transaction Documents to which they are a party, and the consummation of the transactions contemplated thereby, by Parent and each Transferred Subsidiary have been duly and validly authorized by all necessary corporate action on the part of Parent and the Transferred Subsidiaries.
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(d) Binding Effect. The Transaction Documents to which they are a party have been duly executed and delivered by Parent and each Transferred Subsidiary. Each Transaction Document to which they are a party is a legal, valid and binding obligation of Parent and each Transferred Subsidiary enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(e) Non-Contravention. The execution, delivery and performance of the Transaction Documents to which Parent and the Transferred Subsidiaries are a party, and the consummation of the transactions contemplated thereby, do not (i) violate or conflict with any provision of the Constituent Documents of Parent and the Transferred Subsidiaries, (ii) violate or conflict with any Law, Government Order or Permit applicable to Parent or any of the Transferred Subsidiaries or by which any property or asset of Parent or such Subsidiary is bound, except in case of clause (ii) of this Section 6.1(e), for any such conflicts, violations, breaches, defaults, terminations, modifications, losses, diminutions of rights, accelerations, cancellations or creations that would not reasonably be expected to have a Parent Material Adverse Effect.
(f) Insolvency. No insolvency or similar proceedings have been, or have been threatened to be, opened or applied for regarding the assets of Parent, and there are no circumstances which would require the opening of or application for such proceedings. Parent is neither illiquid (zahlungsunfähig) nor over-indebted (überschuldet).
Section 6.2 Capital Structure; Subsidiaries.
(a) As of the date hereof, the outstanding share capital of Parent amounts to EUR 64,196,677.00 and is divided into 64,196,677 no-par value bearer shares, each with a nominal amount of EUR 1.00. Other than such outstanding shares and the Options pursuant to Section 6.2(e), there are no shares or other equity securities of Parent or securities convertible or exchangeable into such shares issued, reserved for issuance or outstanding. The Sold Shares have been duly authorized and validly issued, are fully paid and non-assessable and were not issued in violation of any preemptive or other similar rights.
(b) Other than the Options, (i) Parent has not granted any preemptive rights or authorized, issued or outstanding options, warrants, rights of conversion, exchange or purchase, stock appreciation rights or other rights, obligations, agreements, arrangements or commitments of any kind relating to, obligating Parent to issue or to sell, convertible or exchangeable into or exercisable for, valued by reference to or giving any Person a right to subscribe for or acquire any Equity Interests of Parent or other securities of Parent, (ii) there are no contractual obligations of Parent to repurchase, redeem or otherwise acquire any Equity Interests of Parent and (iii) there are no Contracts (except for the Business Combination Agreement) to which the Parent is a party or by which Parent is bound with respect to the issuance, voting, sale or transfer of its Equity Interests. There are no accrued and unpaid dividends or distributions with respect to any Equity Interests of Parent.
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(c) Section 6.2(c) of Tether’s Disclosure Letter sets forth the jurisdiction of organization and issued and outstanding Equity Interests of the Transferred Subsidiaries. Parent directly or indirectly owns and has good and valid title to all the issued and outstanding Equity Interests of the Transferred Subsidiaries, free and clear of any Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents). The issued and outstanding Equity Interests of the Transferred Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and were not issued in violation of any preemptive or other similar right. There are no preemptive rights or authorized, issued or outstanding options, warrants, rights of conversion, exchange or purchase, profits interests or other rights, obligations, agreements, arrangements or commitments of any kind relating to, obligating the Transferred Subsidiaries to issue or to sell, convertible or exchangeable into or exercisable for, valued by reference to or giving any Person a right to subscribe for or acquire any Equity Interests of the Transferred Subsidiaries. There are no contractual obligations of the Transferred Subsidiaries to repurchase, redeem or otherwise acquire any Equity Interests of the Transferred Subsidiaries. Parent is not party to any Contracts relating to the Equity Interests of the Transferred Subsidiaries (except for this Agreement), including with respect to the issuance, voting, sale or transfer of the Equity Interests of the Transferred Subsidiaries.
(d) Except as set forth on Section 6.2(d) of Tether’s Disclosure Letter, there are no Equity Interests or joint venture interests in any Person (other than the Transferred Subsidiaries) owned, directly or indirectly, by Parent or the Transferred Subsidiaries. There are no contractual obligations of Parent or the Transferred Subsidiaries to provide funds to, or make any investment in, any other Person.
(e) Section 6.2(e) of Tether’s Disclosure Letter sets forth a correct and complete list of each holder of an outstanding Option as of the date hereof, which schedule shows for each such Option, the date such Option was granted, the number of Shares to be issued per Option, the relevant exercise price, the applicable vesting schedule, the current or former employer entity within the Parent Group (if any) of each Option holder and the applicable Equity Plan under which such Option was granted. With respect to each Option, (i) each such grant was duly authorized by all necessary corporate action, (ii) each such grant was made in compliance in all material respects with all applicable Laws (including all applicable securities Laws) and all of the material terms and conditions of the applicable Equity Plan, (iii) no material modifications have been made to any Option following the grant date except for the repricing of certain Options, the effects of which are already reflected in Tether’s Disclosure Letter, and (iv) each Option has an exercise price that is equal to or greater than the fair market value of the underlying Share on the applicable grant date, or, with respect to any Options that were repriced, on the applicable repricing date. All Options are evidenced by award agreements in a form materially consistent with forms made available in the Virtual Data Room. Except for the Equity Plans, there are no commitments in any offer letter, Contract, Employee Benefit Plan or otherwise that contemplate a grant of, or right to purchase or receive share options, restricted share units, phantom units or other equity of Parent.
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Section 6.3 Financial Statements; Controls.
(a) Section 6.3(a) of Tether’s Disclosure Letter sets forth a true and complete copy of the audited consolidated financial statements of Parent as of and for the fiscal year ended December 31, 2024, together with the notes thereto (the “Audited Financial Statements”). The Audited Financial Statements in all material respects (i) have been prepared in accordance with IFRS applied on a consistent basis (except as indicated therein or in the notes thereto) and (ii) provide, based on IFRS, a true and fair view of the assets and liabilities (Vermögenslage), financial position (Finanzlage), and results of operations (Ertragslage) for Parent and the other entities consolidated therein as of the dates and for the periods to which they relate.
(b) Section 6.3(b) of Tether’s Disclosure Letter sets forth a true and complete copy of the unaudited consolidated financial statements of Parent (for the avoidance of doubt, such unaudited consolidated financial statements comprise only the four primary statements — statement of financial position, statement of comprehensive income, statement of changes in equity, and statement of cash flows — and do not include notes or other disclosures required by IFRS for a complete set of financial statements) as of and for the six-month period ended June 30, 2025 (the “Latest Balance Sheet Date”) (such financial statements the “Interim Financial Statements”, and the Interim Financial Statements together with the Audited Financial Statements, the “Parent Financial Statements”). The Interim Financial Statements (i) have in all material respects been prepared in accordance with IFRS, and (ii) have been prepared in good faith and, to Knowledge of Seller, do in all material respects not misstate the assets and liabilities (Vermögenslage), financial position (Finanzlage), or results of operations (Ertragslage) for Parent and the other entities consolidated therein as of the dates and for the periods to which they relate.
(c) The Parent Financial Statements have been derived from the accounting systems of Parent and the other entities consolidated therein, and such accounting systems, since the Applicable Date, have been maintained in all material respects in accordance with applicable Law. Since the Applicable Date, Parent and the Transferred Subsidiaries have maintained internal accounting controls that are reasonably necessary to provide reasonable assurance that, in all material respects, (i) transactions are executed in accordance with management’s general or specific authorization, and (ii) transactions are recorded as reasonably necessary to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets. Since the Applicable Date, there has been no change in any material respect with respect to the accounting policies, principles, methods or practices of Parent and the Transferred Subsidiaries, except as set forth in the Parent Financial Statements and/or required under IFRS.
(d) The books and records of Parent and the Transferred Subsidiaries (i) are true, complete and correct in all material respects, (ii) have been maintained in all material respects in accordance with applicable Law and (iii) in all material respects accurately present and reflect all of the Parent transactions and actions related thereto.
(e) None of the statements pursuant to this Section 6.3 shall be construed or interpreted as an objective guarantee (objektive Bilanzgarantie), and where reference is made to a specific accounting standard, only such accounting standard shall be relevant to determine whether or not and how any facts objectively existing as of the relevant reference date are to be reflected therein, including as regards the question as to whether and as of which time the subjective knowledge of such facts by a relevant person is decisive, and the question whose knowledge is relevant shall also solely be determined by the relevant accounting standard used in the preparation of the Parent Financial Statements.
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Section 6.4 No Undisclosed Liabilities; Indebtedness.
(a) Except (i) as set forth on Section 6.4(a) of Tether’s Disclosure Letter, (ii) as reflected or reserved against in the Parent Financial Statements or disclosed in the notes thereto, (iii) for Liabilities incurred by Parent or the Transferred Subsidiaries since the Latest Balance Sheet Date in the ordinary course of their respective businesses (none of which arises out of, relates to, or results from any breach of contract, tort, violation of Law or infringement), (iv) for SLA Credits due by Parent or the Transferred Subsidiaries as a result of any breach of data centers SLAs in instances where Parent or the Transferred Subsidiaries are providers of data center services to their customers, and (v) for Liabilities expressly contemplated by the Transaction Documents, there are no other Liabilities of Parent or any of the Transferred Subsidiaries.
(b) Except as expressly reflected or expressly reserved against in the Parent Financial Statements or expressly disclosed in the notes thereto, Section 6.4(b) of Tether’s Disclosure Letter sets forth a true and complete list of each item of Parent Indebtedness with a value exceeding EUR 500,000.00 as of the date hereof. None of Parent or any of the Transferred Subsidiaries has received notice of a default or payments past due with respect to any such Parent Indebtedness, in each case, in any material respect.
Section 6.5 Absence of Changes. Except as (A) contemplated by the Transaction Documents, (B) disclosed in the Parent Financial Statements, or (C) disclosed in Section 6.5 of Tether’s Disclosure Letter, since the Applicable Date, (i) Parent and the Transferred Subsidiaries have conducted and operated their businesses in the ordinary course in all material respects, (ii) there has not been any change, effect, development, condition, matter, event, fact, circumstance or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect and (iii) neither Parent nor any of the Transferred Subsidiaries has:
(a) amended or waived any rights under any provision of its Constituent Documents in any manner;
(b) split, combined or reclassified any Equity Interests;
(c) declared, set aside or paid any dividend, or otherwise made any distribution to the Seller or any of its Affiliates, with respect to any Equity Interests;
(d) issued, sold, pledged, transferred or disposed of, or agreed to issue, sell pledge, transfer or dispose of, any Equity Interests or issued any Equity Interests of any class or issued or become a party to any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to the issued or unissued equity interests of Parent or any of the Transferred Subsidiaries, or granted any stock appreciation or similar rights;
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(e) redeemed, purchased or otherwise acquired any outstanding Equity Interests or declared or paid any non-cash dividend or made any other non-cash distribution of assets to any Person;
(f) made any material change in its policies with respect to the payment of accounts payable or accrued expenses or the collection of the accounts receivable or other receivables, including any acceleration or deferral of the payment or collection thereof, as applicable, in each case, other than in the ordinary course of business;
(g) made any change in any method of accounting or auditing practice, including any working capital procedures or practices, other than changes required as a result of changes in IFRS or applicable Law;
(h) except in any case as may be required by applicable Law, (A) prepared or filed any income or other material Tax Return inconsistent with past practice, (B) made or changed any Tax election (except in the ordinary course of business), (C) adopted or changed any accounting method relating to Taxes, (D) entered into any closing agreement or requested any ruling or similar guidance relating to Taxes, (E) settled any claim for any material amount of Taxes or assessments relating to Taxes, (F) surrendered any right to claim a refund of any material amount of Taxes paid, (G) consented to any extension or waiver of the limitation period applicable to any claim for any material amount of Taxes or assessments relating to any material amount of Taxes (other than automatic extensions or extensions in the ordinary course of business), or (H) amended any income or other material Tax Return, in each case, if such Tax Return, change, adoption, agreement, settlement, surrender, consent or amendment would reasonably be expected to bind, materially adversely affect or materially increase the liability of Purchaser, Parent, the Transferred Subsidiaries or any of their respective Affiliates;
(i) other than in the ordinary course of business or as required by an Employee Benefit Plan or any obligation under applicable Law or due to an amendment of collective bargaining agreement, works council agreement or other similar labor Contract or as explicitly contemplated hereunder, (A) materially increased the compensation or benefits of any employee or other Parent Service Provider, (B) accelerated the vesting or payment of any compensation or benefits of any Parent Service Provider, (C) entered into, amended or terminated any material Employee Benefit Plan (or any plan, program, agreement or arrangement that would be an Employee Benefit Plan if in effect on the date hereof), (D) made any loan to any present or former Parent Service Provider (other than advancement of expenses in the ordinary course of business consistent with past practices), (E) entered, amended or terminated into any collective bargaining agreement or other agreement with a labor union or labor organization, or (F) commenced any collective redundancy process;
(j) (A) adopted, established, entered into, amended, modified or terminated any collective bargaining agreement, works council agreement or other similar labor Contract, (B) recognized any union, works council, labor organization or other workers’ group as the bargaining representative of any employees, or (C) been the subject of any "relevant transfer" (as defined in the Transfer of Undertakings) Protection of Employment) Regulations 2006 (as amended));
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(k) (i) received any written claim of unfair labor practices involving Parent or any Transferred Subsidiary or (ii) given or received any written resignation, termination, or removal of, or commenced disciplinary proceedings in respect of, any managing director (Geschäftsführer) (or equivalent thereof) or other employee with an annual fixed compensation exceeding EUR 300,000.00 of Parent or any Transferred Subsidiary or made any material change in the terms and conditions of the employment of any such Person;
(l) received any written notice of an investigation or other proceeding by a Government Authority directed against Parent or any Transferring Subsidiary (and which is pending as of the date hereof);
(m) sold, licensed, leased, transferred, assigned, abandoned or otherwise disposed of any assets with a value exceeding EUR 100,000.00 (or any portion thereof) or mortgaged, pledged, permitted or imposed any Encumbrance (other than Permitted Encumbrances) upon any such assets (or any portion thereof), in each case, other than in the ordinary course of business;
(n) incurred, assumed or guaranteed any Parent Indebtedness with a value exceeding EUR 500,000.00;
(o) deferred any capital expenditures with a value exceeding EUR 250,000.00;
(p) made any investment or acquisition either by purchase of stock or securities, contributions to capital, property transfers, merger or purchase of all or substantially all of the property or assets of any Person, in each case with a value exceeding EUR 50,000.00;
(q) materially changed the manner in which Parent generally extends discounts or credits to customers, other than in the ordinary course of business;
(r) suffered any extraordinary casualty loss, except for any such casualty loss covered by insurance;
(s) accelerated, terminated, modified or cancelled any Specified Contract;
(t) with the exception of Permitted Encumbrances, committed to or entered into any contract, agreement, or other understanding to sell, transfer, lease, sublease, license, or otherwise dispose of any Owned Real Property;
(u) with the exception of Permitted Encumbrances, committed to or entered into any contract, agreement, or other understanding to amend, cancel, terminate, or modify any Real Property Lease;
(v) with the exception of Permitted Encumbrances, sold, assigned, transferred, granted, pledged, allowed to lapse, abandoned, dedicated to the public domain or otherwise encumbered or disposed of any Intellectual Property;
(w) entered into, amended, modified, waived, released, extended, transferred or terminated any Related Party Contract; or
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(x) agreed in writing to do any of the foregoing.
Section 6.6 No Litigation or Government Orders.
(a) Except as set for on Section 6.6 of Tether’s Disclosure Letter, since the Applicable Date, there has been no Action pending or, to the Knowledge of Seller, threatened in writing against Parent or any of the Transferred Subsidiaries with a value in dispute exceeding EUR 150,000.00. There is no Action pending or, to the Knowledge of Seller, threatened in writing against Parent or any of the Transferred Subsidiaries or against or applicable to any of the Target Assets that (a) if adversely determined, would reasonably be expected to materially and adversely affect the legality, validity or enforceability of this Agreement or the other Transaction Documents, (b) if adversely determined, would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impair the ability of Parent to consummate the transactions contemplated by this Agreement or the other Transaction Documents, or (c) if adversely determined, would reasonably be expected to, individually or in the aggregate, have a Parent Material Adverse Effect.
(b) Since the Applicable Date, there have been no unsatisfied or outstanding material Government Orders against or applicable to Parent or any of the Transferred Subsidiaries or against or applicable to any of the Target Assets. None of Parent or the Transferred Subsidiaries is a party to or subject to any Government Order that would, individually or in the aggregate, reasonably be expected to (i) materially and adversely affect the legality, validity or enforceability of this Agreement or the other Transaction Documents or (ii) prevent, materially delay or materially impair the ability of Parent to consummate the transactions contemplated by this Agreement or the other Transaction Documents.
Section 6.7 Governmental and Third-Party Approvals, Consents and Notices. Assuming the truth and accuracy of the representations and warranties of Purchaser set forth in Article VIII, other than in connection with the applicable requirements with respect to the matters disclosed in Section 6.7 of Tether’s Disclosure Letter, Parent is not required to (a) obtain any authorization, waiver, consent or approval of, (b) make any filing, report or registration with or (c) give any notice to any Government Authority in connection with or as a condition to the execution, delivery and performance of any of the Transaction Documents or the consummation of the transactions contemplated thereby, except as would not reasonably be expected to have a Parent Material Adverse Effect, or prevent or materially impair the ability of Parent to consummate the transactions contemplated hereby.
Section 6.8 Taxes.
(a) Except as set forth in Section 6.8(a) of Tether’s Disclosure Letter, all income and other material Tax Returns that are required to be filed under applicable Laws on or before the Closing (taking into account any timely filed automatic extensions of time in which to file) by Parent or the Transferred Subsidiaries have been or will be timely filed on or before the Closing Date, and all such Tax Returns are complete and accurate in all material respects.
(b) Since the Applicable Date, each of Parent and the Transferred Subsidiaries has timely paid all income and other material Taxes.
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(c) Except as set forth in Section 6.8(c) of Tether’s Disclosure Letter, there is no audit, examination, investigation, action, proceeding or assessment pending or proposed or threatened in writing by a Government Authority with respect to material Taxes for which Parent or the Transferred Subsidiaries would be liable.
(d) Since the Applicable Date, all material Taxes which Parent or the Transferred Subsidiaries are required by Law to withhold or to collect for payment have been duly withheld and collected and have been timely paid to the appropriate Government Authority.
(e) Since the Applicable Date, all material deficiencies asserted or assessments made in writing by a Government Authority of Parent or the Transferred Subsidiaries as a result of any audit, examination, investigation, action, proceeding or assessment have been paid in full or otherwise finally resolved.
(f) No agreement, consent or waiver of any statute of limitations or extension of time is in effect with respect to any material Taxes of Parent or the Transferred Subsidiaries (other than automatic extensions of the due date for filing any Tax Return obtained in the ordinary course of business), and no written request covering any such matter is outstanding.
(g) Parent and the Transferred Subsidiaries have not received or requested any Tax rulings from any Government Authority that would apply for any taxable period ending after the Closing Date.
(h) To the Knowledge of Seller, none of Parent or the Transferred Subsidiaries will be required to include or accelerate the recognition of any material item in income, or exclude or defer any material deduction, in each case in any taxable period (or portion thereof) after the Closing, as a result of any change in method of accounting, closing agreement, intercompany transaction, or installment sale, in each case prior to the Closing.
(i) Since the Applicable Date, none of Parent or the Transferred Subsidiaries has been informed in writing by any Government Authority that such Government Authority believes that such Person was required to file any material Tax Return that was not filed, which claim has not been resolved.
(j) Since the Applicable Date, none of Parent nor any of the Transferred Subsidiaries (i) has been a member of any Parent Group other than each Parent Group of which it is presently a member or (ii) has any Liability for Taxes of any Person (other than Parent or the Transferred Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of Tax Law), as a transferee or successor or by Contract (other than commercial agreements that do not primarily relate to Taxes).
(k) There are no Encumbrances for material Taxes (other than Permitted Encumbrances) on any of the Target Assets.
(l) None of Parent or any of the Transferred Subsidiaries has been, in the last two (2) years, a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
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(m) Since the Applicable Date, none of Parent or any of the Transferred Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
Section 6.9 Employee Benefit Plans.
(a) Section 6.9(a) of Tether’s Disclosure Letter sets forth an accurate and complete list of each material Employee Benefit Plan in effect as of the date hereof. With respect to each such Employee Benefit Plan, Parent has made available in the Virtual Data Room, to the extent applicable, accurate and complete copies of (1) the plan document, including any amendments thereto, (2) a written description of such Employee Benefit Plan if it is not set forth in a written document, (3) the most recent annual reports on IRS Form 5500 (including all schedules and attachments thereto) filed with the U.S. Department of Labor, (4) the most recently prepared financial statements or actuarial report, (5) the most recent summary plan description together with any summaries of all material modifications thereto, (6) the most recent IRS determination or opinion letter, (7) the most recent written results of all required compliance testing, and (8) copies of any material non-routine correspondence with the IRS, U.S. Department of Labor or other Government Authority within the preceding three (3) years. Notwithstanding the foregoing, Section 6.9(a) of Tether’s Disclosure Letter need not identify any employment or consulting agreement or offer letter that is on substantially the same form as Parent’s standard template(s) made available to Purchaser in the Virtual Data Room, or which relates to an individual whose base salary or annual consulting fee does not exceed $200,000, or can be terminated at-will upon one-hundred-eighty (180) days’ notice or less without cost or liabilities in excess of such notice period and does not provide for any change of control, retention, or other transaction bonus. Since the Applicable Date, there has been no announcement by Parent or any of the Transferred Subsidiaries relating to any Employee Benefit Plan which would increase materially the expense of maintaining such Employee Benefit Plan above the level of the expense incurred therefore for the most recent fiscal year.
(b) Since the Applicable Date (i) each Employee Benefit Plan has been established, administered and maintained in all material respects in accordance with its terms and is in compliance in all material respects with all applicable Laws, and (ii) to the Knowledge of Seller, none of Parent or any of the Transferred Subsidiaries, or Parent or the Transferred Subsidiaries has engaged in a transaction with respect to any Employee Benefit Plan that would reasonably be expected to subject Parent or the Transferred Subsidiaries to a Tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA in an amount which could be material. There are no complaints, investigations, claims or disputes in progress, pending or, to the Knowledge of Seller, threatened relating to any Employee Benefit Plan, its related assets or trusts, or any fiduciary, administrator or sponsor thereof (other than routine claims for benefits). Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the IRS to be qualified under Section 401(a) of the Code and to the Knowledge of Seller, nothing has occurred that would adversely affect the qualification or tax exemption of any such Employee Benefit Plan. No stock or other securities issued by Parent or any of the Transferred Subsidiaries forms or has formed any part of the assets of any Employee Benefit Plan that is intended to qualify under Section 401(a) of the Code. No Employee Benefit Plan is presently under audit or examination (nor has written notice been received of a potential audit or examination) by any Government Authority. All material payments required to be made by Parent or any of the Transferred Subsidiaries under, or with respect to, any Employee Benefit Plan (including all contributions, distributions, reimbursements, or premium payments) with respect to all periods prior to the Closing Date have been made on or before their respective due dates or, for any such payments that are not yet due, accrued and reflected in the most recent consolidated balance sheet prior to the date hereof, in each case in accordance with the provisions of each of the Employee Benefit Plans, applicable Law and IFRS. There is not now, nor do any circumstances exist that could give rise to, any requirement for the posting of security with respect to an Employee Benefit Plan or the imposition of any lien under ERISA or the Code.
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(c) No Employee Benefit Plan is, and none of Parent or any of the Transferred Subsidiaries, nor any ERISA Affiliate thereof or any of their respective predecessors, has since January 1, 2024 established, maintained, sponsored, contributed to, or had an obligation to contribute to or any other Liability (whether on account of an ERISA Affiliate or otherwise), or has since January 1, 2024, maintained, sponsored, contributed to, or had an obligation to contribute to or any other Liability, under or with respect to: (i) a plan that is subject to Section 412 or 430 of the Code or Section 302 or Title IV of ERISA or a “defined benefit” plan within the meaning of Section 3(35) of ERISA; (ii) a Multiemployer Plan; (iii) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210(a) of ERISA; (iv) a multiple employer welfare arrangement (as defined in Section 3(40)(A) of ERISA); or (v) a plan maintained in connection with any trust described in Section 501(c)(9) of the Code. None of Parent, any of the Transferred Subsidiaries or any ERISA Affiliate thereof has withdrawn since January 1, 2024 from any Multiemployer Plan, or incurred any withdrawal liability which remains unsatisfied.
(d) Except as required by Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code and any other applicable Law, no Employee Benefit Plan provides retiree or post-employment medical, disability, life insurance or other welfare benefits to any Parent Service Provider. None of Parent or any of the Transferred Subsidiaries has incurred (whether or not assessed), or is reasonably expected to incur or to be subject to, any Tax or other penalty with respect to the reporting requirements under Sections 6055 and 6056 of the Code, as applicable, or under Section 4980B, 4980D or 4980H of the Code. None of Parent or any of the Transferred Subsidiaries has any Liability on account of a material violation of the Affordable Care Act.
(e) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement either alone or together with another event, will (i) entitle any Parent Service Provider to severance pay, any other payment or benefit, any cancellation of indebtedness or any increase in compensation or benefits (other than as required by Law), (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation due to any such individual, or (iii) result in an obligation to fund or otherwise set aside assets to secure to any extent any of the obligations under any Employee Benefit Plan. No Person is entitled to any gross-up, make-whole, or other additional payment by Parent or any of the Transferred Subsidiaries in respect of any Tax or interest or penalty related thereto under Section 409A of the Code, Section 4999 of the Code, or otherwise.
(f) No amount or benefit paid or payable (whether in cash, in property or in the form of benefits) by Parent or any of the Transferred Subsidiaries in connection with any of the transactions contemplated by this Agreement (either alone or together with another event) will result in an “excess parachute payment” within the meaning of Section 280G of the Code.
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(g) All Employee Benefit Plans subject to the Laws of any jurisdiction outside of the United States or that covers any Parent Service Provider residing or working outside of the United States (each, a “Foreign Benefit Plan”) (i) if they are intended to qualify for special tax treatment, meet all requirements for such treatment and, to the Knowledge of Seller, there are no existing circumstances or events that have occurred that would reasonably be expected to affect adversely the special tax treatment with respect to such Foreign Benefit Plan, (ii) if they are intended to be funded and/or book-reserved, are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions, and (iii) if intended or required to be qualified, approved or registered with a Government Authority, is and has been so qualified, approved or registered.
(h) No Foreign Benefit Plan in the UK is a defined benefit pension plan, and none of the Transferred Subsidiaries in the UK has at any time employed a member of, or been associated or connected (as defined in Section 51(3) of the UK Pensions Act 2004) with an employer which employed a member of, an occupational defined benefit pension plan.
(i) No Foreign Benefit Plan of each of the Transferred Subsidiaries in the UK provides retirement benefits which are not “money purchase benefits” as defined in Section 181 of the UK Pension Schemes Act 1993 and each of the Transferred Subsidiaries in the UK: (i) has at all times complied with its auto-enrolment obligations under the UK Pensions Act 2008; (ii) has not at any time employed an employee whose contract of employment transferred to it from another employer under the UK Transfer of Undertakings (Protection of Employment) Regulations 1981 or 2006, where this employee has a right to benefits which are not benefits on old age invalidity or death.
Section 6.10 Labor Matters.
(a) Section 6.10(a) of Tether’s Disclosure Letter sets out an anonymized list of all Parent Service Providers with particulars of the date of commencement of employment, employing entity, location, fixed annual salary, type of contract and all material benefits provided, in each case as of the date hereof.
(b) The Virtual Data Room contains a representative sample of standard terms and conditions of employment used for each grade of employee of Parent and staff handbooks and material employment policies which apply to Parent Service Providers.
(c) Section 6.10(c) of Tether’s Disclosure Letter contains details of any consultants, workers, independent contractors, freelancers, outworkers, agency workers or persons treated as self-employed or contracted labor as of the date hereof, providing services to Parent for a compensation exceeding EUR 100,000.00 p.a. Copies of their agreements or particulars of their engagement have been placed in the Virtual Data Room.
(d) Since the Applicable Date, none of Parent or the Transferred Subsidiaries is or has been a party to, is or has been bound by, is or has been negotiating or, to the Knowledge of Seller, has been asked to negotiate, any labor agreements, works council agreements, union Contracts or collective bargaining agreements. To the Knowledge of Seller, there is not currently, nor has there been since the Applicable Date, any organized effort by any labor union to organize any Parent Service Provider into one or more collective bargaining unions.
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(e) None of Parent or the Transferred Subsidiaries is, or since January 1, 2024 has been, a party to any dispute or controversy with a labor union or with respect to unionization or collective bargaining involving any of their current or former Parent Service Provider, including any actual or threatened in writing, strike, lockout, walkout, work stoppage, slowdown, picketing, boycott, or other dispute involving union or other labor organization or with respect to unionization or collective bargaining. Additionally, Parent and the Transferred Subsidiaries have not received a written notice informing them that (i) there are unfair labor practice charges or complaints pending against Parent or any Transferred Subsidiary before any applicable Government Authority relating to any Parent Service Provider; (ii) there are material representation claims or petitions pending before any applicable Government Authority; or (iii) there are material charges with respect to or relating to Parent or any of the Transferred Subsidiaries pending before any applicable Government Authority responsible for the prevention of unlawful employment practices.
(f) To the Knowledge of Seller, each of Parent and the Transferred Subsidiaries is and has since the Applicable Date been in material compliance with all applicable Laws which relate to labor, employment and employment practices, terms and conditions of employment, wages, hours, overtime, wage payment, payment of holiday pay, classification of employees and other service providers (including independent contractors), record keeping, fair employment practices, workers’ compensation, withholding of Taxes, discrimination in employment, harassment, disability rights or benefits, immigration (including applicable Form I-9 Laws and prevention of illegal working Laws), reasonable accommodations, employee leave issues, unemployment insurance, and occupational safety and health, except as would not be expected to have a Parent Material Adverse Effect.
(g) There is no pending or, to the Knowledge of Seller, threatened in writing material claim or litigation against Parent or the Transferred Subsidiaries with respect to allegations of sexual harassment, sexual misconduct or a hostile work environment, and, since January 1, 2024, (i) there have been no reported internal or external complaints accusing any Parent Service Provider of sexual harassment, sexual misconduct or creating a hostile work environment, and since the Applicable Date (ii) there has been no settlement of, or payment arising out of or related to, any litigation with respect to sexual harassment, sexual misconduct or a hostile work environment against Parent or the Transferred Subsidiaries.
(h) Each sponsor license held in the UK which is utilized to sponsor UK employees of Parent or the Transferred Subsidiaries is valid, subsisting and A-rated. In relation to any UK employee who requires a certificate of sponsorship in order to remain and work in the UK, the relevant sponsoring entity has at all relevant times been a licensed sponsor.
Section 6.11 No Violation of Law; Regulatory Matters; Required Licenses and Permits.
(a) Except as set forth in Section 6.11(a) of the Tether’s Disclosure Letter, since the Applicable Date, each of Parent or its Subsidiaries has been in compliance in all material respects with (i) all applicable Laws and (ii) all Government Orders against Parent or any of the Transferred Subsidiaries or the Target Assets or their respective businesses, and none of Parent or any of the Transferred Subsidiaries, has received any written notice alleging that Parent or any of the Transferred Subsidiaries is not in compliance in any material respect with any Law or Government Order, in each case except as would not be expected to have a Parent Material Adverse Effect. Solely with regards to Section 87 para 1 sentence 1 AktG, limb (i) in the foregoing sentence does not apply to the bitcoin bonus granted to a member of the management board of Parent.
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(b) Except as has not had and would not reasonably be expected to have a Parent Material Adverse Effect, since the Applicable Date, none of Parent or the Transferred Subsidiaries or any of their respective Representatives (acting in their capacities as such) has violated the Anti-Money Laundering Laws.
(c) None of Parent or the Transferred Subsidiaries is subject to regulation as a “public utility,” “utility,” “electric utility,” “retail electric provider” or “transmission and distribution utility”.
(d) Other than as set forth in Section 6.11(d) of Tether’s Disclosure Letter, (i) Parent and the Transferred Subsidiaries and each of their respective Representatives (acting in their capacities as such) are, and have been, since January 1, 2024, in compliance with the Export and Sanctions Regulations in all material respects; (ii) none of Parent or the Transferred Subsidiaries or any of their respective Representatives (acting in their capacities as such) has been, since January 1, 2024 and continuing to the present (A) organized in, operating from or resident in a Sanctioned Country or (B) directly engaged in any dealings or transactions in a Sanctioned Country in violation of applicable Export and Sanctions Regulations, or (C) a Sanctioned Person; (iii) none of Parent or the Transferred Subsidiaries or any of their respective Representatives is or has been a Sanctioned Person; (iv) none of Parent or the Transferred Subsidiaries or any of their respective Representatives (acting in their capacities as such) is involved in any Action, or has since January 1, 2024, received a written request for information or any other form of communication from any Government Authority, or has since January 1, 2024, had any judgments imposed (or threatened to be imposed) upon Parent or any of the Transferred Subsidiaries by or before a Government Authority, in each case in connection with any actual or alleged material violation of any Export and Sanctions Regulations; and (v) the Parent and any of the Transferred Subsidiaries maintain policies and procedures reasonably designed to ensure compliance with and to prevent violations of Export and Sanctions Regulations.
(e) Since January 1, 2024, (i) none of Parent or any of the Transferred Subsidiaries or any of their respective Representatives (acting in their capacities as such) has taken any action, or engaged in any activity, practice or conduct, that would violate the FCPA, the U.K. Bribery Act, or any other applicable Law regarding anti-corruption, (ii) none of Parent or any of the Transferred Subsidiaries or any of their respective Representatives (acting in their capacities as such) has (A) used any corporate funds of Parent or any of the Transferred Subsidiaries for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (B) authorized, offered, promised or made any unlawful payment to any foreign or domestic governmental officials or (C) paid any bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment to any Person, private or public, regardless of form, whether in money, property or services, to obtain favorable treatment in securing business or to obtain special concessions for Parent or any of the Transferred Subsidiaries, in the case of the foregoing clauses (A), (B) and (C) which would or would reasonably be expected to result in a material violation of the FCPA, the U.K. Bribery Act, or any other applicable Laws regarding anti-corruption, (iii) there are no pending or, to the Knowledge of Seller, threatened in writing Actions against Parent or any of the Transferred Subsidiaries with respect to the FCPA, the U.K. Bribery Act, or any other applicable Law regarding anti-corruption, nor has Parent nor any of the Transferred Subsidiaries received any written notice, request, or citation of any allegation with regards to a violation or potential violation of the FCPA, the U.K. Bribery Act, or any other applicable anti-corruption Laws, and (iv) Parent and the Transferred Subsidiaries maintain policies and procedures reasonably designed to ensure compliance with and to prevent breaches of the FCPA, the U.K. Bribery Act, and other applicable anti-corruption Laws.
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(f) Since the Applicable Date, Parent and the Transferred Subsidiaries have owned, held or possessed all Permits necessary for the conduct of Parent’s and the Transferred Subsidiaries’ businesses as currently conducted and Parent and the Transferred Subsidiaries’ businesses have been conducted in compliance in all material respects with such Permits, except as would not be expected to have a Parent Material Adverse Effect. Since the Applicable Date, to the Knowledge of Seller, none of Parent or the Transferred Subsidiaries has received any written notice alleging that Parent or any of the Transferred Subsidiaries are not in compliance in any material respect with any terms or requirements of any Permit or regarding the potential revocation, withdrawal, suspension, cancellation, termination or modification of any Permit.
(g) Parent is and has since January 1, 2024 been in compliance with the Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation), as amended, and Parent has not received any written notice alleging that Parent or any of the members of its management board or supervisory board is not in compliance in any material respect therewith.
Section 6.12 Real Property.
(a) Section 6.12(a) of Tether’s Disclosure Letter, as of the date hereof, sets forth a true and complete list of all real property owned by Parent or the Transferred Subsidiaries (the “Owned Real Property”), all of which are owned by Parent or any of the Transferred Subsidiaries or are expected to be owned by them as of the Closing. The title in the Owned Real Property of Parent and each of the Transferred Subsidiaries is good and valid and free and clear of any Encumbrances, except for Permitted Encumbrances. There are no leases, subleases, licenses, occupancy agreements or other agreements by, through or under Parent or any of the Transferred Subsidiaries granting to any other Person the right of use or occupancy of any Owned Real Property or any portion thereof other than the Data Center Leases. There are no tax reduction proceedings pending (rechtshängig) with respect to all or any portion of the Owned Real Property. To the Knowledge of Seller, no Person other than Parent and the Transferred Subsidiaries is currently in possession of any portion of the US Owned Real Property.
(b) To the Knowledge of Seller, (i) there is no existing material breach or material default by any party under any easements or restrictive covenants affecting any Owned Real Property which material breach or material default has not yet been cured, (ii) neither Parent nor any of the Transferred Subsidiaries has received written notice of any material default under any easements or restrictive covenants affecting the Owned Real Property which material default has not yet been cured, and (iii) there does not exist any condition or event that with the lapse of time or the giving of notice, or both, would constitute such a material breach or material default under any easements or restrictive covenants affecting any Owned Real Property. To the Knowledge of Seller, there are no existing unrecorded (but recordable) deeds, land contracts, leases, rights of first offer, rights of first refusal, options to purchase, mortgages, agreements or other instruments, in each case adversely affecting title to the Owned Real Property or any portion thereof or interests therein, which are not reflected in the public records of the jurisdiction where the Owned Real Property is located.
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(c) Section 6.12(c) of Tether’s Disclosure Letter, as of the date hereof, sets forth a true and complete list of all real property in which Parent or the Transferred Subsidiaries holds a leasehold, subleasehold or license interest (the “Leased Real Property”), or for which Parent or the Transferred Subsidiaries have entered into a binding agreement to hold a leasehold, subleasehold or license interest as of the Closing. None of the Real Property Leases have been modified by Parent or any of the Transferred Subsidiaries, other than pursuant to a written agreement. Since the Applicable Date, no rights or claims have been asserted in writing under any Encumbrance (other than Permitted Encumbrances) against Parent or the Transferred Subsidiaries that would reasonably be expected to materially and adversely interfere with the use, occupancy or operation of any Leased Real Property (other than the Data Center Leases) as currently used, occupied or operated. To the Knowledge of Seller, there are no uncured material disputes with respect to the Real Property Leases that would entitle the holder thereof to materially interfere with or materially disturb the tenant’s use and enjoyment of the Leased Real Property or the exercise of the tenant’s rights thereunder so long as the tenant is not in default under the applicable Real Property Lease. There is no pledge or security interest granted in any of the Real Property Leases (other than Permitted Encumbrances), and to the Knowledge of Seller, except as disclosed in the public records of the jurisdiction wherein the Leased Real Property is located, no Real Property Lease is subject to any ground lease, mortgage, deed of trust or other superior Encumbrance or interests (including, for the avoidance of doubt, any present or future right to occupy any portion of the Leased Real Property) that would entitle the holder thereof to materially interfere with or materially disturb tenant’s use and enjoyment of the Leased Real Property or the exercise of the tenant’s rights thereunder so long as the tenant is not in default under the applicable Real Property Lease. Except as set forth in Tether’s Disclosure Letter, there are no leases, subleases, licenses, occupancy agreements or other agreements (other than the Real Property Leases) by, through or under Parent or any of the Transferred Subsidiaries granting to any other Person the right of use or occupancy of any Leased Real Property (other than the Data Center Leases). To the Knowledge of Seller, no material obligations of any landlord, sublandlord or licensor thereunder are delinquent. As of the date hereof, neither Parent nor any of the Transferred Subsidiaries has received written notice of any material default that would constitute a material default pursuant to a Real Property Lease other than defaults that have been cured or waived in writing.
(d) The Real Property constitutes all of the real property used by Parent and the Transferred Subsidiaries for their current operations. There is currently no ongoing material construction work in, on, or about any Real Property (other than the Data Centers) other than routine maintenance and repairs as well as tenant-fit outs being performed in the ordinary course of business. There are no leasing commissions due from Parent or any of the Transferred Subsidiaries with respect to any Real Property (other than the Data Centers) that remain outstanding or unpaid. To the Knowledge of Seller, other than the Data Centers, the buildings, structures and facilities on the Owned Real Property are in good operating condition and repair (ordinary wear and tear excepted), are suitable for the purposes for which they are currently being used and for the current operations of Parent and the Transferred Subsidiaries. No Government Authority having jurisdiction over any Real Property (other than the Data Centers) has issued towards Parent or the Transferred Subsidiaries any written notice, Government Order or Action that would reasonably be expected to materially and adversely impair the use, occupancy or operation of any Real Property as currently used, occupied or operated.
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(e) There is no condemnation or eminent domain proceeding that would materially impair the use, occupancy or operation of any Real Property or any part thereof as currently used, occupied or operated.
(f) Neither Parent nor any of the Transferred Subsidiaries owns or holds, or is obligated under or party to, any option, right of first offer, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any Real Property or any portion thereof.
Section 6.13 Intellectual Property.
(a) Section 6.13(a) of Tether’s Disclosure Letter contains a true, accurate and complete list, as of the date hereof, of all (A) Registered Intellectual Property used by Parent and the Transferred Subsidiaries, indicating for each item of such Registered Intellectual Property the (i) applicable owner, (ii) registration, patent or application number, (iii) date of registration, issuance or application and (iv) applicable filing jurisdiction and (B) all Software included in the Owned Intellectual Property (as defined below (such Software, “Business Software”). The Registered Intellectual Property is enforceable subsisting and, to the Knowledge of Seller, all registered or issued Registered Intellectual Property is valid. Parent and the Transferred Subsidiaries, as applicable, exclusively own all Owned Intellectual Property, free and clear of any Encumbrance (other than Permitted Encumbrances). Parent and the Transferred Subsidiaries exclusively owns or have a valid right to use in the manner currently used in all material aspects all Intellectual Property used in or held for use in or necessary for the conduct of Parent’s and the Transferred Subsidiaries’ businesses as presently conducted (collectively, the “Business Intellectual Property”).
(b) The execution, delivery and performance of this Agreement and each of the other Transaction Documents to which it is a party by Parent and each Transferred Subsidiary, and the consummation by Parent and each Transferred Subsidiary of the transactions contemplated hereby and thereby, will not result in the loss, termination or impairment of any rights of Parent or the Transferred Subsidiaries to own or use any material Business Intellectual Property. Except as set forth in Disclosure Letter, no material Owned Intellectual Property is subject to any proceeding or outstanding order, Contract or stipulation restricting the use, transfer or licensing thereof by Parent or any Transferred Subsidiary.
(c) Except as set for on Section 6.13(c) of Tether’s Disclosure Letter, to the Knowledge of Seller, neither Parent nor any of the Transferred Subsidiaries have, since the Applicable Date, infringed, misappropriated, diluted or otherwise violated the Intellectual Property of any third party and Parent’s and the Transferred Subsidiaries’ operations as currently conducted or as previously conducted since the Applicable Date do not infringe, misappropriate, dilute or otherwise violate (or have infringed, misappropriated, diluted or otherwise violated the Intellectual Property rights of any third party. Except as set forth in Tether’s Disclosure Letter, no Person has, since the Applicable Date, asserted in writing received by Parent or any of the Transferred Subsidiaries that Parent or any of the Transferred Subsidiaries have infringed, misappropriated or otherwise violated the Intellectual Property of any third party. To the Knowledge of Seller, no third party has, since the Applicable Date, infringed, diluted, violated or misappropriated any material Owned Intellectual Property. There is no Action threatened in writing or pending (i) alleging that Parent or any of the Transferred Subsidiaries have infringed, diluted, misappropriated or otherwise violated the Intellectual Property rights of any third party (including an assertion of an ownership interest in any Intellectual Property rights, any invitation to license or request or demand to refrain from using any Intellectual Property rights of any Person) in any material respect; or (ii) challenging the validity, enforceability, or ownership of any material Owned Intellectual Property.
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(d) To the Knowledge of Seller, since the Applicable Date, Parent and the Transferred Subsidiaries take and have taken commercially reasonable measures to protect the Intellectual Property rights, including to protect confidential nature of any of the Trade Secrets owned or used by Parent or the Transferred Subsidiaries. All Persons granted access to such Trade Secrets are subject to contractual, legal, or enforceable ethical obligations that require such Persons to protect the confidentiality of such Trade Secret. To the Knowledge of Seller, no Person having access to Trade Secrets and material confidential information has misappropriated any material Trade Secret or other material confidential information in the course of his or her duties.
(e) To the extent that any material third-party owned Intellectual Property is incorporated into, integrated or bundled with, or used by any Parent or any Transferred Subsidiary in the development, manufacture, compilation, use, or other exploitation of any Business Intellectual Property, such Parent or Transferred Subsidiary has all necessary rights to use or exploit all such material third-party owned Intellectual Property, subject to the terms of any applicable license agreement.
(f) No funding, facilities, personnel or other resources of any Government Authority or any academic institution were used by Parent and the Transferred Subsidiaries to develop or create any material Owned Intellectual Property.
(g) All Parent Service Providers who have contributed to the conception, authorship, or development of any material Intellectual Property rights that are purported to be owned by Parent or any of the Transferred Subsidiaries or in connection with his, her or its employment by Parent or any of the Transferred Subsidiaries have executed and delivered to Parent or any of the Transferred Subsidiaries, or Parent or any of the Transferred Subsidiaries, as applicable, a written agreement sufficient to vest Parent and the Transferred Subsidiaries with full ownership of such Intellectual Property to the extent Parent or any of the Transferred Subsidiaries did not acquire ownership of such Intellectual Property rights by operation of Law. To the extent a full assignment of ownership is not possible for reasons of applicable copyright law, the term “ownership” shall mean that each Parent Service Provider has granted to Parent or any of the Transferred Subsidiaries the exclusive, worldwide, perpetual, unrestricted, royalty-free, transferable and sublicensable rights which allow for the unrestricted economic exploitation of the Intellectual Property rights. With respect to the software, the term “ownership” shall mean that the Parent or any of the Transferred Subsidiaries holds rights in accordance with Section 69b of the Germany Copyright Act (Urheberrechtsgesetz) or any comparable provision in any other jurisdiction, if applicable. To the Knowledge of Seller, Parent and the Transferring Subsidiaries have since the Applicable Date duly complied with the provisions of the German Act on Employee Inventions (Arbeitnehmererfindungsgesetz) or any comparable provision in any other jurisdiction, if applicable. To the Knowledge of Seller and except as would not be expected to have Parent Material Adverse Effect, Parent and the Transferring Subsidiaries have exclusive and unrestrictive rights to all inventions and developments which were made by the Parent Service Providers on behalf of Parent and the Transferring Subsidiaries in connection with a job at or the work performed for them.
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(h) Neither Parent nor any of the Transferred Subsidiaries has disclosed, delivered, licensed or made available to any escrow agent or other Person any Business Source Code or Business Software, except for disclosures to employees, consultants, agents and independent contractors for Parent or one of the Transferred Subsidiaries that are subject to confidentiality obligations to maintain the confidentiality of such Business Source Code and who have had such access in connection with their employment or engagement by Parent or any of the Transferred Subsidiaries, as applicable. Neither Parent nor any Transferred Subsidiary has any duty or obligation (whether present, contingent or otherwise) to deliver, license or make available any Business Source Code or Business Software to any escrow agent or other Person who is the beneficiary of any escrow agreement pursuant to which any Business Source Code or Business Software has been deposited.
(i) Except as would not be material and adverse to Parent or the Transferred Subsidiaries, Parent and the Transferred Subsidiaries as applicable, maintain machine readable copies of all material Business Software owned by Parent or the Transferred Subsidiaries that is incorporated in or distributed as part of any product sold, distributed or made commercially available by Parent or any of the Transferred Subsidiaries to a customer (including Business Source Code and system specifications, but expressly excluding any shrink-wrap, click-wrap or commercial off-the-shelf software licenses).
(j) To the Knowledge of Seller, the manner in which any Open Source Software is incorporated into, used in, linked to or called by, or otherwise combined or distributed with Business Software does not, according to the terms of the license applicable to such Open Source Software, obligate Parent or any of the Transferred Subsidiaries to: (A) disclose, make available, offer or deliver all or any portion of any source code of any such Business Software to any third party, other than the applicable Open Source Software, or (B) create obligations for Parent or its Transferred Subsidiaries, as applicable, to grant to any third party any rights or immunities under any Intellectual Property (including any agreement not to assert patents), or impose any limitations or restrictions on Parent’s or any of the Transferred Subsidiaries’ use, distribution or exploitation thereof, other than with respect to the applicable Open Source Software itself.
(k) The Parent IT Systems (including the Business Software), (i) operate and perform in all material respects as required by Parent and the Transferred Subsidiaries; (ii) are sufficient in all material respects for the conduct of the business of Parent and the Transferred Subsidiaries being transferred pursuant to this Agreement as presently conducted; and (iii) have not malfunctioned or failed in any material respect since the Applicable Date, except for failures or defects of individual systems in the ordinary course of business. Since the Applicable Date, none of Parent or any of the Transferred Subsidiaries have been subjected to a license audit of any kind in connection with any Contract pursuant to which they use any material third-party Parent IT System, nor received any notice of intent to conduct any such audit. Except as would not be material and adverse to Parent and the Transferred Subsidiaries, Parent and the Transferred Subsidiaries possess sufficient seat licenses to use the Parent IT Systems for its businesses as currently conducted.
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Section 6.14 Information Security; Data Privacy.
(a) Since the Applicable Date, Parent and the Transferred Subsidiaries have established, implemented and maintained an Information Security Program that is appropriate to the nature of the Personal Data Processed by Parent or the Transferred Subsidiaries, and, has included assessment and testing, and remediation of all material risks and vulnerabilities identified by such assessments and/or tests. The Information Security Program is compliant with Privacy Requirements in all material respects. The Parent IT Systems (including the Business Software) are in good working condition, do not contain any known Malicious Code or significant defect, and in all material respects operate and perform as necessary for the conduct of Parent’s and the Transferred Subsidiaries’ business.
(b) Neither the execution, delivery nor performance of this Agreement or any other Transaction Document violate any Privacy Requirement, except as would not be reasonably be expected to be material to any Parent or the Transferred Subsidiaries.
(c) Parent and the Transferred Subsidiaries comply and have since the Applicable Date processed Personal Data in compliance with all Privacy Requirements in all material respects, including with respect to any contracts, terms of service, or similar agreements, Parent or Transferred Subsidiaries have in place with processor or service providers (as those and similar terms are defined in the Privacy Requirements). To the extent required by Privacy Requirements, and to the Knowledge of Seller, Personal Data is securely deleted or destroyed. Parent and Transferred Subsidiaries do not sell, and have not sold (as defined in the California Consumer Privacy Act, as amended by the California Privacy Rights Act, and its implementing regulations, or, in reference to any Privacy Requirement, in a comparable definition embodied in that particular Privacy Requirement with comparable exceptions) any Personal Data. Any International Transfers by Parent or any of the Transferred Subsidiaries in all material aspects comply with Privacy Requirements.
(d) Except as set forth in Section 6.14(d)(i) of Tether’s Disclosure Letter, to the Knowledge of Seller, none of Parent or the Transferred Subsidiaries or third parties processing Personal Data on their behalf have, since the Applicable Date, suffered a Security Incident. Except as set forth in Section 6.14(d)(ii) of Tether’s Disclosure Letter, none of Parent or the Transferred Subsidiaries has received a written notice, letter, or complaint from a Government Authority or any Person alleging noncompliance or potential noncompliance with any Privacy Requirements and has not been subject to any Action relating to noncompliance or potential noncompliance with Privacy Requirements or Parent’s or any Transferred Subsidiaries’ Processing of Personal Data.
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Section 6.15 Specified Contracts.
(a) Except for purchase orders, other than the purchase orders listed in Section 6.15(a)(xvi), and invoices, Employee Benefit Plans and Parent Insurance Policies, Section 6.15(a) of Tether’s Disclosure Letter lists, as of the date hereof, the following Contracts to which Parent or a Transferred Subsidiary is a party (other than the Transaction Documents, collectively, the “Specified Contracts” and references to the “Parent Party” below refer to Parent or any Transferred Subsidiaries party to the Contract):
(i) Top Ten Customers. Contracts with the top ten (10) largest customers of Parent (measured by revenue received) during the fiscal year ended December 31, 2024 (the “Top Ten Customers”);
(ii) Top Fifteen Suppliers. Contracts with the top fifteen (15) largest suppliers of Parent (measured by aggregate dollars spent) during the fiscal year ended December 31, 2024;
(iii) Future Payment Obligations. Any Contract (or group of related Contracts or group of Contracts with the same counterparty or related counterparties), except Real Property Leases, involving the payment by the Parent Party of more than EUR 250,000.00 and which are not cancelable (without penalty, cost or other Liability) upon notice of ninety (90) days or less;
(iv) Energy. Any Contract involving annual payments in excess of EUR 250,000.00, providing for or relating to the purchase, sale, transmission, distribution or management of power or energy, including any retail and wholesale supply, offtake, and demand response agreements, interconnection, transmission service, distribution facility extension and shared facility agreements and management, consulting, advisory and brokerage agreements;
(v) Capital Expenditures. Any Contract (or group of Contracts relating to the same project or subject matter) providing for or requiring any capital expenditure by the Parent Party in excess of EUR 1,500,000.00;
(vi) Government Authorities. Any Contract with any Government Authority;
(vii) Restrictive Covenants. Any Contract containing covenants materially limiting the freedom of any Parent Party to compete or engage in any line of business or operate in any geographical area;
(viii) Exclusivity. Any Contract pursuant to which any Parent Party has agreed to purchase or sell goods or services exclusively from or to any Person (or group of Persons) or granted “most favored nation” pricing provisions;
(ix) Licenses. Any Contract containing (A) any inbound licenses of material Intellectual Property to the Parent Party (except for (1) shrink-wrap, click-wrap or commercial off-the-shelf software licenses, or (2) any other non-exclusive licenses of software that is commercially available to the public generally for which the aggregate fees payable by the Parent Party in any 12-month period do not exceed EUR 250,000) and (B) any outbound licenses of material Owned Intellectual Property (except for agreements with customers, suppliers or third-party contractors entered into in the ordinary course of business);
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(x) Indebtedness. Any Contract (A) for or relating to any Parent Indebtedness having an outstanding principal amount in excess of EUR 250,000.00, (B) under which any Parent Party has made advances or loans to any Person that is not a Parent or Transferred Subsidiary having an outstanding principal amount in excess of EUR 250,000.00; (C) for a capital lease determined in accordance with IFRS or a sale-and-leaseback transaction or (D) containing any interest rate swap agreement, forward rate agreement, interest rate cap or collar agreement;
(xi) Acquisitions and Dispositions. Any Contract contemplating or relating to the acquisition or disposition (whether by merger or sale of stock) of any Person or Equity Interests;
(xii) Joint Ventures. Any partnership, strategic alliance or joint venture agreement with a third party (in each case, other than with respect to wholly owned Subsidiaries of Parent);
(xiii) Real Property Leases. Any leases (including any Data Center Lease), subleases, licenses, concessions, occupancy agreements and other Contracts, in each case (A) granting the Parent Party the right of use or occupancy of the Leased Real Property (together with all amendments, guarantees and modifications thereto, collectively, the “Real Property Leases”) and (B) involves annual payments in excess of EUR 250,000.00;
(xiv) Related Party Contract. Any Contract between (A) on the one hand, Parent or any of its Subsidiaries and (B) on the other hand, any Affiliates (other than Subsidiaries) of Parent or any member of the management board (Vorstand) or supervisory board (Aufsichtsrat) of Parent (collectively, the “Related Party Contracts”);
(xv) Purchase Orders. Any outstanding purchase order of Parent involving the purchase of (A) inventory, materials, supplies, equipment, services or other items from third parties, which involves payments or performance by a Parent Party in excess of EUR 250,000.00, and (B) GPUs (including, for the avoidance of doubt, equipment incorporating GPUs); and
(xvi) Intellectual Property. Any Contract entered into outside the ordinary course of business containing a covenant not to use, sue or assert, escrow, co-existence, or settlement agreements with respect to any Intellectual Property granted by or to Parent or any Transferred Subsidiary.
(b) Except as set for on Section 6.15(b) of Tether’s Disclosure Letter, as of the date hereof, each Specified Contract is (i) in full force and effect, and (ii) a legal, valid and binding obligation of, and is an enforceable obligation against, the applicable Parent Party, subject to the Remedies Exception. No Parent Party or, to the Knowledge of Seller, any other party to a Specified Contract is in breach of a Specified Contract in any material respect, save, for the avoidance of doubt, in respect of any SLA breach. To the Knowledge of Seller, as of the date hereof, neither Parent nor any of the Transferred Subsidiaries has received or given notice in writing of an intent to terminate, or accelerate the performance of material obligations, modify, amend or otherwise materially and adversely alter the terms and conditions of any Specified Contract or has received any claim in writing of material breach or default under any Specified Contract save, for the avoidance of doubt, in respect of any breach under a service level agreement (a “SLA”).
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(c) True and complete copies of the Specified Contracts have been made available in the Virtual Data Room.
(d) The execution, delivery and performance of the Transaction Documents to which Parent and the Transferred Subsidiaries are a party, and the consummation of the transactions contemplated thereby, do not (i) conflict with, constitute a violation of or breach or default under or give any third party any rights of termination, modification, loss, diminution of rights, acceleration or cancellation of or under any Specified Contract or (ii) result in the creation of any Encumbrance (other than Permitted Encumbrances) under any Specified Contract or upon any of the Target Assets, except for any such conflicts, violations, breaches, defaults, terminations, modifications, losses, diminutions of rights, accelerations, cancellations or creations that would not reasonably be expected to have a Parent Material Adverse Effect.
Section 6.16 Assets.
(a) Parent or the Transferred Subsidiaries hold good and valid title to, or a valid leaseholder or license interest in all material Target Assets, including all GPUs, free and clear of all Encumbrances other than Permitted Encumbrances.
(b) The material equipment included in the Target Assets, which includes all GPUs, is in all material respects in good operating condition and repair (except for wear and tear in the ordinary course), and is useable for the purposes to which it is being put, and none of such equipment is in need of maintenance or repair other than ordinary, routine maintenance or repair conducted in the ordinary course of business, in each case except as would not be expected to have a Parent Material Adverse Effect.
Section 6.17 Insurance. Section 6.17 of Tether’s Disclosure Letter, as of the date hereof, sets forth a true and complete list of the Parent Insurance Policies, specifying the insurer and type of insurance. All of the Parent Insurance Policies are in full force and effect as of the date hereof, and since the Applicable Date, all insurance premiums due thereon have been paid, except as would not be material to Parent. Since the Applicable Date, none of Parent or any of the Transferred Subsidiaries has received in writing any notice of a material premium increase with respect to any such Parent Insurance Policy, or notice in writing of denial of coverage with respect to any such policy, except to the extent such policy has expired. There are no outstanding claims related to Parent exceeding an amount of EUR 250,000.00 under any Parent Insurance Policy.
Section 6.18 Environmental Matters.
(a) To Knowledge of Seller, Parent and the Transferred Subsidiaries are, and since the Applicable Date have been, in compliance in all material respects with Environmental Laws.
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(b) To Knowledge of Seller, Parent and the Transferred Subsidiaries hold all Environmental Permits that are necessary to own, lease or operate the Target Assets and to conduct their business in all material respects as presently operated, and Parent and the Transferred Subsidiaries are, and since the Applicable Date have been, in compliance in all material respects with all such Environmental Permits.
(c) Since the Applicable Date or as is otherwise unresolved, none of Parent or any of the Transferred Subsidiaries has received any written notice, demand, request for information, order or claim that alleges that Parent or any of the Transferred Subsidiaries is not or was not in material compliance with any Environmental Law or is or was subject to material liability under any Environmental Law.
(d) There are no Actions pending or, to the Knowledge of Seller, threatened in writing against Parent or any of the Transferred Subsidiaries relating to compliance with or any material liability or obligation under any Environmental Law or to the investigation, remediation or cleanup of or exposure of any Person to any Hazardous Substance that could form the basis of any Actions, orders or claims against Parent or any of the Transferred Subsidiaries.
(e) To Knowledge of Seller, Hazardous Substances are not present, and since the Applicable Date there has been no Release or exposure of any Person to any Hazardous Substance on, at, under, upon, to or from any property currently or formerly owned or leased by Parent or any of the Transferred Subsidiaries which could reasonably be expected to have a Parent Material Adverse Effect.
(f) True and complete copies of all material studies, audits, assessments, memoranda, soil, air, groundwater or similar sampling data or other material written information in the possession or reasonable control of Parent or any of the Transferred Subsidiaries that relate to Parent, any of the Transferred Subsidiaries, or the Target Assets, or any property currently or formerly owned or leased by Parent or any of the Transferred Subsidiaries related to compliance with or liability under Environmental Laws have been made available in the Virtual Data Room.
Section 6.19 Data Centers.
(a) Operational Data Centers.
(i) Section 6.19(a)(i) of Tether’s Disclosure Letter, as of November 1, 2025, sets forth a list of (A) all Operational Data Centers, (B) all Interconnected Carriers present and available to customers at the Operational Data Centers, (C) the current Capacity built at the Operational Data Centers, (D) the amount of Capacity committed to or reserved to each customer, and (E) the amount of any additional colocation space at the Data Centers subject to rights of first refusal granted in favor of existing customers.
(ii) SLAs in effect with those of the Top Ten Customers present at the Operational Data Centers are set forth in the Data Center Leases. Except as disclosed in Section 6.19(a)(ii) of Tether’s Disclosure Letter, since the Applicable Date, neither Parent nor any of the Transferred Subsidiaries have (A) experienced any material service outage with those of the Top Ten Customers present at the Operational Data Centers that has triggered SLA Credit representing an aggregate annual amount per service order of more than EUR 250,000.00, or (B) experienced any material security breaches triggering SLA Credits at any of the Operational Data Centers.
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(iii) Part I of Section 6.19(a)(iii) of Tether’s Disclosure Letter sets forth each SLA that is in effect at such Operational Data Center. At all times during operation since the Applicable Date, the entire Capacity of the Operational Data Center has been operated pursuant to a SLA. Except as disclosed in Part II of Section 6.19(a)(iii) of Tether’s Disclosure Letter, since the Applicable Date, neither Parent nor any of the Transferred Subsidiaries have (A) experienced any material interruption in the transmission of Capacity to any of the Operational Data Centers that has triggered SLA Credits representing an aggregate annual amount per service order of more than EUR 50,000.00, or (B) experienced any material security breaches at any of the Operational Data Centers.
(iv) The Virtual Data Room contains a true and complete copy of all service performance and service incidents logs or records reflecting all high priority or critical service outage events affecting any data hall since the Applicable Date.
(v) Subject to disclosures made under Section 6.19(a)(v) of Tether’s Disclosure Letter, neither Parent nor any of the Transferred Subsidiaries have made contractual commitments to customers on an aggregate basis per data hall in excess of the power deployed and available to such Person at such data hall, including the utilities, uninterruptible power supply, backup generators and mechanical systems. The electrical utility entrance facility, power system and cooling system capacity and utilization levels disclosed on Section 6.19(a)(v) of Tether’s Disclosure Letter on a per data hall basis are true and accurate as of the date hereof.
(b) Pre-Operational Data Centers.
(i) Section 6.19(b)(i) of Tether’s Disclosure Letter, as of the date hereof, sets forth a true, correct and complete list of all Pre-Operational Data Centers together (A) with their projected power capacity and (B) the indicative date on which such Pre-Operational Data Center is reasonably expected to achieve commercial operation for the full projected power capacity. Except as would not reasonably be expected to have a Parent Material Adverse Effect, each Pre-Operational Data Center is projected to be constructed or developed with (i) a fire suppression system to the extent required by Law; (ii) functioning equipment and facilities, adequate for such Pre-Operational Data Center to receive electric energy from the applicable utility up to the applicable peak contractual demand of such Pre-Operational Data Center; (iii) an executed Contract for the purchase of electric energy from a utility or third-party supplier, up to the applicable peak demand, but excluding any onsite power generation or any other emergency sources of power listed in paragraph (iv); (iv) functioning sources of emergency power, sufficient to permit such Pre-Operational Data Center to maintain substantially normal operations in the event of short-term utility power interruptions; and (v) functioning cooling, power, humidity, network and security facilities and equipment to the extent required by Law and as required to fulfill the requirements of the applicable Contract.
(ii) Section 6.19(b)(ii) of Tether’s Disclosure Letter, as of the date hereof, sets forth the approved specifications for the Physical Network.
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(iii) Section 6.19(b)(iii) of Tether’s Disclosure Letter, as of the date hereof, sets forth the power availability to be made available to each Pre-Operational Data Center under the applicable power agreements.
(iv) Section 6.19(b)(iv) of Tether’s Disclosure Letter contains a true and correct list, as of the date hereof, of all Data Center Leases, along with the amount of power leased or licensed, or anticipated to be leased or licensed, pursuant to each such Data Center Lease as of the date hereof.
(v) Parent and the Transferred Subsidiaries have obtained all Permits required under applicable Law for the construction and development that is ongoing at the applicable Pre-Operational Data Center, and such Permits and entitlements are in full force and effect, subject to any pending appeal, except where the failure to obtain such Permits or entitlements would not reasonably be expected to have a Parent Material Adverse Effect.
Section 6.20 Purchase Orders and Commitments.
(a) Section 6.20(a) of Tether’s Disclosure Letter sets forth a true, complete and accurate list, as of the date hereof, of all outstanding purchase orders, contracts, and other written commitments of Parent other than the Data Center Leases (collectively, “Commitments”) involving the purchase of inventory, materials, supplies, equipment (including GPUs), services or other items from third parties, which (i) individually require future payments or performance by Parent in excess of EUR 1,000,000.00 or (ii) in the aggregate with other similar commitments with the same counterparty exceed EUR 2,500,000.00, and includes for each such Commitment the name of the counterparty, the amount committed (including both paid and unpaid amounts), a description of the goods or services ordered, the dates on which payment is due (or performance is required), whether such Commitment is cancellable or non-cancellable, and whether any disputes exist with respect to such Commitment. Copies of the agreements relating to the Commitments have been made available in the Virtual Data Room.
(b) There are no material defaults by Parent, or, to the Knowledge of Seller, by any other party to any such Commitment, nor has any written notice of termination or intent to cancel any such Commitment been received or delivered by Parent.
Section 6.21 Relationships with Related Persons. Except (i) for the Transaction Documents, (ii) as contemplated under the Transaction Documents, or (iii) as set forth in Tether’s Disclosure Letter, as of the date hereof, none of Parent or any of the Transferred Subsidiaries are bound by any Related Party Contract.
Section 6.22 Peak Mining Purchase Agreement; Legacy Liabilities. The Peak Mining Purchase Agreement is a legal, valid and binding obligation of the parties thereto, enforceable in accordance with its terms and is in full force and effect, subject to the Remedies Exception. No party to the Peak Mining Purchase Agreement is in breach or default thereunder. Parent has not received any written notice of any intention by any party to terminate, rescind, or materially amend the Peak Mining Purchase Agreement.
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Section 6.23 Finder’s Fees; Brokerage. Except as disclosed in Tether’s Disclosure Letter, none of Parent or any of the Transferred Subsidiaries has employed or has any understanding with any broker, finder or investment bank, has incurred or will incur any obligation or Liability for any brokerage fees, commissions or finders fees, or has provided, promised or will provide or promise, any payment or other incentive to any Person, in each case in connection with any of the Transaction Documents or the transactions contemplated thereby.
Section 6.24 No Other Representations or Warranties. Except for the representations and warranties contained in Article V and this Article VI (as qualified by the applicable items disclosed in Tether’s Disclosure Letter and the Bring-Down Certificate), and the other Transaction Documents, and any certificate delivered hereto or thereto, none of Parent, Seller, any of their respective Affiliates or Representatives or any other Person makes any express or implied representation or warranty on behalf of Parent, Seller or their respective Affiliates, and Parent and Seller hereby disclaim any other representations or warranties, with respect to the subject matter of this Agreement. Furthermore, without limiting the foregoing sentence, except for the representations and warranties contained in Article V and this Article VI (as qualified by Tether’s Disclosure Letter and the Bring-Down Certificate), any of the other Transaction Documents, and any certificate delivered hereto or thereto, Parent and Seller do not give or make any warranty or representation as to (and shall have no indemnification obligation or, in the absence of deceit (arglistige Täuschung) or willful misconduct (Vorsatz), other liabilities in respect of) the accuracy or reasonableness of any forecasts, estimates, projections, statements of intent or statements of opinion provided to Purchaser, any of its Affiliates, or any of their respective Representatives on or prior to the date of this Agreement in connection with this Agreement, including in any “Confidential Information Presentation” relating to Parent or Seller, any management presentations, and any other information made available in the Virtual Data Room. Purchaser acknowledges and agrees that, except for the representations and warranties contained in Article V and this Article VI (as qualified by Tether’s Disclosure Letter and the Bring-Down Certificate), the other Transaction Documents, and any certificate delivered hereto or thereto, none of Parent, Seller or any of their respective Affiliates is making any representation or warranty regarding any documents, projections, forecasts, statement or other information made, communicated or furnished (orally, in writing, in the Virtual Data Room, in management presentations (including any questions posed and answers given and any related discussions, whether formal or informal) or otherwise) to Purchaser, any of its Affiliates, or any of their respective Representatives (including any opinion, information, projection or advice that may have been or may be provided to such Person by any Representatives of Parent, Seller or any of their respective Affiliates), in connection with this Agreement.
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Article
VII.
LIMITATIONS OF LIABILITY
Section 7.1 Limited Scope of Representations.
(a) Prior to the date hereof, Tether and Parent (but not the Seller who was not involved in the preparation of the Virtual Data Room or other information) made available to Purchaser detailed information with regard to the commercial, technical, financial and legal (including tax) circumstances of Parent Group and its business. Furthermore, Purchaser had the opportunity to review material information concerning Parent Group in the Virtual Data Room. In addition, Purchaser had the opportunity to visit and inspect the business operations of Parent Group with its Representatives and was given the opportunity to discuss any issues in detail with Parent. Against this background Purchaser explicitly acknowledges and agrees:
(i) to purchase and acquire the Sold Shares based upon its own inspection, examination and determination of all circumstances with respect to the Sold Shares, Parent Group and its business, and to undertake the transactions contemplated in the Transaction Documents based upon Purchaser’s own inspection, examination and determination without reliance upon any express or implied representations, warranties of any nature made by the Seller, except for the representations and warranties explicitly made by the Seller under Article V and Article VI;
(ii) that Seller does not make any representations or warranties as to the future development of Parent Group or as to budgets, business plans or other forward-looking statements or other projections of a financial, technical or business nature relating to the business of Parent Group;
(iii) that Seller (as minority shareholder without control over the Parent) and its Representatives have not and shall not be under any obligation to make any independent examinations or verifications of whatever nature (such as a review of any of the books or other records of any of Parent Group or any research with any publicly available register or enquiry of Representatives of Parent Group); and
(iv) that the lack of any independent examination or verification by Seller and its Representatives shall in no event be regarded as acting in a fraudulent manner (keine Arglist aufgrund von Angaben “ins Blaue hinein”) as Purchaser is fully aware of and accepts these circumstances.
(b) Seller’s liability for breaches of any of the representations and warranties of Seller contained in Article VI shall be limited to EUR 1.00, provided that this shall not apply in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz) by Seller.
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Section 7.2 RWI Policy.
(a) Purchaser has entered into a binder agreement with the RWI Provider with respect to the RWI Policy covering certain of the representations and warranties of Seller contained in Article V and Article VI. The Parties agree that the representations and warranties of Seller contained in Article V and Article VI are made on the grounds (Geschäftsgrundlage) that (i) they solely serve for risk allocation purposes in accordance with the rights and remedies of the Purchaser for any incorrectness of representations and warranties of a representation of Seller contained in Article V and Article VI (other than the Seller Fundamental Representations), and (ii) for the purpose of giving these representations in Article VI only, Seller may not have had first-hand knowledge with respect to the subject matters of covered by these representations and neither Seller nor any of Seller’s Representatives has independently examined or verified the underlying facts, matters, circumstances or statements made in these representations or Tether’s Disclosure Schedule as prepared by Parent Group and its Representatives, but rather had to rely on documentation and information made available by the Representatives of the Parent Group.
(b) Purchaser guarantees to Seller that the provisions of the RWI Policy include terms to the effect (i) that the RWI Provider waives any right of subrogation against Seller in connection with this Agreement and the transactions contemplated hereby, except in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz) by Seller and (ii) the RWI Provider is aware that the Seller has not independently verified the information that is the basis for the representations and warranties made in this Agreement). The RWI Policy is or will be agreed on a non-recourse basis and, therefore, Purchaser shall ensure that under the RWI Policy and under applicable Law the RWI Provider shall only be able to raise claims against Seller in the event of any payments by the RWI Provider to Purchaser in connection with the RWI Policy in case of a deceit (arglistige Täuschung) or willful misconduct (Vorsatz) by Seller.
(c) Purchaser and its Affiliates will not, directly or indirectly, (i) terminate, cancel, amend, waive or modify the RWI Policy in a manner adverse to Seller during its policy term, or (ii) assign or to be obliged to assign any claim Purchaser might have against Seller to the RWI Provider, in each case without prior written consent of Seller. Purchaser and its Affiliates shall refrain from any actions or omissions that could adversely affect Purchaser’s coverage position under, or the continuation of, the RWI Policy.
(d) The cost of the premiums, together with all Taxes and application, underwriting or similar fees or expenses, in connection with the RWI Policy shall be paid 100% by Purchaser.
(e) To the extent legally permissible, Purchaser hereby bindingly waives (i) any and all claims against Seller in respect of and in connection with breaches of representations and warranties made by Seller under Article V and Article VI (other than the Seller Fundamental Representations), in each case save for any claims of Purchaser arising in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz) by Seller, and provided that this shall not affect Purchaser’s claims vis-à-vis the RWI Provider.
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(f) Save for any claims of Purchaser arising in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz) by Seller, it is expressively agreed between the Parties and acknowledged by Purchaser that even in the event that the RWI Policy should actually not have been validly concluded or the RWI Provider is not willing to grant coverage or rejects payment for all or specific claims in respect of breaches of representations and warranties made by Seller under Article V and Article VI, or claims can for any other reason not be enforced or collected under the RWI Policy, this shall have no impact on the exclusion or limitations of liability provided for in this Agreement and any event leading to the RWI Provider not being willing or able to pay shall not be considered as a reason for rescission or a cessation of the basis of such limitations (Wegfall der Geschäftsgrundlage) or for any other claim. Purchaser expressly acknowledges, and the Parties agree, that the risk to successfully claim and/or recover from the RWI Provider any losses of Purchaser under or in connection with the Transaction Documents and the transactions contemplated thereunder shall solely and irrevocably rest with Purchaser.
Section 7.3 Exclusion of other Remedies.
(a) The Parties agree that the warranties and remedies explicitly provided for by this Agreement shall be the exclusive warranties and remedies available to Purchaser against Seller or its Affiliates or any of its or their Representatives in respect of any circumstances relating to the status and condition of the Parent Group and its assets, liabilities and business. Unless explicitly otherwise provided for in this Agreement, any further claims and remedies for Purchaser against Seller or its Affiliates or its or any of their Representatives relating to the status and condition of the Parent Group and its assets, liabilities and business, irrespective of which nature, amount or legal basis, are hereby expressly waived and excluded, in particular, without limitation (i) any right of Purchaser to rescind (zurücktreten) from this Agreement or any other Transaction Document or to require the unwinding of the transactions contemplated therein (e.g., by way of damages instead of performance (Schadensersatz statt der Leistung), (ii) any claims arising from statutory warranty provisions (gesetzliche Gewährleistungsbestimmungen), for example pursuant to Sections 437 thorough 441 BGB, (iii) any claim for breach of pre-contractual obligations (culpa in contrahendo) pursuant to Sections 241 para. 2, 311 paras. 2 and 3 BGB), (iv) any claim for frustration of contract pursuant to Section 313 BGB (Störung der Geschäftsgrundlage), (v) any claims of Purchaser arising from the rescission of this Agreement (Rücktritt vom Vertrag), (vi) any rights to reduce the Rumble Share Consideration or any parts thereof (Kaufpreis mindern) or to appeal (anfechten) this Agreement, and (vii) any other rights of Purchaser to cause the termination, invalidity or unwinding (Rückabwicklung) of this Agreement or any other Transaction Document, a change of their content or a reimbursement or reduction of the Rumble Share Consideration or any parts thereof shall be excluded, save for any remedies of Purchaser based on deceit (arglistige Täuschung) or willful misconduct (Vorsatz).
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(b) The Parties agree that the warranties and remedies explicitly provided for by this Agreement shall be the exclusive warranties and remedies available to Seller in respect of any circumstances relating to the status and condition of Purchaser and its Subsidiaries and their respective assets, liabilities and business. Unless explicitly otherwise provided for in this Agreement, any further claims and remedies for Seller relating to the status and condition of Purchaser and its Subsidiaries and their respective assets, liabilities and business, irrespective of which nature, amount or legal basis, are hereby expressly waived and excluded, in particular, without limitation (i) any right of Seller to rescind (zurücktreten) from this Agreement or any other Transaction Document or to require the unwinding of the transactions contemplated therein (e.g., by way of damages instead of performance (Schadensersatz statt der Leistung), (ii) any claims arising from statutory warranty provisions (gesetzliche Gewährleistungsbestimmungen), for example pursuant to Sections 437 thorough 441 BGB, (iii) any claim for breach of pre-contractual obligations (culpa in contrahendo) pursuant to Sections 241 para. 2, 311 paras. 2 and 3 BGB), (iv) any claim for frustration of contract pursuant to Section 313 BGB (Störung der Geschäftsgrundlage), (v) any claims of Seller arising from the rescission of this Agreement (Rücktritt vom Vertrag), and (vi) any other rights of Seller to cause the termination, invalidity or unwinding (Rückabwicklung) of this Agreement or any other Transaction Document, a change of their content, save for any remedies of Seller based on deceit (arglistige Täuschung) or willful misconduct (Vorsatz).
Article
VIII.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller in the form of an independent guarantee (selbstständiges Garantieversprechen) pursuant to Section 311 para. 1 BGB and irrespective of fault that except as set forth in Purchaser’s Disclosure Letter, the following statements are true and correct, as of the date hereof and as of the Closing Date (except to the extent any such representation and warranty is expressly made as of a specific date, in which case Purchaser hereby makes to Seller such representation and warranty only as of such date):
Section 8.1 Organization, Authorization, Enforceability, Non-Contravention.
(a) Organization. Purchaser is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has the requisite corporate or other organizational power to own, lease or operate the properties and assets owned, operated or leased by it and to conduct its business as presently conducted. Purchaser is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character or location of its owned, operated or leased properties and assets makes such licensing or qualification necessary, except where the failure to be so licensed or qualified or in good standing has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.
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(b) Corporate Authorization. Purchaser has full corporate power and authority to execute and deliver each of the Transaction Documents and each certificate and other instrument required to be executed and delivered by Purchaser pursuant hereto and to perform its obligations under, and consummate the transactions contemplated by, each such Transaction Document and each such certificate or other instrument required to be executed and delivered by Purchaser pursuant hereto. Purchaser is required by NASDAQ rules to obtain the affirmative vote (in person or by written consent, including by obtaining the Written Consent) of holders of a majority of the votes cast in favor of approving and adopting this Agreement. In lieu of calling a meeting of shareholders, Purchaser submitted to, and immediately after the execution of this Agreement obtained from, Chris Pavlovski, in his capacity as the record and beneficial owner of at least a majority of the voting power of the outstanding Class A Common Stock, Class C Common Stock and Class D Common Stock, a duly executed written consent to approve and adopt this Agreement, which is attached hereto as Exhibit E (the “Written Consent”). The Written Consent satisfies all of Purchaser’s obligations relating to obtaining shareholder approval of this Agreement and the transactions contemplated hereunder under the NASDAQ rules and it is the only vote of shareholders of Purchaser necessary in connection with the consummation of the transactions contemplated by this Agreement or by the other Transaction Documents. The execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby (including the issuance of the Rumble Share Consideration), by Purchaser have been duly and validly authorized by all necessary corporate action on the part of Purchaser. The execution, delivery and performance of the other Transaction Documents to which it is a party and each certificate and other instrument required to be executed and delivered by Purchaser pursuant hereto, and the consummation of the transactions contemplated thereby, have been, or prior to the Closing will have been, duly and validly authorized by all necessary corporate or other action on the part of Purchaser. None of the execution, delivery and performance of the Transaction Documents and each certificate and other instrument required to be executed and delivered by Purchaser pursuant to this Agreement, and the consummation of the transactions contemplated thereby, by Purchaser requires any authorization, vote or other approval of the shareholders of Purchaser (other than the Written Consent) pursuant to the Constituent Documents of Purchaser or applicable Law.
(c) Issuance of Securities. The issuance of all Purchaser Common Shares that may be issued pursuant to the Transaction Documents (including the Rumble Share Consideration) has been duly authorized and, upon issuance in accordance with the terms of the Transaction Documents, will be validly issued, fully paid and non-assessable and in each case, free and clear of any Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents). As of the Closing, Purchaser shall have reserved from its duly authorized capital stock not less than the sum of the number of Purchaser Common Shares equal to the Offer Ratio multiplied by the number of Shares to be transferred pursuant to this Agreement, the Tether Purchase Agreement, the CEO Purchase Agreement, and the Tender Offer. Upon issuance in accordance with the terms of the Transaction Documents, Seller will have good and marketable title to the Rumble Share Consideration.
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(d) Binding Effect. This Agreement has been, and the other Transaction Documents to which it is a party, will at the Closing be, duly executed and delivered by Purchaser. This Agreement is a legal, valid and binding obligation of Purchaser enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. The other Transaction Documents to which Purchaser is a party, when executed and delivered by Purchaser, will be a legal, valid and binding obligation of Purchaser enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(e) Non-Contravention. Assuming the satisfaction of the other requirements set forth in Section 8.4, the execution, delivery and performance of the Transaction Documents by Purchaser, and the consummation by Purchaser of the transactions contemplated thereby, do not and will not (with or without notice or passage of time or both) (i) violate or conflict with any provision of the Constituent Documents of Purchaser, (ii) violate or conflict with any Law, Government Order or Permit applicable to Purchaser or by which any property or asset of Purchaser is bound, (iii) conflict with, constitute a violation of or breach or default under or give any third-party any rights of termination, modification, loss, diminution of rights, acceleration or cancellation of or under any material Contract to which Purchaser is a party or by which Purchaser is bound or (iv) result in the creation of any Encumbrance (other than Permitted Encumbrances) on any of the assets or properties of Purchaser, except in the case of clauses (ii) through (iv) of this Section 8.1(e), for any such conflicts, violations, breaches, defaults, terminations, modifications, losses, diminutions of rights, accelerations, cancellations or creations that would not and would not reasonably be expected to, individually or in the aggregate, have a Purchaser Material Adverse Effect.
(f) Management; Books and Records. All senior officers, senior managers and directors (or equivalents thereof) of Purchaser have been duly elected or appointed and all former senior officers, senior managers or directors (or equivalent thereof) of Purchaser have been duly dismissed or removed, in each case in accordance with its Constituent Documents and applicable Law, except as would not reasonably be expected to, individually or in the aggregate, have a Purchaser Material Adverse Effect.
Section 8.2 Capitalization.
(a) As of the date hereof, the authorized capital stock of Purchaser consists of 700,000,000 shares of Class A Common Stock par value $0.0001 per share (“Class A Common Stock”), 170,000,000 shares of Class C Common Stock, par value $0.0001 per share (“Class C Common Stock”), 110,000,000 shares of Class D Common Stock, par value $0.0001 per share (“Class D Common Stock”), and 20,000,000 shares of preferred stock, par value $0.0001 per share. As of November 5, 2025, there were outstanding (i) 215,380,826 shares of Class A Common Stock (20,800,886 of which are held in escrow subject to earn-out conditions and 1,963,750 of which are held by the former SPAC sponsor subject to forfeiture, in each case as further described in the Purchaser Reports), (ii) 123,690,477 shares of Class C Common Stock, (iii) 95,791,120 shares of Class D Common Stock and (iv) no shares of preferred stock. Each share of Class C Common Stock is issued “in tandem” with an exchangeable share of 1000045728 Ontario Inc. (“ExchangeCo Shares”), a corporation formed under the laws of the Province of Ontario, Canada, and an indirect, wholly owned subsidiary of Purchaser. As of the date hereof, there were 123,690,477 ExchangeCo Shares outstanding (55,611,718 of which are held in escrow subject to earn-out conditions as described in the Purchaser Reports). As of the date hereof, there were 89,105,079 shares of Class A Common Stock reserved and available for future issuance under the Purchaser Equity Plans, and there were 1,795,823 shares of Class A Common Stock reserved and available for future issuance under the Purchaser ESPP. All outstanding shares of capital stock of Purchaser have been, and all Purchaser Common Shares issued hereunder will be, when issued at the Closing in accordance with Article II, duly authorized and validly issued, fully paid and nonassessable, free and clear of any Encumbrances and free of any preemptive or similar rights.
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(b) As of the date hereof, there were (i) 44,147,954 shares of Class A Common Stock issuable under Purchaser Options outstanding, (ii) an additional 28,587,400 shares of Class A Common Stock issuable under Purchaser Options that are subject to earn-out conditions as described in the Purchaser Reports, (iii) 2,461,784 shares of Class A Common Stock issuable upon settlement of Purchaser RSUs outstanding, and (iv) no other Purchaser Equity Award outstanding. Section 8.2(b) of the Purchaser’s Disclosure Letter contains a complete and accurate list of each outstanding Purchaser Equity Award as of the date hereof, including, for each such award: (A) the name of the holder of such award, (B) the date each such award was granted, (C) the number of shares of Class A Common Stock subject to each such award, (D) with respect to any award of Purchaser Options, the price at which such Purchaser Option may be exercised, and (E) a description of the vesting conditions relating to such award, including any time-based vesting schedule and a description of any terms under any Purchaser Equity Plan or award agreement thereunder which provide for accelerated vesting with respect to such award as a result of the consummation of the transactions contemplated by this Agreement. Other than the Purchaser Options and Purchaser RSUs listed in Section 8.2(b) of the Purchaser’s Disclosure Letter, there are no equity or equity-based awards outstanding under any Purchaser Equity Plans. The exercise price of each Purchaser Option is not less than the fair market value of a share of Class A Common Stock on the date of grant of such Purchaser Option.
(c) As of November 5, 2025, there were 8,046,032 shares of Class A Common Stock issuable under the Purchaser Warrants outstanding.
(d) There are no outstanding bonds, debentures, notes or other indebtedness of Purchaser having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of Purchaser may vote. Except as set forth in this Section 8.2 and for changes since November 5, 2025 resulting from the exercise of Purchaser Options, ExchangeCo Shares, Purchaser Warrants or settlement of Purchaser RSUs outstanding on such date, there are no issued, reserved for issuance or outstanding (i) shares of capital stock or other voting securities of or ownership interests in Purchaser, (ii) securities of Purchaser convertible into or exchangeable or exercisable for shares of capital stock or other voting securities of or ownership interests in Purchaser, (iii) warrants, calls, options or other rights to acquire from Purchaser, or other obligation of Purchaser to issue, any capital stock or other voting securities or ownership interests in or any securities convertible into or exchangeable or exercisable for capital stock or other voting securities or ownership interests in Purchaser or (iv) restricted shares, restricted stock units, stock appreciation rights, performance units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based on, directly or indirectly, the value or price of, any capital stock or voting securities of Purchaser (the items in clauses (i) through (iv) being referred to collectively as the “Purchaser Securities”). There are no outstanding obligations of Purchaser or any of its subsidiaries to repurchase, redeem or otherwise acquire any of the Purchaser Securities. As of the date hereof, neither Purchaser nor any of its subsidiaries is a party to any voting agreement with respect to the voting of any Purchaser Securities. There are no Purchaser Securities or instruments containing anti-dilution, adjustments, modifications or similar provisions that will be triggered by the transactions contemplated by this Agreement. The Purchaser Reports contain true, correct and complete descriptions of the terms of all Purchaser Securities convertible into, or exercisable or exchangeable for, shares of Class A Common Stock and the material rights of the holders thereof.
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Section 8.3 Available Funds. Purchaser has immediately available funds sufficient to pay all fees and expenses to be paid by Purchaser in connection with this Agreement and the other Transaction Documents to which it is a party, and the transactions contemplated hereby and thereby, and to satisfy all other payment obligations of Purchaser contemplated by this Agreement and the other Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby on the terms and subject to the conditions hereof and thereof.
Section 8.4 Governmental and Third-Party Approvals, Consents and Notices. Other than in connection with (a) the requirements of the federal securities Laws or any U.S. state securities or “blue sky” Laws and (b) the notification and listing authorization requirements under the rules of NASDAQ, neither Purchaser nor any of its Affiliates is required to (i) obtain any authorization, waiver, consent or approval of, (ii) make any filing, report or registration with or (iii) give any notice to any Government Authority or any other Person in connection with or as a condition to the execution, delivery and performance of any of the Transaction Documents or the consummation of the transactions contemplated thereby, other than any authorization, waiver, consent, approval, filing, report, registration or notice the failure of which to obtain, make or give has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.
Section 8.5 No Litigation or Governmental Orders. Since January 1, 2022, there has been no material Action pending or, to Purchaser’s Knowledge, threatened against, by or on behalf of Purchaser or its Subsidiaries. There is no Action pending or, to Purchaser’s Knowledge, threatened against Purchaser or any of its Affiliates that (a) if adversely determined, would reasonably be expected to materially and adversely affect the legality, validity or enforceability of this Agreement or any other Transaction Document, (b) if adversely determined, would reasonably be expected to, individually or in the aggregate, prevent or materially impair the ability of Purchaser to consummate the transactions contemplated by the Transaction Documents or (c) if adversely determined, would reasonably be expected to, individually or in the aggregate, have a Purchaser Material Adverse Effect. Since January 1, 2022, there have been no unsatisfied or outstanding material Government Orders against or applicable to Purchaser or any of its Subsidiaries or against or applicable to any of the properties, assets or businesses of Purchaser and its Subsidiaries. Purchaser and its Affiliates are not a party to or subject to the provisions of any Government Order that have or would reasonably be expected to, individually or in the aggregate, (i) materially and adversely affect the legality, validity or enforceability of this Agreement or any other Transaction Document or (ii) prevent or materially impair the ability of Purchaser to consummate the transactions contemplated by the Transaction Documents.
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Section 8.6 Purchaser Reports; Financial Statements.
(a) Except as set forth in Section 8.6(a) of Purchaser’s Disclosure Letter, Purchaser has filed or furnished, as applicable, on a timely basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with the SEC under the Exchange Act or the Securities Act since January 1, 2022 (the forms, statements, reports and documents filed or furnished since January 1, 2022 (including notes, exhibits and schedules thereto and all other information incorporated by reference therein and any amendments and supplements thereto) and, unless otherwise expressly stated in this Agreement, those filed or furnished subsequent to the date hereof, the “Purchaser Reports”).
(b) Each of the Purchaser Reports filed prior to the date hereof, at the time of its filing or being furnished (or, if amended prior to the date hereof, as of the date of such last amendment) complied, or if to be filed or furnished subsequent to the date hereof and prior to the Closing, will comply, in all material respects with the applicable requirements of NASDAQ, the Securities Act, the Exchange Act and the Sarbanes-Oxley Act, and any rules and regulations promulgated thereunder applicable to the Purchaser Reports, each as in effect on the date so filed or furnished (or amended). As of their respective dates (or, if amended prior to the date hereof, as of the date of such last amendment), and except to the extent that information in any Purchaser Report has been revised or superseded by another Purchaser Report, the Purchaser Reports did not, and any of the Purchaser Reports filed or furnished with the SEC prior to the Closing will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. The Purchaser Common Shares are registered pursuant to Section 12(b) of the Exchange Act and listed on the NASDAQ and the Purchaser has taken no action designed to, or which to the Knowledge of Purchaser is reasonably likely to have the effect of, terminating the registration of the Purchaser Common Shares under the Exchange Act or delisting the Purchaser Common Shares from the NASDAQ, nor has the Purchaser received any notification that the SEC or the NASDAQ is contemplating terminating such registration or listing. The Purchaser is, and will be as a result of the closing of the transactions contemplated by this Agreement and the Transaction Documents, in compliance in all material respects with applicable continued listing requirements of NASDAQ.
(c) Except as set forth in Section 8.6(c) of Purchaser’s Disclosure Letter, there are no outstanding or unresolved comments in any comment letters received from the SEC staff with respect to any Purchaser Report and, to Purchaser’s Knowledge, none of the Purchaser Reports is the subject of ongoing SEC review. There are no internal investigations and Purchaser has not received written notice of any SEC inquiries or investigations or other inquiries or investigations conducted by a Government Authority pending or, to Purchaser’s Knowledge, threatened, in each case, regarding any accounting practices of Purchaser.
(d) None of the Subsidiaries of Purchaser is subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
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(e) Purchaser’s audited consolidated financial statements and unaudited interim financial statements (including, in each case, any notes thereto) contained in the Purchaser Reports were prepared and between the date hereof and the Closing Date, will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto or, in the case of unaudited or interim consolidated financial statements, where information and footnotes contained in such financial statements are not required to be in compliance with GAAP), were prepared and, between the date hereof and the Closing Date, will be prepared from and in accordance with the books and records of Purchaser and its Subsidiaries, and in each case such consolidated financial statements fairly presented and, between the date hereof and the Closing Date, will fairly present in all material respects, the consolidated financial position, results of operations, changes in stockholders’ equity and cash flows of Purchaser and the consolidated Subsidiaries of Purchaser as of the respective dates thereof and for the respective periods covered thereby, as applicable (subject, in the case of unaudited statements, to normal year-end adjustments).
Section 8.7 Controls.
(a) Purchaser maintains disclosure controls and procedures and internal control over financial reporting required and as defined by Rule 13a-15 and 15d-15, as applicable, under the Exchange Act, and reasonably necessary to provide reasonable assurance that, in all material respects, (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as reasonably necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (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. Purchaser’s disclosure controls and procedures are designed to ensure that all information required to be disclosed by Purchaser or any of its Subsidiaries in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to Purchaser’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act. Purchaser’s management has completed an assessment of the effectiveness of Purchaser’s internal control over financial reporting in compliance with the requirements of Section 404(a) of the Sarbanes-Oxley Act, and the conclusions of the most recent such assessment are disclosed in the applicable Purchaser Report. Since the date of such assessment, there have been no changes in Purchaser’s internal control over financial reporting that, individually or in the aggregate, have materially and adversely affected or would reasonably be expected to materially and adversely affect Purchaser’s internal control over financial reporting.
(b) Purchaser has disclosed, since January 1, 2022, to Purchaser’s outside auditors and audit committee (i) any identified significant deficiencies and material weaknesses in the design or operation of internal controls that would be reasonably expected to adversely affect Purchaser’s ability to record, process, summarize and report financial information for inclusion in the applicable consolidated financial statements and (ii) any identified fraud, whether or not material, that involves management or any other current or former employees who have (or had) a significant role in Purchaser’s internal controls over financial reporting.
(c) Since January 1, 2022, (i) neither Purchaser nor any of its Subsidiaries, nor, to Purchaser’s Knowledge, any Representative of Purchaser or any of its Subsidiaries, has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods (including with respect to loan loss reserves, write-downs, charge-offs and accruals) of Purchaser or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that Purchaser or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and (ii) no attorney representing Purchaser or any of its Subsidiaries, whether or not employed by Purchaser or any of its Subsidiaries, has reported evidence of a material violation of securities Laws, breach of fiduciary duty or similar violation by Purchaser or any of its officers, directors, employees or agents to the board of directors of Purchaser or any committee thereof or to any director or officer of Purchaser.
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Section 8.8 No Violation of Law; Regulatory Matters; Required Licenses and Permits.
(a) Since January 1, 2022, Purchaser and each of its Subsidiaries (i) have been in compliance with all applicable Laws (including Laws related to activities in connection with cryptocurrency and digital assets) and (ii) are not party or subject to any Government Order with any Government Authority with jurisdiction over Purchaser or any of its Subsidiaries, as applicable, which imposes any restrictions on the business of Purchaser or its Subsidiaries, except in each case of the foregoing clauses (i) and (ii) as has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect. Purchaser and its Subsidiaries, since January 1, 2022, have owned, held or possessed, and, currently, own, hold, or possess, all Permits necessary for the conduct of their respective businesses and the business of Purchaser and its Subsidiaries is being conducted in compliance with all such Permits, except in each case as has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.
(b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect, since January 1, 2022, neither Purchaser nor any of its Subsidiaries nor any of their respective Representatives (acting in their capacities as such) has violated or taken any material act in furtherance of violating the Anti-Money Laundering Laws.
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect: (i) Purchaser and each of its Subsidiaries and each of their respective Representatives (acting in their capacities as such) are, and since January 1, 2022 have been, in compliance with the Export and Sanctions Regulations; (ii) since January 1, 2022, neither Purchaser nor any of its Subsidiaries nor any of their respective Representatives (acting in their capacities as such) has (A) been organized, operated or resided in or (B) engaged, directly or indirectly, in any dealings or transactions in a Sanctioned Country (or with any Sanctioned Persons); and (iii) neither Purchaser nor any of its Subsidiaries nor any of their respective Representatives (acting in their capacities as such) is involved in any Action, or since January 1, 2022 has received a written request for information or any other form of communication from any Government Authority, or has had any judgments imposed (or threatened to be imposed) upon Purchaser or any of its Subsidiaries by or before a Government Authority, in each case in connection with any actual or alleged material violation of any Export and Sanctions Regulations.
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(d) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect: (i) since January 1, 2022, none of Purchaser or any of its Subsidiaries or any of their respective Representatives (acting in their capacities as such) has taken any action, or engaged in any activity, practice or conduct, that would violate the FCPA, the U.K. Bribery Act, or any other applicable Law regarding anti-corruption; (ii) none of Purchaser, any of its Subsidiaries or any of their respective Representatives (acting in their capacities as such) has (A) used any corporate funds of Purchaser or any of its Subsidiaries for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (B) authorized, offered, promised or made any unlawful payment to any foreign or domestic governmental officials, or (C) paid any bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment to any Person, private or public, regardless of form, whether in money, property or services, to obtain favorable treatment in securing business or to obtain special concessions for Purchaser or any of its Subsidiaries, in the case of the foregoing clauses (A), (B) and (C) which would or would reasonably be expected to result in a material violation of the FCPA, the U.K. Bribery Act, or any other applicable Laws regarding anti-corruption; (iii) there are no pending or, to Purchaser’s Knowledge, threatened in writing Actions against Purchaser or any of its Subsidiaries with respect to the FCPA, the U.K. Bribery Act, or any other applicable Law regarding anti-corruption.
Section 8.9 Securities Law Compliance. Purchaser is financially sophisticated and is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act. Purchaser understands that the Sold Shares have not been registered under the Securities Act and may only be transferred pursuant to registration or an applicable exemption under all applicable Laws. Pursuant to this Agreement, Purchaser is acquiring the Sold Shares for its own account, for the purpose of investment only and not with a view to, or for sale in connection with, any distribution thereof in violation of applicable Law. Purchaser has not, directly or indirectly, offered the Sold Shares to anyone or solicited any offer to buy the Sold Shares from anyone, in each case that would have the effect of bringing to such offer and sale of the Sold Shares by Purchaser within the registration requirements of the Securities Act or the securities Laws of any other jurisdiction.
Section 8.10 Due Diligence by Purchaser. Purchaser acknowledges that it has, as of the Closing, conducted an independent investigation of Parent and the operations, assets, Liabilities and financial condition of Parent and the Transferred Subsidiaries in making the determination to proceed with the transactions contemplated by the Transaction Documents and has relied solely on the results of its own independent investigation and the representations and warranties in Article V and Article VI in connection with Parent and the Transferred Subsidiaries and the subject matter of this Agreement. Purchaser and its Representatives, collectively, have, among other things, had access to the Virtual Data Room and Purchaser has received Seller’s Disclosure Letter.
Section 8.11 Solvency. Assuming the accuracy of the representations and warranties contained in Article V and Article VI and assuming that immediately prior to the Closing Parent and the Transferred Subsidiaries are Solvent, after giving effect to the payment of all amounts required to be paid pursuant to the terms of this Agreement in connection with the consummation of the transactions contemplated by this Agreement, Purchaser will be Solvent as of and immediately following the Closing.
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Section 8.12 Absence of Changes. Except as contemplated by the Transaction Documents, since January 1, 2022 through the date hereof, (a) there has not been any change, effect, development, condition, matter, event, fact, circumstance or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect and (b) neither Purchaser nor any of its Subsidiaries has taken any action that would have been prohibited or restricted under Article IX had such action been taken between the date hereof and the earlier of the Closing and the termination of this Agreement in accordance with its terms.
Section 8.13 Taxes.
(a) All income and other material Tax Returns that are required to be filed under applicable Laws during the Applicable Purchaser Period (taking into account any timely filed automatic extensions of time in which to file) by Purchaser and its Subsidiaries have been or will be timely filed on or before the Closing, and all such Tax Returns are complete and accurate in all material respects.
(b) Each of Purchaser and its Subsidiaries has timely paid all income and other material Taxes of Purchaser or relevant Subsidiary, as applicable, at all times during the Applicable Purchaser Period.
(c) All material Taxes which Purchaser or any of its Subsidiaries is required by Law to withhold or to collect for payment have been duly withheld and collected and have been timely paid to the appropriate Government Authority during the Applicable Purchaser Period.
(d) There is no audit, examination, investigation, action, proceeding or assessment pending or proposed or threatened in writing with respect to material Taxes for which Purchaser or its Subsidiaries may be liable. All material deficiencies asserted or assessments made in writing of Purchaser or its Subsidiaries as a result of any audit, examination, investigation, action, proceeding or assessment have been paid in full or otherwise finally resolved.
(e) No agreements, consents or waivers of any statute of limitations or extension of time is in effect with respect to any material Taxes of Purchaser or any of its Subsidiaries (other than automatic extensions of the due date for filing any Tax Return of Purchaser or any of its Subsidiaries obtained in the ordinary course of Purchaser’s or its Subsidiaries’ business), and no written request covering any such matter is outstanding.
(f) There are no Encumbrances for material Taxes (other than Permitted Encumbrances) on any of the assets of Purchaser or any of its Subsidiaries.
(g) Neither Purchaser nor any of its Subsidiaries has been, in the last two (2) years, a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(h) At any time during the Applicable Purchaser Period, neither Purchaser nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
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(i) Purchaser is not a “United States real property holding corporation” within the meaning of Section 897(e)(2) of the Code and the Treasury Regulations thereunder, and does not expect to become a “United States real property holding corporation” in the foreseeable future.
(j) At any time during the Applicable Purchaser Period, neither Purchaser nor any of its Subsidiaries was, or will be, a member of any Tax group with a corporation filing Tax Returns on a combined, consolidated, unitary or similar basis (except with respect to a Tax group which Purchaser is a common parent), and neither Purchaser nor any of its Subsidiaries has any Liability for Taxes of any other Person (other than Purchaser and its Subsidiaries) as a transferee or successor, or by Contract (other than commercial agreements that do not primarily relate to Taxes).
Section 8.14 Investment Company. As of the date hereof, neither Purchaser nor any of its Subsidiaries is an “investment company” as such term is defined in the U.S. Investment Company Act of 1940.
Section 8.15 Properties. Except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect, Purchaser and its Subsidiaries have in all material respects good title to, or valid leasehold interests in, all property and assets reflected on the Purchaser Balance Sheet, or acquired or leased after the Purchaser Balance Sheet Date, except as have been disposed of since the Purchaser Balance Sheet Date in the ordinary course of business consistent with past practice.
Section 8.16 Form S-3. As of the date of this Agreement, Purchaser satisfies the eligibility requirements for, and complies with the conditions for, the use of Form S-3 under the Securities Act and other securities Laws.
Section 8.17 Finder’s Fees; Brokerage. Except as set forth in Section 8.17 of Purchaser’s Disclosure Letter, neither Purchaser nor any of its Affiliates has employed or has any understanding with any broker, finder or investment bank, has incurred or will incur any obligation or Liability for any brokerage fees, commissions or finders fees, or has provided, promised or will provide or promise any payment or other incentive to any Person, in each case in connection with any of the Transaction Documents or the transactions contemplated thereby.
Section 8.18 Intellectual Property. Except as set forth in Section 8.18 of Purchaser’s Disclosure Letter and except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect: (i) Purchaser and each of its Subsidiaries is the sole and exclusive owner of, or has a valid and legally enforceable license to use, all Intellectual Property used or held for use in, or necessary for, the conduct of its business as currently conducted; (ii) to the Knowledge of Purchaser, neither Purchaser nor any of its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property rights of any Person; and (iii) to the Knowledge of Purchaser, no Person has challenged, infringed, misappropriated or otherwise violated any Intellectual Property rights owned by and/or exclusively licensed to Purchaser or any of its Subsidiaries.
Section 8.19 Employee Benefits Plans. Except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect, the Purchaser Plans and the Purchaser Equity Awards are as disclosed in the Purchaser Reports.
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Section 8.20 Labor Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect, Purchaser and its Subsidiaries are in compliance with all applicable Laws relating to labor and employment, including those relating to labor management relations, wages, hours, overtime, worker classification, discrimination, sexual harassment, civil rights, affirmative action, work authorization, immigration, safety and health, information privacy and security, worker’s compensation, continuation coverage under group health plans, wage payment and the payment and withholding of Taxes.
Section 8.21 Environmental Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect, Purchaser and its Subsidiaries are in compliance with all Environmental Laws.
Section 8.22 Material Contracts. As of the date of this Agreement, neither Purchaser nor any of its Subsidiaries is a party to or bound by any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) except as disclosed in the Purchaser Reports.
Section 8.23 Sale of Securities. Assuming the accuracy of the representations and warranties set forth in Section 5.5, the offer, sale and issuance of the Rumble Share Consideration pursuant to this Agreement is exempt from the registration and prospectus delivery requirements of the Securities Act. Without limiting the foregoing, neither Purchaser nor, to the knowledge of Purchaser, any other Person authorized by Purchaser to act on its behalf, has engaged in a general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) of investors with respect to offers or sales of the Rumble Share Consideration pursuant to this Agreement, and neither Purchaser nor, to the knowledge of Purchaser, any Person acting on its behalf has made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the offering or issuance of the Rumble Share Consideration under this Agreement to be integrated with prior offerings by Purchaser for purposes of the Securities Act that would result in none of Regulation D or any other applicable exemption from registration under the Securities Act to be available, nor will the Purchaser take any action or steps that would cause the offering or issuance of the Rumble Share Consideration under this Agreement to be integrated with other offerings by Purchaser.
Section 8.24 Antitakeover Statutes and Rights Agreement. Purchaser has no “rights plan,” “rights agreement,” or “poison pill” in effect. Purchaser has taken all action necessary to exempt the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement, the issuance of the Rumble Share Consideration and any other transaction contemplated by this Agreement or any other Transaction Document from Section 203 of the DGCL, and, accordingly, neither Section 203 of the DGCL nor any other “control share acquisition,” “fair price,” “moratorium” or other antitakeover or similar applicable Law enacted under U.S. state or federal laws apply to this Agreement or any other Transaction Document or any of the transactions contemplated hereby or thereby.
Section 8.25 Written Consent. Purchaser has delivered to Parent a true and correct copy of the Written Consent.
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Section 8.26 Tether Transaction Documents. Purchaser has delivered to Seller true and correct copies of any and all agreements between Tether and Purchaser relating to or in connection with the transactions contemplated by the Tender Offer, the Business Combination Agreement and the Tether Purchase Agreement; provided, that any public disclosure of such documents shall be deemed to be delivered to Seller for purposes of this Section 8.26.
Section 8.27 No Other Representations or Warranties.
(a) Except for the representations and warranties contained in Section 8.1 through Section 8.25 (as qualified by the applicable items disclosed in Purchaser’s Disclosure Letter), none of Purchaser or any of its Affiliates or Representatives or any other Person makes any express or implied representation or warranty on behalf of Purchaser or any of its Affiliates, and Purchaser hereby disclaims any other representations or warranties, with respect to the subject matter of this Agreement. Furthermore, without limiting the foregoing sentence, except for the representations and warranties contained in Section 8.1 through Section 8.25 (as qualified by the applicable items disclosed in Purchaser’s Disclosure Letter), any of the other Transaction Documents, and any certificate delivered hereto or thereto, Purchaser does not give or make any warranty or representation as to (and shall have no indemnification obligation or, in the absence of deceit (arglistige Täuschung) or willful misconduct (Vorsatz), other liabilities in respect of) the accuracy or reasonableness of any forecasts, estimates, projections, statements of intent or statements of opinion provided to Seller, any of its Affiliates, or any of their respective Representatives on or prior to the date of this Agreement in connection with this Agreement, including in any “Confidential Information Presentation” relating to Purchaser, any management presentations, and any other information made available in the Virtual Data Room.
(b) Seller acknowledges and agrees that, except for the representations and warranties contained in Section 8.1 through Section 8.25 (as qualified by Purchaser’s Disclosure Letter), neither Purchaser nor any of its Affiliates is making any representation or warranty regarding any documents, projections, forecasts, statement or other information made, communicated or furnished (orally, in writing, in the Virtual Data Room, in management presentations (including any questions posed and answers given and any related discussions, whether formal or informal) or otherwise) to Seller, any of its Affiliates, or any of Seller’s Representatives (including any opinion, information, projection or advice that may have been or may be provided to such Person by any Representatives of Purchaser or any of its Affiliates), in connection with this Agreement.
Article
IX.
COVENANTS
Section 9.1 Conduct of Business.
(a) Except as consented to in writing by Purchaser in advance, between the date hereof and the earlier of the Closing or the termination of this Agreement in accordance with its terms, Seller shall not, and shall cause any of its Affiliates not to, directly or indirectly vote (or execute any written consent with respect to) any Equity Interests of Parent beneficially owned by Seller or their respective Affiliates in favor of, or otherwise consent to, any matter presented for approval at any annual general meeting or extraordinary general meeting of Parent (or any action by written consent of the shareholders in lieu thereof), including, without limitation, any resolution to (i) declare or pay any dividend or make any other distribution with respect to any Equity Interests of Parent, (ii) amend, modify or restate any of Parent’s Constituent Documents (including any capital increase or reduction of share capital), (iii) approve any split or consolidation of Equity Interests of Parent, a consolidation of any Equity Interests of Parent, or any alteration of the rights pertaining to Parent’s Equity Interests, including the acceleration of vesting or exercisability of any Option, or (iv) approve any matter that would result in a breach by Parent of its obligations under the Business Combination Agreement. Until Closing, Seller and its Affiliates shall not take action to cause Parent to breach or fail to perform or comply with any covenant, agreement or obligation of Parent under the Business Combination Agreement. Nothing contained in this Agreement is intended to, or shall be deemed to, give Purchaser, directly or indirectly, any rights to control or direct the business of Parent or any other member of Parent Group.
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(b) Between the date hereof and the earlier of the Closing or the termination of this Agreement in accordance with its terms, Seller shall not Transfer (or cause or permit the Transfer of) any Shares, other than with the prior written consent of Purchaser. If any involuntary Transfer of any such Shares shall occur prior to the Closing, Seller shall procure that any transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until the Closing.
(c) Except (i) as expressly required by this Agreement or as contemplated by the Written Consent, (ii) as set forth in the corresponding subsection of Section 9.1(c) of Purchaser’s Disclosure Letter or (iii) as consented to in writing by Seller in advance (such consent not to be unreasonably withheld, conditioned or delayed), Purchaser shall and shall cause its Subsidiaries to, between the date hereof and the earlier of the Closing and the termination of this Agreement in accordance with its terms, not:
(i) amend in any material respect, or waive any material rights under, any provision of the Constituent Documents of Purchaser or any of its Subsidiaries or any term of the Equity Interests of Purchaser, in each case in any manner that would adversely impact Seller disproportionally as compared to the impact on other holders of Purchaser Common Shares;
(ii) issue, or grant an option, warrant or right of any kind to subscribe for, any Equity Interests of Purchaser’s or any of its Subsidiaries’ Equity Interests of any class or any debt or equity securities which are convertible into or exchangeable for, or valued by reference to, such Equity Interests, except for (A) upon the exercise, conversion or vesting of Purchaser Equity Awards, Purchaser Warrants or any other equity awards of Purchaser, (B) upon the exchange of any ExchangeCo Shares, (C) upon the satisfaction of any contingency with respect to any securities described in Section 8.2(c) that are subject to earn-out, forfeiture or other similar contingencies tied to Purchaser’s stock price, (D) pursuant to the Purchaser Equity Plans (or any successor equity plans), and (E) up to 20.0% of the issued and outstanding Purchaser Common Shares as of the date hereof in connection with bona fide acquisitions, mergers or strategic partnership transactions to the extent such acquisitions, mergers or strategic partnership transactions are otherwise permitted hereunder; provided that, in each case of clause (E), Purchaser shall have provided to Seller written notice of such proposed transaction with a reasonable description thereof at least two Business Days prior to the consummation of such transaction;
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(iii) split, combine, reclassify or subdivide any outstanding Purchaser Common Shares, in each case to the extent the Rumble Share Consideration is not equitably adjusted to provide Parent the same economic effect as contemplated by this Agreement prior to such event pursuant to Section 2.4;
(iv) redeem, purchase or otherwise acquire any outstanding Purchaser Common Shares, except in connection with cashless exercises, net exercises or net cash settlement of or withholding under Purchaser Equity Awards, the Purchaser Warrants and any other equity awards of Purchaser in accordance with their terms or the exchange of any ExchangeCo Shares in accordance with their terms; or
(v) affirmatively authorize, agree or commit to do any of the actions prohibited by this Section 9.1.
Notwithstanding the foregoing, in the event that Tether consents to any of the matters set forth in Section 9.1(c) above, Purchaser shall automatically be deemed to have consented to such matters.
(d) Subject to the terms and conditions of this Agreement, Purchaser and Seller shall use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to (i) prepare and file as promptly as practicable with any Government Authority all documentation to effect all necessary Filings and (ii) obtain and maintain all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Government Authority that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement; provided that the parties hereto understand and agree that neither Seller nor Purchaser shall be required to (A) divest or otherwise hold separate (including by establishing a trust or otherwise), or take, cause to be taken or refrain from taking any other action (or otherwise agreeing to do any of the foregoing) with respect to, any of Seller’s or Purchaser’s or any of their respective Affiliates’ businesses, assets or properties, (B) enter into any settlement, undertaking, consent decree, stipulation or agreement with any Government Authority in connection with the transactions contemplated hereby, (C) litigate, challenge or take any action with respect to any Action by any Government Authority or (D) agree to do any of the foregoing.
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(e) To the extent permitted by applicable Law, each of Seller and Purchaser shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any Filing and in connection with any investigation or other inquiry, including any Action initiated by a private party, (ii) promptly inform the other party of any Filing or communication received from, or intended to be given to, any Government Authority and of any material communication received or intended to be given in connection with any Action by a private party, in each case regarding any of the transactions contemplated hereby, and prior to submitting any Filing, substantive written communication, correspondence or other information or response by such party to any Government Authority (or members of the staff of any Government Authority) or in connection with any Action by a private party, the submitting party shall permit the other party and its counsel the opportunity to review as reasonably in advance as practicable under the circumstances, and consider in good faith the comments of the other party in connection with any such Filing, communication or inquiry; and further each of Purchaser and Seller shall furnish each other with a copy of any Filing, communication or, if in written form, inquiry, it or any of its Affiliates makes to or receives from any Government Authority or in connection with any proceeding by private party, in each case regarding any of the transactions contemplated hereby, and (iii) consult with each other in advance of any meeting or conference with any such Government Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent reasonably practicable, give the other party the opportunity to attend and participate in such meetings and conferences.
Section 9.2 Notice of Certain Events. Each of Purchaser and Seller shall promptly notify the other of:
(a) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement or any other Transaction Document;
(b) any notice or other communication received by Purchaser or any of its Affiliates or Seller or any of its Affiliates from any Government Authority in connection with the transactions contemplated by this Agreement or any other Transaction Document;
(c) any Actions commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting Purchaser or any of its Subsidiaries or Seller and any of its Subsidiaries, as the case may be, (i) that, if pending on the date of this Agreement, would have been required to have been disclosed by such Person pursuant to any Section of this Agreement or (ii) that relate to this Agreement or the consummation of the transactions contemplated hereby;
(d) any inaccuracy of any representation or warranty of such Party contained in this Agreement at any time during the term hereof that could reasonably be expected to cause any conditions to the Closing not to be satisfied; and
(e) any failure of a Party to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it hereunder;
provided that the delivery of any notice pursuant to this Section 9.2 shall not limit or otherwise affect the remedies available hereunder to the Party receiving such notice.
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Section 9.3 Peak Mining Sale. Seller shall not cause any Person that is a party to the Peak Mining Purchase Agreement to amend, modify or waive any provision or term of the Peak Mining Purchase Agreement in any manner that is adverse to Purchaser as compared to the terms set forth in the Peak Mining Purchase Agreement.
Section 9.4 Lock-Up.
(a) Subject to Section 9.4(b) and Section 9.25, Seller hereby agrees that it shall not, without the prior written consent of Purchaser, Transfer any Purchaser Common Shares comprising the Rumble Share Consideration (collectively, the “Lock-Up Shares”) until six months following the Closing Date (the “Lock-Up Period”).
(b) Notwithstanding any other provision of this Agreement, Seller may Transfer the Purchaser Common Shares during the Lock-Up Period (i) to any Affiliate of Seller or (ii) in connection with a third-party tender or exchange offer to acquire any securities of Purchaser or in any other business combination, acquisition, merger, joint venture, recapitalization, restructuring or similar transaction involving Purchaser, in each case, approved by Purchaser’s board of directors; provided, however, that in the case of clause (i), such Affiliate must enter into a written agreement with Purchaser and Seller agreeing (x) to be bound by this Section 9.4 and (y) that at any time such transferee ceases to qualify as an Affiliate of Seller, to promptly transfer any such Lock-Up Shares back to Seller or other Person that qualifies as an Affiliate of Seller.
(c) If any Transfer of Lock-Up Shares is made or attempted contrary to the provisions of this Agreement, such purported Transfer shall be null and void ab initio, and Purchaser may refuse to recognize any such purported transferee of the Lock-Up Shares. In order to enforce this Section 9.4, Purchaser may impose stop-transfer instructions with respect to the Lock-Up Shares until the end of the Lock-Up Period.
Section 9.5 No Solicitation; Other Offers. From the date hereof until the earlier of the Closing and the termination of this Agreement in accordance with its terms, Seller shall not and shall cause its Affiliates not to, nor shall Seller authorize or permit any of its or their respective Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly assist, facilitate or encourage the submission of any Acquisition Proposal; (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to Parent or any Transferred Subsidiaries or request Parent to provide access to the business, properties, assets, books or records of Parent or any Transferred Subsidiaries, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, is seeking to make or would be reasonably expected to make an Acquisition Proposal; (iii) recommend an Acquisition Proposal other than the transactions contemplated by this Agreement, the CEO Purchase Agreement, the Tether Purchase Agreement or the Business Combination Agreement; or (iv) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal. The Parties acknowledge and agree that this Section 9.6 shall not apply to the sale of the Peak Mining Business in accordance with the terms of the Peak Mining Purchase Agreement. It is agreed that any violation of the restrictions on Seller set forth in this Section 9.6 by any Representative of Seller acting on behalf of or at the direction of Seller or any of its Affiliates shall be a breach of this Section 9.6 by Seller.
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Section 9.6 Confidentiality. Each Party acknowledges that the information being provided to it and its Representatives in connection with the transactions contemplated by the Transaction Documents is subject to the terms of the Confidentiality Agreement, which shall remain in full force and effect on and after the date hereof; provided that actions taken by either Party to the extent necessary in order to comply with their respective obligations under Section 9.1 shall not be deemed to be in violation of this Section 9.7 or the Confidentiality Agreement. The confidentiality and information non-use obligations under the Confidentiality Agreement shall automatically be deemed terminated and cease to have any force or effect as of the Closing.
Section 9.7 Announcements. Promptly following the execution and delivery hereof (and in any event within four (4) Business Days thereafter), Purchaser shall prepare and file a Current Report on Form 8-K pursuant to the Exchange Act to report the execution of this Agreement (the “Signing Form 8-K”) and the parties hereto shall issue a mutually agreeable press release announcing the execution of this Agreement and the other Transaction Documents. Purchaser shall provide Seller with a reasonable opportunity to review and comment on the Signing Form 8-K prior to its filing and shall consider such comments in good faith. Following such initial press release, neither Seller nor Purchaser shall, and they shall cause their respective Affiliates not to, issue any press release or make any public announcement relating to the existence or subject matter of this Agreement or any agreement entered into pursuant to this Agreement, or the provisions hereof or thereof or the transactions contemplated hereby or thereby, without the prior review and written approval of the other Party (which approval shall not be unreasonably withheld, conditioned or delayed); provided, however, that the foregoing shall not prohibit such disclosure if required by Law, any Government Authority or any recognized stock exchange on which the Equity Interests of either Seller or Purchaser or any of their respective Affiliates are listed (in which case the applicable Party will use its commercially reasonable efforts to consult with the other Party before making the disclosure and to allow such other Party to review the text of the disclosure before it is made, to the extent practicable); provided, further, that the foregoing shall not prohibit such disclosure if made following the Closing and consistent in tone and substance in all material respects with any press release previously issued or public announcement previously made in accordance with the terms hereof; provided, further, that the Parties may disclose such matters to their respective employees, accountants, advisors, investors and other Representatives who have a need to know and as necessary in connection with the ordinary conduct of their respective businesses (so long as such Persons agree to, or are bound by Contract or professional or fiduciary obligations to, keep the terms of this Agreement confidential and so long as the Parties shall be responsible to the other Parties for breach of this Section 9.8 or such confidentiality obligations by the recipients of its disclosure).
Section 9.8 Cooperation.
(a) Seller shall cooperate and shall, to the extent legally permitted, use its influence as a shareholder of Parent, including by exercising its voting rights, to ensure that Parent cooperates, with Purchaser on any publications required in connection with the transactions contemplated by this Agreement and the other Transaction Documents to which Seller is a party.
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(b) Purchaser shall (i) provide Seller and its Representatives, as soon as reasonably practicable, with drafts of any intended disclosures or publications, including registration statements, offer documents, or security prospectuses for their review and approval, which such approval shall not be unreasonably withheld, conditioned or delayed, (ii) keep Seller reasonably informed regarding, and shall provide relevant drafts sufficiently in advance for Seller and its advisors to review and comment with respect to: (A) preparing, filing and bringing effective a registration statement/prospectus on Form S-4 registering the sale of the Purchaser Common Shares issued as consideration in the Tender Offer and including an information statement relating to the execution of the Written Consent, (B) preparing, filing with and obtaining approval from the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin) for an offer prospectus (including any supplements thereof), (C) ensuring the Purchaser Common Shares issued as consideration are admitted to trading on NASDAQ as soon as reasonably practicable, (D) preparing any other disclosure legally required in connection with the issuance of the Purchaser Common Shares and the Tender Offer, including any security prospectus and (E) the squeeze-out of the minority shareholders of Parent.
(c) Purchaser shall use reasonable efforts to comply with all applicable provisions of, and rules under, the Securities Act and Exchange Act, the certificate of incorporation, bylaws or other similar organizational documents of Purchaser and all applicable Laws of the State of Delaware and Germany, European Laws and regulations and NASDAQ regulations in the preparation, filing and distribution of the publications set forth in Section 9.8(b), as applicable.
Section 9.9 Stock Exchange Listing. Purchaser shall use its reasonable best efforts to cause the Rumble Share Consideration to be issued at the Closing pursuant to Article II to be listed on NASDAQ at such time of issuance, subject to official notice of issuance, but in no event later than the Closing.
Section 9.10 Takeover Statutes. Purchaser shall (a) take all actions necessary so that no “control share acquisition,” “fair price,” “moratorium” or other antitakeover or similar statute or regulation becomes applicable to the transactions contemplated or permitted by this Agreement or the other Transaction Documents and (b) if any such antitakeover or similar statute or regulation becomes applicable to the transactions contemplated or permitted by this Agreement or the other Transaction Documents, take all actions necessary so that such transactions may be consummated as promptly as practicable and otherwise to take all such other actions as are reasonably necessary to eliminate or minimize to the greatest extent possible the effects of any such statute or regulation on such transactions.
Section 9.11 Written Consent. In connection with the Written Consent, Purchaser shall take all actions necessary to comply in all material respects with Section 228 of the DGCL.
Section 9.12 Other Purchase Agreements.
(a) Purchaser shall (i) maintain in effect of the Tether Purchase Agreement and (ii) comply with and enforce, as applicable, its covenants, agreements, rights and obligations set forth in the Tether Purchase Agreement (including, for the avoidance of doubt, its right to enforce any covenants, agreements or other obligations of any counterparty thereto).
(b) Purchaser shall not (i) assign or delegate any of its rights or obligations under the Tether Purchase Agreement, (ii) amend, amend and restate, restate, supplement or otherwise modify any of the terms or conditions of the Tether Purchase Agreement, (iii) waive any of the covenants, agreements, obligations, representations or warranties of any counterparty to the Tether Purchase Agreement, or (iv) agree to terminate the Tether Purchase Agreement, in each case, without the prior written consent of Seller.
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(c) Purchaser shall reasonably promptly notify Seller in writing if it has knowledge that any party has breached any of the covenants, agreements, rights and obligations set forth in the Tether Purchase Agreement.
Section 9.13 Reporting Status
(a) Until the second year anniversary of the Closing Date, for so long as Seller continues to hold Purchaser Common Shares, Purchaser shall use commercially reasonable efforts to file all reports required to be filed with the SEC pursuant to the Exchange Act (or, if Purchaser is not required to file such reports, it will, upon the reasonable request of Seller, make publicly available such necessary information for so long as is necessary to permit sales pursuant to Rule 144 under the Securities Act, as such rules may be amended from time to time), and, except as part of transaction of the type contemplated by the definition of Acquisition Proposal (replacing references to: (i) “Parent or the Transferred Subsidiaries” with “Purchaser”; (ii) “Sold Shares” with “Rumble Share Consideration”; and (iii) “20%” therein with “50%”), Purchaser shall not terminate its status as an issuer required to file reports under the Exchange Act even if the Exchange Act or the rules and regulations thereunder would no longer require registration or otherwise permit such termination; and
(b) Reasonably cooperate with the Seller and the Purchaser’s transfer agent to remove (or procure the removal of) any restrictive legends from certificates (or book-entry notations) representing the Purchaser Common Shares, immediately upon the Seller’s providing evidence reasonably satisfactory to the Purchaser that a sale or transfer is permitted under Rule 144 under the Securities Act or another applicable exemption from registration. Such cooperation of the Purchaser shall include providing any required legal opinions and issuing such instructions to the transfer agent as may be necessary to effect the removal of such restrictive legends and the issuance of unrestricted securities, all at the Purchaser’s sole cost and expense.
Section 9.14 No Deregistration. Until the second anniversary of the Closing Date, for so long as Seller continues to hold Purchaser Common Shares, Purchaser shall use its reasonable best efforts to maintain the listing of the Purchaser Common Shares on NASDAQ or the New York Stock Exchange, and shall not effect any voluntary delisting of the Purchaser Common Shares from NASDAQ except, in either case, as part of a transaction of the type contemplated by the definition of Acquisition Proposal (replacing references to: (i) “Parent or the Transferred Subsidiaries” with “Purchaser”; (ii) “Sold Shares” with “Rumble Share Consideration”; and (iii) “20%” therein with “50%”).
Section 9.15 Affiliate Transfers. For so long as Seller has obligations under Article XI, in the event that Seller transfers all or any portion of the Rumble Share Consideration to any of its Affiliates or to a spouse, parent, sibling, descendant or other immediate family member or to any trust or other estate planning vehicle, or to any other Person through which a Seller has a direct or indirect pecuniary interest in the Rumble Share Consideration, as a condition to such transfer, such Affiliate shall execute and deliver to Purchaser a joinder agreement, in the form and substance reasonably acceptable to Purchaser, pursuant to which such Affiliate shall agree to be bound by, and shall assume, on a joint and several basis with the transferor, all obligations of such transferor under Article XI (Survival; Indemnification) of this Agreement with respect to the Rumble Share Consideration so transferred.
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Section 9.16 Release of Seller Protected Person. To the extent legally permissible, Purchaser (i) hereby releases and waives, and (ii) shall procure that each of its Affiliates and after Closing each member of Parent Group will release and waive, and Purchaser shall not raise, and shall procure that each of its Affiliates and after Closing the members of Parent Group will not raise, any claims against the Seller or any of its Affiliates, or any of their respective Representatives (each person against which claims shall not be raised a “Seller Protected Person”) in connection with this Agreement, their direct or indirect shareholding in Parent, or the business of Parent Group before the Closing, including:
(a) actions or omissions of a Seller Protected Person in the capacity as a direct or indirect shareholder or controlling entity of a Parent Group member, or as its director or officer, member of a corporate body, employee, advisor or representative; or
(b) any payments by a member of Parent Group on or prior to the Closing Date; or
(c) any kind of joint liability or similar co-liability of a Seller Protected Person, on the one hand, and a member of Parent Group, on the other hand,
except, in each case for claims or any liability of Purchaser, its Affiliates and after Closing the members of Parent Group that (i) arise out of or in connection with any Transaction Document (provided that this exception shall not apply to any claim or liability arising from (A) a Seller Protected Person entering into a Transaction Document and (B) a Seller Protected Person performing a Transaction Documents in accordance with its terms) or other commercial contract in effect between Parent Group and any Seller Protected Person entered into in the ordinary course of business prior to Closing, provided that this exception shall not apply to any claim or liability arising from a Seller Protected Person performing such contract in accordance with its terms, or (ii) are a result of fraud (Arglist) or willful misconduct (Vorsatz).
Section 9.17 Release of Purchaser Protected Person. To the extent legally permissible, Seller (i) hereby releases and waives, and (ii) shall procure that each of its Affiliates will release and waive, and Seller shall not raise, and shall procure that each of its Affiliates will not raise, any claims against the Purchaser or any of its Affiliates and the members of Parent Group, or any of their respective Representatives (each person against which claims shall not be raised a “Purchaser Protected Person”) in connection with Seller’s or any of its Affiliates’ direct or indirect shareholder in Parent, or the business of Parent Group before the Closing, provided that this shall not apply to any liability arising out of or in connection with any Transaction Document.
Section 9.18 Title Insurance Policy; Survey. Prior to Closing, Seller shall not prevent or seek to prevent the applicable Transferred Subsidiary from reasonably cooperating with Purchaser to obtain any Title Insurance Policy that Purchaser elects to obtain, in its sole and absolute discretion, with respect to any Real Property. Purchaser may, at its sole option and expense, obtain an American Land Title Association (ALTA) (or equivalent) survey on each parcel of Real Property and such other reports or documents customarily obtained by purchasers of real property.
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Section 9.19 Registration Rights. Notwithstanding anything to the contrary in this Agreement, if, pursuant to its rights under the Registration Rights Agreement, Tether proposes to register any of its securities constituting Rumble Share Consideration under the Securities Act in connection with the public offering of such securities, the Purchaser shall, at such time, promptly give the Seller notice of such registration. Upon the request of the Seller given within 10 days after such notice is given by the Purchaser, the Purchaser shall cause to be registered all of the Rumble Share Consideration that the Seller requests to be included in such registration. The Purchaser shall have the right to terminate or withdraw any registration initiated by it under this Section 9.19 before the effective date of such registration, whether or not the Seller has elected to include all or some of its securities in such registration. The reasonable expenses incurred by the Seller in connection with such withdrawn registration shall be borne by the Purchaser.
Article
X.
TAX MATTERS
Section 10.1 VAT. The Parties share the understanding that the transactions contemplated under this Agreement are not subject to and otherwise exempt from value-added tax (VAT) and therefore the transfer of the Sold Shares and the Rumble Share Consideration are exclusive of VAT. The Parties undertake not to waive any exemption from VAT with regard to any transaction contemplated under this Agreement. To the extent any transaction contemplated under this Agreement does trigger VAT contrary to the Parties’ shared view and without a Party having waived an exemption from VAT, the recipient of the respective delivery or service shall pay the amount of statutory VAT to the Party providing the respective delivery or service subject to receipt of an invoice in accordance with applicable VAT Laws.
Section 10.2 Other Tax Matters. Any transfer, documentary, registration, stamp, excise, recording, or other similar Taxes (collectively, “Transfer Taxes”) arising from the transactions contemplated by this Agreement, if any, shall be borne by Purchaser. All Tax Returns with respect to such Transfer Taxes shall be filed by the Party required to file the Tax Return under applicable Law, and the non-filing Party shall cooperate in the filing and join in the execution of any such Tax Returns and other required documentation and Purchaser shall reimburse Seller for any such Transfer Taxes that are paid by Seller.
Article
XI.
SURVIVAL; INDEMNIFICATION
Section 11.1 Survival.
(a) The Parties, intending to modify any applicable statute of limitations, each agree that:
(i) any claims for breaches of Seller Fundamental Representations or the Purchaser Fundamental Representations shall expire 18 months after Closing;
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(ii) the representations and warranties of Seller contained in Article V and Article VI (other than the Seller Fundamental Representations) and the representations or warranties of Purchaser contained in Article VIII (other than the Purchaser Fundamental Representations) shall expire at Closing and thereafter there shall be no liability on the part of, nor shall any claim be made by, any Party or its Affiliates with respect to these representations and warranties regardless of whether such liability accrued prior to, on or after the Closing, other than as expressly set forth in this Article XI or in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz); and
(iii) any covenants and agreements contained in this Agreement to be performed at or prior to Closing shall expire three (3) months following the Closing;
(iv) any covenants and agreements contained in this Agreement to be performed after the Closing shall survive the Closing until fully performed in accordance with their terms; and
(v) any claims pursuant to Section 11.2(c) and Section 11.2(d) shall survive 18 months after Closing.
(b) No Purchaser Indemnitee nor Seller Indemnitee (as applicable, the “Indemnified Party”) shall have the right to recover any amounts pursuant to this Article XI unless on or before the last day of the relevant expiration period specified in Section 11.1(a) (the applicable “Survival Date”), the Indemnified Party notifies the respective other Party of a claim specifying the factual basis of that claim in reasonable detail (to the extent then known by such Indemnified Party).
(c) Notwithstanding anything to the contrary set forth herein, obligations to indemnify hereunder shall not terminate with respect to any claim as to which the Indemnified Party shall have, before the applicable Survival Date, delivered notice of such claim for indemnification (without having to commence a legal proceeding) from Seller or Purchaser, respectively (as applicable, the “Indemnifying Party”) in accordance with Section 11.6 until such claim is fully and finally resolved, provided that the delivering Party shall continuously pursue its claim in good faith.
(d) Notwithstanding anything to the contrary set forth herein, the limitations set forth in this Article XI shall not apply in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz).
(e) Neither this Article XI nor anything else in this Agreement shall in any way inhibit Purchaser from recovering or otherwise obtaining any remedies, or shall otherwise limit any rights Purchaser may have against the RWI Provider or any other Person under the RWI Policy.
Section 11.2 Indemnification of Purchaser Indemnitees. From and after the Closing, Seller shall, subject to the limitations in this Article XI and Article VIII, indemnify and hold harmless the Purchaser Indemnitees from and against all Damages suffered, sustained or incurred by any of them until the expiration of the applicable Survival Date resulting from:
(a) any inaccuracy in or breach of any of the Seller Fundamental Representations made by Seller in Article V or in any certificate delivered by Seller pursuant hereto;
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(b) any breach of, or failure to perform or comply with, any covenant, agreement or obligation of Seller under this Agreement;
(c) any Excluded Liability;
(d) any Action by any securityholder of Parent solely in connection with the sale of the Peak Mining Business.
Section 11.3 Indemnification of the Seller Indemnitees. From and after the Closing, Purchaser shall, subject to the limitations in this Article XI, indemnify, save, defend and hold harmless the Seller Indemnitees from and against all Damages suffered, sustained or incurred by any of them until the expiration of the applicable Survival Date resulting from:
(a) any inaccuracy in or breach of any Purchaser Fundamental Representation made by Purchaser in Article VIII or in any certificate delivered by Purchaser pursuant hereto; and
(b) any breach of, or failure to perform or comply with, any covenant, agreement or obligation of Purchaser under this Agreement or any other Transaction Document;
Section 11.4 Limitation on Indemnification Obligations.
(a) The maximum aggregate amount of indemnifiable Damages that may be recovered by the Purchaser Indemnitees under Section 11.2 or any other provision of this Agreement shall be the value of the Rumble Share Consideration (based on the Purchaser Common Stock Price) actually received by Seller.
(b) The maximum aggregate amount of indemnifiable Damages that may be recovered by the Seller Indemnitees under Section 11.3 shall be the value of the Rumble Share Consideration (based on the Purchaser Common Stock Price) actually delivered to Seller.
(c) Notwithstanding anything to the contrary set forth herein, the limitations set forth in this Section 11.4 shall not apply in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz). Neither this Section 11.4 nor anything else in this Agreement shall in any way inhibit Purchaser from recovering or otherwise obtaining any remedies, or shall otherwise limit the rights that Purchaser may have against the RWI Provider or any other Person under the RWI Policy.
(d) Notwithstanding anything in this Article XI or elsewhere in this Agreement to the contrary, except in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz), Purchaser agrees that the Purchaser Indemnitees shall first use reasonable best efforts to seek recovery under the RWI Policy, if recovery is available for the applicable Damages under the RWI Policy, before seeking recovery directly from Seller under Section 11.2(a). In the event that any Damages are actually recovered by the Purchaser Indemnitees under the RWI Policy, the Purchaser Indemnitees shall not be entitled to make any claim for indemnification under this Article XI for the same Damages.
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(e) Subject to Section 11.4(d), the Purchaser Indemnitees shall first use commercially reasonable efforts to seek recovery under the indemnification provisions included in the CEO Purchase Agreement, before seeking recovery from Seller under Section 11.2(a) and/or Section 11.2(c). Regarding any indemnifiable Damages not actually recovered by the Purchaser Indemnitees under the indemnification provisions included in the CEO Purchase Agreement, the Purchaser Indemnitees, to the extent that they seek recovery directly from Seller pursuant to Section 11.2(a) and/or Section 11.2(c) must also seek recovery pursuant to the indemnification provisions included in the Tether Purchase Agreement, and the obligations of Seller hereunder shall be pari passu with the obligations of Tether with regard to the indemnification of such Damages; provided that Seller shall be liable with Tether only severally (not jointly) (als Teil- aber nicht als Gesamtschuldner) and on a pro rata basis in proportion to the percentage of the Shares sold by each of them relative to the aggregate number of Shares sold by both of them. Any recovery from Seller under Section 11.2(a) and/or Section 11.2(c) shall be satisfied (i) first, from and against the Holdback Rumble Share Consideration pursuant to the terms of Section 4.3, and (ii) thereafter, against Seller; provided, however, that Seller shall receive a credit against its obligations to indemnify Purchaser for Damages in an amount equal to (x) the Earn-Out Amount, plus (y) the difference between (a) any proceeds from a CC Purchase or CC Sale, as applicable, in each case actually received by Parent, minus (b) the amount paid by Purchaser as earnout payments under this Agreement, the Business Combination Agreement, the CEO Purchase Agreement and the Tether Purchase Agreement; any obligation of Seller to indemnify Purchaser for Damages hereunder shall be reduced by such amount. Nothing herein shall preclude the Purchaser Indemnitees from seeking indemnification under this Agreement to the extent necessary to obtain full recovery, it being understood that in no event shall the Purchaser Indemnitees be entitled to duplicative recovery for the same Damages.
(f) No Party shall be entitled to be indemnified, defended, held harmless or reimbursed for, from or against any Damages pursuant to this Article XI, if such Damages are accounted for in the calculation of the Offer Ratio as previously communicated between the Parties. No Purchaser Indemnitee shall be entitled to be indemnified, defended, held harmless or reimbursed for, from or against any Damages under this Article XI to the extent with respect to the relevant claim:
(i) the matter (other than an Excluded Liability) is disclosed, accrued or reserved for in the Parent Financial Statements (including, where applicable, the notes thereto); provided, that such disclosure shall not be deemed to apply if it is contained only in a general category, except to the extent such matter is expressly and specifically disclosed; or
(ii) such claim would not have arisen (or would have been reduced) but for any act or omission of Parent Group on or before Closing carried out at the express request of Purchaser on or before Closing, or any act or omissions of Purchaser or Parent Group after Closing; or
(iii) such claim is attributable to, or the amount of such claim results from or is increased by, the passing of, or any change in any Law after the date hereof.
(g) Notwithstanding anything herein to the contrary, no Party shall be entitled to be indemnified, defended, held harmless or reimbursed for, from or against any Damages: (i) relating to any Taxes directly relating to actions outside the ordinary course of business taken by any Indemnified Party (including actions taken by Purchaser with regard to the Parent) at any time on the Closing Date after the Closing or (ii) arising as a result of any election with respect to Taxes made after the Closing.
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Section 11.5 Determination of Damages. The Parties acknowledge and agree that qualifications or limitations as to materiality, “material adverse effect,” Parent Material Adverse Effect, Seller Material Adverse Effect or Purchaser Material Adverse Effect (or any similar qualifications or limitations as to materiality) in any representation or warranty set forth herein shall be ignored and disregarded both for the purpose of determining whether inaccuracy or breach of any representation or warranty has occurred and for determining the amount of applicable Damages, which shall be calculated without regard to any such qualifications or limitations contained in any such representation or warranty.
Section 11.6 Claim Procedures.
(a) Third-Party Claims. In order for an Indemnified Party to be entitled to any indemnification from the Indemnifying Party, provided for under this Article XI in respect of, arising out of, relating to or involving a claim made or threatened by any Person not a Party against such Indemnified Party (a “Third-Party Claim”), such Indemnified Party shall notify the Indemnifying Party in writing of such Third-Party Claim (setting forth in reasonable detail the facts giving rise to such Third-Party Claim (to the extent known), the amount or good faith estimated amount (to the extent reasonably estimable) of Damages in respect of, arising out of, relating to or involving such Third-Party Claim, a description of any other remedy sought in connection therewith, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto) (a “Claim Notice”) promptly after receipt by such Indemnified Party of written notice of such Third-Party Claim (and in any event not later than the date that is ten (10) Business Days preceding the date by which an appearance is required to be made before a court, arbitrator or other tribunal, or an answer or similar pleading is required to be filed in a litigation or other proceeding, with respect to such Third-Party Claim); provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent that the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure. The Indemnified Party shall keep the Indemnifying Party reasonably and promptly informed of factual and procedural developments in connection with the allegations made in the Claim Notice and, to the extent reasonable practicable, provide the Indemnifying Party the information with respect to the Claim Notice upon reasonable request of the Indemnifying Party subject to the confidentiality provisions set forth herein, as applicable.
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(b) Assumption. If a Third-Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to assume the defense thereof (unless the Indemnifying Party indicates it is not willing to defend such Third-Party Claim), if the Indemnifying Party so chooses, with counsel selected by the Indemnifying Party, which counsel must be reasonably satisfactory to the Indemnified Party, by giving written notice thereof to the Indemnified Party within 20 Business Days after the Indemnified Party provides a Claim Notice to the Indemnifying Party of such Third-Party Claim. If the Indemnifying Party assumes the defense of a Third-Party Claim in accordance with this Section 11.6(b), the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. Any such participation or assumption shall not constitute a waiver by any Party of any attorney-client privilege in connection with such Third-Party Claim. If the Indemnifying Party assumes the defense of a Third-Party Claim in accordance with this Section 11.6(b), the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel reasonably satisfactory to the Indemnifying Party, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall have the sole power (as between the Indemnifying Party and the Indemnified Party and their respective Affiliates) to direct and control such defense and the settlement, arbitration, litigation and appellate strategy related to such Third-Party Claim subject to the other terms hereof. If the Indemnifying Party chooses to assume the defense of a Third-Party Claim, the Indemnified Party shall cooperate in the defense or prosecution thereof. If a Claim Notice is given to the Indemnifying Party of a Third-Party Claim in accordance with this Section 11.6(b) and the Indemnifying Party does not, within 20 Business Days after such Claim Notice is given, give notice in writing to the Indemnified Party of its election to assume the defense of such Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to assume its own defense, provided that the Indemnified Party may not settle any such Third-Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided, further, that any such consent provided by an Indemnifying Party shall not prejudice such Indemnifying Party’s ability to dispute whether an Indemnified Party is entitled to indemnification for such Third-Party Claim under this Article XI. If the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party shall use its commercially reasonable efforts to defend such Third-Party Claim vigorously and diligently to final conclusion or settlement of such Third-Party Claim; provided, however, that the Indemnifying Party shall not settle such Third-Party Claim without the consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) if such settlement would result in (i) a finding or admission of any violation of Law or the rights of any Person that would have any adverse effect on any other claims that may be made against any Person, (ii) any relief other than monetary damages paid in full by the Indemnifying Party or any of its Affiliates or (iii) no complete, final and unconditional release of the Indemnified Party in connection with such Third-Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third-Party Claim if (i) the Third-Party Claim seeks an injunction or other equitable relief or relief other than monetary damages for which the Indemnified Party would be entitled to indemnification under this Agreement, (ii) the Third-Party Claim is a criminal or administrative proceeding, or relates to such a proceeding, or the underlying facts or circumstances of which could reasonably be expected to give rise to such a proceeding, or (iii) in the case of a Purchaser Indemnitee, a Purchaser Indemnitee is seeking full recovery relating to the Third-Party Claim under the RWI Policy.
(c) Privilege. If an Indemnifying Party chooses to assume the defense of a Third-Party Claim in accordance with the terms hereof, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), cause, or agree to, the waiver of the attorney-client privilege, attorney work-product immunity or any other privilege or protection in respect of confidential legal memoranda and other privileged materials drafted by, or otherwise reflecting the legal advice of, internal or outside counsel of an Indemnified Party (the “Subject Materials”) relating to such Third-Party Claim (consistent with applicable Law). Each Party acknowledges and agrees, on behalf of itself and its Affiliates, that (i) each shares a common legal interest in preparing for the defense of legal proceedings, or potential legal proceedings, arising out of, relating to or in respect of any actual or threatened Third-Party Claim or any related claim or counterclaim, (ii) the sharing of Subject Materials will further such common legal interest and (iii) by disclosing any Subject Materials to and/or sharing any Subject Materials with the Indemnifying Party, the Indemnified Party shall not waive the attorney-client privilege, attorney work-product immunity or any other privilege or protection; provided, however, that nothing herein shall prohibit the Indemnifying Party that does not choose to assume the defense of a Third-Party Claim from utilizing Subject Materials to defend itself against a claim by the Party seeking indemnification hereunder. The Indemnified Party shall not be required to make available to the Indemnifying Party any information that is subject to an attorney-client or other applicable legal privilege that, based on the advice of outside counsel, would be impaired by such disclosure or any confidentiality restriction under applicable Law.
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(d) Other Claims. In the event an Indemnified Party has a claim against an Indemnifying Party under this Article XI that does not involve a Third-Party Claim, the Indemnified Party shall notify the Indemnifying Party in writing of such claim (setting forth in reasonable detail the facts giving rise to such claim (to the extent known), the amount or good faith estimated amount (to the extent reasonably estimable) of Damages arising out of, involving or otherwise in respect of such claim, a description of any other remedy sought in connection therewith, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto) with reasonable promptness after becoming aware of such claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent that the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure.
(e) Claims and RWI Policy. For the avoidance of doubt, if and to the extent any of the Purchaser Indemnitees makes a claim solely under the RWI Policy and not against Seller, the procedures and other requirements of this Section 11.6 shall not apply.
Section 11.7 No Double Recovery. No Indemnified Party shall be entitled to recover from any Indemnifying Party under this Article XI, the RWI Policy or under any other Transaction Document more than once in respect of the same Damages (notwithstanding that such Damages may result from breaches of multiple provisions of this Agreement).
Section 11.8 Mitigation of Losses. Section 254 BGB shall apply to the obligations of any Indemnified Party to mitigate Damages.
Section 11.9 Tax Treatment of Indemnification Claims. Purchaser and Seller agree to report each indemnification payment made in respect of any Damages hereunder as an adjustment to the value of the Rumble Share Consideration for income Tax purposes unless otherwise required by applicable Law.
Article
XII.
TERMINATION
Section 12.1 Termination. Notwithstanding anything to the contrary herein, this Agreement may be terminated prior to the Closing:
(a) Consent. By the mutual written consent of Seller and Purchaser;
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(b) Delay. By either Seller or Purchaser if the Closing has not occurred on or before the Outside Date; provided, however, that the right to terminate this Agreement under this Section 12.1(b) shall not be available to Seller or Purchaser, as applicable, if the failure to fulfill any of such Party’s obligations under this Agreement has been the primary cause of, or resulted in, the failure of the Closing to occur on or before the Outside Date;
(c) Breach. By either Seller or Purchaser in the event of a material breach of any representation, warranty, covenant or agreement contained in this Agreement on the part of the respective other Party, which breach would, individually or in the aggregate, result in, if occurring or continuing on the Closing Date, the failure of any condition to the terminating Party’s obligations set forth in Article III to be satisfied, and which cannot be or has not been cured within 30 days after the giving of written notice to the breaching Party of such breach (or by the Outside Date, if earlier); provided, however, that the right to terminate this Agreement under this Section 12.1(c) shall not be available to a would-be terminating Party if such Party is then in material breach of any of its representations, warranties, agreements and covenants hereunder;
(d) Prohibition. By either Seller or Purchaser if any final and non-appealable Government Order or other Law shall have been issued, entered, enacted, or promulgated having the effect of permanently enjoining, restraining, or otherwise prohibiting or making illegal the consummation of the transactions contemplated by this Agreement; provided, however, that the right to terminate this Agreement under this Section 12.1(d) shall not be available to Seller or Purchaser, as applicable, if the failure to fulfill any of such Party’s obligations under this Agreement has been the primary cause of, or resulted in, such Government Order or other Law;
(e) Purchaser Shareholder Approval. By Seller if the Written Consent is not duly executed and delivered to Seller within twenty-four (24) hours of the date hereof in accordance with the terms of this Agreement.
Section 12.2 Notice of Termination. If Seller or Purchaser desires to terminate this Agreement pursuant to Section 12.1, it shall give written notice of such termination to (in the case of termination by Seller) Purchaser or to (in the case of termination by Purchaser) Seller setting forth the basis and provision(s) of Section 12.1 being relied upon to terminate this Agreement.
Section 12.3 Effect of Termination. Upon a termination of this Agreement in accordance with Section 12.1 and Section 12.2, each Party’s further rights and obligations hereunder, other than the Surviving Provisions (which shall survive such termination and remain in full force and effect), shall terminate without any Liability of any Party to any other Party, but termination shall not affect any rights or obligations of a Party which may have accrued prior to such termination and shall not relieve any Party from Liability for any breach based on deceit (arglistige Täuschung) or willful misconduct (Vorsatz) prior to such termination.
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Article
XIII.
MISCELLANEOUS
Section 13.1 Notices.
(a) Any notice, request, claim, demand or other communication in connection with this Agreement (each, a “Notice”) shall be:
(i) in writing in English; and
(ii) delivered by hand, registered mail or by courier using an internationally recognized courier company, or transmitted by email.
(b) A Notice to any Party shall be sent to such Party at the following address, or such other Person or address as such Party may designate by delivery of Notice to each other Party in accordance herewith.
If to Seller, to:
Apeiron Investment Group Ltd., Malta
66 & 67, Beatrice, Amery Street, Sliema SLM1707, Malta
Attention:
Email:
With a copy to (which shall not constitute a Notice):
Sullivan & Cromwell
Neue Mainzer Straße 52, 60311
Frankfurt am Main, Germany
Attention: Max Birke
Email: birkem@sullcrom.com
If to Purchaser or, following the Closing, to:
Rumble, Inc.
444 Gulf of Mexico Dr.
Longboat Key, Florida 34228
Attention:
Email:
With a copy to (which shall not constitute a Notice):
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019-6099
Attention: Russell L. Leaf, Sean M. Ewen
Email: rleaf@willkie.com; sewen@willkie.com
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(c) A Notice shall be effective upon receipt and shall be deemed to have been received:
(i) at the time of delivery, if delivered by hand, registered post or courier; or
(ii) when sent by email (with email confirmation of receipt, including automated electronic confirmation of receipt).
Section 13.2 Assignment. Except as otherwise expressly provided in this Agreement, no Party may, without the prior written consent of the other Parties, directly or indirectly assign, grant any security interest over, hold on trust or otherwise transfer the benefit of the whole or any part of this Agreement, except that Purchaser may transfer or assign, in whole or from time to time in part, its rights under this Agreement to any of its Affiliates, but any such transfer or assignment will not relieve Purchaser of any of its obligations hereunder. Any attempted assignment in violation of this Section 13.2 shall be null and void. This Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the Parties and their successors and permitted assigns.
Section 13.3 No Third-Party Beneficiaries; No Recourse Against Non-Parties.
(a) Except as provided in Article XI and Section 13.3(b), this Agreement is for the sole benefit of the Parties and their successors and permitted assigns, and nothing herein expressed or implied shall give or be construed to give to any Person, other than the Parties and such successors and assigns, any legal or equitable rights or remedies (including third-party beneficiary rights) hereunder.
(b) (i) All claims or causes of action (whether in contract or in tort, in law or in equity) that may be based upon, arise out of or relate to this Agreement or any other Transaction Document, or the negotiation, execution or performance of this Agreement or any other Transaction Document (including any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement or any Transaction Document), may be made only against (and subject to the terms and conditions thereof) the entities that are expressly identified as parties hereto and thereto and (ii) no Person who is not a named party to this Agreement or any other Transaction Document, including any past, present or future director, officer, employee, incorporator, member, manager, partner, equityholder, Affiliate, agent, attorney or Representative of any named party to this Agreement or any other Transaction Document (“Non-Party Affiliates”), shall have any liability (whether in contract or in tort, in law or in equity, or based upon any theory that seeks to impose liability of an entity party against its owners or Affiliates) for any obligations or liabilities arising under, in connection with or related to this Agreement or any other Transaction Document or for any claim based on, in respect of, or by reason of this Agreement or any other Transaction Document or its negotiation or execution, and each party hereto waives and releases all such liabilities, claims and obligations against any such Non-Party Affiliates. Non-Party Affiliates are expressly intended as third-party beneficiaries of this provision of this Agreement.
Section 13.4 Whole Agreement; Conflict with Other Transaction Documents. This Agreement (including all Schedules and Exhibits hereto), Tether’s Disclosure Letter, Purchaser’s Disclosure Letter, the other Transaction Documents, and the other agreements and deliverables in connection herewith referred to herein constitute the whole agreement among the Parties relating to the subject matter hereof and thereof to the exclusion of any terms implied by Law which may be excluded by Contract and supersede any prior understandings, negotiations, agreements, statements, or representations among the Parties or any of their respective Affiliates of any nature, whether written or oral, to the extent they relate to the subject matter hereof and thereof.
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Section 13.5 Costs. Except as otherwise expressly provided herein and therein, each Party shall bear all costs incurred by it in connection with the preparation, negotiation, execution and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby.
Section 13.6 Governing Law; Consent to Jurisdiction; Specific Performance.
(a) This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany, without recourse to any conflicts of law provisions.
(b) All disputes arising under or in connection with this Agreement (including any dispute in connection with the breach, termination or its validity) shall be finally settled, under exclusion of any state court’s competence, by three (3) arbitrators in accordance with the Arbitration Rules of the German Institution of Arbitration e.V. (Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS)), as applicable as of the filing of the claim. Each arbitrator shall be eligible for the office of a judge in Germany and have proven expertise and professional expertise as is required for the relevant dispute at hand. The venue of the arbitration shall be Frankfurt am Main, Germany. The language of the arbitral proceedings shall be English. Documents already existing as at the date of this Agreement may also be submitted in the German language.
(c) If mandatory applicable Law requires any matter arising from or in connection with this Agreement or its consummation to be decided upon by a court of Law, the competent courts in and for Frankfurt am Main, Germany, shall have the exclusive jurisdiction.
Section 13.7 Counterparts. This Agreement, and the other Transaction Documents and the other agreements referred to herein may be executed in any number of counterparts, each of which shall be deemed to constitute an original and all of which shall together constitute one and the same instrument. This Agreement shall become binding when any number of counterparts, individually or taken together, shall bear the signatures of and be delivered by all Parties. This Agreement may be executed and delivered by facsimile or any other electronic means, including “.pdf” or “.tiff” files, DocuSign, and any facsimile or electronic signature shall constitute an original for all purposes.
Section 13.8 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid, void or unenforceable, (a) a suitable and equitable provision shall be negotiated by the Parties in good faith in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
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Section 13.9 Amendments; Waiver. Any provision of this Agreement may be amended or modified if, and only if, such amendment is in writing and signed by and on behalf of each Party. Any provision of this Agreement may be waived if, and only if, such waiver is in writing and signed by and on behalf of the Party against whom such waiver is to be enforced. No waiver of any breach of this Agreement or right or remedy under this Agreement will be implied from any delay, forbearance or failure of a Party to take action thereon. Any such waiver described in the preceding sentence may, at any time prior to the Closing, (a) extend the time for performance of any of the obligations or other acts of the other Parties hereto, (b) waive any inaccuracies in the representations and warranties of the other Parties contained in this Agreement or in any document delivered pursuant to this Agreement or (c) waive compliance by the other Parties with any term or provision of this Agreement on the part of such other Party to be performed or complied with. The waiver by any Party of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach. No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other further exercise thereof or the exercise of any other right, power or privilege.
Section 13.10 Payments. Except to the extent otherwise expressly provided in Section 2.3 and Section 4.3 and otherwise in this Agreement, all payments to be made under this Agreement shall be made in full, without any setoff or deduction for or on account of any counterclaim. Any payment to be made under this Agreement shall be effected by crediting for same-day value the account specified by the Party entitled to the payment before the due date for payment as set forth herein.
Section 13.11 No Admission. Nothing herein shall be deemed an admission by any Party or any of their respective Affiliates, in any Action or Action by or on behalf of a third party, that any Party or any of their respective Affiliates, or that such third party or any of its Affiliates, is or is not in breach or violation of, or in default in, the performance or observance of any term or provisions of any Contract.
Section 13.12 Interpretation.
(a) Unless the context otherwise specifically requires:
(i) the words “hereof,” “herein,” “hereby” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
(ii) the word “including” and words of similar import when used in this Agreement and the Transaction Documents shall mean “including without limitation,” unless otherwise specified;
(iii) all terms defined in the singular have a comparable meaning when used in the plural, and vice versa;
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(iv) the terms “Dollars” and “$” mean United States Dollars;
(v) references to words of inclusion herein shall not be construed as terms of limitation, and thus references to “included” matters or items shall be regarded as non-exclusive, non-characterizing illustrations;
(vi) references herein to either gender shall include the other gender;
(vii) references to this Agreement shall include Tether’s Disclosure Letter, Purchaser’s Disclosure Letter, the Preamble and any Recitals, Schedules and Exhibits to this Agreement;
(viii) references herein to the Preamble or to any Recital, Article, Section, Subsection, Exhibit or Schedule shall refer, respectively, to the Preamble or to a Recital, Article, Section, Subsection, Exhibit or Schedule of or to this Agreement;
(ix) references to Law shall be deemed to refer to such Law as amended through the date hereof and to any rules or regulations promulgated thereunder as amended through the date hereof, provided, however, that for purposes of representations and warranties contained in this Agreement that are made as of a specific date, references to any Law shall be deemed to refer to such Law and any rules or regulations promulgated thereunder as amended through such specific date;
(x) references to any Government Authority include any successor to such Government Authority;
(xi) references to any Person include such Person’s successors and permitted assigns;
(xii) references to any agreement or other document are to such agreement or document as amended, modified, supplemented or replaced from time to time;
(xiii) references to books, records or other information mean books, records or other information in any form including, paper, electronically stored data, magnetic media, film and microfilm;
(xiv) references to a time of day are, unless otherwise specified, references to New York City time;
(xv) references to writing shall include any mode of reproducing words in a legible and non-transitory form, including in electronic form;
(xvi) the rule known as the ejusdem generis rule shall not apply and, accordingly, general words introduced by the word “other” shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things;
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(xvii) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase shall not simply mean “if”;
(xviii) the word “will” shall be construed to have the same meaning and effect as the word “shall”; and
(xix) the word “or” shall be construed as disjunctive but not exclusive.
(b) The table of contents and headings contained in this Agreement and the other Transaction Documents are for reference purposes only and do not limit or otherwise affect any of the provisions of this Agreement.
(c) No rule of construction against the draftsperson shall be applied in connection with the interpretation or enforcement of this Agreement, as this Agreement is the product of negotiation between sophisticated parties advised by counsel. Each of the Parties has participated in the negotiation and drafting of this Agreement and the Transaction Documents and if an ambiguity or question of interpretation should arise, this Agreement and the Transaction Documents shall be construed as if drafted jointly by the parties thereto.
(d) Whenever a provision of this Agreement provides that an action is to be effected as of, on or by a certain date, and such date is not a Business Day, this Agreement shall be read so that such action is required to be effected as of, on or by (as applicable) the next succeeding Business Day.
(Signature Page Follows)
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
| APEIRON INVESTMENT GROUP LTD., MALTA | |||
| By: | /s/ Mario Frendo | ||
| Name: | Mario Frendo | ||
| Title: | Director | ||
| RUMBLE INC. | |||
| By: | /s/ Chris Pavlovski | ||
| Name: | Chris Pavlovski | ||
| Title: | Chief Executive Officer | ||
[Signature Page to Tether Transaction Support Agreement]
Schedule
A
Definitions and Terms
“Acceptance Period” means the Initial Acceptance Period together with any Additional Acceptance Period.
“Action” means any civil, criminal or administrative action, suit, demand, claim, case, litigation, mediation, arbitration, opposition, objection, cancellation, inquiry, charge, subpoena, audit, examination, hearing, dispute, investigation or other proceeding (whether civil, criminal or administrative).
“Acquisition Proposal” means, other than the transactions contemplated by this Agreement, the CEO Purchase Agreement, the Tether Purchase Agreement or the Business Combination Agreement, any Third Party offer, proposal or inquiry relating to, or any Third Party indication of interest in, (a) any acquisition or purchase of any of the Sold Shares, (b) any acquisition, purchase or exclusive license, directly or indirectly, of 20% or more of the consolidated assets of Parent or the Transferred Subsidiaries or 20% or more of any class of equity or voting securities of Parent or the Transferred Subsidiaries, (c) any tender offer or exchange offer that, if consummated, would result in such Third Party beneficially owning 20% or more of any class of equity or voting securities of Parent or the Transferred Subsidiaries, or (d) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving Parent or the Transferred Subsidiaries.
“Additional Acceptance Period” has the meaning set forth in the Business Combination Agreement.
“Affiliate” means, with respect to any Person, any other Person who is an affiliated enterprise (verbundenes Unternehmen) of Person within the meaning of Sections 15 et seq. AktG, provided that the Parent and its Subsidiaries shall not be considered Affiliates of Seller or any other Person that is an Affiliate of Seller for purposes of this Agreement.
“Agreement” has the meaning set forth in the Preamble.
“AktG” means the German Stock Corporation Act (Aktiengesetz).
“Anti-Money Laundering Laws” means all anti-money laundering and counter-terrorist financing Laws and financial recordkeeping, reporting and registration requirements administered or enforced by any Government Authority.
“Applicable Date” means January 1, 2025.
“Applicable Purchaser Period” means, with respect to Purchaser and any of its Subsidiaries, periods beginning after December 31, 2021 and continuing through the Closing Date.
“Audited Financial Statements” has the meaning set forth in Section 6.3(a).
“BGB” means the German Civil Code (Bürgerliches Gesetzbuch).
Sch A-1
“Bring-Down Certificate” has the meaning set forth in Section 4.2(a)(i).
“Business Combination Agreement” has the meaning set forth in the Recitals.
“Business Day” means any day other than a Saturday, a Sunday, on which banks located in New York, New York, United States, and Frankfurt am Main, Germany, are generally open for business.
“Business Intellectual Property” has the meaning set forth in Section 6.13(a).
“Business Software” has the meaning set forth in Section 6.13(a).
“Business Source Code” means source code of any Business Software which is incorporated in or distributed as part of any product sold, distributed or made commercially available by Parent or any of the Transferred Subsidiaries.
“Capacity” means the total (in kilowatts) of: (a) backup generators capacity, (b) uninterruptible power supply (UPS), and (c) cooling measured at the Data Centers, but excluding, in each case, any amounts required for redundancy.
“CC Purchase” has the meaning set forth in the Peak Mining Purchase Agreement.
“CC Sale” has the meaning set forth in the Peak Mining Purchase Agreement.
“CEO Purchase Agreement” has the meaning set forth in the Recitals.
“Claim Notice” has the meaning set forth in Section 11.6(a)
“Class A Common Stock” has the meaning set forth in Section 8.2(a).
“Class C Common Stock” has the meaning set forth in Section 8.2(a).
“Class D Common Stock” has the meaning set forth in Section 8.2(a).
“Clearstream” has the meaning set forth in the Recitals.
“Closing” has the meaning set forth in Section 4.1.
“Closing Actions” has the meaning set forth in Section 4.2(a).
“Closing Date” means the date on which the Closing occurs.
“Closing Protocol” has the meaning set forth in Section 4.2(c).
“Code” means the U.S. Internal Revenue Code of 1986, as the same may be amended or supplemented from time to time, and any successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect.
“Commitments” has the meaning set forth in Section 6.20.
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“Confidentiality Agreement” means that certain letter agreement, dated as of February 14, 2025, between Purchaser and Parent.
“Constituent Documents” means, with respect to any corporation, its charter and bylaws; with respect to any partnership, its certificate of partnership and partnership agreement; with respect to any limited liability company, its certificate of formation and limited liability company or operating agreement; and, with respect to each other Person, its comparable constitutional instruments or documents (and, in each case, such similar instruments or documents as applicable under the relevant jurisdiction).
“Contract” means any contract, agreement, undertaking, commitment, purchase order, loan, guarantee, indenture, lease or license.
“Damages” means any damages, costs, or actual out-of-pocket expenses and amounts paid in settlement (including reasonable attorneys’ fees and expenses), but excluding indirect damages, consequential damages, loss of profits (entgangener Gewinn), frustrated expenses (vergebliche Aufwendungen) within the meaning of Section 284 BGB, exemplary and punitive damages, and any damages based upon any type of multiple, except for (i) such damages that are paid to a third party in connection with a Third-Party Claim and (ii) consequential damages, loss of profits or frustrated expenses that are reasonably foreseeable.
“Data Center Lease” means any master service agreement, colocation agreement, lease, sublease, license or other Contract or Real Property Lease (including service or similar orders thereunder) in respect of the HPC Segment to which Parent or any of the Transferred Subsidiaries grants or agrees to grant a Person a leasehold estate, leasehold interest, subleasehold estate, sublease interest, license or the right to use or occupy space in, or to receive power or ancillary services related to, any high performance computing data center, together with all amendments, guarantees and modifications thereto.
“Data Centers” mean the Operational Data Centers and the Pre-Operational Data Centers.
“DGCL” means the General Corporation Law of the State of Delaware.
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“Disclosure Letter” means, with respect to each Party, a letter delivered by such Party to the respective other Party contemporaneously with the execution and delivery of this Agreement setting forth, among other things, items the disclosure of which is necessary or appropriate either in response to an express disclosure requirement contained in a provision hereof or as an exception to one or more representations, warranties or covenants of such Party contained in this Agreement; provided that the mere inclusion of an item in a Disclosure Letter as an exception to a representation, warranty or covenant shall not be deemed an admission by the disclosing Party that such item (or any non-disclosed item or information of comparable or greater significance) represents a material exception or fact, event or circumstance or that such item has had or is reasonably likely or expected to result in a Parent Material Adverse Effect or a Purchaser Material Adverse Effect, as applicable; provided, further, that each Disclosure Letter has been arranged as separate sections corresponding to the subsections of this Agreement, and a disclosure in any section of such Party’s Disclosure Letter shall be deemed to be a disclosure for all other sections of such Party’s Disclosure Letter in respect of which it is reasonably apparent on its face that such disclosure is applicable, whether or not repeated or cross-referenced in such other section. Notwithstanding anything to the contrary contained herein, the facts and circumstances in the documents disclosed in the Virtual Data Room are deemed to be expressly disclosed as if they were included in Tether’s Disclosure Letter, except (a) with respect to the Seller Fundamental Representations or (b) in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz); provided, that the facts and circumstances were presented in the Virtual Data Room in such a manner and detail and in a context where such information would reasonably be expected to be contained, it being further understood that disclosure shall have been made in the Virtual Data Room before 5:00 p.m., New York City time, on November 8, 2025. Notwithstanding anything to the contrary contained herein, the facts and circumstances in the documents disclosed as set forth in any Purchaser Reports (excluding, in each Purchaser Report, any disclosures contained therein under the captions “Risk Factors” or “Forward-Looking Statements” and any other disclosures contained therein that are predictive, cautionary or forward-looking in nature, in each case other than any specific factual information contained therein, which shall not be excluded) filed prior to the date of this Agreement (excluding any amendments or supplements filed after the date hereof) are deemed to be expressly disclosed as if they were included in Purchaser’s Disclosure Letter, except (a) with respect to the Purchaser Fundamental Representations or (b) in case of deceit (arglistige Täuschung) or willful misconduct (Vorsatz); provided, that the facts and circumstances were presented in the Purchaser Reports in such a manner and detail and in a context where such information would reasonably be expected to be contained, it being further understood that disclosure shall have been made in the Purchaser Reports before 5:00 p.m., New York City time, on November 8, 2025.
“Earn-Out Amount” has the meaning set forth in the Peak Mining Purchase Agreement.
“Escrow Amount” has the meaning set forth in the Peak Mining Purchase Agreement.
“Employee Benefit Plan” means any “employee benefit plan” within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA, and any other material employee benefit or compensation plan, program, policy, practice, agreement, Contract, arrangement or other obligation, whether or not in writing, whether or not tax-qualified and whether or not funded, including any Multiemployer Plans, pension, retirement, savings, bonus, commission, profit-sharing, deferred compensation, incentive, performance award, phantom equity, stock or other equity or stock- or other equity-based, employment, individual consulting or contractor, change in control, retention, redundancy, severance, separation, medical, health, life insurance, disability or other welfare benefit, vacation, paid time off, material fringe benefit or other material benefit or compensation plan, program, policy, practice, agreement, contract, arrangement or other obligation, in each case, (i) which is sponsored, established or maintained by, contributed to or required to be contributed to, or with respect to which any current or potential Liability may be borne by Parent or its ERISA Affiliates or (ii) which covers one or more officers, employees or independent contractors (who are natural persons) of Parent or the Transferred Subsidiaries, other than plans established pursuant to statute and maintained by a Government Authority.
“Encumbrance” means any mortgage, deed of trust, title defect, easement, license, lien, right-of-way, levy, security interest, assignment, restriction, charge, pledge, hypothecation, preemptive right, preference, participation interest, claim, option, or right of first refusal.
Sch A-4
“Environmental Laws” means any Law relating to: (i) pollution or the protection, restoration or remediation of the environment, including natural resources, (ii) the protection of human health and safety as it relates to any Hazardous Substance; or (iii) the manufacture, processing, registration, distribution, handling, packaging or labeling of Hazardous Substances or products containing Hazardous Substances; (iv) transport, use, presence, generation, treatment, storage, presence, landfilling or disposal, Release or threatened Release of, or exposure to, any Hazardous Substance; or (v) recordkeeping, notification, disclosure and reporting requirements respecting Hazardous Substances.
“Environmental Permit” means any Permit required under any applicable Environmental Law.
“Equity Interest” means, with respect to any Person, any share of capital stock of, or any general, limited or other partnership interest, membership interest or similar ownership or equity interest in, such Person.
“Equity Plans” means Parent’s Stock Option Program 2020, Stock Option Program 2021, Stock Option Program 2021/II, Stock Option Program 2023 and Stock Option Program 2024.
“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as the same may be amended or supplemented from time to time, and any successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect.
“ERISA Affiliate” means any Person engaged in a trade or business (whether or not incorporated) that is at any relevant time considered as a single employer with Parent or the Transferred Subsidiaries under Section 414 of the Code or Section 4001 of ERISA.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“ExchangeCo Shares” has the meaning set forth in Section 8.2(a).
“Excluded Liabilities” means any and all Liabilities relating to or arising from (i) the Peak Mining Business or the operation thereof or any assets, employees or other service providers used in connection therewith prior to closing of the Peak Mining Purchase Agreement (but, for the avoidance of doubt, excluding any payments to be made in connection with a CC Sale or CC Purchase), (ii) the business activities of the Historical Operation Entities that took place prior to the Closing, (iii) the liquidation and winding down of the Historical Operation Entities, and (iv) any Taxes incurred (A) as a result of the sale of the Peak Mining Business pursuant to the Peak Mining Purchase Agreement and (B) in respect of the Historical Operation Entities, provided that (x) any Liabilities arising in connection with any Tax restructuring or other changes to the Parent Group structure initiated after Closing and (y) any liabilities, including tax liabilities, in connection with a CC Sale or CC Purchase, shall not constitute Excluded Liabilities.
“Export and Sanctions Regulations” means all applicable trade embargoes or economic or financial sanctions, anti-boycott Laws, and export and import control Laws, imposed, administered, or enforced by the United States (including the U.S. International Traffic in Arms Regulations, the U.S. Export Administration Regulations, U.S. sanctions Laws and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) and the U.S. Department of State), the United Nations Security Council, the European Union, or his Majesty’s Treasury of the United Kingdom.
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“FCPA” means the U.S. Foreign Corrupt Practices Act of 1977, as amended.
“Filing” means any registration, petition, statement, application, schedule, form, declaration, notice, notification, report, submission or information or other filing.
“Foreign Benefit Plan” has the meaning set forth in Section 6.9(g).
“GAAP” means U.S. generally accepted accounting principles.
“Government Authority” means any foreign or domestic, federal, state, county, city or local government or legislative, enforcement, administrative or regulatory authority, agency, department, court, tribunal, legislature, executive, official, instrumentality, commission, body, or other judicial, administrative, or arbitral entity, body, or instrumentality, in each case, with competent jurisdiction, including any supranational body and any Self-Regulatory Organization.
“Government Order” means any order, writ, judgment, injunction, approval, decree, declaration, stipulation, settlement, ruling, decision, determination, verdict or award, in each case, that is of or entered by any Government Authority.
“GPU” means all Nvidia H100 and H200 and any other material graphics processing units.
“Hazardous Substance” means (i) any constituent, substance, material, chemical or waste that is listed, defined, classified or regulated as toxic, or hazardous, explosive, corrosive, infectious, carcinogenic as a pollutant or contaminant, or terms of similar meaning, under, or for which Liability or standards of conduct are imposed by, any Environmental Laws or the presence of which requires investigation, clean up, removal, abatement, remediation or other corrective or remedial action under any Environmental Laws, and (ii) any petroleum or petroleum distillate, radon, radioactive materials or wastes, per- and polyfluoroalkyl substances, asbestos or asbestos-containing materials, lead or lead-containing materials, radioactive materials, urea formaldehyde foam insulation and polychlorinated biphenyls.
“Historical Operation Entities” means (1) Bitfield N.V.; (2) Minondo Ltd.; (3) 1277963 BC, Ltd.; (4) Decentric Europe B.V.; (5) Northern Data Reserve, Inc.; (6) Northern Data PA, LLC; (7) Northern Data NY, LLC; and (8) Northern Data (CH) AG.
“Holdback Release Date” means the date that falls 18 months after the Closing Date.
“Holdback Rumble Share Consideration” means a portion of the Rumble Share Consideration that equals the quotient (rounded down) of (i) EUR 25,000,000.00 divided by (ii) the Purchaser Common Stock Price.
“HPC Segment” means the Parent’s and the Transferred Subsidiaries’ high performance computing segment for Data Centers.
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“IFRS” means the international financial reporting standards promulgated by the European Union, as amended, together with the interpretations of the International Financial Reporting Standards Interpretations Committee as adopted by the European Union and in accordance with application of commercial law provisions pursuant to Section 315e para. 1 of the German Commercial Code (Handelsgesetzbuch).
“Indemnified Party” has the meaning set forth in Section 11.1(b).
“Indemnifying Party” has the meaning set forth in Section 11.1(c).
“Information Security Program” means a commercially reasonable information security program comprised of physical, technical, and administrative measures and safeguards that is designed to protect the security, confidentiality, availability, operation, and integrity of any Personal Data Processed against Security Incidents.
“Intellectual Property” means any intellectual property rights of any kind, type or nature in any and all jurisdictions throughout the world, including any intellectual property rights in or to: (a) trademarks, service marks, trade dress and trade names, logos, registrations and applications for registration of the foregoing, and the goodwill associated therewith and symbolized thereby (“Trademarks”); (b) patents and patent applications, including divisionals, revisions, continuations, continuations-in-part, renewals, extensions, substitutes, re-issues and re-examinations; (c) trade secrets, and any other intellectual property rights in confidential information and non-public information, know-how, processes, formulae, customer, supplier and vendor lists, discoveries, improvements, blue prints, designs, ideas, specifications, drawings, methodologies, models, algorithms, systems, technology, inventions and marketing information (“Trade Secrets”); (d) published and unpublished works of authorship, whether copyrightable or not, copyrights, including copyrights in Software, website and mobile content, all other intellectual property rights in works of authorship, and all intellectual property rights in data and other compilations of information, and all registrations and applications for registration therefor; and (e) internet domain name registrations and any intellectual property rights in social media handles.
“Interconnected Carriers” means, collectively, the telecommunication carriers or other, internet, cloud or utility providers that have brought their respective networks to or otherwise maintain a point of presence (“PoP”) within the meet-me-rooms of the Data Centers, or have made such networks or PoPs available to the customers at the Data Centers through the meet-me-rooms or otherwise.
“Interim Financial Statements” has the meaning set forth in Section 6.3(b).
“Initial Acceptance Period” has the meaning set forth in the Business Combination Agreement.
“International Transfer” means any cross-border transfer of Personal Data that is subject to specific provisions regarding international transfers and/or data export requirements under the Privacy Requirements. For the avoidance of doubt, a transfer within the European Economic Area is not considered an International Transfer.
“IRS” means the U.S. Internal Revenue Service.
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“IT Systems” means hardware, software, firmware, middleware, equipment, electronics, computers, platforms, servers, workstations, routers, hubs, switches, endpoints, interfaces, data, databases, data communication lines, network and telecommunications equipment, websites and internet-related information technology infrastructure, wide area network and all other information technology equipment and assets.
“Knowledge” means:
(a) with respect to Seller exclusively, the actual knowledge (positive Kenntnis) on the date hereof or Closing Date (as the case may be) of Christian Angermayer; and
(b) with respect to Purchaser, the actual knowledge of the individuals listed in Section 1.1(a) of Purchaser’s Disclosure Letter and the knowledge such individuals would reasonably be expected to have after reasonable due inquiry, including any information which such individuals are or should reasonably be aware of in the ordinary course of the performance of their responsibilities on behalf of Purchaser.
“Latest Balance Sheet Date” has the meaning set forth in Section 6.3(b).
“Law” means any law, statute, common law, ordinance, rule, regulation, code, Government Order, award, judgment, injunction, decree, directive, ruling, writ, declaration, approval, or other requirement, obligation, duty or rule of law enacted, adopted, issued, promulgated or enforced by a Government Authority.
“Leased Real Property” has the meaning set forth in Section 6.12(c).
“Liabilities” means any debt, liability, claim, demand, expense or obligation of whatever kind or nature.
“Lock-Up Period” has the meaning set forth in Section 9.4(a).
“Lock-Up Shares” has the meaning set forth in Section 9.4(a).
“Malicious Code” means any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” “ransomware” or “worm” (as such terms are commonly understood in the software industry) or any other code designed or intended to have any of the following functions: (a) disrupting, disabling, harming, interfering with or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system or network or other device on which such code is stored or installed; or (b) damaging or destroying any data or file without the user’s consent.
“Multiemployer Plan” means each Employee Benefit Plan that is a “multiemployer plan” as defined in Section 3(37) or 4001(a)(3) of ERISA.
“NASDAQ” means the Nasdaq Stock Market.
“Non-Party Affiliates” has the meaning set forth in Section 13.3(b).
Sch A-8
“Notice” has the meaning set forth in Section 13.1(a).
“OFAC” has the meaning set forth in the definition of Export and Sanctions Regulations.
“Offer Conditions” means the conditions to closing of the Tender Offer;
“Offer Ratio” has the meaning set forth in the Business Combination Agreement.
“Open Source Software” means Software that is distributed as “free software” or “open source software” or under similar licensing or distribution terms (including any license approved by the Open Source Initiative and listed at http://www.opensource.org/licenses). Open Source Software includes without limitation Software that is licensed under any versions of the following: the GNU General Public License, GNU Lesser General Public License, Mozilla License, Common Public License, Apache License, BSD License, Artistic License, MIT License or similar terms.
“Operational Data Centers” means the data centers (or portions thereof) owned, leased or managed by Parent or the Transferred Subsidiaries that are in operation.
“Option” means any option to purchase Shares granted under an Equity Plan or otherwise.
“ordinary course” or “ordinary course of business” means, with respect to any Person, the ordinary course of such Person’s normal day-to-day operations, consistent with such Person’s past practices.
“Outside Date” means December 31, 2026, provided that such date may be extended by the mutual written consent of Seller and Purchaser.
“Owned Intellectual Property” means any Intellectual Property (i) owned or purported to be owned by Parent or the Transferred Subsidiaries, or (ii) owned or purported to be owned by Parent or its Affiliates and included in the Target Assets.
“Owned Real Property” has the meaning set forth in Section 6.12(a).
“Parent” has the meaning set forth in the Recitals to this Agreement.
“Parent Data” means all confidential data or information, private keys, and data compilations contained in the Parent IT Systems that are, in each case, used in the conduct of Parent or any Transferred Subsidiary.
“Parent Financial Statements” has the meaning set forth in Section 6.3(b).
“Parent Group” means any “affiliated group” (as defined in Section 1504(a) of the Code without regard to the limitations contained in Section 1504(b) of the Code) that, at any time on or before the Closing Date, includes or has included Parent or the Transferred Subsidiaries or any direct or indirect predecessor of Parent or the Transferred Subsidiaries, or any other group of corporations filing Tax Returns on a combined, consolidated, unitary or similar basis that, at any time on or before the Closing Date, includes or has included Parent or the Transferred Subsidiaries or any direct or indirect predecessor of Parent or the Transferred Subsidiaries.
Sch A-9
“Parent Indebtedness” shall mean, without duplication, the following of Parent or the Transferred Subsidiaries (including the principal amount, accrued and unpaid interest and fees, expenses and prepayment premiums or penalties or termination or breakage fees, change of control payments or penalties required to be paid or offered on prepayment or repayment, as applicable), but excluding the following (A) if incurred in the ordinary course of business, or (B) to the extent the following comprises intra-group liabilities solely involving Parent and the Transferred Subsidiaries: (a) obligations in respect of indebtedness for borrowed money; (b) obligations in respect of accounts payable outstanding and aged over 90 days; (c) obligations in respect of indebtedness evidenced by any note, bond, debenture or other similar instruments or debt securities (but excluding, for the avoidance of doubt, current trade payables in the ordinary course of business); (d) obligations under any off balance sheet financing; (e) obligations in respect of deferred indebtedness or other payments for the purchase price of property, assets, goods or services, including any earn out payments or contingent consideration payment obligations (but excluding, for the avoidance of doubt, current trade payables in the ordinary course of business); (f) obligations to return or repay (whether before, at or after the Closing) loans, subsidies, grants, incentives or other similar payments; (g) obligations for the Tax Liability Amount; (h) obligations in respect of banker’s acceptances, letters of credit and similar facilities (but only to the extent drawn and unpaid); (i) all payment obligations under any interest rate swap agreements, interest rate hedge agreements or any other financial hedging or swap arrangements or similar agreements to which Parent or the Transferred Subsidiaries is party (including any obligations that may arise upon the termination thereof) that are terminated prior to, or contemporaneously with, Closing; and (j) all obligations of the types referred to in clauses (a) through (i) of another Person the payment of which Parent or the Transferred Subsidiaries has guaranteed or for which Parent or the Transferred Subsidiaries is responsible or liable, directly or indirectly, jointly or severally, as obligor or guarantor.
“Parent Insurance Policies” means all insurance policies or self-insurance programs in the name of or maintained by or for the benefit of Parent or the Transferred Subsidiaries.
“Parent IT Systems” means any IT Systems owned, leased by or licensed to Parent or any of the Transferred Subsidiaries, including to process Parent Data.
“Parent Material Adverse Effect” means any change, effect, development, condition, matter, event, fact, circumstance or occurrence that, individually or when considered in the aggregate with any other change, effect, development, condition, matter, event, fact, circumstance or occurrence, (i) has had or would reasonably be expected to have a material and adverse effect on Parent or any Transferred Subsidiary or, as of the Closing, the business, assets, financial condition or results of operations of Parent and the Transferred Subsidiaries, taken as a whole, or (ii) has prevented or materially impaired, or would reasonably be expected to prevent or materially impair, the ability of any of Seller, Parent, any of the Transferred Subsidiaries or any of their respective Affiliates to perform its obligations under this Agreement, and the other Transaction Documents in which such party is a party, or to consummate the transactions contemplated hereby and thereby in a timely manner; provided, that none of the following, either alone or in combination with any other changes, effects, developments, conditions, matters, events, facts, circumstances or occurrences shall constitute or cause a Parent Material Adverse Effect:
Sch A-10
(a) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from a change in applicable accounting principles or any change in Law (including any Law in respect of Taxes), or any interpretation thereof by any Government Authority, or change in GAAP, IFRS or authoritative interpretations thereof;
(b) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from changes in global, national or regional political or social conditions (including protests, strikes, riots, public demonstrations, civil unrest, acts of terrorism or war (including cyberattacks as acts of war)) or in general global, national or regional economic, business or regulatory conditions or in national or global financial or capital markets;
(c) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from conditions generally affecting the industries or market sectors in which Parent or the Transferred Subsidiaries operate, in particular any technical changes in the way data centers are designed or operated, including any technological innovation and improvement of cooling systems, telecommunication and connectivity systems and equipment, servers, software and chips;
(d) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from or arising out of hurricanes, earthquakes, floods or other natural disasters, force majeure events or any outbreak of an epidemic or pandemic or other public health event or any Law or regulatory policy, recommendation, or pronouncement issued by a Government Authority, the Centers for Disease Control and Prevention or the World Health Organization or “sheltering in place,” curfew or other restrictions, in each case that relate to, or arise out of, an epidemic or pandemic, or any change in such Law, recommendation, pronouncement or interpretation thereof;
(e) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting solely from the announcement or performance of the Transaction Documents or consummation of the transactions contemplated thereby or any third-party litigation relating to the Transaction Documents or the transactions contemplated thereby, including any loss of, or adverse change, effect, event, development, condition, matter, fact, circumstance or occurrence in or with respect to, the relationship of Parent or the Transferred Subsidiaries, contractual or otherwise, with customers, Government Authorities, employees, labor unions, labor organizations, works councils or similar organizations, suppliers, distributors, financing sources, partners or similar relationship directly caused by the entry into this Agreement and the transactions contemplated by this Agreement, or resulting or arising from the identity of, or any actions taken or failed to be taken by, Purchaser or any of its Affiliates;
(f) the failure of Parent or the Transferred Subsidiaries to meet any internal or external projections, forecasts or estimates of performance, revenues or earnings (provided that this clause (f) shall not be construed as providing that any changes, effects, developments, conditions, matters, events, facts, circumstances or occurrences underlying or giving rise to such failure do not constitute, cause or contribute to, or shall not be taken into account in determining whether there has been, a Parent Material Adverse Effect); or
Sch A-11
(g) any action taken (or omitted to be taken) by Seller as expressly required pursuant to this Agreement; provided, further, that, in the case of each of the foregoing clauses (a) through (d), only to the extent that any such change, effect, development, condition, matter, event, fact, circumstance or occurrence has not had, and would not reasonably be expected to have, individually or in the aggregate, a disproportionate effect on Parent and the Transferred Subsidiaries, taken as a whole, relative to other companies in Parent’s and the Transferred Subsidiaries’ industry.
“Parent Party” has the meaning set forth in Section 6.15(a).
“Parent Service Provider” means any current or former managing director (Geschäftsführer) (or equivalent thereof) or employee of Parent or any of the Transferred Subsidiaries.
“Parties” means Purchaser and Seller.
“Peak Mining Business” has the meaning set forth in the Recitals.
“Peak Mining Purchase Agreement” has the meaning set forth in the Recitals.
“Permits” means licenses, permits, certificates, franchises, certificates, immunities, exemptions, registrations and other authorizations and approvals that are issued by or obtained from any Government Authority.
“Permitted Encumbrances” means: (a) Encumbrances for Taxes not yet due and payable (or which may be paid without interest or penalties) that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP; (b) statutory, common law or customary contractual carriers’, warehousemen’s, mechanics’ and bank’s liens arising in the ordinary course which secure payment of obligations that are not yet delinquent; (c) in the case of Real Property, (i) zoning, building, entitlement or other land use regulations imposed by Government Authorities having jurisdiction over such Real Property that do not materially and adversely affect, impair or interfere with the current use, occupancy and operation of such Real Property or the operation of the business of the Parent thereon and are not violated by the current use, occupancy and operation of such Real Property, and (ii) easements, quasi-easements, licenses, covenants, rights-of-way, rights of re-entry or other restrictions and similar non-monetary matters of record affecting title to such Real Property, (iii) matters that would be disclosed on a current survey or by inspection of such Real Property, (iv) all matters that would be disclosed as exceptions on current title commitments obtained by Purchaser prior to the date hereof or are otherwise filed or recorded in the applicable property records, in particular in land registries or other registries of any public authorities, (v) Encumbrances on Real Property constituting a lease, sublease, license or occupancy agreement that gives any third party any right to occupy any real property or arising from the provisions of the applicable leases, subleases, licenses or occupancy agreements that are not violated in any material respect by the current use, occupancy and operation of such Real Property or the operation of the business of Parent as currently conducted thereon, (vi), statutory Encumbrances creating a security interest in favor of landlords with respect to property of Parent which do not and would not materially and adversely affect, impair or interfere with the current use, occupancy and operation of such Real Property or the operation of the business of Parent as currently conducted thereon; (vii) subdivision, site plan control, development, reciprocal, servicing, facility, facility cost sharing or similar agreements currently existing or entered into, which do not and would not materially and adversely affect, impair or interfere with the current use, occupancy and operation of such Real Property or the operation of the business of Parent as currently conducted thereon, (d) transfer restrictions arising under applicable securities Laws or restrictions arising under the Transaction Documents; (e) non-exclusive licenses of Intellectual Property entered in the ordinary course of business; (f) Encumbrances that will be discharged or released prior to or at the Closing; and (g) the Encumbrances set forth in Section 1.1(g) of Tether’s Disclosure Letter, with respect to Parent, or in Section 1.1(g) of Purchaser’s Disclosure Letter, with respect to Purchaser.
Sch A-12
“Person” means any individual, bank, corporation, general or limited partnership, association, limited liability company, business trust, unincorporated organization or similar organization, whether domestic or foreign, or any Government Authority.
“Personal Data” means information that identifies, relates to, describes, or is reasonably capable of being linked, directly or indirectly, with an identified or identifiable person and includes all “personal data,” “personal information,” “protected health information,” “nonpublic personal information” or other similar terms as defined by applicable Laws.
“Physical Network” means fibers and related infrastructure (including poles, ducts, and highway shoulders) owned or leased (whether pursuant to a lease, indefeasible right of use or otherwise) by Parent or any of the Transferred Subsidiaries.
“Pre-Operational Data Center” means the data centers (or portions thereof) owned, leased or managed by Parent or any of the Transferred Subsidiaries that are under construction or development (including the buildout of any shell space).
“Privacy Requirements” means (a) any applicable Laws, in each case, relating to the protection or Processing of Personal Data, data privacy, data security, cross-border data transfer, data breach notification, general U.S. consumer protection laws applied in the context of data privacy, electronic communication, telephone and text message communications, marketing by email or other channels, and other similar Laws applicable to Parent or the Transferred Subsidiaries; (b) binding written commitments embodied in any Specified Contract with material indemnity related to the protection or Processing of Personal Data, data privacy, data security, or cross-border data transfer applicable to the parent or the Transferred Subsidiaries; and (c) industry standards binding on Parent or the Transferred Subsidiaries, including but not limited to the Payment Card Industry Data Security Standard.
“Processing,” “Process” or “Processed” means, with respect to Personal Data or IT Systems, (a) any collection, access, acquisition, storage, protection, use, recording, maintenance, operation, dissemination, re-use, disposal, disclosure, re-disclosure, deletion, destruction, sale, transfer, modification or any other processing of such Parent Data or IT Systems, or (b) “processing,” “process,” “processed,” “control,” “controlled,” or other similar terms as defined by any Privacy Requirement.
Sch A-13
“Purchaser” has the meaning set forth in the Preamble.
“Purchaser Balance Sheet” means the audited consolidated balance sheet of Purchaser as of December 31, 2024, and the footnotes thereto set forth in Purchaser’s annual report on Form 10-K for the fiscal year ended December 31, 2024.
“Purchaser Balance Sheet Date” means December 31, 2024.
“Purchaser Common Shares” means shares of Class A Common Stock.
“Purchaser Common Stock Price” means the volume-weighted average price per share taken to four decimal places of Purchaser Common Shares on the NASDAQ over the consecutive three day trading period prior to the Closing Date, as calculated by Bloomberg Financial LP under the function “VWAP” (or, if not available, in another authoritative source mutually selected by Purchaser and Seller).
“Purchaser Custodian Bank” means Cantor Fitzgerald Europe.
“Purchaser ESPP” means the Purchaser 2024 Employee Stock Purchase Plan.
“Purchaser Equity Awards” means, collectively, Purchaser Options and Purchaser RSUs.
“Purchaser Equity Plans” means, collectively, Purchaser Options, Purchaser RSUs and all other equity-based award under any Purchaser Equity Plan.
“Purchaser Fundamental Representations” means Section 8.1(a) (Organization), Section 8.1(b) (Corporate Authorization), Section 8.1(d) (Binding Effect), Section 8.1(e) (i) (Non-Contravention), Section 8.2 (Capitalization), Section 8.9 (Securities Law Compliance), Section 8.17 (Finder’s Fees; Brokerage) and Section 8.23 (Sale of Securities).
“Purchaser Indemnitees” means, collectively, (a) Purchaser, (b) Purchaser’s Affiliates (including, following the Closing, the Transferred Subsidiaries), (c) the respective Representatives of Purchaser (including, following the Closing, the Transferred Subsidiaries) and (d) the respective successors and assigns of the Persons referred to in the foregoing clauses (a) through (c).
“Purchaser Material Adverse Effect” means any change, effect, development, condition, matter, event, fact, circumstance or occurrence that, individually or when considered in the aggregate with any other change, effect, development, condition, matter, event, fact, circumstance or occurrence, (i) has had or would reasonably be expected to have a material and adverse effect on the business, assets, financial condition or results of operations of Purchaser and its Subsidiaries, taken as a whole, or (ii) has prevented or materially impaired, or would reasonably be expected to prevent or materially impair, the ability of Purchaser or any of its Affiliates to consummate the transactions contemplated by this Agreement or any other Transaction Document to which Purchaser is a party; provided, that none of the following, either alone or in combination with any other changes, effects, developments, conditions, matters, events, facts, circumstances or occurrences shall constitute or cause a Purchaser Material Adverse Effect:
(a) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from a change in applicable accounting principles or any change in Law (including any Law in respect of Taxes), or any interpretation thereof by any Government Authority, or change in GAAP or authoritative interpretations thereof;
Sch A-14
(b) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from changes in global, national or regional political or social conditions (including protests, strikes, riots, public demonstrations, civil unrest, acts of terrorism or war (including cyberattacks as acts of war)) or in general global, national or regional economic, business or regulatory conditions or in national or global financial or capital markets;
(c) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from conditions generally affecting the industries or market sectors in which Purchaser or its Subsidiaries operate;
(d) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting from or arising out of hurricanes, earthquakes, floods or other natural disasters, force majeure events or any outbreak of an epidemic or pandemic or other public health event or any Law or regulatory policy, recommendation, or pronouncement issued by a Government Authority, the Centers for Disease Control and Prevention or the World Health Organization or “sheltering in place,” curfew or other restrictions, in each case that relate to, or arise out of, an epidemic or pandemic, or any change in such Law, recommendation, pronouncement or interpretation thereof;
(e) any change, effect, event, development, condition, matter, fact, circumstance or occurrence to the extent resulting solely from the announcement or performance of the Transaction Documents or consummation of the transactions contemplated thereby or any third-party litigation relating to the Transaction Documents or the transactions contemplated thereby, including any loss of, or adverse change, effect, event, development, condition, matter, fact, circumstance or occurrence in or with respect to, the relationship of Purchaser or its Subsidiaries, contractual or otherwise, with customers, Government Authority, employees, labor unions, labor organizations, works councils or similar organizations, suppliers, distributors, financing sources, partners or similar relationship directly caused by the entry into this Agreement and the transactions contemplated by this Agreement, or resulting or arising from the identity of, or any actions taken or failed to be taken by, Parent or any of its Affiliates;
(f) the failure of Purchaser or any of its Subsidiaries to meet any internal or external projections, forecasts or estimates of performance, revenues or earnings (provided that this clause (f) shall not be construed as providing that any changes, effects, developments, conditions, matters, events, facts, circumstances or occurrences underlying or giving rise to such failure do not constitute, cause or contribute to, or shall not be taken into account in determining whether there has been, a Purchaser Material Adverse Effect); or
(g) any action taken (or omitted to be taken) upon the written request or instruction of Seller consistent with the terms hereof, to consummate the transactions contemplated hereby;
Sch A-15
(h) any action taken (or omitted to be taken) by Purchaser or any of its Subsidiaries as expressly required pursuant to this Agreement; provided, further, that, in the case of each of the foregoing clauses (a) through (d), only to the extent that any such change, effect, development, condition, matter, event, fact, circumstance or occurrence has not had, and would not reasonably be expected to have, individually or in the aggregate, a disproportionate effect on Purchaser and its Subsidiaries, taken as a whole, relative to other companies in Purchaser’s and its Subsidiaries’ industry.
“Purchaser Option” means any outstanding option to purchase Purchaser Common Shares granted under the Purchaser Equity Plans, as applicable.
“Purchaser Plan” means any benefit or compensation plan, program, policy, practice, agreement, Contract, arrangement or other obligation, as defined in Section 3(2) of ERISA (whether or not subject to ERISA and whether or not in writing and whether or not funded), in each case, which is sponsored or maintained by, contributed to, or required to be contributed to, or with respect to which any potential Liability is borne by Purchaser or any of its Affiliates for the benefit of their employees, including on account of any ERISA Affiliate of the Purchaser or any of its Affiliates.
“Purchaser Protected Person” has the meaning set forth in Section 9.22.
“Purchaser Reports” has the meaning set forth in Section 8.6(a).
“Purchaser RSU” means any outstanding restricted stock unit granted under the Purchaser Equity Plans, as applicable.
“Purchaser Securities” has the meaning set forth in Section 8.2(d).
“Purchaser Warrants” means all warrants issued by Purchaser, including warrants issued pursuant to that certain Warrant Agreement, dated February 18, 2021, by and between Continental Stock Transfer & Trust Company, as warrant agent and CF Acquisition Corp. VI, predecessor to Purchaser.
“Real Property” means, collectively, the Owned Real Property and the Leased Real Property.
“Real Property Leases” has the meaning set forth in Section 6.15(a)(xiii).
“Reference Price” means the product of (x) the Offer Ratio, (y) the volume-weighted average-price per Share taken to four decimal places of Purchaser Common Shares on the NASDAQ over the three consecutive trading days immediately preceding the applicable purchase date, as calculated by Bloomberg Financial LP under the function “VWAP” (or, if not available, in another authoritative source mutually selected by Purchaser and Seller), and (z) the exchange rate as promulgated by the European Central Bank on the last trading day prior to the applicable purchase date.
Sch A-16
“Registered Intellectual Property” means Intellectual Property that is issued by, registered or filed with, or the subject of a pending application before any Government Authority or internet domain name registrar.
“Related Party Contract” has the meaning set forth in Section 6.15(a)(xiv).
“Release” means any actual or threatened release, spill, emission, leaking, pumping, pouring, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Substances into or through the indoor or outdoor environment or into or out of any property, including the movement of Hazardous Substances through or in the air, soil, surface water or groundwater or property.
“Remedies Exception” means the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and other Laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at Law).
“Representatives” means, with respect to any Person, such Person’s Affiliates, directors, managers, officers, employees, accountant, legal or financial advisors, investment bankers, consultants, agents or other representatives, or anyone acting on behalf of them or such Person.
“Rumble Share Consideration” has the meaning set forth in Section 2.3.
“RWI Policy” means the purchaser-side representations and warranties insurance policy issued by the RWI Provider to Purchaser in connection with this Agreement.
“RWI Provider” means Euclid Transaction, LLC.
“Sanctioned Country” means any country or region that is the subject of comprehensive, territorial sanctions (currently Cuba, Iran, North Korea, the Crimea region of Ukraine, and the so-called Donetsk People’s Republic, so-called Luhansk People’s Republic, Kherson, and Zaporizhzhia regions of Ukraine).
“Sanctioned Person” means any (a) Person listed in any Sanctions-related list of designated persons maintained by OFAC (including the OFAC List of Specially Designated Nationals, OFAC’s Foreign Sanctions Evaders List, OFAC’s Sectoral Sanctions Identifications List), or the U.S. Department of State, the United Nations Security Council, the European Union, or the United Kingdom; (b) the government of a Sanctioned Country or the Government of Venezuela; or (c) any Person owned or controlled fifty percent (50%) or more by any Person or Persons or acting for or on behalf of such Person or Persons described in clause (a) or (b).
“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933.
Sch A-17
“Security Incident” means any unauthorized access, acquisition, use, modification, disclosure, or other Processing of Personal Data, any unauthorized access to IT Systems, or any other security incident that requires notification to any Government Authority under the Privacy Requirements.
“Self-Regulatory Organization” means (a) any “self-regulatory organization” as defined in Section 3(a)(26) of the Exchange Act, and (b) any other United States or foreign securities exchange, futures exchange, commodities exchange or contract market.
“Seller” has the meaning set forth in the Preamble.
“Seller Custodian Bank” means Joh. Berenberg, Gossler & Co. KG.
“Seller Fundamental Representations” means Section 5.1(a) (Organization), Section 5.1(b) (Authorization), Section 5.1(c)(i) (Non-Contravention), Section 5.3 (Title to Sold Shares) and Section 5.5 (Securities Law Compliance).
“Seller Indemnitees” means, collectively, (a) Seller, (b) Seller’s Affiliates (not including, following the Closing, Parent or the Transferred Subsidiaries), (c) the respective Representatives of Seller (not including, following the Closing, Parent or the Transferred Subsidiaries) and (d) the respective successors and assigns of the Persons referred to in the foregoing clauses (a) through (c).
“Seller Material Adverse Effect” means a material adverse effect on a Seller’s ability to consummate the transactions contemplated by this Agreement or any of the other Transaction Documents to which it is a party.
“Shares” has the meaning set forth in the Recitals.
“Signing Form 8-K” has the meaning set forth in Section 9.8.
“SLA” has the meaning in Section 6.15(b).
“SLA Credit” means any SLA credit, rebate, refund, service extension, fee waiver or other accommodation owed, issued, or granted to a customer pursuant to the terms of a service level agreement or other uptime or performance guarantee, including credits arising from failure to meet availability, performance, response time or other contractual service levels.
“Software” means computer software programs and software systems, in both source code and object code format, including databases, compilations, compilers, higher level or “proprietary” languages, data files, application programming interfaces, algorithms, tool sets, user interfaces, manuals and other specifications and documentation and all know-how related thereto, including websites, HTML code, and firmware and other software embedded in hardware devices, developed or currently being developed.
“Sold Shares” has the meaning set forth in the Recitals.
“Solvent” when used with respect to any Person, means that, as of any date of determination, (a) the amount of the fair saleable value of the assets of such Person will, as of such date, not be less than (i) the value of all Liabilities of such Person (including contingent and other Liabilities) as of such date and (ii) the amount that will be required to pay the probable Liabilities of such Person as its debts existing as of such date become absolute and mature, (b) such Person will not have, as of such date, an unreasonably small amount of capital for the operation of the businesses in which it is engaged and (c) such Person will be able to pay its Liabilities existing as of such date as they mature.
Sch A-18
“Specified Contracts” has the meaning set forth in Section 6.15(a).
“Subject Materials” has the meaning set forth in Section 11.6(c).
“Subsidiary” means any Person who is a dependent entity within the meaning of Section 17 para. 1 AktG, provided that the members of Parent Group shall not be considered Subsidiaries of Seller.
“Survival Date” has the meaning set forth in Section 11.1(b).
“Surviving Provisions” means Article I (Definitions and Terms), Section 9.7 (Confidentiality), Article XII (Termination) and Article XIII (Miscellaneous).
“Target Assets” means all assets held or to be held by Parent and the Transferred Subsidiaries as of the date hereof. For the avoidance of doubt, the Target Assets shall exclude any assets sold under the Peak Mining Purchase Agreement.
“Tax” and “Taxes” means all governmental, state, community, municipal or regional taxes, levies, imposts, duties, charges, deductions, withholdings and social security or national insurance contributions of any kind arising in any part of the world which is collected or assessed by, or payable to, a Government Authority or other Person as a result of any enactment relating to tax and all penalties, surcharges and interest included in or relating to any such taxes, levies, imposts, duties, charges, deductions, withholdings and social security or national insurance contributions, provided, however, the definition of Tax and Taxes shall not include deferred taxes and loss, credit, or interest carryforwards.
“Tax Liability Amount” means, without duplication, an amount (which shall in no event be an amount less than zero ($0) in the aggregate, in any jurisdiction, with respect to any particular taxpayer, or with respect to any particular type of Tax) equal to any amounts that would be properly accrued as current Liabilities of Parent and the Transferred Subsidiaries for unpaid income Taxes for the then-current period for which Tax Returns have not yet been filed as of the Closing Date, in each case calculated (i) as of the end of the day on the Closing Date, (ii) by taking into account all Tax deductions and similar benefits of Parent and the Transferred Subsidiaries arising out of the transactions contemplated by the Transaction Documents which are more likely-than-not currently deductible, (iii) in accordance with the past practice of Parent and the Transferred Subsidiaries (or of Parent with respect to the businesses of Parent and the Transferred Subsidiaries), (iv) by excluding any Tax Liabilities resulting from any elections pursuant to Section 336 or 338 of the Code (or corresponding provisions of other Tax Law) or from other actions taken by Parent or its Affiliates (including, after the Closing, Parent and the Transferred Subsidiaries) after the Closing that are not expressly contemplated by this Agreement, (v) by taking into account any Tax payments (including estimated payments, overpayments and prepayments) made before the Closing and any losses, credits and other attributes that are available under applicable Law with respect to the relevant income Taxes and (vi) by excluding all deferred Tax Liabilities, all reserves for contingent Taxes or uncertain tax positions, and all deferred Tax assets. For the avoidance of doubt, the Tax Liability Amount shall in no event be less than zero.
Sch A-19
“Tax Returns” means all returns, reports or similar statement required to be filed (including elections, declarations, disclosures, schedules, estimates, amended returns and information returns) with a Government Authority relating to Taxes.
“Tender Offer” has the meaning set forth in the Recitals.
“Tether” has the meaning set forth in the Recitals.
“Tether’s Disclosure Letter” means the Seller’s Disclosure Letter in the Tether Purchase Agreement.
“Tether Purchase Agreement” has the meaning set forth in the Recitals.
“Third Party” means any Person, including as defined in Section 13(d) of the Exchange Act, other than a Party or any of their respective Affiliates.
“Third-Party Claim” has the meaning set forth in Section 11.6(a).
“Title Insurance Policy” means an owner’s title insurance policy insuring good and valid fee simple or leasehold title (as the case may be) to the applicable Real Property.
“Top Ten Customers” has the meaning set forth in Section 6.15(a)(i).
“Trade Secrets” has the meaning set forth in the definition of Intellectual Property.
“Trademarks” has the meaning set forth in the definition of Intellectual Property.
“Transaction Documents” means this Agreement, the Confidentiality Agreement, the the Customer Agreement, the Business Combination Agreement, the CEO Purchase Agreement, the Tether Purchase Agreement, and each other document delivered or required to be delivered pursuant to the aforementioned agreements.
“Transfer” means (a) any transfer, assignment, encumbrance, pledge, hypothecation or disposition (by operation of Law or otherwise), either voluntary or involuntary, or entry into any option or other Contract, arrangement or understanding with respect to any transfer, assignment, encumbrance, pledge, hypothecation or disposition (by operation of Law or otherwise), of any Sold Shares, or any interest in any such Shares (in each case other than under the Transaction Documents), (b) the deposit of such Shares into a voting trust, the entry into a voting agreement or arrangement (other than this Agreement) with respect to such Shares or the grant of any proxy or power of attorney (other than this Agreement) with respect to such Shares, or (c) any Contract or commitment (whether or not in writing) to take any of the actions referred to in the foregoing clauses (a) or (b) above.
Sch A-20
“Transfer Taxes” has the meaning set forth in Section 10.2.
“Transferred Subsidiaries” means any direct or indirect Subsidiary of Parent, except for the entities sold under the Peak Mining Purchase Agreement.
“US Owned Real Property” means any Owned Real Property located in the United States.
“VAT” means any consumption or transfer-based Tax levied on the sale of goods and services imposed (including sales tax, use tax, consumption tax and goods and services tax) arising in any part of the world which is collected or assessed by, or payable to, a Government Authority or other Person.
“Virtual Data Room” means the virtual data room containing documents and information relating to, among other things, Parent, the Transferred Subsidiaries, and the Sold Shares made available by Parent in electronic form to Purchaser and its Representatives and maintained by Datasite LLC.
“Written Consent” has the meaning set forth in Section 8.1(b).
Sch A-21
Exhibit A
CEO Purchase Agreement
[Omitted.]
Exhibit B
Tether Purchase Agreement
[Omitted.]
Exhibit C
Peak Mining Purchase Agreement
[Omitted.]
Exhibit D
Business Combination Agreement
[Omitted.]
Exhibit E
Form of Written Consent
[Omitted.]
Exhibit 10.4
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of [______________], is made and entered into by and between Rumble Inc., a Delaware corporation (the “Company”), and Tether Investments S.A. de C.V. (the “Investor”).
RECITALS
WHEREAS, the Company and the Investor are parties to that certain Registration Rights Agreement, dated as of February 7, 2025 (the “February 2025 Registration Rights Agreement”) pursuant to which the Company granted the Investor certain registration rights with respect to certain securities of the Company;
WHEREAS, the Company and the Investor are parties to (a) that certain Transaction Support Agreement, dated November 10, 2025 (the “Transaction Support Agreement”), pursuant to which, among other matters, the Company issued to the Investor and/or may issue to Investor newly issued shares of the Company’s Class A common stock, par value $0.0001 per share (the “Common Stock”) in exchange for no par-value bearer shares of Northern Data AG, a German stock corporation (Aktiengesellschaft), each with a nominal amount of EUR 1.00 or in exchange for other consideration, pursuant to the terms of the Transaction Support Agreement; (b) that certain Equity Commitment Agreement, dated November 10, 2025 (the “Equity Commitment Agreement”), pursuant to which, among other matters, the Company issued and sold and/or may issue and sell Common Stock to the Investor, and the Investor purchased and/or may purchase Common Stock from the Company pursuant to the terms of the Equity Commitment Agreement; and (c) that certain Sale and Transfer and Amendment and Restatement Agreement, dated November 10, 2025, and the Loan Agreement, dated as of [●] (the “A&R and Loan Agreements”), pursuant to which, among other matters, the Company issued and sold Common Stock to the Investor, and the Investor purchased Common Stock from the Company, pursuant to the terms of the A&R and Loan Agreement (collectively, the “Issuances”);
WHEREAS, pursuant to Section 5.5 of the February 2025 Registration Rights Agreement, the provisions, covenants and conditions set forth therein may be amended or modified upon the written consent of the Company and the “Holders” of a majority-in-interest of the “Registrable Securities” (as such terms are defined in the February 2025 Registration Rights Agreement) at the time in question;
WHEREAS, as of the date hereof, Investor holds all of the “Registrable Securities” (as such term is defined in the February 2025 Registration Rights Agreement); and
WHEREAS, as contemplated by the Transaction Support Agreement, the Company and the Investor desire to amend and restate the February 2025 Registration Rights Agreement in order to provide the Holders (as defined below) with substantially similar registration rights with respect to additional securities of the Company, as set forth in this Agreement.
NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:
“A&R and Loan Agreement” shall have the meaning given in the Recitals hereto.
“Adverse Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Board, after consultation with the executive officers of and counsel to the Company, (i) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would not be required to be made at such time if the Registration Statement were not being filed, and (iii) the Company has a bona fide business purpose for not making such information public.
“Agreement” shall have the meaning given in the Preamble.
“Block Trade” means an offering and/or sale of Registrable Securities by any Holder on a block trade or underwritten basis (whether firm commitment or otherwise) without substantial marketing efforts prior to pricing, including, without limitation, a same day trade, overnight trade or similar transaction.
“Board” shall mean the Board of Directors of the Company.
“Class C Common Stock” shall mean the Company’s Class C common stock, par value $0.0001 per share.
“Closing” shall have the meaning set forth in the Transaction Support Agreement.
“Company” shall have the meaning given in the Preamble.
“Common Stock” shall have the meaning given in the Recitals hereto.
“Company Shelf Takedown Notice” shall have the meaning given in subsection 2.1.3.
“Demand Registration” shall have the meaning given in subsection 2.2.1.
“Demanding Holders” shall have the meaning given in subsection 2.2.1.
“Effectiveness Deadline” shall have the meaning given in subsection 2.1.1.
“Equity Commitment Agreement” shall have the meaning given in the Recitals hereto.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.
“ExchangeCo Shares” means exchangeable shares in the capital of 1000045728 Ontario Inc., which shares are (a) issued “in tandem” with shares of Class C Common Stock and (b) exchangeable for shares of Common Stock.
“Existing Registration Rights Holders” shall mean the parties to the September 2022 Registration Rights Agreement (other than the Company).
“Form S-1 Shelf” shall have the meaning given in subsection 2.1.1.
“Form S-3 Shelf” shall have the meaning given in subsection 2.1.1.
“Fully Diluted Basis” shall mean, as of any time of determination, all issued and outstanding shares of Common Stock as of such time, assuming for purposes of the calculation that all outstanding ExchangeCo shares have been exchanged for shares of Common Stock (with a concomitant redemption of shares of Class C Common Stock).
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“Holders” shall mean the Investor, and its successors and assigns, and any person or entity who hereafter becomes a party to this Agreement pursuant to Section 5.2; provided, that upon any Holder (or any such person or entity) ceasing to hold Registrable Securities, they shall cease to be a Holder.
“Issuances” shall have the meaning given in the Recitals hereto.
“Maximum Number of Securities” shall have the meaning given in subsection 2.2.4.
“Misstatement” shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading.
“Permitted Transferees” shall mean (a) any person or entity to whom a Holder of Registrable Securities is permitted to transfer such Registrable Securities pursuant to (i) the Transaction Support Agreement or this Agreement or (ii) any other applicable agreement between such Holder and the Company, and (b) any transferee thereafter of any person or entity referenced in the preceding clause (a).
“Piggyback Registration” shall have the meaning given in subsection 2.3.1.
“Pre-Funded Warrants” means the pre-funded warrants that may be issued in lieu of shares of Common Stock pursuant to the terms of the Transaction Support Agreement, the Equity Commitment Agreement or the A&R and Loan Agreement.
“Pro Rata” shall mean, in the context of a Registration involving multiple Holders of Registrable Securities or holders of Common Stock, as applicable, the percentage derived by dividing (x) the aggregate number of Registrable Securities and/or shares of Common Stock proposed to be sold by such participant in such Registration by (y) the aggregate number of Registrable Securities and/or shares of Common Stock proposed to be sold by all participants in such Registration.
“Prospectus” shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“Registrable Security” shall mean (a) the shares of Common Stock issued to the Investor pursuant to the Issuances (including any Issuances that occur after the Closing), (b) the shares of Common Stock issuable to the Investor pursuant to the Pre-Funded Warrants, (c) to the extent not included within the preceding clause (a) or (b), any outstanding shares of Common Stock or any other security (including the shares of Common Stock issued or issuable upon the exercise of any other security) of the Company held by a Holder as of the Closing, and (d) any other equity security of the Company issued or issuable with respect to any share of Common Stock described in the foregoing clauses (a) through (c) by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization; provided, however, that, as to any particular Registrable Securities, such securities shall cease to be Registrable Securities when: (i) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement (except any transfer to a Permitted Transferee); (ii) such securities shall have ceased to be outstanding; (iii) such securities shall have been sold without registration pursuant to Rule 144; or (iv) such securities shall have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction. Notwithstanding the foregoing, when the term “Registrable Security” is used herein in the express context of Company securities owned by the Existing Registration Rights Holders, “Registrable Security” shall have the meaning given to such term in the September 2022 Registration Rights Agreement.
“Registration” shall mean a registration effected by preparing and filing a registration statement or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
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“Registration Expenses” shall mean the out-of-pocket expenses of a Registration, including, without limitation, the following:
(A) all registration and filing fees
(including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.) and any securities
exchange on which the Common Stock is then listed;
(B) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel for the Underwriters in connection with blue sky qualifications of Registrable Securities);
(C) printing, messenger, telephone and delivery expenses;
(D) reasonable fees and disbursements of counsel for the Company;
(E) reasonable fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration; and
(F) reasonable fees and expenses of one (1) legal counsel selected by the majority-in-interest of the Demanding Holders initiating a Shelf Underwritten Offering or a Demand Registration to be registered for offer and sale in the applicable Registration.
“Registration Statement” shall mean any registration statement that covers the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.
“Removed Shares” shall have the meaning given in Section 2.6.
“Requesting Holder” shall have the meaning given in subsection 2.2.1.
“Restricted Securities” shall have the meaning given in subsection 3.6.1.
“Rule 144” shall mean Rule 144 promulgated under the Securities Act, or any successor rule promulgated thereafter by the SEC.
“Rule 415” shall have the meaning given in subsection 2.1.1.
“SEC” shall mean the United States Securities and Exchange Commission.
“SEC Guidance” means (i) any publicly-available written or oral guidance of the SEC staff, or any comments, requirements or requests of the SEC staff whether formally or informally or publicly or privately and (ii) the Securities Act.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
“September 2022 Registration Rights Agreement” means that certain Amended and Restated Registration Rights Agreement, dated as of September 16, 2022, by and among the Company, CFAC Holdings VI, LLC, a Delaware limited liability company, and certain other stockholders of the Company party thereto.
“Shelf Takedown Notice” shall have the meaning given in subsection 2.1.3.
“Shelf Underwritten Offering” shall have the meaning given in subsection 2.1.3.
“Transaction Support Agreement” shall have the meaning given in the Recitals hereto.
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“Underwriter” shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealer’s market-making activities.
“Underwritten Registration” or “Underwritten Offering” shall mean a Registration in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.
ARTICLE II
REGISTRATIONS
2.1 Shelf Registration.
2.1.1 Initial Registration. The Company shall, as soon as practicable but no later than the date that is 15 days immediately after the Closing, file a Registration Statement under the Securities Act to permit the public resale of all the Registrable Securities held by the Holders from time to time as permitted by Rule 415 under the Securities Act (or any successor or similar provision adopted by the SEC then in effect) (“Rule 415”) on the terms and conditions specified in this subsection 2.1.1 and shall use its reasonable best efforts to cause such Registration Statement to be declared effective as soon as practicable after the filing thereof, but in no event later than the earlier of (i) sixty (60) calendar days following the filling thereof (or 90 calendar days following the filing thereof if the SEC notifies the Company that it will “review” the Registration Statement), and (ii) the second (2nd) business day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Deadline”). The Registration Statement filed with the SEC pursuant to this subsection 2.1.1 shall be a shelf registration statement on Form S-3 (a “Form S-3 Shelf”) or, if Form S-3 is not then available to the Company, on Form S-1 (a “Form S-1 Shelf”) or such other form of registration statement as is then available to effect a registration for resale of such Registrable Securities, covering such Registrable Securities, and shall contain a Prospectus in such form as to permit any Holder to sell such Registrable Securities pursuant to Rule 415 at any time beginning on the effective date for such Registration Statement. A Registration Statement filed pursuant to this subsection 2.1.1 shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders. The Company shall cause such Registration Statement filed pursuant to this subsection 2.1.1 to remain effective, and to be supplemented and amended or to file and bring effective a new Registration Statement, to the extent necessary to ensure that such Registration Statement is available or, if not available, that another Registration Statement is available, for the resale of all the Registrable Securities held by the Holders until all such Registrable Securities have ceased to be Registrable Securities; provided, however, the Company shall not be required to supplement, amend and/or bring a new Registration Statement effective more frequently than once per fiscal quarter. As soon as practicable following the effective date of a Registration Statement filed pursuant to this subsection 2.1.1, but in any event within one (1) business day of such date, the Company shall notify the Holders of the effectiveness of such Registration Statement. When effective, a Registration Statement filed pursuant to this subsection 2.1.1 (including the documents incorporated therein by reference) will comply as to form in all material respects with all applicable requirements of the Securities Act and the Exchange Act and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any Prospectus contained in such Registration Statement, in the light of the circumstances under which such statement is made).
2.1.2 Form S-3 Shelf. If the Company files a Form S-3 Shelf and thereafter the Company becomes ineligible to use Form S-3 for secondary sales, the Company shall use its best efforts to file a Form S-1 Shelf as promptly as practicable (but in any event, within ten (10) calendar days) to replace the shelf registration statement that is a Form S-3 Shelf and have the Form S-1 Shelf declared effective as promptly as practicable and to cause such Form S-1 Shelf to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, that another Registration Statement is available, for the resale of all the Registrable Securities held by the Holders until all such Registrable Securities have ceased to be Registrable Securities.
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2.1.3 Shelf Takedown. At any time and from time to time following the effectiveness of the shelf registration statement required by subsection 2.1.1 or 2.1.2, any Holder may request to sell all or a portion of their Registrable Securities in an underwritten offering that is registered pursuant to such shelf registration statement, including a Block Trade (a “Shelf Underwritten Offering”) provided that such Holder(s) (a) reasonably expect aggregate gross proceeds in excess of $35,000,000 from such Shelf Underwritten Offering or (b) reasonably expect to sell all of the Registrable Securities held by such Holder in such Shelf Underwritten Offering but in no event less than $10,000,000. All requests for a Shelf Underwritten Offering shall be made by giving written notice to the Company (the “Shelf Takedown Notice”). Each Shelf Takedown Notice shall specify the approximate number of Registrable Securities proposed to be sold in the Shelf Underwritten Offering and the expected price range (net of underwriting discounts and commissions) of such Shelf Underwritten Offering. Within five (5) business days after receipt of any Shelf Takedown Notice that is not a Block Trade, the Company shall give written notice of such requested Shelf Underwritten Offering to all other Holders of Registrable Securities (the “Company Shelf Takedown Notice”) and, subject to reductions consistent with the Pro Rata calculations in Section 2.2.4, shall use commercially reasonable efforts to include in such Shelf Underwritten Offering all Registrable Securities with respect to which the Company has received written requests for inclusion therein, within five (5) days after sending the Company Shelf Takedown Notice. The Company shall enter into an underwriting agreement in a form as is customary in Underwritten Offerings of securities by the Company with the managing Underwriter or Underwriters selected by the initiating Holders after consultation with the Company and shall take all such other reasonable actions as are requested by the managing Underwriter or Underwriters in order to expedite or facilitate the disposition of such Registrable Securities. In connection with any Shelf Underwritten Offering contemplated by this subsection 2.1.3, subject to Section 3.3 and Article IV, the underwriting agreement into which each Holder and the Company shall enter shall contain such representations, covenants, indemnities and other rights and obligations of the Company and the selling stockholders as are customary in underwritten offerings of securities by the Company. Notwithstanding anything to the contrary set forth in this subsection 2.1.3 or subsection 2.2.1, a request by any Holder(s) for a Shelf Underwritten Offering pursuant to this subsection 2.1.3 shall count as a Demand Registration for purposes of the limitations on the number of Demand Registrations set forth in the last sentence of subsection 2.2.1 for so long as the Registrable Securities requested to be sold in such Shelf Underwritten Offering by such Holder(s) pursuant to this subsection 2.2.1 (after giving effect to any to reductions consistent with the Pro Rata calculations in Section 2.2.4) have actually been sold in connection therewith.
2.1.4 Holder Information Required for Participation in Shelf Registration. At least ten (10) business days prior to the first anticipated filing date of a Registration Statement pursuant to this Article II, the Company shall notify each Holder in writing of the anticipated filing of such Registration Statement (which may be by email), and request from each Holder all information reasonably necessary about the Holder to include such Holder’s Registrable Securities in such Registration Statement. Notwithstanding anything else in this Agreement, the Company shall not be obligated to include such Holder’s Registrable Securities to the extent the Company has not received such information, and received any other reasonably requested agreements or certificates, on or prior to the third (3rd) business day prior to the first anticipated filing date of a Registration Statement pursuant to this Article II.
2.2 Demand Registration.
2.2.1 Request for Registration. Subject to the provisions of subsection 2.2.4 and Section 2.4 hereof and provided that the Company does not have an effective Registration Statement pursuant to subsection 2.1.1 outstanding covering the Registrable Securities, the Holders holding at least a majority-in-interest of the then-outstanding number of Registrable Securities held by the Holders (for purposes of this subsection 2.2, the “Demanding Holders”), may make a written demand for Registration of all or part of their Registrable Securities, which written demand shall describe the amount and type of securities to be included in such Registration and the intended method(s) of distribution thereof (such written demand a “Demand Registration”). The Company shall, within ten (10) days of the Company’s receipt of the Demand Registration, notify, in writing, all other Holders of Registrable Securities of such demand, and each Holder of Registrable Securities who thereafter wishes to include all or a portion of such Holder’s Registrable Securities in a Registration pursuant to a Demand Registration (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such Registration, a “Requesting Holder”) shall so notify the Company, in writing, within five (5) days after the receipt by the Holder of the notice from the Company. Upon receipt by the Company of any such written notification from a Requesting Holder(s) to the Company, such Requesting Holder(s) shall be entitled to have their Registrable Securities included in a Registration pursuant to a Demand Registration and the Company shall effect, as soon thereafter as practicable, the Registration of all Registrable Securities requested by the Demanding Holder(s) and Requesting Holder(s) pursuant to such Demand Registration, but not more than forty five (45) days immediately after the Company’s receipt of the Demand Registration. Under no circumstances shall the Company be obligated to effect more than an aggregate of eight (8) Registrations pursuant to a Demand Registration by the Holders under this subsection 2.2.1 with respect to any or all Registrable Securities held by such Holders; provided, however, that a Registration pursuant to a Demand Registration shall not be counted for such purposes unless a Registration Statement that may be available at such time has become effective and all of the Registrable Securities requested by the Requesting Holders and the Demanding Holders to be registered on behalf of the Requesting Holders and the Demanding Holders in such Registration Statement have been sold, in accordance with Section 3.1 of this Agreement.
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2.2.2 Effective Registration. Notwithstanding the provisions of subsection 2.2.1 above or any other part of this Agreement, a Registration pursuant to a Demand Registration shall not count as a Registration unless and until (i) the Registration Statement filed with the SEC with respect to a Registration pursuant to a Demand Registration has been declared effective by the SEC and (ii) the Company has complied with all of its obligations under this Agreement with respect thereto; provided, further, that if, after such Registration Statement has been declared effective, an offering of Registrable Securities in a Registration pursuant to a Demand Registration is subsequently interfered with by any stop order or injunction of the SEC, federal or state court or any other governmental agency, the Registration Statement with respect to such Registration shall be deemed not to have been declared effective, unless and until, (a) such stop order or injunction is removed, rescinded or otherwise terminated, and (b) a majority-in-interest of the Demanding Holders initiating such Demand Registration thereafter affirmatively elect to continue with such Registration and accordingly notify the Company in writing, but in no event later than five (5) days, of such election; and provided, further, that the Company shall not be obligated or required to file another Registration Statement until the Registration Statement that has been previously filed with respect to a Registration pursuant to a Demand Registration becomes effective or is subsequently terminated.
2.2.3 Underwritten Offering. Subject to the provisions of subsection 2.2.4 and Section 2.4 hereof, if a majority-in-interest of the Demanding Holders so advise the Company as part of their Demand Registration that the offering of the Registrable Securities pursuant to such Demand Registration shall be in the form of an Underwritten Offering, then the right of such Demanding Holder or Requesting Holder (if any) to include its Registrable Securities in such Registration shall be conditioned upon such Holder’s participation in such Underwritten Offering and the inclusion of such Holder’s Registrable Securities in such Underwritten Offering to the extent provided herein. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this subsection 2.2.3 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the majority-in-interest of the Demanding Holders initiating the Demand Registration, which Underwriter(s) shall be reasonably satisfactory to the Company.
2.2.4 Reduction of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Registration, in good faith, advises the Company, the Demanding Holders and the Requesting Holders (if any) in writing that the dollar amount or number of Registrable Securities that the Demanding Holders and the Requesting Holders (if any) desire to sell, taken together with all other Common Stock or other equity securities that the Company desires to sell and the shares of Common Stock, if any, as to which a Registration has been requested pursuant to separate written contractual piggy-back registration rights held by any other stockholders who desire to sell, exceeds the maximum dollar amount or maximum number of equity securities that can be sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then the Company shall include in such Underwritten Offering, as follows: (i) first, the Registrable Securities of the Demanding Holders and the Requesting Holders which can be sold without exceeding the Maximum Number of Securities (it being understood and agreed that the number of Registrable Securities included in any Registration pursuant to this clause (i) shall be calculated on a Pro Rata basis as among the Holders); (ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), any of the Existing Registration Rights Holders exercising their right to register their Registrable Securities pursuant to the September 2022 Registration Rights Agreement, (it being understood and agreed that the number of Registrable Securities included in any Registration pursuant to this clause (ii) shall be calculated on a Pro Rata basis as among the Existing Registration Rights Holders exercising their contractual rights to participate in such Registration); (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i) and (ii), Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (iv) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i), (ii) and (iii), Common Stock or other equity securities of other persons or entities that the Company is obligated to register in a Registration pursuant to separate written contractual arrangements with such persons and that can be sold without exceeding the Maximum Number of Securities.
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2.2.5 Demand Registration Withdrawal.
Any of the Demanding Holders initiating a Demand Registration or any of the Requesting Holders (if any), pursuant to a Registration under
subsection 2.2.1 shall have the right to withdraw from a Registration pursuant to such Demand Registration or a Shelf Underwritten
Offering pursuant to subsection 2.1.3 for any or no reason whatsoever upon written notification to the Company and the Underwriter
or Underwriters (if any) of their intention to withdraw from such Registration at least one (1) business day prior to the effectiveness
of the Registration Statement filed with the SEC with respect to the Registration of their Registrable Securities pursuant to such Demand
Registration (or in the case of an Underwritten Registration pursuant to Rule 415, at least five (5) business days prior to the time of
pricing of the applicable offering). Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for
the Registration Expenses incurred in connection with a Registration pursuant to a Demand Registration or a Shelf Underwritten Offering
prior to its withdrawal under this subsection 2.2.5.
2.3 Piggyback Registration.
2.3.1 Piggyback Rights. If the Company proposes to file a Registration Statement under the Securities Act with respect to an offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities, for its own account or for the account of stockholders of the Company (or by the Company and by the stockholders of the Company including, without limitation, pursuant to Section 2.2 hereof), other than a Registration Statement (i) filed in connection with any employee stock option or other benefit plan, (ii) for a rights offering or an exchange offer or offering of securities solely to the Company’s existing stockholders, (iii) for an offering of debt that is convertible into equity securities of the Company or (iv) for a dividend reinvestment plan, then the Company shall give written notice of such proposed filing to all of the Holders of Registrable Securities as soon as practicable but not less than ten (10) days before the anticipated filing date of such Registration Statement, which notice shall (A) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, in such offering, and (B) offer to all of the Holders of Registrable Securities the opportunity to register the sale of such number of Registrable Securities as such Holders may request in writing within five (5) days after receipt of such written notice (such Registration a “Piggyback Registration”). The Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and shall use its best efforts to cause the managing Underwriter or Underwriters of a proposed Underwritten Offering to permit the Registrable Securities requested by the Holders pursuant to this subsection 2.3.1 to be included in a Piggyback Registration on the same terms and conditions as any similar securities of the Company included in such Registration and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this subsection 2.3.1 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the Company.
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2.3.2 Reduction of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten Registration that is to be a Piggyback Registration, in good faith, advises the Company and the Holders of Registrable Securities participating in the Piggyback Registration in writing that the dollar amount or number of shares of Common Stock that the Company desires to sell, taken together with (i) the shares of Common Stock, if any, as to which Registration has been demanded pursuant to separate written contractual arrangements with persons or entities other than the Holders of Registrable Securities hereunder (ii) the Registrable Securities as to which registration has been requested pursuant to Section 2.3 hereof, and (iii) the shares of Common Stock, if any, as to which Registration has been requested pursuant to separate written contractual piggy-back registration rights of other stockholders of the Company, exceeds the Maximum Number of Securities, then:
(a) If the Registration is undertaken for the Company’s account, the Company shall include in any such Registration (A) first, the shares of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of (i) Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.3.1 hereof and (ii) the Existing Registration Rights Holders exercising their right to register their Registrable Securities pursuant to the September 2022 Registration Rights Agreement, in each case, which can be sold without exceeding the Maximum Number of Securities (it being understood and agreed that the number of Registrable Securities included in any Registration pursuant to this clause (B) shall be calculated on a Pro Rata basis as among the Holders and the Existing Registration Rights Holders who are exercising their contractual rights to participate in such Registration); and (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the shares of Common Stock, if any, as to which Registration has been requested or demanded pursuant to written contractual piggy-back registration rights of other stockholders of the Company, which can be sold without exceeding the Maximum Number of Securities;
(b) If the Registration is pursuant to a request by persons or entities other than the Holders of Registrable Securities, then the Company shall include in any such Registration (A) first, the shares of Common Stock or other equity securities, if any, of such requesting persons or entities, other than the Holders of Registrable Securities, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.3.1, Pro Rata, which can be sold without exceeding the Maximum Number of Securities; (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the shares of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (B) and (C), the shares of Common Stock or other equity securities for the account of other persons or entities that the Company is obligated to register pursuant to separate written contractual arrangements with such persons or entities, which can be sold without exceeding the Maximum Number of Securities.
2.3.3 Piggyback Registration Withdrawal. Any Holder of Registrable Securities shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the SEC with respect to such Piggyback Registration (or in the case of an Underwritten Registration pursuant to Rule 415, at least five (5) business days prior to the time of pricing of the applicable offering). The Company (whether on its own good faith determination or as the result of a request for withdrawal by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the SEC in connection with a Piggyback Registration at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this subsection 2.3.3.
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2.3.4 Unlimited Piggyback Registration Rights. For purposes of clarity, any Registration effected pursuant to Section 2.3 hereof shall not be counted as a Registration pursuant to a Demand Registration effected under Section 2.2 hereof or a Shelf Underwritten Offering effected under subsection 2.1.3.
2.4 Restrictions on Registration Rights. If (A) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date ninety (90) days after the effective date of, a Company initiated Registration and provided that the Company has delivered written notice to the Holders prior to receipt of a Shelf Underwritten Offering pursuant to subsection 2.1.3 or a Demand Registration pursuant to subsection 2.2.1 and it continues to actively employ, in good faith, all reasonable efforts to cause the applicable Registration Statement to become effective; (B) the Holders have requested a Shelf Underwritten Offering or an Underwritten Registration, as applicable, and the Company and the Holders are unable to obtain the commitment of underwriters to firmly underwrite the offer; or (C) in the good faith judgment of the Board such Shelf Underwritten Offering or Registration would be materially detrimental to the Company and the Board concludes as a result that it is essential to defer such Shelf Underwritten Offering or the filing of such Registration Statement at such time, as applicable, then in each case the Company shall furnish to such Holders a certificate signed by the Chairman of the Board or the Chief Executive Officer stating that, in the good faith judgment of the Board, it would be materially detrimental to the Company for such Shelf Underwritten Offering to be commenced or such Registration Statement to be filed, as applicable, in the near future and that it is therefore essential to defer such Shelf Underwritten Offering or the filing of such Registration Statement, as applicable. In such event, the Company shall have the right to defer such offering or filing for a period of not more than sixty (60) days; provided, however, that the Company shall not defer its obligation in this manner more than twice in any 12-month period, or for an aggregate period of more than ninety (90) days in any twelve month period (the “Aggregate Blocking Period”).
2.5 Block Trades. Notwithstanding any other provision of this Article II, but subject to Sections 2.4 and 3.4, if the Holders desire to effect a Block Trade, the Holders shall provide written notice to the Company at least five (5) business days prior to the date such Block Trade will commence. As expeditiously as possible, the Company shall use its reasonable best efforts to facilitate such Block Trade. The Holders shall use reasonable best efforts to work with the Company and the Underwriter(s) (including by disclosing the maximum number of Registrable Securities proposed to be the subject of such Block Trade) in order to facilitate preparation of the Registration Statement, Prospectus and other offering documentation related to the Block Trade and any related due diligence and comfort procedures.
2.6 Rule 415; Removal. If at any time the SEC takes the position that the offering of some or all of the Registrable Securities in a Registration Statement on Form S-3 filed pursuant to this Article II is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities Act (provided, however, the Company shall be obligated to use diligent efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09) or requires a Holder to be named as an “underwriter,” the Company shall (i) promptly notify each holder of Registrable Securities thereof (or in the case of the SEC requiring a Holder to be named as an “underwriter,” the applicable Holders) and (ii) use reasonable best efforts to persuade the SEC that the offering contemplated by such Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 and that none of the applicable Holders is an “underwriter.” The Holders shall have the right to select one legal counsel designated by the holders of a majority of the Registrable Securities held by the Holders, and subject to such Registration Statement, each such legal counsel shall have the review and oversee any registration or matters pursuant to this Section 2.6, including participation in any meetings or discussions with the SEC regarding the SEC’s position and to comment on any written submission made to the SEC with respect thereto. No such written submission with respect to this matter shall be made to the SEC to which the applicable set of Holders’ counsel reasonably objects. In the event that, despite the Company’s reasonable best efforts and compliance with the terms of this Section 2.6, the SEC refuses to alter its position, the Company shall, at the applicable Holder(s)’ option, (i) remove from such Registration Statement such portion of the Registrable Securities (the “Removed Shares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the SEC may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that the Company shall only be required to include such Holder’s Registrable Securities in the Registration Statement if the Holder agrees to be named as an “underwriter” in such Registration Statement. In the event of a share removal pursuant to this Section 2.6, the Company shall give the applicable Holders at least five (5) days prior written notice along with the calculations as to such Holder’s allotment. Any removal of shares of the applicable Holders (who, for the avoidance of doubt, shall solely consist of those Holders the SEC is requiring to be named as an “underwriter”) pursuant to this Section 2.6 shall be allocated between the applicable Holders on a pro rata basis based on the aggregate amount of Registrable Securities held by such applicable Holders. In the event of a share removal of some or all Holders pursuant to this Section 2.6, the Company shall promptly register the resale of any Removed Shares pursuant to subsection 2.1.2 hereof and in no event shall the filing of such Registration Statement on Form S-1 or subsequent Registration Statement on Form S-3 filed pursuant to the terms of subsection 2.1.2 be counted as a Demand Registration hereunder. Until such time as the Company has registered all of the Removed Shares for resale pursuant to Rule 415 on an effective Registration Statement, the Company shall not be able to defer the filing of a Registration Statement pursuant to Section 2.4 hereof.
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ARTICLE III
CERTAIN PROCEDURES
3.1 General Procedures. If the Company is required to effect the Registration of Registrable Securities, the Company shall use its best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:
3.1.1 prepare and file with the SEC as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by any Holder with Registrable Securities registered on such Registration Statement or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and each Holder of Registrable Securities included in such Registration, and each such Holder’s legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and each Holder of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as any Holder of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
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3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the SEC suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities and its counsel, including, without limitation, providing copies promptly upon receipt of any comment letters received with respect to any such Registration Statement or Prospectus;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriter(s), if any, and any attorney(s) or accountant(s) retained by such Holders or Underwriter(s) to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative(s), Underwriter, attorney(s) or accountant(s) in connection with the Registration; provided, however, that such representative(s) or Underwriter enters into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information; and provided further, the Company may not include the name of any Holder or Underwriter or any information regarding any Holder or Underwriter in any Registration Statement or Prospectus, any amendment or supplement to such Registration Statement or Prospectus, any document that is to be incorporated by reference into such Registration Statement or Prospectus, or any response to any comment letter, without the prior written consent of such Holder or Underwriter and providing each such Holder or Underwriter a reasonable amount of time to review and comment on such applicable document, which comments the Company shall include unless contrary to applicable law;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter(s) may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and a negative assurance letter, each dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriter(s), if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Underwriter(s), placement agent(s) or sales agent(s) may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to a majority-in-interest of the participating Holders;
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3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the SEC);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $50,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter(s) in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.
3.2 Registration Expenses. Except as otherwise provided herein, the Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing the Holders.
3.3 Requirements for Participation in Underwritten Offerings. No person may participate in any Underwritten Offering for equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such person (i) agrees to sell such person’s securities on the basis provided in any underwriting arrangements approved by the Company and (ii) completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting agreements and other customary documents as may be reasonably required under the terms of such underwriting arrangements.
3.4 Suspension of Sales; Adverse Disclosure. Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice), or until it is advised in writing by the Company that the use of the Prospectus may be resumed. If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would require the Company to make an Adverse Disclosure or would require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control, the Company may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time, but in no event more than forty-five (45) days, determined in good faith by the Company to be necessary for such purpose. In the event the Company exercises its rights under the preceding sentence, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities. The Company shall immediately notify the Holders of the expiration of any period during which it exercised its rights under this Section 3.4.
3.5 Reporting Obligations; Legend Removal.
3.5.1 As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act. The Company further covenants that it shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell the shares of Common Stock held by such Holder without registration under the Securities Act within the limitation of the exemptions provided by Rule 144, including providing any legal opinions. Upon the request of any Holder, the Company shall deliver to such Holder a written statement as to whether it has complied with such requirements and, if not, the specifics thereof.
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3.5.2 Upon request of a Holder, the Company shall promptly cause any legend affixed to any Registrable Securities to be removed from any certificate for any Registrable Securities to the extent that such legend is no longer required under the Securities Act and applicable state laws, including by providing any opinion of counsel that may be required by the transfer agent to effect such removal.
3.6 Limitations on Registration Rights. Notwithstanding any other provision herein to the contrary, no Holder may exercise any of its rights under Article II at any time when such Holder beneficially owns less than 2% of the outstanding shares of Common Stock calculated on a Fully Diluted Basis.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
4.1 Indemnification.
4.1.1 The Company agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers and directors and each person who controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (including attorneys’ fees) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information furnished in writing to the Company by such Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Holder.
4.1.2 In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus and, to the extent permitted by law, shall indemnify the Company, its directors and officers and agents and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including without limitation reasonable attorneys’ fees) resulting from any untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by such Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company.
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4.1.3 Any person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party if the indemnifying party provides notice of such to the indemnified party within 30 days of the indemnifying party’s receipt of notice of such claim. After notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party for any other legal expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party) or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action or counsel reasonably satisfactory to the indemnified party, in each case, within a reasonable time after receiving notice of the commencement of the action; in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction (plus local counsel) at any one time for all such indemnified party or parties. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). No indemnifying party shall, without the consent of the indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 4 (whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent (1) includes an express and unconditional release of each indemnified party, in form and substance reasonably satisfactory to such indemnified party, from all liability arising out of such litigation, investigation, proceeding or claim and (2) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
4.1.4 The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person of such indemnified party and shall survive the transfer of securities. The Company and each Holder of Registrable Securities participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such Holder’s indemnification is unavailable for any reason.
4.1.5 If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, 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, claims, damages, liabilities and expenses 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 or alleged untrue statement of a material fact or omission or alleged 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; provided, however, that the liability of any Holder under this subsection 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in subsections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection 4.1.5 were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this subsection 4.1.5. 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 subsection 4.1.5 from any person who was not guilty of such fraudulent misrepresentation.
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ARTICLE V
MISCELLANEOUS
5.1 Notices. Any notice or communication under this Agreement must be in writing and given by (i) deposit in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, (ii) delivery in person or by courier service providing evidence of delivery, or (iii) transmission by hand delivery, electronic mail or facsimile. Each notice or communication that is mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given, served, sent, and received, in the case of mailed notices, on the third business day following the date on which it is mailed and, in the case of notices delivered by courier service, hand delivery, electronic mail or facsimile, at such time as it is delivered to the addressee (with the delivery receipt or the affidavit of messenger) or at such time as delivery is refused by the addressee upon presentation. Any notice or communication under this Agreement must be addressed, if to the Company, 444 Gulf of Mexico Dr., Longboat Key, FL 34228, Attention: Chief Financial Officer, and, if to any Holder, at such Holder’s address or contact information as set forth in the Company’s books and records. Any party may change its address for notice at any time and from time to time by written notice to the other parties hereto, and such change of address shall become effective thirty (30) days after delivery of such notice as provided in this Section 5.1.
5.2 Assignment; No Third Party Beneficiaries.
5.2.1 This Agreement and the rights, duties and obligations of the Company and the Holders of Registrable Securities, as the case may be, hereunder may not be assigned or delegated by the Company or the Holders of Registrable Securities, as the case may be, in whole or in part, except in connection with a transfer of Registrable Securities by such Holder to a Permitted Transferee but only if such Permitted Transferee agrees to become bound by the transfer restrictions set forth in this Agreement, provided that any Holder may assign its rights hereunder to an affiliate of such Holder.
5.2.2 This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted assigns of the Holders, which shall include Permitted Transferees.
5.2.3 This Agreement shall not confer any rights or benefits on any persons that are not parties hereto, other than as expressly set forth in this Agreement, including Section 4.1 and Section 5.2 hereof.
5.2.4 No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until the Company shall have received (i) written notice of such assignment as provided in Section 5.1 hereof and (ii) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement). Any transfer or assignment made other than as provided in this Section 5.2 shall be null and void.
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5.3 Counterparts. This Agreement may be executed in multiple counterparts (including facsimile or PDF counterparts), each of which shall be deemed an original, and all of which together shall constitute the same instrument, but only one of which need be produced.
5.4 Governing Law; Venue. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT (I) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO AGREEMENTS AMONG NEW YORK RESIDENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS OF SUCH JURISDICTION AND (II) THE VENUE FOR ANY ACTION TAKEN WITH RESPECT TO THIS AGREEMENT SHALL BE ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY IN THE STATE OF NEW YORK.
5.5 Amendments and Modifications. Upon the written consent of the Company and the Holders of at least a majority-in-interest of the Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects one Holder or group of affiliated Holders, solely in its capacity as a holder of the shares of capital stock of the Company, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder or group of affiliated Holders so affected. No course of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party.
5.7 Term. This Agreement shall terminate upon the date as of which (A) all of the Registrable Securities have been sold pursuant to a Registration Statement (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder (or any successor rule promulgated thereafter by the SEC)) or (B) with respect to any Holder, such Holder ceasing to hold Registrable Securities.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have caused this Registration Rights Agreement to be executed as of the date first written above.
| COMPANY: | ||
| RUMBLE INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| INVESTOR: | ||
| Tether Investments S.A. de C.V. | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Registration Rights Agreement]
Exhibit 10.5
AMENDMENT NO. 1 TO TRANSACTION AGREEMENT AND WAIVER
This Amendment No. 1 to Transaction Agreement and Waiver (this “Amendment and Waiver”), dated as of [•] (the “Effective Date”), is made by and between Rumble Inc., a Delaware corporation (the “Company”), and Tether Investments S.A. de C.V. (as successor in interest to Tether Investments Limited) (the “Investor”) in reference to that certain Transaction Agreement (the “Transaction Agreement”), dated as of December 20, 2024, by and between the Company and the Investor. The Company and the Investor are each referred to herein from time to time as a “Party” and together as the “Parties”. Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Transaction Agreement.
W I T N E S S E T H:
WHEREAS, concurrently with the execution of this Amendment and Waiver, the Parties are entering into that certain Transaction Support Agreement, dated as of the date hereof (the “Transaction Support Agreement”), pursuant to which, among other matters, the Investor will sell to the Company, and the Company will purchase from the Investor, all of the Sold Shares (as defined in the Transaction Support Agreement);
WHEREAS, in consideration for, among other things, the other Party’s entry into the Transaction Support Agreement and the consummation of the transactions contemplated thereby (the “ND Transaction”), each of the Parties desires to amend certain provisions of the Transaction Agreement in accordance with Section 10.02(a) of the Transaction Agreement, effective as of the Effective Date; and
WHEREAS, in consideration for, among other things, the Investor’s entry into the Transaction Support Agreement, the Company desires to waive certain provisions of the Transaction Agreement, in accordance with Section 10.02(a) of the Transaction Agreement, effective as of the Effective Date.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants contained in this Amendment and Waiver, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Section 1. Amendments to the Transaction Agreement. The Parties hereby agree to amend the Transaction Agreement effective as of the Effective Date as follows:
(a) For the avoidance of doubt, the Parties acknowledge and agree that all references to “Shares” in Section 6.06 (Investor Agreement to Vote), Section 6.07 (Standstill) and Section 6.08 (Restrictions on Transfers of Shares) of the Transaction Agreement includes all shares of Class A Common Stock that may be held or beneficially owned by the Investor or its Affiliates from time to time, including any shares of Class A Common Stock that may be issued to the Investor or its Affiliates pursuant to the Transaction Support Agreement, including any Rumble Share Consideration and/or shares of Class A Common Stock issued pursuant to Section 9.13 (Squeeze-Out) of the Transaction Support Agreement.
(b) References in Section 6.07(a) of the Transaction Agreement to “the Offer” shall be deleted and replaced by “the Offer or the ND Transaction Documents.”
(c) References in Section 6.07(a) of the Transaction Agreement to “the Closing (being the later of the First Closing and Second Closing in the event Section 2.02(c) is applicable)” shall be deleted and replaced by “the ND Transaction Closing.”
(d) There shall be added a paragraph (b) to Section 6.07, which shall read as follows:
“(b) As used herein, the term ’ND Transaction Closing’ has the same meaning as the term “Closing” and the term ’ND Transaction Documents’ has the same meaning as the term “Transaction Documents,” in each case, as defined in that certain Transaction Support Agreement, dated as of November 10, 2025, by and between the Company and the Investor.”
Section 2. References. Each reference in the Transaction Agreement to “hereof”, “hereunder”, “herein” or “hereby” and each other similar reference and each reference to “this Agreement” and each other similar reference contained in the Transaction Agreement shall from and after the Effective Date refer to the Transaction Agreement as amended hereby, except as the context otherwise requires.
Section 3. Expenses. All costs and expenses incurred in connection with this Amendment and Waiver shall be paid by the party incurring such cost or expense.
Section 4. Miscellaneous. Sections 10.01, 10.02, 10.05, 10.06, 10.07, 10.08, 10.09, 10.10, 10.11 and 10.12 of the Transaction Agreement shall apply to this Amendment and Waiver mutatis mutandis, and are incorporated herein by reference.
Section 5. Termination. If the Transaction Support Agreement is terminated in accordance with Article X thereof prior to the consummation of the ND Transaction Closing, then Section 1 and Section 3 of this Amendment and Waiver shall automatically be null and void ab initio and of no force and effect, but Section 2, Section 4, Section 5 and this Section 6 shall not be affected by such SPA Termination.
Section 6. Effect on Original Agreement. Except as expressly modified by this Amendment and Waiver, all of the terms, covenants, agreements, conditions and other provisions of the original Transaction Agreement shall remain in full force and effect in accordance with their respective terms. This Amendment and Waiver shall not constitute an amendment or waiver of any provision of the Transaction Agreement except as expressly set forth herein. Upon the execution and delivery hereof, the Transaction Agreement shall thereupon be deemed to be amended as hereinabove set forth as fully and with the same effect as if the amendments made hereby were originally set forth in the original Transaction Agreement, and this Amendment and Waiver and the Transaction Agreement shall henceforth be read, taken and construed as one and the same instrument, but such amendments and supplements shall not operate so as to render invalid or improper any action heretofore taken under the Transaction Agreement. As used in the original Transaction Agreement, the terms “this Agreement,” “herein,” “hereinafter,” “hereto,” and words of similar import shall mean and refer to, from and after the date of this Amendment and Waiver, unless the context requires otherwise, the Transaction Agreement as amended by this Amendment and Waiver. In the event of any inconsistency between this Amendment and Waiver and the Transaction Agreement with respect to the matters set forth herein, this Amendment and Waiver shall take precedence and control.
[signature pages follow]
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IN WITNESS WHEREOF, the Parties have caused this Amendment and Waiver to be duly executed by their respective duly authorized officers, as of the date first above written.
| RUMBLE INC. | |||
| By: | |||
| Name: | |||
| Title: | |||
| Tether Investments S.A. de C.V. | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Amendment No. 1 to Transaction Agreement and Waiver]
Exhibit 10.6
Certain identified information has been excluded from this exhibit both because it (i) is not material and (ii) is the type that Rumble Inc. treats as private or confidential. Brackets with triple asterisks denote omissions.
CUSTOMER AGREEMENT
by and between
Tether Investments, S.A. de C.V.
and
Rumble Inc.
Dated as of [●]
CUSTOMER AGREEMENT
This CUSTOMER AGREEMENT (the “Agreement”) is entered into effective as of [•] (the “Effective Date”), by and between Rumble Inc., a Delaware corporation (“Parent”), and Tether Investments, S.A. de C.V., a Salvadoran Sociedad Anónima de Capital Variable (“Customer”). Customer and Parent are sometimes referred to herein togethr as the “Parties” and individually as a “Party.” Capitalized terms used but not defined in this Agreement will have the meanings ascribed to them in the Transaction Support Agreement (as defined below).
WITNESSETH:
WHEREAS, the Parties are parties to that certain Transaction Support Agreement, dated November 10, 2025 (the “Transaction Support Agreement”), pursuant to which, among other matters, the Customer will sell to the Parent, and the Parent will purchase from the Customer, all of the Sold Shares (as defined in the Transaction Support Agreement);
WHEREAS, Northern Data currently operates and, after the consummation of the transactions contemplated by the Transaction Support Agreement (the “Closing”) will continue to operate, a business providing customers with access to compute capacity embedded in its graphics processing unit-based infrastructure (“GPU Services”); and
WHEREAS, as an inducement to and condition of Parent’s willingness to enter into the Transaction Support Agreement and the other Transaction Documents, Customer has agreed to enter into this Agreement to potentially purchase GPU Services from Parent after the Closing.
NOW, THEREFORE, for and in consideration of the foregoing recitals and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, agree as follows:
Article 1
CONSTRUCTION AND DEFINITIONS
1.1 Construction. Unless otherwise expressly provided in this Agreement or unless the context requires otherwise, (a) all references in this Agreement to a “Schedule” shall mean and refer to the corresponding Schedule of this Agreement, and Schedules to this Agreement are hereby incorporated and made a part hereof as if set forth in full herein and are an integral part of this Agreement. Any capitalized terms used in any Schedule but not otherwise defined therein are defined as set forth in this Agreement. In the event of conflict or inconsistency, this Agreement shall prevail over any Schedule; (b) the division of this Agreement into Articles, Sections, and other subdivisions, and the insertion of headings are for convenience of reference only and do not affect, and will not be utilized in construing or interpreting, this Agreement. All references in this Agreement to any “Section” or “Article” are to the corresponding Section or Article, as applicable, of this Agreement unless otherwise specified; (c) any reference to any federal, state, or local statute or Laws shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise; (d) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (e) whenever the context requires, the gender of all words used in this Agreement includes the masculine, feminine, and neuter, and the singular includes the plural, and the plural includes the singular; (f) words such as “herein,” “hereinafter,” “hereof,” and “hereunder” refer to this Agreement (including the Schedules to this Agreement) as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires; (g) references to any Person shall be deemed to mean and include the successors and permitted assigns of such Person (or, in the case of a Governmental Authority, Persons succeeding to the relevant functions of such Person); (h) the term “including” or any variation thereof means “including without limitation” and does not limit any general statement that it follows to the specific or similar items or matters immediately following it; (i) references to “days” shall mean calendar days unless Business Days are expressly specified; (j) a reference to any contract shall include any amendment, supplement or modification of such contract as in effect as of the applicable time; and (k) references to “$” refer to United States Dollars. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is not a Business Day, the period in question shall end on the next succeeding Business Day. The Parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
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1.2 Definitions. For the purposes of this Agreement, the following terms and variations on them have the meanings specified in this Section 1.2:
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such Person at any time during the period for which the determination of affiliation is being made. The term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to elect a majority of the board of directors (or other governing body) or to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. For the avoidance of doubt, Parent and Customer shall not be deemed Affiliates of one another for any purpose under this Agreement.
“Agreement” has the meaning given to that term in the preamble.
“AI Model Net Income” means an amount equal to Customer’s net income before tax for such period directly or indirectly derived from the development and operations of the AI Models as determined in accordance with generally accepted accounting principles in the United States of America; provided, for the avoidance of doubt, that the payment of the Royalty by Customer to Parent shall not be included in the calculation of AI Model Net Income.
“AI Models” has the meaning given to that term in Section 5.1.
“Annual Minimum Amount” means $75,000,000 per Term Year.
“Business Day” means any day that is not a Saturday, Sunday or other day on which banks are required or authorized by Law to be closed in the State of New York.
“Closing” has the meaning given to that term in the preamble.
“Confidential Information” has the meaning given to that term in Section 10.13.1.
“Consent” means any approval, consent or ratification.
“Customer” has the meaning given to that term in the preamble.
“Customer Event of Default” has the meaning given to that term in Section 7.1.
“Effective Date” has the meaning given to that term in the preamble.
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“Governmental Authority” means any (a) nation or government, state, commonwealth, province, territory, county, municipality, district, or other jurisdiction of any nature, or any political subdivision thereof, (b) federal, state, local, municipal, foreign, or other government, or (c) governmental or quasi-governmental authority of any nature (including any relevant domestic, foreign, multinational or international body, governmental division, department, agency, board, bureau, commission, instrumentality, official, organization, regulatory body, or other entity and any court, arbitrator, or other tribunal) exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any executive official thereof.
“Governmental Authorization” means any Consent, license, permit, certificate, identification number, approval, exemption, variance product registration or other registration issued or granted by or filed with any Governmental Authority pursuant to applicable Law.
“GPU” means a [***] or comparable graphics processing unit of equal or greater capacity as measured in vRAM gigabytes (GB).
“GPU Hour” means one hour of computational time used by a GPU.
“GPU Services” has the meaning given to that term in the recitals.
“Initial Service Date” means the later of (i) March 1, 2026 and (ii) twenty (20) Business Days after the Closing, provided if such date is not the first day of a fiscal quarter (January 1, April 1, July 1 or October 1), then the Initial Service Date shall be the first day of Parent’s next fiscal quarter.
“Insolvency Event” means, with respect to the Parent: (a) any voluntary or involuntary liquidation, dissolution or winding up of such Person; (b) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of such Person, or a substantial part of the property or assets of such Person, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar Law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for such Person, or a substantial part of the property or assets of such Person, or (iii) the winding-up or liquidation of such Person, and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered; or (c) such Person shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar Law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in clause (b) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Parent, or a substantial part of the property or assets of the Parent, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) become unable or admit in writing its inability or fail generally to pay its debts as they become due.
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“Law” means all codes, laws, common laws, statutes, Governmental Authorizations, ordinances, rules, regulations, orders, writs, judgments or injunctions of Governmental Authority, including any amendments thereto.
“Organizational Documents” means, (a) with respect to any corporation, its articles or certificate of incorporation and bylaws, (b) with respect to any limited liability company, its articles or certificate of organization or formation and its operating agreement or limited liability company agreement or documents of similar substance, (c) with respect to any limited partnership, its certificate of limited partnership and partnership agreement or governing or organizational documents of similar substance and (d) with respect to any other entity, governing or organizational documents of similar substance to any of the foregoing, in the case of each of clauses (a) through (d), as may be in effect from time to time.
“Parent” has the meaning given to that term in the preamble.
“Parent Event of Default” has the meaning given to that term in the Section 7.3.
“Party” has the meaning given to that term in the preamble.
“Person” means any individual or an entity, including a corporation, share company, limited liability company, partnership, trust, association, Governmental Authority or any other body with legal personality separate from its equity holders or members.
“Privacy Laws” means any applicable Laws, in each case, relating to the protection or processing of personal information, data privacy, data security, cross border data transfer, data breach notification, electronic communication, telephone and text message communications, marketing by email or other channels.
“Proceeding” means any action, arbitration, audit, examination, investigation, hearing, litigation or suit (whether civil, criminal, administrative, judicial or investigative, whether formal or informal, and whether public or private) commenced, brought, conducted, heard by or before or otherwise involving any Governmental Authority or arbitrator.
“Representative” means, with respect to a particular Person, any Affiliate or any director, officer, employee, agent, consultant, advisor, legal counsel, accountant or other representative of that Person.
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“Royalty” has the meaning given to that term in Section 5.3.
“Royalty Base Amount” means the aggregate AI Model Net Income since the Effective Date, net of AI Model Net Income that has already formed a basis for a prior payment of the Royalty.
“Rumble Content” has the meaning given to that term in Section 5.1.
“Sales Tax” has the meaning given to that term in Section 4.3.
“Term” has the meaning given to that term in Section 2.1.
“Term Year” means each consecutive twelve (12) month period during the Term, with the first Term Year commencing on the Initial Service Date and ending on the day immediately preceding the first anniversary of the Initial Service Date and each subsequent Term Year commencing on the anniversary of the Initial Service Date and ending on the day immediately preceding the next anniversary of the Initial Service Date.
“Third Party Technology” has the meaning given to that term in Section 0.
“Transaction Support Agreement” has the meaning given to that term in the recitals.
Article 2
Term
2.1 Term. The term of this Agreement (the “Term”) shall commence as of the Initial Service Date and shall continue until the date that is two (2) years from the Initial Service Date.
Article 3
Purchase and Sale of GPU Services
3.1 Purchase and Sale of GPU Services. Commencing on the Initial Service Date and continuing thereafter during the Term, Parent shall sell and deliver to Customer, and Customer shall purchase and accept from Parent, GPU Services subject to the terms and conditions of this Agreement.
3.2 Purchase Orders. During the Term, Customer shall submit purchase orders (each, a “Purchase Order”) to Parent specifying the GPU Services and the requested dates and duration of such GPU Services to be purchased by Customer. Purchase Orders for GPU Services shall include a start date for GPU Services that is at least twenty (20) Business Days after the date such Purchase Order is submitted by Customer. Purchase Orders shall not be binding unless and until accepted in writing by Parent. In each case, Parent shall promptly notify the Customer whether and to what extent Parent accepts such Purchase Order and the specifications included therein; provided that if Parent does not accept a Purchase Order, or any portion of a Purchase Order, within ten (10) Business Days, the Purchase Order, or such portion of the Purchase Order that is not accepted, shall be deemed rejected by Parent.v
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3.3 Commitment Levels.
3.3.1 At all times during the Term, Parent agrees that it will provide and make available, and Customer agrees that it shall purchase pursuant to one or more effective Purchase Orders, [***] GPU Hours per month (the “Fixed Monthly Commitment”).
3.3.2 During each Term Year, Customer agrees that it shall purchase pursuant to one or more effective Purchase Orders, GPU Services for an aggregate purchase price in an amount that is equal to the Annual Minimum Amount; provided, that Customer has the option (but not the obligation), in its sole discretion, to submit Purchase Orders for and, if accepted by Parent, purchase GPU Services pursuant to the terms of this Agreement for an aggregate purchase price in excess of the Annual Minimum Amount. The aggregate purchase price paid by Customer for purchases of the Fixed Monthly Commitment pursuant to Section 3.3.1 shall be included in the Annual Minimum Amount and credited toward the satisfaction of Customer’s obligation to purchase the Annual Minimum Amount pursuant to this Section 3.3.2. Any amounts paid during a single Term Year beyond the Annual Minimum Amount applicable to such Term Year will not reduce the Annual Minimum Amount for any subsequent Term Year.
3.3.3 To the extent that any Purchase Order delivered by Customer to Parent is rejected in whole or in part by Parent, the aggregate purchase price of GPU Services requested pursuant to such Purchase Order, or any portion of such Purchase Order, that is rejected shall reduce the “Annual Minimum Amount” for such Term Year; provided, however, the amount by which the “Annual Minimum Amount” is reduced pursuant to this Section 3.3.3 shall not exceed during any month of the Term Year the difference between $8,650,000 less the aggregate purchase price of GPU Services performed by Parent during that month of the Term Year.
3.3.4 The purchase of the GPU Services pursuant to this Section 3 is a “take or pay” obligation on the part of Customer.
3.4 Performance Standards. Parent shall perform the GPU Services in material compliance of any applicable documentation, including by devoting any resources required to perform the GPU Services in material compliance with any applicable documentation (the “Service Standards”); provided, however, that in the event of any conflict between the Service Standards and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall govern. This Agreement shall not be modified, amended or superseded by any provisions included in any terms of use (including any schedules, order forms, service level agreements, and data processing agreements) adopted after the date of this Agreement. In the event that at any time during the Term Parent sells the same GPU Services (e.g., on-demand vs. reserved instances) with more favorable in the aggregate payment terms and service level uptime requirements (a) at the same or less volume (including both over the applicable Term Year and periodically), (b) under the same or substantially the same commercial conditions (e.g., location) and (c) at a price that is at or below $[***] per GPU Hour, then Parent shall inform Customer of such more favorable payment terms and service level uptime requirements as the case may be and Customer may elect for such more favorable terms in the aggregate (i.e., all or none).
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Article 4
Price and Payment
4.1 Price for GPU Services. Customer shall pay $[***] per GPU Hour for all GPU Services purchased by Customer in each Term Year.
4.2 Additional Payment Matters. Customer shall make payments by electronic funds transfer, or by other mutually agreeable method(s), to the account designated by Parent.
4.3 Sales Tax on GPU Services. Customer shall be responsible for all transfer fees, severance, excise, sales and use or similar taxes and fees (“Sales Tax”) imposed upon or incurred by Customer in connection with the purchase and sale of the GPU Services. Notwithstanding the foregoing, the Parties shall cooperate to minimize any Sales Tax, including by providing exemption certificates and any necessary documentation thereof.
Article 5
Parent Services
5.1 Access to Parent Platform. For the duration of this Agreement, Parent shall grant the Customer and its Affiliates limited, non-exclusive, non-transferable, non-sublicensable access to the data, content, materials, or information uploaded or otherwise stored on Parent’s video platform, in each case, in which Parent has exclusive rights and control (“Rumble Content”) for the purposes expressly described in this Section 5.1. Parent hereby grants to Customer and its Affiliates a worldwide, perpetual, irrevocable, limited, non-transferable, non-exclusive, non-sublicensable license to access, use, reproduce, modify, distribute, display, and otherwise exploit any Rumble Content provided or made available by Parent under this Agreement for the purpose of developing, training, testing, improving, and operating Customer’s proprietary artificial intelligence, machine learning, and related models, systems, and services (collectively, “AI Models”). To the extent any Rumble Content includes any personal information, as such term is defined in applicable Privacy Laws, the provision of such Rumble Content may be subject to consumer rights established under Privacy Laws to object to or otherwise revoke any consents consumers have provided for the disclosure of such information; Rumble retains the right to refrain from disclosing such information if, in its sole determination, such disclosure is not permitted under Privacy Laws. Customer shall own all rights, title, and interest in and to the AI Models, including any models, algorithms, or outputs trained on or developed using Rumble Content, and no rights are granted to Parent therein. As between the parties, Parent shall own all rights, title and interest in and to the Rumble Content. Nothing in this Agreement shall provide or grant to Customer any right, title or interest in or to the Rumble Content, except for the license rights expressly described in this Section 5.1 and all such rights not so expressly granted are hereby reserved. Nothing in this Agreement obligates Customer to use Rumble Content in connection with any AI Models. Customer shall not disclose any Rumble Content or any data therein (including metadata) in unmodified form to third parties, including as a result of output from the AI Models, and Customer shall include protections and restrictions in place in the AI Models designed to prevent the inclusion of unmodified Rumble Content or metadata in any output therefrom.
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5.2 Assistance. Parent shall, and shall ensure that its Affiliates will, render reasonable assistance, including reasonable technical assistance, reasonably required by the Customer in order to access and utilize Rumble Content. In the event that Parent identifies any content in the Rumble Content that should be removed therefrom (a) due to a request under the Digital Millennium Copyright Act (DMCA), (b) due to Parent determining, in its reasonable discretion, that such Rumble Content (or the use thereof in the AI Models) violates Section 0 of this Agreement, or (c) pursuant to a data subject request (as defined under applicable Privacy Laws), upon Parent’s notification to Customer thereof, Customer shall reasonably cooperate with Parent instructions to remove such Rumble Content from the AI Models and, if applicable, Customer’s software, servers, systems and networks; provided that, with respect to removal of Rumble Content from AI Models, Customer shall remove Rumble Content only to the extent (i) such Rumble Content is within the scope of Parent’s notification, (ii) the necessary isolation and extraction of such Rumble Content is technically feasible at the time of Parent’s notification (for the avoidance of doubt, such Rumble Content within the scope of Parent’s notification shall be restricted from future development, training, testing, or improvement of AI Models by Customer following Parent’s notification); provided, that Customer shall use continuous best efforts to remove such Rumble Content within a reasonable time period, and (iii) in the case of any notice relating to Section 5.2(a) or 5.2(c), the removal of such Rumble Content is required by the DMCA or Privacy Laws, respectively. If and to the extent Customer’s removal of Rumble Content from AI Models is required by the DMCA or Privacy Laws, Customer’s removal of Rumble Content from AI Models will be in accordance with and in the manner prescribed by the DMCA or such Privacy Laws, as applicable.
5.3 Royalty. Promptly following the end of each Term Year, Customer shall pay to Parent a non-refundable, non-creditable royalty (the “Royalty”) equal to [***] percent ([***]%) of the Royalty Base Amount; provided, however, that after the cumulative AI Model Net Income since the Effective Date exceeds $[***], the Royalty shall equal [***] percent ([***]%) of the Royalty Base Amount.
5.4 Restrictions On Use of Rumble Content. Customer may not access, use, reproduce, modify, distribute, display, and otherwise exploit any Rumble Content to, and the AI Models shall not, conduct or facilitate any of the following activities: (i) facilitating cybercrime or other types of crime (e.g., hacking, phishing, identity theft, or creation or distribution of malware); planning, promoting, advocating, or assisting in any illegal or violent actions (e.g., terrorism, threats, prostitution, human trafficking, or the planning or violent or criminal acts); or that is otherwise unlawful; (ii) creating content that Customer subsequently claims was created solely by humans, or otherwise misrepresent the provenance of information or content; (iii) creating, compiling or distributing disinformation or manipulative content; harassing, violent, antisemitic, abusive, racist, threatening, hateful or defamatory content; pornographic or exploitative content; or unauthorized collections of persona information; (iv) violating the rights of others, including but not limited to the unauthorized use, publication or disclosure of copyrighted materials, trade secrets or other confidential information; (v) providing services targeted to users under the age of 18; or medical, financial, tax, legal or other services that would typically require specialized credentials or licensing without appropriate professional oversight; (vi) making automated decisions about individuals that materially impact them or where errors could be dangerous; (vii) engaging in any activity or practice that is prohibited or considered ‘high risk’ under the European Union’s AI Act or any other similar regulations governing deployment and/or use of artificial intelligence systems of services; (viii) encouraging, facilitating or assisting in the commission of criminal activities, fraud, fraudulent activities (including counterfeiting), violence, weapons development, harm to others, abuse, pornography, child sexual abuse materials, suicide or self-harm; (ix) removing watermarks, metadata or other indicia intended to identify outputs as artificially generated or manipulated, or circumvent abuse protections or safety filters, whether Parent’s or those of a third party; (x) discover or exploit vulnerabilities in systems, networks, or applications without authorization of the system owner; (xi) develop tools for denial-of-service attacks or managing botnets; (xii) develop persistent access tools designed to operate below normal system security levels, including firmware modifications or hardware implants; (xiii) violate privacy rights as defined by Privacy Laws, such as sharing personal information without consent or accessing private data unlawfully; (xi) engaging in surveillance or prohibited law enforcement activities; or (xii) engaging in any activity that interferes with, disrupts, damages or accesses in an unauthorized manner the critical infrastructure, servers, networks and other properties or services of Parent and its Affiliates. Except for the purposes of Section 5.1, (a) Customer shall not sell, resell, exploit for any commercial purposes, license, rent, modify, distribute, copy, reproduce, duplicate, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from any portion of any Rumble Content, and (b) systematic retrieval of data or content from the Rumble Content to create or compile, directly or indirectly, a collection, compilation, library, database or directory without prior written permission from Parent is prohibited. To the extent that the AI Models utilize or are based on third party intellectual property, technology or software (other than the Rumble Content) (“Third Party Technology”), Customer shall comply with all terms and conditions to which Customer and its Affiliates are subject in connection with the use of such Third Party Technology, including any terms therein applicable to the use, development, training, testing, improvement or operation of the AI Models and the use of the Rumble Content in connection therewith.
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Article 6
Representations and Warranties
6.1 Representations and Warranties of Customer. Customer hereby makes the following representations and warranties to Parent as of the Effective Date, except for those representations and warranties that are expressly made as of a specific date, which such representations and warranties shall be deemed made as of such date:
6.1.1 Customer has all requisite power and authority required to carry on its business as it is currently being conducted;
6.1.2 The execution, delivery and performance by Customer of this Agreement does not, and the consummation by Customer of the transaction contemplated hereby will not, conflict with or result in a violation or breach of any term or provision of any Law;
6.1.3 Customer has full power and authority, in accordance with all applicable Laws, to enter into this Agreement to which it is a party, to perform its obligations hereunder and to consummate the transactions contemplated hereby;
6.1.4 There is no pending, or to the best of Customer’s knowledge, threatened action or proceeding which would materially and adversely affects its ability to perform its obligations under this Agreement;
6.1.5 Customer has no liability or obligation to pay fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement for which Parent or any of its Affiliates could become liable or obliged;
6.1.6 Customer has used, developed and deployed all AI Models in compliance with the applicable license terms, consents, agreements, laws and industry standard practices. Customer has implemented and maintained, and is in material compliance with, appropriate procedures to identify and mitigate bias (or other harm to consumers) in its inputs into and outputs from AI Models;
6.1.7 Customer represents and warrants that its collection, processing, disclosure, and provision of Rumble Content complies and will comply with all applicable laws, regulations, and industry standards, including but not limited to Privacy Laws and export control laws, and that such collection, processing, disclosure, and use does not and will not infringe, misappropriate, or otherwise violate any intellectual property or proprietary rights (including any rights of publicity or privacy) of any third party, or any Privacy Laws or export control laws; and
6.1.8 Customer will take all reasonable steps to ensure its processing and use (including disclosure and other potential uses) of Rumble Content materially complies with all applicable laws, regulations, and industry standards, including but not limited to Privacy Laws and export control laws, and that such processing and use of Rumble Content will not infringe, misappropriate, or otherwise violate any Intellectual Property or proprietary right (including any rights of publicity or privacy) of any third party, or any Privacy Laws or export control laws.
6.2 Representations and Warranties of Parent. Parent hereby makes the following representations and warranties to Customer as of the Effective Date, except for those representations and warranties that are expressly made as of a specific date, which such representations and warranties shall be deemed made as of such date:
6.2.1 Parent is a corporation duly formed, validly existing and in good standing under the Laws of the State of Delaware, with all requisite corporate power and authority required to carry on its business as it is currently being conducted. Parent is duly qualified or licensed to do business and is in good standing in each jurisdiction in which such qualification or licensing is required;
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6.2.2 The execution, delivery and performance by Parent of this Agreement does not, and the consummation by Parent of the transactions contemplated hereby and thereby will not, (a) contravene or violate any provision of the Organizational Documents of Parent; or (b) conflict with or result in a violation or breach of any term or provision of any Law (assuming the due authorization, execution and delivery thereof by Customer);
6.2.3 Parent has full power and authority to enter into this Agreement to which it is a party, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by Parent of this Agreement has been duly authorized by all necessary action on the part of Parent. This Agreement (a) has been duly and validly executed and delivered by Parent and (b) constitutes (assuming the due authorization, execution and delivery thereof by Customer) valid and legally binding obligations of Parent, enforceable against Parent in accordance with their terms. No other action is required on the part of Parent to authorize or approve this Agreement, the performance of its obligations hereunder or thereunder or the consummation by Parent of the transactions contemplated hereby.
6.2.4 Parent represents and warrants that it has implemented and will maintain policies and procedures reasonably designed to promote ongoing compliance with the DMCA’s notice-and-takedown provisions and data subject requests and will notify and reasonably cooperate with Customer and its users in addressing any DMCA or Privacy Law-related issues that may arise in connection with the use of Rumble Content permitted under this Agreement;
6.2.5 EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE RUMBLE CONTENT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RUMBLE FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY AND COMPLETENESS AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. Parent’s sole obligation and liability with respect to the Rumble Content shall be to (a) comply with all applicable requirements of the DMCA, including but not limited to promptly responding to, processing, and acting upon any valid DMCA takedown notices or counter-notices received by its users, (b) comply with all data subject requests (as such term is defined under Privacy Laws) to the extent required by any Privacy Laws, and (c) its indemnification obligations in Section 8.2(c);
6.2.6 Parent has no liability or obligation to pay fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement for which Customer or any of its Affiliates could become liable or obliged; and
6.2.7 There is no bankruptcy, reorganization or insolvency proceeding pending, being contemplated by or, to Parent’s knowledge, threatened in writing against Parent, and, to Parent’s knowledge, no facts, conditions or circumstances exist that would permit one or more Persons to bring an involuntary bankruptcy proceeding against Parent.
6.3 No Other Representations and Warranties. Except for the representations and warranties of a Party expressly set forth in (x) this Article 6, (y) the Transaction Support Agreement or (z) the other Transaction Documents, neither Party nor any of its respective representatives has made or is making any express or implied representation or warranty of any nature to the other Party, at law or in equity, including with respect to matters relating to such Party or any other matter related to or in connection with the transactions contemplated by this Agreement, the Transaction Support Agreement or the other Transaction Documents, and such Party hereby expressly disclaims reliance on any such other representations or warranties (including as to the accuracy or completeness of any information provided to the other Party). Without limiting the generality of the foregoing, except for the representations and warranties of a Party expressly set forth in (x) this Article 6, (y) the Transaction Support Agreement or (z) the other Transaction Documents, neither Party nor any other Person has made, is authorized to make, shall be deemed to have made or is making any representation or warranty with respect to (i) any projections, estimates or budgets that may be delivered to or made available to the other Party or any of its representatives of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of Parent or the future business, facilities and operations of Parent or (ii) other information or documents not expressly set forth in this Article 6, but made available to the other Party or any of its representatives with respect to Parent or its businesses, facilities or operations (including as to the accuracy or completeness of any such information or documents), including, without limitation, any due diligence materials provided to the other Party or any of its representatives, any presentation with respect to the business and affairs of Parent by the management of Parent or others in connection with this Agreement, the Transaction Support Agreement or the other Transaction Documents or the transactions contemplated hereby and thereby and no statement contained in any of such materials or made in any such presentation shall be deemed a representation or warranty hereunder or otherwise or deemed to be relied upon by Customer or any of its representatives in executing, delivering and performing this Agreement, the Transaction Support Agreement or the other Transaction Documents and consummating the transactions contemplated hereby and thereby.
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Article 7
Events of Default and Remedies
7.1 Customer Events of Default. Each of the following events, acts, occurrences or conditions shall constitute an “Customer Event of Default”:
7.1.1 Customer fails to pay when due any undisputed amounts required to be paid to Parent under this Agreement and such failure continues for forty-five (45) days following the date such amounts become due;
7.1.2 Any Customer representation and warranty set forth in Section 6.1 proves to have been false or misleading in any material respect when made and such misrepresentation would have a material adverse effect on Customer’s ability to perform its material obligations under this Agreement; or
7.1.3 Customer materially breaches the terms of this Agreement or fails to perform any of its material obligations hereunder, in each case, if not cured in all material respects within thirty (30) days of such breach or failure to perform.
7.2 Parent Remedies upon a Customer Event of Default. 7.2.1If a Customer Event of Default continues after all applicable notice and cure periods have expired, and whether or not either Party has invoked the dispute or claim resolution procedures set forth in Article 10 of this Agreement, Parent shall have the right (but not an obligation) to take any of the following actions, each of which may be pursued concurrently or otherwise, at such time and in such order as Parent may determine, in its sole discretion, without impairing or otherwise affecting the other rights and remedies of Parent:
(a) in the event of a Customer Event of Default pursuant to Section 7.1.1 that is not cured or remedied within thirty (30) days’ notice thereof, suspend performance of Parent’s obligations hereunder until such Customer Event of Default is cured;
(b) terminate this Agreement by providing Customer not less than sixty (60) days’ prior written notice of such termination; and
(c) exercise any other right or remedy available to Parent under this Agreement or at law or in equity, including damages, arising from or relating to the Customer Event of Default or to enforce the provisions of this Agreement.
7.3 Parent Events of Default. Each of the following events, acts, occurrences or conditions shall constitute a “Parent Event of Default”:
7.3.1 Parent is subject to an Insolvency Event;
7.3.2 Any change in applicable Law or action by a Governmental Authority, that remains outstanding for at least sixty (60) days, that makes it illegal for Parent to be a party to this Agreement or otherwise prevents or prohibits Parent from complying with its obligations hereunder;
7.3.3 Any Parent representation and warranty set forth in Section 6.2 proves to have been false or misleading in any material respect when made and such misrepresentation would have a material adverse effect on Parent’s ability to perform its material obligations under this Agreement; or
7.3.4 Parent materially breaches the terms of this Agreement or fails to perform any of its material obligations hereunder, in each case, if not cured in all material respects within sixty (60) days of written notice of such breach or failure to perform.
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7.4 Customer’s Remedies upon a Parent Event of Default. 7.4.1If a Parent Event of Default continues after all applicable notice and cure periods have expired, Customer shall have the right (but not an obligation) to take any of the following actions, each of which may be pursued concurrently or otherwise, at such time and in such order as Customer may determine, in its sole discretion, without impairing or otherwise affecting the other rights and remedies of Customer:
(a) in the event of a Parent Event of Default is not cured or remedied within fifteen (15) days’ notice thereof, suspend performance of Customer obligations hereunder until such Parent Event of Default is cured;
(b) if such Parent Event of Default has continued for at least thirty (30) consecutive days, terminate this Agreement by providing Parent not less than thirty (30) days’ prior written notice of such termination; and
(c) exercise any other right or remedy available to Customer under this Agreement or at law or in equity, including damages, arising from or relating to Parent Event of Default or to enforce the provisions of this Agreement.
Article 8
Limitation of liability
8.1 Consequential Loss. In no event shall either Party or any of such Party’s representatives have any liability under or otherwise in connection with this Agreement (by indemnification or otherwise) for any special, punitive, exemplary, speculative, indirect, unquantifiable, contingent, remote or consequential damages, including damages for lost profits, lost business opportunity or business interruption, the use of or inability to use the Rumble Content and any documentation, or the training of AI Models on Rumble Content, or damages to business reputation, except (in each of the foregoing cases) to the extent such damages (A) arise from the fraud, gross negligence or willful misconduct of such Party or (B) are claimed by any third party against a party hereto.
8.2 Indemnification8.3. Parent shall indemnify, defend and hold harmless Customer against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or reasonable and documented out of pocket expenses, including reasonable and documented attorneys’ fees, the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (“Losses”), incurred by any Customer, relating to or resulting from any third-party claim arising from (a) Parent’s fraud, gross negligence or willful misconduct, (b) any allegations that the GPU Services infringe, violate or misappropriate a third party’s intellectual property or proprietary rights (including any rights of publicity or privacy), or violates any applicable Law, in each case, to the extent solely arising from any modifications or changes made by Parent to the GPU Services after the Effective Date (other than such modifications or changes contemplated as of the Effective Date) (such modifications or changes, the “Parent Modifications”); provided, however, that Parent will have no obligation to indemnify, defend or hold harmless Customer to the extent any Losses arise out of or result from (i) Customer’s use of the GPU Services in combination with any other products, software, technology, data, processes or materials; (ii) any modification of or addition to the GPU Services made by or for Customer of any other party other than Parent; or (iii) use of the GPU Services not in accordance with any applicable documentation or this Agreement or failure to use updates, upgrades or fixes made available by Parent, or (c) Customer’s use of Rumble Content (subject to Customer’s compliance with this Agreement, including Section 5.2 and 0) in the training, development or deployment of the AI Models in accordance with this Agreement infringes, violates or misappropriates a third party’s intellectual property or proprietary rights (including any rights of publicity or privacy) or violates any applicable Law, including Privacy Laws. If any Parent Modifications become, or in Parent’s reasonable opinion are likely to become, the subject of a claim described in subsection (b) in the prior sentence, Parent may, at its option and expense: (A) procure the right for Customer to continue using the affected Parent Modifications; (B) modify or replace the affected Parent Modifications so they become non-infringing while materially preserving equivalent functionality; or (C) revert the affected GPU Services to the version and configuration existing as of the Effective Date. In such case, the foregoing constitutes Customer’s sole and exclusive remedy for claims under subsection (b) of the first sentence of this Section 8.2. Customer shall indemnify, defend and hold harmless Parent against any and all Losses incurred by Parent, relating to or resulting from any third-party claim arising from (X) Customer’s fraud, gross negligence or willful misconduct; (Y) any breach of confidentiality or any unauthorized disclosure of Confidential Information, including any personal information; (Z) Customer’s failure to comply with the terms and conditions of Section 5.2; and (ZZ) Customer’s use of Third Party Technology in the training, development or deployment of the AI Models which infringes, violates or misappropriates a third party’s intellectual property or proprietary rights (including any rights of publicity or privacy), or violates any applicable Law, including any Privacy Law.
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8.3 Limitation on Indemnifiable Losses. Notwithstanding anything to the contrary in this Agreement, the maximum aggregate amount of indemnifiable Losses that may be recovered by either party under Section 8.2 or any other provision of this Agreement shall not exceed the value of the amounts actually paid by Customer to Parent under this Agreement in the twelve (12) month period immediately preceding the event giving rise to such Losses.
Article 9
Assignment
9.1 Assignment by Parent. Except as expressly set forth herein, Parent may not assign this Agreement, in whole or in part to any Person without the prior written Consent of Customer (which Consent shall not be unreasonably conditioned, withheld or delayed). Notwithstanding the foregoing, Customer’s Consent shall not be required for Parent to (a) assign this Agreement and/or any of its rights and/or obligations hereunder, in whole or in part, to an Affiliate wholly-owned by Parent or (b) pledge or assign this Agreement as security in connection with any financing arrangement entered into by Parent or any of its Affiliates in connection with the construction, development, commissioning and/or start-up of Taiga; provided that any such assignment shall not affect Parent’s obligations hereunder. In the event of a Parent Change of Control, Customer may immediately terminate this Agreement, but not any then outstanding Purchase Order. “Parent Change of Control” means any “person” or “group” (as defined in or pursuant to Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) other than Chris Pavlovski or his Affiliates or estate becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) or otherwise acquires control, directly or indirectly, of securities of Parent representing fifty percent (50%) or more of the total voting power of all of the outstanding securities of Parent.
9.2 Assignment by Customer. Except as expressly set forth herein, Customer may not assign this Agreement and/or transfer any of its rights and/or obligations hereunder, in whole or in part, to any Person without the prior written Consent of Parent (which Consent shall not be unreasonably conditioned, withheld or delayed), provided that Parent’s consent shall not be required for any assignment by Customer to its Affiliate.
9.3 Prohibited Assignments. Any purported assignment of this Agreement not in compliance with the provisions of this Article 9 shall be null and void.
Article 10
Miscellaneous
10.1 Applicable Law; Jurisdiction and Venue. This Agreement and the rights and obligations of the Parties hereunder shall be governed by, and construed and interpreted in accordance with, the law of the State of New York (without giving effect to its conflict of laws principles). Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, interpretation, breach or termination, will be referred to and finally resolved by arbitration administered by the London Court of International Arbitration (LCIA) under the LCIA Rules, which are deemed to be incorporated by reference herein. The number of arbitrators will be one. The seat, or legal place, of arbitration will be London, England. The language to be used in the arbitral proceedings will be English. All proceedings, including any negotiations, mediations, arbitrations and/or litigations, conducted pursuant to this Agreement will be confidential. Except as may be required by law, neither a Party nor any arbitrator(s) may disclose or publish the existence, content, documents exchanged, pleadings or written submissions filed, testimony rendered or arguments made, orders or awards issued or results of any proceedings conducted hereunder without the prior written consent of both Parties. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
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10.2 Specific Performance.
The Parent acknowledges that the rights of Customer pursuant to this Agreement are unique and recognizes and affirms that in the event of a breach of this Agreement by the Parent, money damages are inadequate and Customer would have no adequate remedy at law. It is accordingly agreed that Customer shall be entitled to seek (and the Parent shall not oppose on the basis that injunctive relief or specific performance is not available due to availability of an adequate remedy at law) an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, without the necessity of showing any actual damages or that monetary damages would not afford an adequate remedy, and without the necessity of posting any bond or other security, this being in addition to any other remedy to which it is entitled at law or in equity.
Customer acknowledges that the rights of Parent pursuant to this Agreement are unique and recognizes and affirms that in the event of a breach of this Agreement by Customer, Parent would have no adequate remedy at law. It is accordingly agreed that Parent shall be entitled to seek (and the Customer shall not oppose on the basis that injunctive relief or specific performance is not available due to availability of an adequate remedy at law) an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, without the necessity of showing any actual damages or that monetary damages would not afford an adequate remedy, and without the necessity of posting any bond or other security, this being in addition to any other remedy to which it is entitled at law or in equity.
10.3 Expenses. Except as otherwise expressly provided in this Agreement or the other Transaction Documents, each Party will bear its respective expenses incurred in connection with the preparation, execution and performance of this Agreement, including all fees and expenses of its Representatives.
10.4 No Set Off. Regardless of any other rights under any agreements, neither Party to this Agreement may set-off the amount of any claim (or part of any such amount) it may have under this Agreement, whether contingent or otherwise, against any amount owed by the Party to another Party, whether under this Agreement or otherwise.
10.5 Amendment. This Agreement cannot be modified or amended except in writing duly executed by each Party.
10.6 Notices. All notices, Consents, waivers and other communications under this Agreement must be in writing and will be deemed given to a Party when (a) delivered to the appropriate address by hand or by nationally recognized overnight courier service (costs prepaid), (b) sent by e-mail or (c) received or rejected by the addressee, if sent by certified mail, return receipt requested, in each case to the following addresses or e-mail addresses and marked to the attention of the individual (by name or title) designated below (or to such other address, e-mail address or individual as a Party may designate by notice to the other Party):
if to Customer:
Tether Investments, S.A. de C.V.
Final Av. La Revolucion, San Benito Edif. Centro,
Corporativo Presidente Plaza Nivel 12
San Salvador, Republica de El Salvador
Attention:
Email:
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with a simultaneous copy (which will not constitute notice) to:
McDermott Will & Schulte Rechtsanwälte Steuerberater LLP
Oberlindau 54-56
60323 Frankfurt am Main
Germany
Attention: Dr. Felix Ganzer
Email: fganzer@mwe.com
and
McDermott Will & Schulte LLP
One Vanderbilt Avenue
New York, NY 10017-3852
Attention: Daniel Woodard
Email: dwoodard@mwe.com
if to Parent:
Rumble, Inc.
444 Gulf of Mexico Dr.
Longboat Key, Florida 34228
Attention:
E-mail:
with a simultaneous copy (which will not constitute notice) to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019-6099
Attention: Russell L. Leaf, Sean M. Ewen
Email: rleaf@willkie.com; sewen@willkie.com
10.7 Waiver. The rights and remedies of the Parties are cumulative and not alternative. Neither any failure nor any delay by any Party in exercising any right, power or privilege under this Agreement or any of the documents referred to in this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable Law, (a) no claim or right arising out of this Agreement or any of the documents referred to in this Agreement can be discharged by one Party, in whole or in part, by a waiver or renunciation of the claim or right unless in a written document signed by the other Party, (b) no waiver that may be given by a Party will be applicable except in the specific instance for which it is given and (c) no notice to or demand on one Party will be deemed to be a waiver of any obligation of that Party or of the right of the Party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement.
10.8 No Third-Party Beneficiaries. Except as expressly stated herein, nothing expressed or referred to in this Agreement will be construed to give any Person, other than the Parties, any legal or equitable right, remedy or claim under or with respect to this Agreement or any provision of this Agreement except such rights as may inure to a successor or permitted assignee.
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10.9 Further Action. Upon the request of any Party to this Agreement, and subject to the terms and conditions hereof, the other Party will (a) furnish to the requesting Party any additional information, (b) execute and deliver, at its own expense, any other documents reasonably acceptable to such Party, and (c) take any other actions as the requesting Party may reasonably require to more effectively carry out the intent of this Agreement.
10.10 Severability. Except as otherwise provided in Article 9 of the Transaction Support Agreement, if any term, covenant, condition or provision of this Agreement or the application thereof to any Person or circumstance shall, at any time or to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to Persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant, condition and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by Law.
10.11 Entire Agreement. This Agreement (along with the Transaction Support Agreement, Transaction Documents and the other documents delivered contemporaneously with or pursuant to this Agreement) constitutes a complete and exclusive statement of the terms of the agreement between the Parties with respect to its subject matter. This Agreement may not be amended, supplemented or otherwise modified except in a written document executed by the Party against whose interest the modification will operate.
10.12 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. Facsimile or electronic signatures may be used in place of original signatures on this Agreement. The Parties intend to be bound by the signatures on any facsimile or electronic document, and hereby waive any defenses to the enforcement of the terms of this Agreement based on the use of a facsimile or electronic signature.
10.13 Non-Disclosure of Information.
10.13.1 Each Party shall keep confidential any non-public information with respect to the other Party and/or its Affiliates, and the terms and conditions of this Agreement whether disclosed before or after the Effective Date (collectively, the “Confidential Information”), and shall not disclose such Confidential Information (or the terms and conditions of this Agreement) to any third parties, except that each Party and its relevant Affiliates shall have the right to provide or otherwise disclose Confidential Information: (i) that (A) was previously or is hereafter publicly disclosed (other than as a result of disclosures in violation of this Agreement or other confidentiality agreements to which either Party is a party), (B) becomes available to such disclosing Party on a non-confidential basis from a Person other than the non-disclosing Party, or (C) was independently developed by the disclosing Party; (ii) to any Party’s officers, directors, brokers, employees, agents, consultants, representatives, lenders (whether actual or and prospective), investors (whether actual or prospective), accountants, attorneys, title companies and other advisors, any direct or indirect owner of any beneficial interest in any Party or any other Affiliate, on a need-to-know basis (provided that the aforesaid parties are advised of the confidential nature of such Confidential Information and are instructed to maintain the confidentiality of the Confidential Information); (iii) as required to be disclosed by applicable Law (including regulations of the United States Securities and Exchange Commission, and the preparation or filing of any tax returns or other filings); provided that, to the extent permitted by such applicable Law, prior written notice of such disclosure shall be provided to the other party; (iv) in connection with any bona fide suit, action, dispute, arbitration or other Proceedings between the Parties and/or their respective Affiliates brought in good faith; and/or (v) in connection with an earnings call or other communications to actual or potential investors, shareholders or analysts, or any public company communications or filings. The provisions of this Section 10.13.1 shall survive the expiration or any termination of this Agreement.
10.13.2 Notwithstanding anything to the contrary herein, neither Parent, on the one hand, or Customer, on the other hand, shall be required to share any information with the other Party pursuant to this Agreement to the extent that sharing such information would jeopardize any legal privilege or contravene any applicable Law or confidentiality undertaking with a third party; provided that Parent or Customer (as applicable) shall use its commercially reasonable efforts to provide as much of such information as possible to the other Party in a manner that does not result in waivers of privilege or contraventions of Law or such confidentiality undertaking.
[Signature page follows]
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IN WITNESS WHEREOF, this Agreement has been executed as of the date and year first above written.
| Tether Investments, S.A. de C.V. | |||
| By: | |||
| Name: | |||
| Title: | |||
| RUMBLE INC. | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Customer Agreement]
Exhibit 10.7
Execution Version
EQUITY COMMITMENT AGREEMENT
dated as of November 10, 2025
by and among
NORTHERN DATA AG
and
RUMBLE INC.
and
TETHER INVESTMENTS, S.A. DE C.V.
Table of Contents
| Page | ||
| ARTICLE I | DEFINITIONS | 1 |
| Section 1.01 | Definitions | 1 |
| ARTICLE II | ISSUANCE AND SUBSCRIPTION OF SHARES | 4 |
| Section 2.01 | Issuance and Subscription of Shares | 4 |
| Section 2.02 | Effective Date | 4 |
| ARTICLE III | REPRESENTATIONS AND WARRANTIES | 4 |
| Section 3.01 | Representations and Warranties of the Company | 4 |
| Section 3.02 | Representations and Warranties of the Purchaser | 5 |
| ARTICLE IV | COVENANTS | 7 |
| Section 4.01 | Covenant of the Company | 7 |
| ARTICLE V | CONDITIONS TO THE SUBSCRIPTION AND ISSUANCE OF THE SHARES | 7 |
| Section 5.01 | Conditions Precedent to the Obligation of the Company to Issue the Shares | 7 |
| Section 5.02 | Conditions Precedent to the Obligation of the Purchaser to Accept a Draw Down and Subscribe the Shares | 7 |
| Section 5.03 | Establishment of Covered Taxes | 8 |
| ARTICLE VI | DRAW DOWN TERMS | 9 |
| Section 6.01 | Draw Down Terms | 9 |
| Section 6.02 | Aggregate Limit | 10 |
| ARTICLE VII | TERMINATION | 10 |
| Section 7.01 | Term, Termination by Mutual Consent | 10 |
| Section 7.02 | Effect of Termination | 10 |
| ARTICLE VIII | MISCELLANEOUS | 10 |
| Section 8.01 | Fees and Expenses | 10 |
| Section 8.02 | US Securities Laws | 10 |
| Section 8.03 | Specific Enforcement, Consent to Jurisdiction | 10 |
| Section 8.04 | Entire Agreement; Amendment | 11 |
| Section 8.05 | Notices | 11 |
| Section 8.06 | Waivers | 12 |
| Section 8.07 | Headings | 13 |
| Section 8.08 | Successors and Assigns | 13 |
| Section 8.09 | Governing Law; Arbitration | 13 |
| Section 8.10 | Survival | 13 |
| Section 8.11 | Counterparts | 13 |
| Section 8.12 | Severability | 13 |
| Section 8.13 | Further Assurances | 13 |
EXHIBITS
| Exhibit A | Form of Draw Down Notice | |
| Exhibit B | Form of Closing Notice |
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equity commitment AGREEMENT
November 10, 2025
This EQUITY COMMITMENT AGREEMENT (this “Agreement”) is made and entered into as of the date first above written by and among Northern Data AG, a German stock corporation (Aktiengesellschaft) (the “Company”), Rumble Inc., a corporation incorporated under the laws of the State of Delaware (“Rumble”), and Tether Investments, S.A. de C.V., a Salvadoran Sociedad Anónima de Capital Variable (the “Purchaser”, and together with the Company and Rumble, the “Parties”).
RECITALS
WHEREAS, Rumble is concurrently entering into a (1) Transaction Support Agreement, dated as of the date hereof, by and between Rumble and the Purchaser (the “Tether Transaction Support Agreement”) and (2) a Business Combination Agreement, dated as of the date hereof, by and between Rumble and the Company (the “BCA”);
WHEREAS, this Agreement shall become effective on the Execution Date and shall remain in effect until the Closing (as defined in the Tether Transaction Support Agreement) (the “Closing”);
WHEREAS, the management board (Vorstand) and supervisory board (Aufsichtsrat) of the Company have approved the transactions contemplated under this Agreement; and
WHEREAS, following the Execution Date, the Parties desire that, upon the terms and subject to the conditions contained herein, the Company and the Purchaser may agree on a cash share capital increase of the Company under exclusion of the pre-emption rights of the other shareholders of the Company utilizing the Company’s Authorized Capital 2024/II (Genehmigtes Kapital 2024/II) as defined in Section 6.1 of the Company’s articles of association (the “Authorized Capital 2024/II”); pursuant to section 186 para. 3 sentence 4 of the German Stock Corporation Act (“AktG”) up to the Aggregate Limit of the Company’s Shares (as defined below) to fund Covered Taxes (as defined herein) prior to the Closing.
NOW, THEREFORE, the Parties, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
(a) “Action” means any civil, criminal or administrative action, suit, demand, claim, case, litigation, mediation, arbitration, opposition, objection, cancellation, inquiry, charge, subpoena, audit, examination, hearing, dispute, investigation or other proceeding (whether civil, criminal or administrative).
(b) “Affiliate” means with respect to a party to this Agreement (i) any company of which over fifty percent (50%) of its issued and voting share capital is owned or controlled, directly or indirectly, by said party, or (ii) any company which owns or controls, directly or indirectly, over fifty percent (50%) of the issued and voting share capital of such party, or (iii) any company owned or controlled, directly or indirectly, to the extent of over fifty percent (50%) or more of the issued and voting share capital, by any of the foregoing.
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(c) “Aggregate Limit” means 12,839,335 new non-par value bearer shares of the Company.
(d) “Business Day” means any day other than a Saturday, a Sunday, on which banks located in New York, New York, United States, and Frankfurt am Main, Germany, are generally open for business.
(e) “Closing” shall have the meaning set forth in the Recitals.
(f) “Company Material Adverse Effect” means a material adverse effect on the Company’s ability to consummate the transactions contemplated by this Agreement.
(g) “Constituent Documents” means, with respect to any corporation, its articles of association, charter, bylaws and the rules of procedure of any committee; with respect to any partnership, its certificate of partnership and partnership agreement; with respect to any limited liability company, its certificate of formation and limited liability company or operating agreement; and, with respect to each other Person, its comparable constitutional instruments or documents (and, in each case, such similar instruments or documents as applicable under the relevant jurisdiction).
(h) “Covered Taxes” means any unpaid Taxes of the Company or any of its Subsidiaries arising for any tax period prior to the Closing, but shall not apply to (i) Taxes arising from actions taken by the Company or its Subsidiaries with the Purchaser’s prior written consent between the execution of the BCA and the Closing, and (ii) Taxes on capital gains, income Taxes, or customary asset transfer Taxes, except to the extent such Taxes become due and payable as a result of an audit by a tax authority or are otherwise claimed or demanded by tax authorities because such Taxes have not been timely paid.
(i) “Draw Down” means the transactions contemplated under Section 6.01 of this Agreement.
(j) “Draw Down Amount” means the actual amount of proceeds to be paid by the Purchaser in connection with a Draw Down.
(k) “Draw Down Amount Requested” shall mean the number of Shares requested by the Company in its Draw Down Notice as provided in Section 6.01(d) hereof.
(l) “Draw Down Notice” shall have the meaning assigned to such term in Section 6.01(c) hereof.
(m) “Encumbrance” means any mortgage, deed of trust, title defect, easement, license, lien, right of way, levy, security interest, assignment, restriction, charge, pledge, hypothecation, preemptive right, preference, participation interest, claim, option, or right of first refusal.
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(n) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder.
(o) “Execution Date” shall mean the date hereof.
(p) “Government Authority” means any foreign or domestic, federal, state, county, city or local government or legislative, enforcement, administrative or regulatory authority, stock exchange, agency, department, court, tribunal, legislature, executive, official, instrumentality, commission, body, or other judicial, administrative, or arbitral entity, body, or instrumentality, in each case, with competent jurisdiction, including any supranational body.
(q) “Government Order” means any order, writ, judgment, injunction, approval, decree, declaration, stipulation, settlement, ruling, decision, determination, verdict or award, in each case, that is of or entered by any Government Authority.
(r) “Investment Period” shall have the meaning assigned to such term in Section 7.01 hereof.
(s) “Law” means any law, statute, common law, ordinance, rule, regulation, code, Government Order, award, judgment, injunction, decree, directive, ruling, writ, declaration, approval, or other requirement, obligation, duty or rule of law enacted, adopted, issued, promulgated or enforced by a Government Authority.
(t) “Parties” shall have the meaning assigned to such term in the preamble.
(u) “Permits” means licenses, permits, certificates, franchises, certificates, immunities, exemptions, registrations and other authorizations and approvals that are issued by or obtained from any Government Authority.
(v) “Person” means any individual, bank, corporation, general or limited partnership, association, limited liability company, business trust, unincorporated organization or similar organization, whether domestic or foreign, or any Government Authority.
(w) “Purchaser Material Adverse Effect” means a material adverse effect on the Purchaser’s ability to consummate the transactions contemplated by this Agreement.
(x) “Securities Act” shall mean the U.S. Securities Act of 1933, as amended, and the rules and regulations of the United States Securities and Exchange Commission m (SEC) thereunder.
(y) “Shares” shall mean all non-par value bearer shares of the Company issuable to the Purchaser upon exercise of any Draw Down.
(z) “Subsidiary” shall mean any corporation or other entity of which at least a majority of the securities or other ownership interest having ordinary voting power (absolutely or contingently) for the election of directors or other Persons performing similar functions are at the time owned directly or indirectly by the Company and/or any of its other subsidiaries.
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(aa) “Tax” and “Taxes” means all governmental, state, community, municipal or regional taxes, levies, imposts, duties, charges, deductions, withholdings and social security or national insurance contributions of any kind arising in any part of the world which is collected or assessed by, or payable to, a Government Authority or other Person as a result of any enactment relating to tax and all penalties, surcharges and interest included in or relating to any such taxes, levies, imposts, duties, charges, deductions, withholdings and social security or national insurance contributions.
ARTICLE II
ISSUANCE AND SUBSCRIPTION OF SHARES
Section 2.01 Issuance and Subscription of Shares. Upon the terms and subject to the conditions of this Agreement, the Company undertakes to issue, and the Purchaser agrees to subscribe, from time to time during the Investment Period, up to the Aggregate Limit of Shares of the Company, priced at the Subscription Price, pursuant to one or more Draw Down Notices that Rumble may elect to request issuance of the Shares as provided in ARTICLE VI hereof.
Section 2.02 Effective Date. This Agreement has been executed on the Execution Date, and shall become effective immediately.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of the Company. The Company hereby makes the following representations and warranties to the Purchaser as of the Execution Date and as of each date of Rumble’s delivery of a Draw Down Notice:
(a) Organization. The Company is a German stock corporation (Aktiengesellschaft) duly incorporated, validly existing and in good standing under the laws of Germany and has the requisite corporate or other organizational power to own, lease or operate the properties and assets owned, operated or leased by it and to conduct its business as presently conducted.
(b) Authorization, Enforcement. The Company has full corporate power and authority to execute and deliver this Agreement and each certificate and other instrument required to be executed and delivered by the Company pursuant hereto and to perform its obligations under, and consummate the transactions contemplated by, this Agreement, in particular to issue any Shares hereunder, and each such certificate or other instrument required to be executed and delivered by the Company pursuant hereto. The execution, delivery and performance of this Agreement have been, and the consummation of the transactions contemplated hereby (including the issuance of the Shares hereunder) will have been, by the Company have been duly and validly authorized by all necessary corporate action on the part of the Company. None of the execution, delivery and performance of this Agreement and each certificate and other instrument required to be executed and delivered by the Company pursuant to this Agreement, and the consummation of the transactions contemplated hereby, by the Company requires any authorization, vote or other approval of the shareholders of the Company pursuant to the Constituent Documents of the Company or applicable Law. The resolution of the Company’s general meeting to create Authorized Capital 2024/II, on the basis of which new shares are being issued hereunder, has been adopted in accordance with the Constituent Documents of the Company and applicable Law, is not subject to any actions for rescission or annulment, and the implementation of any capital increase is not subject to any actions for injunctive relief or declaratory relief or other legal remedies.
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(c) Binding Effect. This Agreement has been duly executed and delivered by the Company. This Agreement is a legal, valid and binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(d) Non-Contravention. The execution, delivery and performance of this Agreement by the Company, and the consummation by the Company of the transactions contemplated hereby, do not and will not (with or without notice or passage of time or both) (i) violate or conflict with any provision of the Constituent Documents of the Company, (ii) violate or conflict with any Law, Government Order or Permit applicable to the Company or by which any property or asset of the Company is bound, (iii) conflict with, constitute a violation of or breach or default under or give any third-party any rights of termination, modification, loss, diminution of rights, acceleration or cancellation of or under any material contract to which the Company is a party or by which the Company is bound or (iv) result in the creation of any Encumbrance (other than permitted encumbrances) on any of the assets or properties of the Company, except in the case of clauses (ii) through (iv) of this Section 3.01(d), for any such conflicts, violations, breaches, defaults, terminations, modifications, losses, diminutions of rights, accelerations, cancellations or creations that would not and would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
(e) Governmental Approvals. The execution, delivery and performance by the Company of this Agreement, and the consummation by the Company of the transactions contemplated hereby, require no action, consent, approval, authorization, order, license, registration or qualification by or in respect of, or filing with, any Government Authority, other than (i) compliance with any applicable requirements of the AktG, (ii) such actions and filings specifically contemplated under this Agreement, and (iii) any actions or filings the absence of which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Section 3.02 Representations and Warranties of the Purchaser. The Purchaser hereby makes the following representations and warranties to the Company as of the Execution Date and as of the date of each Draw Down Notice and as of each date of Rumble’s delivery of a Draw Down Notice:
(a) Organization and Standing of the Purchaser. The Purchaser is a Salvadoran Sociedad Anónima de Capital Variable, duly incorporated, validly existing and in good standing under the laws of its jurisdiction of organization and has the requisite corporate or other organizational power to own, lease or operate the properties and assets owned, operated or leased by it and to conduct its business as presently conducted.
(b) Authorization and Power. The execution, delivery and performance by the Purchaser of this Agreement, and the consummation by the Purchaser of the transactions contemplated hereby, are within the corporate or other organizational powers of the Purchaser and have been duly and validly authorized by all necessary corporate action. This Agreement constitutes a valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity).
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(c) Non-Contravention. The execution, delivery and performance of this Agreement by the Purchaser, and the consummation by the Purchaser of the transactions contemplated hereby, do not and will not (with or without notice or passage of time or both) (i) violate or conflict with any provision of the Constituent Documents of the Purchaser, (ii) violate or conflict with any Law, Government Order or Permit applicable to the Purchaser or by which any property or asset of the Purchaser is bound, (iii) conflict with, constitute a violation of or breach or default under or give any third-party any rights of termination, modification, loss, diminution of rights, acceleration or cancellation of or under any material contract to which the Purchaser is a party or by which the Purchaser is bound or (iv) result in the creation of any Encumbrance (other than permitted encumbrances) on any of the assets or properties of the Purchaser, except in the case of clauses (ii) through (iv) of this 3.02(c), for any such conflicts, violations, breaches, defaults, terminations, modifications, losses, diminutions of rights, accelerations, cancellations or creations that would not and would not reasonably be expected to, individually or in the aggregate, have a Purchaser Material Adverse Effect.
(d) Governmental Approvals. The execution, delivery and performance by the Purchaser of this Agreement, and the consummation by the Purchaser of the transactions contemplated hereby, require no action, consent, approval, authorization, order, license, registration or qualification by or in respect of, or filing with, any Government Authority, other than (i) compliance with any applicable requirements of the Securities Act, the Exchange Act and any other U.S. state or federal securities Laws or AktG, any (ii) such actions and filings specifically contemplated under this Agreement, and (iii) any actions or filings the absence of which would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.
(e) Litigation or Government Order. There is no Action pending or threatened in writing against the Purchaser, any of their its Affiliates or Subsidiaries, any of their respective assets or properties, any of their respective present or former officers, directors or employees in their capacities as such, or any Person for whom the Purchaser or any of their respective Affiliates or Subsidiaries may be liable before (or, in the case of threatened Actions, would be before) or by any Government Authority or arbitrator that, assuming such Actions were determined or resolved adversely in accordance with the opposing party’s demands, would reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect. Purchaser is not a party to or subject to the provisions of any Government Order that has or would reasonably be expected to, individually or in the aggregate, (i) materially and adversely affect the legality, validity or enforceability of this Agreement, (ii) prevent or materially impair the ability of Purchaser to consummate the transactions contemplated by this Agreement or (iii) have a Purchaser Material Adverse Effect.
(f) Financing. The Purchaser has, and will continue to have through the applicable date of such obligation, sufficient cash or other sources of immediately available funds to enable it to consummate the subscription of the maximum amount of Shares up to the Aggregate Limit.
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(g) Independent Investment Decision. The Purchaser has independently evaluated the merits of its decision to subscribe for the Shares pursuant hereto. The Purchaser understands that nothing in this Agreement nor any other materials presented by or on behalf of the Company to the Purchaser in connection with the acquisition of the Shares constitutes legal, tax or investment advice. The Purchaser has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its acquisition of the Shares hereunder.
ARTICLE IV
COVENANTS
Section 4.01 Covenant of the Company. The Company covenants with the Purchaser that the Company will have available, and shall reserve and keep available at all times during the Investment Period, a portion of the Authorized Capital 2024/II in the amount of at least EUR 12,839,335.00, or a portion of any newly established authorized capital with terms comparable to the Authorized Capital 2024/II in an amount of at least EUR 12,839,335.00 and the Company will not use or utilize the Authorized Capital 2024/II without the prior written consent of the Purchaser.
ARTICLE V
CONDITIONS TO THE SUBSCRIPTION AND ISSUANCE OF THE SHARES
Section 5.01 Conditions Precedent to the Obligation of the Company to Issue the Shares. Following Rumble’s delivery of a Draw Down Notice, the obligation hereunder of the Company to issue the Shares to the Purchaser under any Draw Down Notice is subject to the satisfaction or waiver of each of the conditions set forth below. These conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion.
(a) Accuracy of the Purchaser’s Representations and Warranties. Except for representations and warranties that are expressly made as of a particular date, the representations and warranties of the Purchaser in this Agreement shall be true and correct in all material respects as of the Execution Date and the date of Rumble’s delivery of a Draw Down Notice.
(b) No Injunction. There shall be no Government Order or other Law in any jurisdiction in which either Purchaser or the Company has material business operations in effect enjoining, restraining, or otherwise prohibiting or making illegal the consummation of the transactions contemplated by this Agreement.
Section 5.02 Conditions Precedent to the Obligation of the Purchaser to Accept a Draw Down and Subscribe the Shares. The obligation hereunder of the Purchaser to accept a Draw Down and to acquire, and pay the contributions for, the Shares is subject to the satisfaction or waiver, on the date of Rumble’s delivery of a Draw Down Notice of each of the conditions set forth below. The conditions are for the Purchaser’s sole benefit and may be waived by the Purchaser at any time in its sole discretion.
(a) BCA Conditions. The conditions set forth in Section 4.21 and Section 4.22 of the BCA shall have been satisfied or waived in accordance with the BCA.
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(b) Legal Opinion. The Purchaser and Rumble shall have received a German-law legal opinion from Gleiss Lutz Hootz Hirsch PartmbB Rechtsanwälte, Steuerberater, legal advisor to the Company, in form and substance satisfactory to the Purchaser, in particular, but not limited to, relating to customary statements on capacity of the Company, enforceability of this Agreement, valid issuance of the newly issued shares and no stamp tax.
(c) Accuracy of the Company’s Representations and Warranties. Except for representations and warranties that are expressly made as of a particular date, each of the representations and warranties of the Company in this Agreement shall be true and correct in all material respects as of the date when made and as of the date of Rumble’s delivery of a Draw Down Notice, as though made at that time.
(d) No Injunction. There shall be no Government Order or other Law in any jurisdiction in which either Purchaser or the Company has material business operations in effect enjoining, restraining, or otherwise prohibiting or making illegal the consummation of the transactions contemplated by this Agreement.
(e) Covered Taxes. The Parties have agreed on the existence of Covered Taxes that are due and payable, or the existence of such Covered Taxes has been established, all as set forth in Section 5.03 and the Draw Down Amount Requested in the applicable Draw Down Notice does not exceed the amount of Covered Taxes that are agreed or established to be due and payable.
(f) Aggregate Limit. The issuance and sale of the Shares issuable pursuant to such Draw Down Notice will not violate Section 6.02 hereof.
Section 5.03 Establishment of Covered Taxes.
(a) Prior to Rumble issuing a Draw Down Notice, the Company shall furnish to the Purchaser and Rumble (i) each assessment, audit paper and other communication with the relevant tax authorities indicating that a Covered Tax is due and payable; (ii) the relevant accounting records of the Company and/or its Subsidiaries necessary for the calculation of the relevant Covered Taxes; and (iii) a tax legal analysis from a reputable tax advisor detailing the existence and amount of the relevant Covered Taxes for which the Company intends to issue a Draw Down Notice and the merits of the relevant tax authority’s determination that such Covered Tax is due and payable (a “Tax Notice”).
(b) If the Purchaser does not dispute a Tax Notice duly submitted by the Company within fifteen (15) Business Days in writing (email being sufficient) (a “Dispute Notice”), the existence of the relevant Covered Taxes shall be established for purposes of this Agreement, and, subject to the other conditions set forth herein, Rumble may proceed to issue a Draw Down Notice.
(c) If the Purchaser provides Rumble and the Company with a Dispute Notice, the Parties shall use reasonable endeavors to discuss the existence of the relevant Covered Taxes and reach an agreement within fifteen (15) Business Days after receipt of the Dispute Notice by the Company. If the Parties are unable to agree on the Covered Taxes within this time frame, they shall jointly select one of the big four accounting firms as an expert to resolve on the existence of the Covered Taxes and when such Covered Taxes are due and payable or otherwise required to be accrued as a liability under GAAP or IFRS (the “Expert”), provided that this may not be the tax advisor who has provided the analysis pursuant to Section 5.03(a).
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(d) The Parties shall duly cooperate with the Expert and furnish all documents and other information requested by the Expert in a timely manner, and the Company shall ensure that the Company and its Subsidiaries will provide such information.
(e) The decision of the Expert shall be final and binding upon the Parties. The costs of the Expert shall be borne by the Parties in equal amounts.
ARTICLE VI
DRAW DOWN TERMS
Section 6.01 Draw Down Terms. Subject to the satisfaction of the conditions set forth in this Agreement, and subject to Section 6.02 below, the Parties undertake (unless otherwise mutually agreed upon by the Parties in writing) to carry out the following steps if at any time during the Investment Period, Rumble provides a notice to the Purchaser of Rumble’s exercise of any Draw Down via email (the “Draw Down Notice”), substantially in the form attached hereto as Exhibit A, for a specified Draw Down Amount Requested of up to an aggregate amount equal to the quantity of the Aggregate Limit for the purpose of funding accrued and unpaid and/or potential future Covered Taxes:
(a) Without undue delay, the Purchaser shall provide the Company with a closing notice in the form of Exhibit B attached hereto.
(b) The Company shall, to the extent legally permissible, procure that the management board and the supervisory board of the Company adopt corresponding resolutions regarding the utilization of the Company’s Authorized Capital 2024/II for a cash share capital increase of the Company under exclusion of the pre-emption rights of the other shareholders of the Company pursuant to section 186 para. 3 sentence 4 AktG in an amount equal to the Draw Down Amount Requested and shall procure that only the Purchaser is admitted to subscribe to such shares.
(c) Following passing of the corresponding resolutions by the Company, the Purchaser shall subscribe for the new Shares by delivering to the Company duplicates of a duly signed subscription certificate (Zeichnungsschein) in customary form.
(d) The Purchaser shall pay, or arrange for payment of an amount equal to the product of the number of the subscribed Shares and the Reference Price (as defined in the Tether Transaction Support Agreement) (the “Subscription Price”) to a special account of the Company as specified by the Company held at the settlement agent (to be appointed by the Company), provided that this price meets the minimum threshold under German law. For this purpose, the Reference Price is to be calculated as of the date the Draw Down Notice is received by the Purchaser.
(e) The Company shall without undue delay, upon receipt of the Subscription Price, submit the application for registration of the share capital increase to the commercial register of the Company.
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(f) Following registration of the share capital increase in the commercial register of the Company, the Company shall without undue delay arrange for the (i) inclusion to trading of the newly issued Shares in the open market of the Frankfurt Stock Exchange and (ii) delivery of the newly issued Shares to the Purchaser’s depository account as specified by the Purchaser.
(g) The Parties undertake to deliver the required contact details of and instructions to their respective custodian banks to arrange for the settlement of the newly issued Shares to the Purchaser.
(h) Following completion of the relevant capital increase, the Company shall provide the Purchaser with evidence reasonably satisfactory to Purchaser to show that the Company has actually utilized the funds from the sale of the Shares to settle the relevant Covered Taxes.
Section 6.02 Aggregate Limit. Notwithstanding anything to the contrary herein, in no event may Rumble issue a Draw Down Notice to the extent that the issuance of Shares pursuant thereto and pursuant to all prior Draw Down Notices issued pursuant to Section 6.01 would cause the Company to issue or the Purchaser to subscribe an aggregate number of Shares exceeding the Aggregate Limit. If Rumble issues a Draw Down Notice that otherwise would permit the Purchaser to subscribe for a number of Shares which would cause the aggregate subscriptions by Purchaser hereunder to exceed the Aggregate Limit, such Draw Down Notice shall be void ab initio.
ARTICLE VII
TERMINATION
Section 7.01 Term, Termination by Mutual Consent. This Agreement shall terminate automatically on the earlier of (i) date of Closing and (ii) the date the BCA and/or the Tether Transaction Support Agreement are terminated (the “Investment Period”).
Section 7.02 Effect of Termination. If this Agreement is terminated as provided in Section 7.01 herein, this Agreement shall become void and of no further force and effect, except as provided in Section 8.10 hereof.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Fees and Expenses. Each party shall bear its own fees and expenses related to the transactions contemplated by this Agreement. The Company shall bear any fees and expenses in connection with capital increases under this Agreement.
Section 8.02 US Securities Laws. The Purchaser hereby represents and warrants to the Company that it is outside the United States (as defined in Regulation S under the Securities Act) and acknowledges and agrees that the Shares which it is committing to purchase pursuant to this Agreement have not been and will not be registered under the Securities Act or with any regulatory authority of any state or other jurisdiction in the United States.
Section 8.03 Specific Enforcement, Consent to Jurisdiction.
(a) The Company, Rumble and the Purchaser acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that either party shall be entitled to an injunction or injunctions from any court of competent jurisdiction or arbitral authority to prevent or cure breaches of the provisions of this Agreement by the other party and to enforce specifically the terms and provisions hereof; such right is in addition to any other remedy to which either party may be entitled by law or equity, without the necessity of posting a bond or other security or the burden of proving actual damages.
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(b) All disputes, controversies or claims between the Parties arising out of or in connection with this agreement (including its existence, validity or termination) which cannot be amicably resolved shall be finally resolved and settled under the Rules of Arbitration of the American Arbitration Association and its affiliate, the International Center for Dispute Resolution, in New York City. The arbitration tribunal shall be composed of one arbitrator. The arbitration will take place in New York City, New York, and shall be conducted in the English language. The arbitration award shall be final and binding on the Parties.
Section 8.04 Entire Agreement; Amendment. This Agreement represent the entire agreement of the Parties with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by either party relative to the subject matter hereof not expressly set forth herein. No provision of this Agreement may be amended other than by a written instrument signed by both Parties.
Section 8.05 Notices.
(a) Any notice, request, claim, demand or other communication in connection with this Agreement (each, a “Notice”) shall be:
(i) in writing in English; and
(ii) delivered by hand, registered mail or by courier using an internationally recognized courier company, or transmitted by email
(b) A Notice to any Party shall be sent to such Party at the following address, or such other Person or address as such Party may designate by delivery of Notice to each other Party in accordance herewith:
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If to the Company: |
Northern Data AG An der Welle 3 60322 Frankfurt/Main Germany Attention: |
| With a copy (which shall not constitute notice): |
Gleiss Lutz Hootz Hirsch PartmbB Taunusanlage 11, 60329 Frankfurt/Main |
| Email: stephan.aubel@gleisslutz.com | |
| If to Rumble: |
Rumble, Inc. 444 Gulf of Mexico Dr. Longboat Key, Florida 34228 Attention: Email: |
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| With a copy (which shall not constitute notice): |
Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, NY 10019-6099 Attention: Russel L. Leaf, Sean M. Ewen |
| Email: rleaf@willkie.com; sewen@willkie.com | |
| If to the Purchaser: |
Tether Investments, S.A. de C.V. Final Av. La Revolucion, San Benito Edif. Corporativo Presidente Plaza Nivel 12 San Salvador, Republica de El Salvador Attention: Email:
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With a copy (which shall
|
McDermott Will & Schulte Rechtsanwälte Oberlindau 54-56 60323 Frankfurt am Main Germany Attention: Dr. Felix Ganzer
and
McDermott Will & Schulte LLP One Vanderbilt Avenue New York, NY 10017-3852 Attention: Daniel Woodard Email: dwoodard@mwe.com |
(c) A Notice shall be effective upon receipt and shall be deemed to have been received:
(i) at the time of delivery, if delivered by hand, registered post or courier; or
(ii) when sent by email (with email confirmation of receipt, including automated electronic confirmation of receipt).
Section 8.06 Waivers. No waiver by either Party of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any other provisions, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter. No provision of this Agreement may be waived other than in a written instrument signed by the party against whom enforcement of such waiver is sought.
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Section 8.07 Headings. The article, section and subsection headings in this Agreement are for convenience only and shall not constitute a part of this Agreement for any other purpose and shall not be deemed to limit or affect any of the provisions hereof.
Section 8.08 Successors and Assigns. Neither party may assign this Agreement to any Person without the prior consent of the other party.
Section 8.09 Governing Law; Arbitration.
(a) This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany, without recourse to any conflicts of law provisions.
(b) All disputes arising under or in connection with this Agreement (including any dispute in connection with a breach, termination or its validity) shall be finally settled, under exclusion of any state court’s competence, by three (3) arbitrators in accordance with the Arbitration Rules of the German Institution of Arbitration e.V. (Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS)), including the Supplementary Rules for Expedited Proceedings, as applicable as of the filing of the claim. Each arbitrator shall be eligible for the office of a judge in Germany and have proven expertise and professional expertise as is required for the relevant dispute at hand. The venue of the arbitration shall be Frankfurt am Main, Germany. The language of the arbitral proceedings shall be English. Documents already existing as at the date of this Agreement may also be submitted in the German language.
Section 8.10 Survival. The representations and warranties of the Company and the Purchaser contained in ARTICLE III and the covenants contained in ARTICLE IV shall survive the execution and delivery hereof until the termination of this Agreement, and the agreements and covenants set forth in Article VI of this Agreement shall survive the execution and delivery hereof.
Section 8.11 Counterparts. This Agreement and the other agreements referred to herein may be executed in any number of counterparts, each of which shall be deemed to constitute an original and all of which shall together constitute one and the same instrument. This Agreement shall become binding when any number of counterparts, individually or taken together, shall bear the signatures of and be delivered by all Parties. This Agreement may be executed and delivered by facsimile or any other electronic means, including “.pdf” or “.tiff” files, DocuSign, and any facsimile or electronic signature shall constitute an original for all purposes.
Section 8.12 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid, void or unenforceable, (a) a suitable and equitable provision shall be negotiated by the Parties in good faith in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
Section 8.13 Further Assurances. From and after the date of this Agreement, upon the request of the Purchaser or the Company, each of the Company and the Purchaser shall execute and deliver such instrument, documents and other writings as may be reasonably necessary or desirable to confirm and carry out and to effectuate fully the intent and purposes of this Agreement. Each Party hereby expressly agrees that, in the event that any action or determination of any regulatory or governmental authority, or the refusal or failure of any other governmental approval, would or does prohibit or otherwise materially interfere with the ability of the Parties to effect the transactions contemplated by this Agreement in the manner contemplated by and described in it, each such Party shall use its good-faith best efforts to resolve and cure such condition, including, without limitation, by amending this Agreement to the extent necessary therefor.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed by their respective authorized officer as of the date first above written.
| NORTHERN DATA AG | ||
| By: | /s/ John Hoffman | |
| Name: | John Hoffman | |
| Title: | Co-Chief Executive Officer | |
| RUMBLE INC. | ||
| By: | /s/ Chris Pavlovsk | |
| Name: | Chris Pavlovski | |
| Title: | Chief Executive Officer | |
| TETHER INVESTMENTS, S.A. DE C.V. | ||
| By: | /s/ Giancarlo Devasini | |
| Name: | Giancarlo Devasini | |
| Title: | Sole Administrator | |
[Signature Page to Equity Commitment Agreement (Northern Data)]
EXHIBIT A
FORM OF DRAW DOWN NOTICE
Reference is made to the Equity Commitment Agreement dated as of November 10, 2025 (the “Commitment Agreement”) by and among Northern Data AG, a German stock corporation (Aktiengesellschaft), Rumble Inc., a corporation incorporated under the laws of the State of Delaware and Tether Investments, S.A. de C.V., a Salvadoran Sociedad Anónima de Capital Variable. Capitalized terms used and not otherwise defined herein shall have the meanings given such terms in the Commitment Agreement.
All conditions precedent to the obligations of the Purchaser contained in Section 5.02 and Section 5.03 of the Commitment Agreement have been met and the representations and warranties of the Company contained in ARTICLE III of the Commitment Agreement shall be true and correct in all material respects on and as of the Settlement Date.
In accordance with and pursuant to Section 6.01 of the Commitment Agreement, Rumble hereby issues this Draw Down Notice to exercise a Draw Down request for the Draw Down Amount indicated below.
| Draw Down Amount Requested: | |
| Dollar Amount and Number of Shares Currently Available under the Aggregate Limit: |
| Dated: ____________________________ | By: | Rumble Inc. |
| Name: | |||
| Title: | |||
EXHIBIT B
FORM OF CLOSING NOTICE
To:
Northern Data AG
An der Welle 3
60322 Frankfurt/Main
Germany
Attention: John Hoffman
Attention:
We refer to the equity commitment agreement (the “Agreement”) dated November 10, 2025, by and among Rumble, Inc., us and yourselves and to the Draw Down Notice delivered to us by Rumble on _______________ 20___. Terms defined in the Agreement have the same meaning herein.
We hereby request that you take all steps required to utilize your Authorized Capital 2024/II, including the adoption of all required resolutions of your management board and your supervisory board to issue in connection with a cash share capital increase under exclusion of the pre-emption right of the other shareholders of the Company pursuant to section 186 para. 3 sentence 4 AktG and deliver such Shares in accordance with the following instructions:
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
| Signed by: _________________________ | |
| Name: ____________________________ | |
| Date: _____________________________ | |
| For and on behalf of | |
| Tether Investments, S.A. de C.V. |
Exhibit 10.8
Execution Version
EQUITY COMMITMENT AGREEMENT
dated as of November 10, 2025
by and among
RUMBLE INC.
and
TETHER INVESTMENTS, S.A. DE C.V.
Table of Contents
| Page | ||
| ARTICLE I | DEFINITIONS | 1 |
| Section 1.01 | Definitions | 1 |
| ARTICLE II | PURCHASE AND SALE OF SHARES | 4 |
| Section 2.01 | Purchase and Sale of Shares | 4 |
| Section 2.02 | The Shares | 5 |
| Section 2.03 | Effective Date; Settlement Dates | 6 |
| ARTICLE III | REPRESENTATIONS AND WARRANTIES | 6 |
| Section 3.01 | Representations and Warranties of the Company | 6 |
| Section 3.02 | Representations and Warranties of the Purchaser | 8 |
| ARTICLE IV | COVENANTS | 10 |
| Section 4.01 | Registration Rights Agreement | 10 |
| Section 4.02 | Reservation of Shares | 10 |
| Section 4.03 | Registration and Exchange Listing | 10 |
| Section 4.04 | Takeover Statutes | 10 |
| ARTICLE V | CLOSING CERTIFICATE; CONDITIONS TO THE SALE AND PURCHASE OF THE SHARES | 11 |
| Section 5.01 | Conditions Precedent to the Obligation of the Company to Sell the Shares | 11 |
| Section 5.02 | Conditions Precedent to the Obligation of the Purchaser to Accept a Draw Down and Purchase the Shares | 11 |
| Section 5.03 | Establishment of Covered Taxes | 12 |
| ARTICLE VI | DRAW DOWN TERMS | 13 |
| Section 6.01 | Draw Down Terms | 13 |
| Section 6.02 | Aggregate Limit | 14 |
| ARTICLE VII | TERMINATION | 14 |
| Section 7.01 | Term, Termination by Mutual Consent | 14 |
| Section 7.02 | Effect of Termination | 14 |
| ARTICLE VIII | MISCELLANEOUS | 14 |
| Section 8.01 | Fees and Expenses | 14 |
| Section 8.02 | Specific Enforcement, Consent to Jurisdiction | 14 |
| Section 8.03 | Entire Agreement; Amendment | 15 |
| Section 8.04 | Notices | 15 |
| Section 8.05 | Waivers | 16 |
| Section 8.06 | Headings | 16 |
| Section 8.07 | Successors and Assigns | 16 |
| Section 8.08 | Governing Law; Waiver of Jury Trial | 17 |
| Section 8.09 | Survival | 17 |
| Section 8.10 | Counterparts | 17 |
| Section 8.11 | Severability | 17 |
| Section 8.12 | Further Assurances | 17 |
EXHIBITS
| Exhibit A | Form of Pre-Funded Warrant |
| Exhibit B | Form of Draw Down Notice |
| Exhibit C | Form of Closing Notice |
- i -
equity commitment AGREEMENT
November 10, 2025
This EQUITY COMMITMENT AGREEMENT (this “Agreement”) is made and entered into as of the date first above written by and among Rumble Inc., a corporation incorporated under the laws of the State of Delaware (the “Company”), and Tether Investments, S.A. de C.V., a Salvadoran Sociedad Anónima de Capital Variable (the “Purchaser”, and together with the Company, the “Parties”).
RECITALS
WHEREAS, the Company is currently entering into a (1) Transaction Support Agreement, dated as of the date hereof, by and between the Company and the Purchaser (the “Tether Transaction Support Agreement”), a Financing Commitment Agreement by and between the Company, Northern Data AG, a German stock corporation (Aktiengesellschaft) (“NDAG), and the Purchaser (the “Initial Financing Commitment Agreement”), and (2) a Business Combination Agreement, dated as of the date hereof, by and between the Company and NDAG” (the “BCA”);
WHEREAS, following the Closing (as defined in the Tether Transaction Support Agreement) (the “Closing”), the Parties desire that, upon the terms and subject to the conditions contained herein, the Company may issue and sell to the Purchaser, and the Purchaser may purchase from the Company up to the Aggregate Limit of the Company’s Shares (as defined below) to fund Covered Taxes (as defined herein);
WHEREAS, such investments will be made in reliance upon the provisions of Section 4(a)(2) of the Securities Act (“Section 4(a)(2)”) and Rule 506 of Regulation D promulgated by the Commission under the Securities Act (“Regulation D”), and upon such other exemption from the registration requirements of the Securities Act as may be available with respect to any or all of the investments in the Shares to be made hereunder; and
WHEREAS, the Parties are concurrently entering into an Amendment and Restated Registration Rights Agreement in the form attached as an amendment to the Tether Transaction Support Agreement (the “Registration Rights Agreement”), pursuant to which the Company shall register the resale of the Shares by the Purchaser, upon the terms and subject to the conditions set forth therein.
NOW, THEREFORE, the Parties, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
(a) “Action” means any civil, criminal or administrative action, suit, demand, claim, case, litigation, mediation, arbitration, opposition, objection, cancellation, inquiry, charge, subpoena, audit, examination, hearing, dispute, investigation or other proceeding (whether civil, criminal or administrative).
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(b) “Affiliate” means with respect to a party to this Agreement (i) any company of which over fifty percent (50%) of its issued and voting share capital is owned or controlled, directly or indirectly, by said party, or (ii) any company which owns or controls, directly or indirectly, over fifty percent (50%) of the issued and voting share capital of such party, or (iii) any company owned or controlled, directly or indirectly, to the extent of over fifty percent (50%) or more of the issued and voting share capital, by any of the foregoing.
(c) “Aggregate Limit” shall have the meaning assigned to such term in Section 2.01 hereof.
(d) “Business Day” means any day other than a Saturday, a Sunday, on which banks located in New York, New York, United States, and Frankfurt am Main, Germany, are generally open for business.
(e) “Closing” shall have the meaning set forth in the Recitals.
(f) “Commission” shall mean the Securities and Exchange Commission or any successor entity.
(g) “Common Shares” means shares of the Company’s Class A Common Stock.
(h) “Company Material Adverse Effect” means a material adverse effect on the Company’s ability to consummate the transactions contemplated by this Agreement.
(i) “Constituent Documents” means, with respect to any corporation, its charter and bylaws; with respect to any partnership, its certificate of partnership and partnership agreement; with respect to any limited liability company, its certificate of formation and limited liability company or operating agreement; and, with respect to each other Person, its comparable constitutional instruments or documents (and, in each case, such similar instruments or documents as applicable under the relevant jurisdiction).
(j) “Covered Taxes” means any unpaid Taxes of NDAG or any of its Subsidiaries arising for any tax period prior to the Closing, but shall not apply to (i) Taxes arising from actions taken by NDAG or its Subsidiaries with the Company’s prior written consent between the execution of the BCA and the Closing, and (ii) Taxes on capital gains, income Taxes, or customary asset transfer Taxes, except to the extent such Taxes become due and payable as a result of an audit by a tax authority or are otherwise claimed or demanded by tax authorities because such Taxes have not been timely paid.
(k) “Draw Down” means the transactions contemplated under Section 6.01 of this Agreement.
(l) “Draw Down Amount” means the actual amount of proceeds to be paid by the Purchaser in connection with a Draw Down.
(m) “Draw Down Amount Requested” shall mean the number of Shares requested by the Company in its Draw Down Notice as provided in Section 6.01(d) hereof.
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(n) “Draw Down Notice” shall have the meaning assigned to such term in Section 6.01(c) hereof.
(o) “Encumbrance” means any mortgage, deed of trust, title defect, easement, license, lien, right of way, levy, security interest, assignment, restriction, charge, pledge, hypothecation, preemptive right, preference, participation interest, claim, option, or right of first refusal.
(p) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder.
(q) “Execution Date” shall mean the date hereof.
(r) “Government Authority” means any foreign or domestic, federal, state, county, city or local government or legislative, enforcement, administrative or regulatory authority, agency, department, court, tribunal, legislature, executive, official, instrumentality, commission, body, or other judicial, administrative, or arbitral entity, body, or instrumentality, in each case, with competent jurisdiction, including any supranational body and any Self Regulatory Organization.
(s) “Government Order” means any order, writ, judgment, injunction, approval, decree, declaration, stipulation, settlement, ruling, decision, determination, verdict or award, in each case, that is of or entered by any Government Authority.
(t) “IFRS” means the international financial reporting standards promulgated by the European Union, as amended, together with the interpretations of the International Financial Reporting Standards Interpretations Committee as adopted by the European Union and in accordance with application of commercial law provisions pursuant to Section 315e para. 1 of the German Commercial Code (Handelsgesetzbuch).
(u) “Investment Period” shall have the meaning assigned to such term in Section 7.01 hereof.
(v) “Law” means any law, statute, common law, ordinance, rule, regulation, code, Government Order, award, judgment, injunction, decree, directive, ruling, writ, declaration, approval, or other requirement, obligation, duty or rule of law enacted, adopted, issued, promulgated or enforced by a Government Authority.
(w) “Parties” shall have the meaning assigned to such term in the preamble
(x) “Permits” means licenses, permits, certificates, franchises, certificates, immunities, exemptions, registrations and other authorizations and approvals that are issued by or obtained from any Government Authority.
(y) “Person” means any individual, bank, corporation, general or limited partnership, association, limited liability company, business trust, unincorporated organization or similar organization, whether domestic or foreign, or any Government Authority.
(z) “Principal Market” shall mean the Nasdaq Global Market or any other U.S. national securities exchange on which the Shares are traded.
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(aa) “Purchaser Material Adverse Effect” means a material adverse effect on the Purchaser’s ability to consummate the transactions contemplated by this Agreement.
(bb) “Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder.
(cc) “Self Regulatory Organization” means (a) any “self regulatory organization” as defined in Section 3(a)(26) of the Exchange Act, and (b) any other United States or foreign securities exchange, futures exchange, commodities exchange or contract market.
(dd) “Settlement Date” shall have the meaning assigned to such term in Section 6.01(c) hereof.
(ee) “Shares” shall mean, collectively, all of the Common Shares of the Company issuable to the Purchaser upon exercise of any Draw Down.
(ff) “Subsidiary” shall mean any corporation or other entity of which at least a majority of the securities or other ownership interest having ordinary voting power (absolutely or contingently) for the election of directors or other Persons performing similar functions are at the time owned directly or indirectly by the Company and/or any of its other subsidiaries.
(gg) “Tax” and “Taxes” means all governmental, state, community, municipal or regional taxes, levies, imposts, duties, charges, deductions, withholdings and social security or national insurance contributions of any kind arising in any part of the world which is collected or assessed by, or payable to, a Government Authority or other Person as a result of any enactment relating to tax and all penalties, surcharges and interest included in or relating to any such taxes, levies, imposts, duties, charges, deductions, withholdings and social security or national insurance contributions.
(hh) “Transaction Documents” shall mean (i) this Agreement, (ii) the Registration Rights Agreement, (iii) the Pre-Funded Warrant, (iv) the Customer Agreement, (v) the Transaction Agreement Amendment, (vi) the CEO Purchase Agreement, (vii) the Apeiron Purchase Agreement, (viii) the Shareholder Loan Amendment, (ix) the Confidentiality Agreement, (x) the BCA, (xi) the Tether Transaction Support Agreement and each other document delivered or required to be delivered pursuant to the aforementioned agreements, each of (iv) – (ix), as defined in the Tether Transaction Support Agreement.
ARTICLE II
PURCHASE AND SALE OF SHARES
Section 2.01 Purchase and Sale of Shares.
(a) Upon the terms and subject to the conditions of this Agreement, the Company shall issue and sell to the Purchaser, and the Purchaser agrees to purchase from the Company from time to time during the Investment Period, up to an aggregate amount of $200,000,000.00 (the “Aggregate Limit”) in exchange for duly authorized, validly issued, fully paid and non-assessable Common Shares (and/or Pre-Funded Warrants, as applicable) of the Company, priced at the Unaffected Price per Common Share (or Pre-Funded Warrant), pursuant to one or more Draw Down Notices that the Company may elect to issue as provided in ARTICLE VI hereof. The aggregate dollar amount of all Draw Down Amounts pursuant to the terms and conditions of this Agreement shall not exceed the Aggregate Limit.
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(b) Following Closing (but not before or at Closing), in lieu of delivering Common Shares to the Purchaser, the Company may elect in any Draw Down Notice to deliver to the Purchaser a loan agreement as follows:
(i) if the loan agreement to be entered into between the Purchaser and Rumble NODE HoldCo attached hereto as Exhibit E (the “Incremental Loan Agreement”) remains outstanding at the time of Draw Down Notice, the loan shall be with Rumble NODE HoldCo (as defined in the Incremental Loan Agreement) as the borrower and the Purchaser as the lender in an aggregate principal amount equal to the amount specified by the Company in such Draw Down Notice in accordance with Section 6.01 and on the same terms as the Incremental Loan Agreement.
(ii) if the Incremental Loan Agreement is no longer outstanding at the time of the Draw Down Notice, the Company and Purchaser shall enter into a new loan agreement on terms substantially identical to the Incremental Loan Agreement prior to its termination, including the provision of security and covenants.
(c) Notwithstanding the foregoing, only to the extent that the issuance of Common Shares hereunder would result in the Purchaser and its Affiliates owning in excess of 9.9% of the outstanding voting power of the capital stock of the Company after giving effect to such issuance (the “Ownership Limitation”), in lieu of delivering to the Purchaser such number of Common Shares in excess of the Ownership Limitation, the Company shall deliver to the Purchaser a pre-funded warrant in the form attached hereto as Exhibit A (the “Pre-Funded Warrant”) exercisable on a cashless basis into such number of Common Shares so that the Purchaser and its Affiliates do not own in excess of the Ownership Limitation after giving effect to issuance of Common Shares hereunder. No later than five (5) Business Days prior to each Settlement Date, the Purchaser shall inform the Company of the number of Common Shares held by the Purchaser and the Company shall inform the Purchaser of the number of Common Shares for purposes of calculating the number of Common Shares to be issued at Closing and the number of Common Shares to be included in the Pre-Funded Warrant.
(d) The Aggregate Limit shall be reduced on a dollar-for-dollar basis for any amounts already drawn under the Initial Financing Commitment Agreement.
Section 2.02 The Shares.
(a) By reason of a specific exemption from the registration provisions of the Securities Act, Purchaser understands that the Shares (and/or Pre Funded Warrants, as applicable) have not been registered under the Securities Act. Purchaser understands that the Shares (and/or Pre Funded Warrants, as applicable) will consist of “restricted securities” under applicable U.S. federal and state securities Laws and that, pursuant to these Laws, Purchaser may dispose of the Shares (and/or Common Shares underlying the Pre Funded Warrants, as applicable) only pursuant to an effective registration statement with the Commission and in compliance with applicable requirements of state authorities, or an exemption from such registration and requirements. Purchaser acknowledges that, other than as set forth in the Registration Rights Agreement, the Company has no obligation to register or qualify the Shares (and/or any Common Shares underlying the Pre Funded Warrants, as applicable).
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(b) Any certificate(s) representing the Shares (and/or Common Shares issuable upon conversion of any Pre-Funded Warrants, as applicable) will be imprinted, and any such securities issued in non-certificated book-entry form will have a notation in the Company’s stock ledger and other appropriate books and records, with a legend in substantially the following form (in the case of securities issued in non-certificated book-entry form, reflecting conforming changes consistent with the non-certificated book-entry form):
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A PRIVATE PLACEMENT, WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION UNDER THE ACT COVERING SUCH SALE, ASSIGNMENT OR TRANSFER OR AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE ISSUER, THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED.”
Section 2.03 Effective Date; Settlement Dates.
(a) This Agreement has been executed on the Execution Date, but will become effective only immediately prior to the Closing.
(b) The issuance and sale of Shares (and/or Pre-Funded Warrants, as applicable) to the Purchaser pursuant to any Draw Down shall occur on the applicable Settlement Date(s) in accordance with ARTICLE VI; provided that all of the conditions precedent thereto set forth in ARTICLE V theretofore shall have been fulfilled on or prior to such Settlement Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of the Company. The Company hereby makes the following representations and warranties to the Purchaser as of the Execution Date and as of each Settlement Date:
(a) Organization. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has the requisite corporate or other organizational power to own, lease or operate the properties and assets owned, operated or leased by it and to conduct its business as presently conducted.
(b) Authorization, Enforcement. The Company has full corporate power and authority to execute and deliver this Agreement and each certificate and other instrument required to be executed and delivered by the Company pursuant hereto and to perform its obligations under, and consummate the transactions contemplated by, this Agreement and each such certificate or other instrument required to be executed and delivered by the Company pursuant hereto. The execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby (including the issuance of the Shares and/or Pre-Funded Warrants hereunder), by the Company have, subject to receipt of the stockholder approval contemplated by the Written Consent (as defined in the Tether Transaction Support Agreement)), been duly and validly authorized by all necessary corporate action on the part of the Company. None of the execution, delivery and performance of this Agreement and each certificate and other instrument required to be executed and delivered by the Company pursuant to this Agreement, and the consummation of the transactions contemplated hereby, by the Company requires any authorization, vote or other approval of the shareholders of the Company (other than the Written Consent (as defined in the Tether Transaction Support Agreement)) pursuant to the Constituent Documents of the Company or applicable Law.
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(c) Issuance of Shares. The issuance of all Common Shares that may be issued pursuant to this Agreement has been duly authorized and, upon issuance in accordance with the terms hereof, will be validly issued, fully paid and non-assessable and in each case, free and clear of any Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents). The issuance of any Pre-Funded Warrant pursuant to this Agreement shall be duly authorized, and upon the due execution, issuance and delivery, the Pre-Funded Warrant will be a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. The issuance of Common Shares underlying any such Pre-Funded Warrant shall be duly authorized, and upon issuance in accordance with the exercise of the Pre-Funded Warrant, such Common Shares will be validly issued, fully paid and non-assessable and free and clear of any Encumbrances (except for any restrictions on transfer arising under applicable securities Law, the applicable Constituent Documents and any restrictions arising pursuant to the Transaction Documents), with the holder being entitled to all rights accorded to a holder of Common Shares.
(d) Binding Effect. This Agreement has been duly executed and delivered by the Company. This Agreement is a legal, valid and binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(e) Non-Contravention. The execution, delivery and performance of this Agreement by the Company, and the consummation by the Company of the transactions contemplated hereby, do not and will not (with or without notice or passage of time or both) (i) violate or conflict with any provision of the Constituent Documents of the Company, (ii) violate or conflict with any Law, Government Order or Permit applicable to the Company or by which any property or asset of the Company is bound, (iii) conflict with, constitute a violation of or breach or default under or give any third-party any rights of termination, modification, loss, diminution of rights, acceleration or cancellation of or under any material contract to which the Company is a party or by which the Company is bound or (iv) result in the creation of any Encumbrance (other than permitted encumbrances) on any of the assets or properties of the Company, except in the case of clauses (ii) through (iv) of this 3.01(e), for any such conflicts, violations, breaches, defaults, terminations, modifications, losses, diminutions of rights, accelerations, cancellations or creations that would not and would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
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(f) Governmental Approvals. The execution, delivery and performance by the Company of this Agreement, and the consummation by the Company of the transactions contemplated hereby, require no action by or in respect of, or filing with, any Government Authority, other than (i) compliance with any applicable requirements of the Securities Act, the Exchange Act and any other U.S. state or federal securities Laws or AktG, any (ii) such actions and filings specifically contemplated under this Agreement, and (iii) any actions or filings the absence of which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Section 3.02 Representations and Warranties of the Purchaser. The Purchaser hereby makes the following representations and warranties to the Company as of the Execution Date and as of the date of each Draw Down Notice and as of each Settlement Date:
(a) Organization and Standing of the Purchaser. The Purchaser is a Salvadoran Sociedad Anónima de Capital Variable, duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all corporate powers and all Permits necessary to enable it to use its legal or other business name, to own, lease or otherwise hold and operate its properties and other assets and to carry on its business as presently conducted.
(b) Authorization and Power. The execution, delivery and performance by the Purchaser of this Agreement, and the consummation by the Purchaser of the transactions contemplated hereby, are within the corporate or other organizational powers of the Purchaser and have been duly and validly authorized by all necessary corporate action. This Agreement constitutes a valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity).
(c) Non-Contravention. The execution, delivery and performance of this Agreement by the Purchaser, and the consummation by the Purchaser of the transactions contemplated hereby, do not and will not (with or without notice or passage of time or both) (i) violate or conflict with any provision of the Constituent Documents of the Purchaser, (ii) violate or conflict with any Law, Government Order or Permit applicable to the Purchaser or by which any property or asset of the Purchaser is bound, (iii) conflict with, constitute a violation of or breach or default under or give any third-party any rights of termination, modification, loss, diminution of rights, acceleration or cancellation of or under any material contract to which the Purchaser is a party or by which the Purchaser is bound or (iv) result in the creation of any Encumbrance (other than permitted encumbrances) on any of the assets or properties of the Purchaser, except in the case of clauses (ii) through (iv) of this 3.02(c), for any such conflicts, violations, breaches, defaults, terminations, modifications, losses, diminutions of rights, accelerations, cancellations or creations that would not and would not reasonably be expected to, individually or in the aggregate, have a Purchaser Material Adverse Effect.
(d) Governmental Approvals. The execution, delivery and performance by the Purchaser of this Agreement, and the consummation by the Purchaser of the transactions contemplated hereby, require no action by or in respect of, or filing with, any Government Authority, other than (i) compliance with any applicable requirements of the Securities Act, the Exchange Act and any other U.S. state or federal securities Laws or AktG, any (ii) such actions and filings specifically contemplated under this Agreement, and (iii) any actions or filings the absence of which would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.
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(e) Litigation or Government Order. There is no Action pending or threatened in writing against the Purchaser, any of their its Affiliates or Subsidiaries, any of their respective assets or properties, any of their respective present or former officers, directors or employees in their capacities as such, or any Person for whom the Purchaser or any of their respective Affiliates or Subsidiaries may be liable before (or, in the case of threatened Actions, would be before) or by any Government Authority or arbitrator that, assuming such Actions were determined or resolved adversely in accordance with the opposing party’s demands, would reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect. Purchaser is not a party to or subject to the provisions of any Government Order that has or would reasonably be expected to, individually or in the aggregate, (i) materially and adversely affect the legality, validity or enforceability of this Agreement, (ii) prevent or materially impair the ability of Purchaser to consummate the transactions contemplated by this Agreement or (iii) have a Purchaser Material Adverse Effect..
(f) Securities Law Compliance. The Purchaser is financially sophisticated and is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act. The Purchaser understands that the Common Shares and/or Pre-Funded Warrants issued hereunder has not been registered under the securities laws of any jurisdiction, including the Securities Act, and may only be transferred pursuant to registration or an applicable exemption under all applicable Laws. Pursuant to this Agreement, the Purchaser is acquiring the Common Shares and/or Pre-Funded Warrants issued hereunder for its own account, for the purpose of investment only and not with a view to, or for sale in connection with, any distribution thereof in violation of applicable Law. The Purchaser has not, directly or indirectly, offered the Common Shares and/or Pre-Funded Warrants issuable hereunder to anyone or solicited any offer to buy the Common Shares and/or Pre-Funded Warrants issuable hereunder from anyone, in each case that would have the effect of bringing to such offer and sale of the Common Shares and/or Pre-Funded Warrants issued hereunder by the Purchaser within the registration requirements of the Securities Act or the securities Laws of any other jurisdiction.
(g) Financing. The Purchaser has, and will continue to have through the applicable date of such obligation, sufficient cash or other sources of immediately available funds to enable it to consummate the purchase of the maximum amount of Shares and/or Pre-Funded Warrants up to the Aggregate Limit.
(h) Purpose of Investment. The Purchaser intends to hold the Common Shares purchased hereunder, together with any Common Shares held by the Purchaser as of the date hereof, “solely for purposes of investment” as such term is defined by 16 C.F.R. Section 801.1(i), and interpreted under 16 C.F.R. Section 802.9.
(i) Independent Investment Decision. The Purchaser has independently evaluated the merits of its decision to acquire the Common Shares and/or Pre-Funded Warrants pursuant hereto. The Purchaser understands that nothing in this Agreement or any other materials presented by or on behalf of the Company to the Purchaser in connection with the acquisition of the Common Shares and/or Pre-Funded Warrants constitutes legal, tax or investment advice. The Purchaser has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its acquisition of the Common Shares and/or Pre-Funded Warrants hereunder.
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ARTICLE IV
COVENANTS
The Company covenants with the Purchaser, and the Purchaser covenants with the Company, as follows, which covenants of one party are for the benefit of the other party, during the Investment Period.
Section 4.01 Registration Rights Agreement. At the Closing, the Company and the Purchaser shall enter into the Registration Rights Agreement with respect to the Shares.
Section 4.02 Reservation of Shares. The Company will have available, and shall reserve and keep available at all times, free of preemptive and other similar rights of stockholders, the requisite aggregate number of authorized but unissued Common Shares to enable the Company to timely effect the issuance, sale and delivery in full to the Purchaser of all the Shares to be issued and delivered under this Agreement pursuant to one or more Draw Down Notices, in any case prior to the issuance to the Purchaser of such Common Shares and/or Pre-Funded Warrants. The number of Common Shares so reserved from time to time, as theretofore increased or reduced as hereinafter provided, may be reduced by the number of Shares actually delivered pursuant to this Agreement and/or upon exercise of any Pre-Funded Warrants.
Section 4.03 Registration and Exchange Listing. The Company will take all action necessary to cause the Shares to be registered under Sections 12(b) or 12(g) of the Exchange Act, will comply in all material respects with its reporting and filing obligations under the Exchange Act and take all action necessary to maintain compliance with such reporting and filing obligations, and will not take any action or file any document (whether or not permitted by the Securities Act) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under the Exchange Act or Securities Act, except as permitted under Section 9.19 of the Tether Transaction Support Agreement. The Company shall use its reasonable best efforts to cause the Shares (and/or any Common Shares underlying any Pre-Funded Warrants) to be listed on the Principal Market at such time of issuance, subject to official notice of issuance, but in no event later than ten (10) Business after each applicable Settlement Date.
Section 4.04 Takeover Statutes. The Company shall (a) take all actions necessary so that no “control share acquisition,” “fair price,” “moratorium” or other antitakeover or similar statute or regulation becomes applicable to the transactions contemplated or permitted by this and (b) if any such antitakeover or similar statute or regulation becomes applicable to the transactions contemplated or permitted by this Agreement, take all actions necessary so that such transactions may be consummated as promptly as practicable and otherwise to take all such other actions as are reasonably necessary to eliminate or minimize to the greatest extent possible the effects of any such statute or regulation on such transactions.
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ARTICLE V
CLOSING CERTIFICATE; CONDITIONS TO THE SALE AND PURCHASE OF THE SHARES
Section 5.01 Conditions Precedent to the Obligation of the Company to Sell the Shares. Following the Company’s delivery of a Draw Down Notice, the obligation hereunder of the Company to issue and sell the Shares and/or Pre-Funded Warrants to the Purchaser under any Draw Down Notice is subject to the satisfaction or waiver of each of the conditions set forth below. These conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion.
(a) Accuracy of the Purchaser’s Representations and Warranties. Except for representations and warranties that are expressly made as of a particular date, the representations and warranties of the Purchaser in this Agreement shall be true and correct in all material respects as of the date when made and as of each Settlement Date as though made at that time.
(b) No Injunction. There shall be no Government Order or other Law in any jurisdiction in which either Purchaser or the Company has material business operations in effect enjoining, restraining, or otherwise prohibiting or making illegal the consummation of the transactions contemplated by this Agreement.
Section 5.02 Conditions Precedent to the Obligation of the Purchaser to Accept a Draw Down and Purchase the Shares. The obligation hereunder of the Purchaser to accept a Draw Down and to acquire and pay for the Shares (and, for the avoidance of doubt, provide any loan pursuant to Section 2.01(b)) is subject to the satisfaction or waiver, at or before each Settlement Date of each of the conditions set forth below. The conditions are for the Purchaser’s sole benefit and may be waived by the Purchaser at any time in its sole discretion.
(a) Accuracy of the Company’s Representations and Warranties. Except for representations and warranties that are expressly made as of a particular date, each of the representations and warranties of the Company in this Agreement shall be true and correct in all material respects as of the date when made and as of each Settlement Date, as though made at that time.
(b) No Injunction. There shall be no Government Order or other Law in any jurisdiction in which either Purchaser or the Company has material business operations in effect enjoining, restraining, or otherwise prohibiting or making illegal the consummation of the transactions contemplated by this Agreement.
(c) No Suspension. Trading in the Common Shares shall not have been suspended by the Commission or Principal Market.
(d) Compliance with Covenants. The Company and its Subsidiaries have complied in all material respects with all covenants and other obligations under the Incremental Loan Agreement.
(e) Covered Taxes. The Parties have agreed on the existence of Covered Taxes that are (i) due and payable or (ii) otherwise required to be accrued as a liability under IFRS and expected to be due and payable within twelve months, or the existence of such Covered Taxes has been established, all as set forth in Section 5.03 and the Draw Down Amount Requested in the applicable Draw Down Notice does not exceed the amount of Covered Taxes that are agreed or established to be (i) due and payable or (ii) otherwise required to be accrued as a liability under IFRS and expected to be due and payable within twelve months.
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(f) Listing Rule 5635(d). The Company shall have received the stockholder approval contemplated by the Written Consent (as defined in the Tether Transaction Support Agreement) and shall otherwise have met all requirements of Nasdaq Listing Rule 5635(d) to issue all of the Shares (including all Common Shares underlying any Pre-Funded Warrants).
(g) Legal Opinion. If requested by the Purchaser, the Purchaser shall have received a legal opinion from the legal advisor to the Company, in form and substance satisfactory to the Purchaser, in particular, but not limited to, stating that (i) the Shares, when issued against payment therefor, will be duly authorized, validly issued, fully paid and non-assessable, (ii) the Pre-Funded Warrant, when issued against payment therefor, will be legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms; and (iii) the Shares underlying the Pre-Funded Warrants, when issued upon exercise of the Pre-Funded Warrants against payment therefor, will be validly issued, fully paid and non-assessable.
(h) Aggregate Limit. The issuance and sale of the Shares issuable pursuant to such Draw Down Notice will not violate Section 6.02 hereof.
(i) Closing Conditions. All the conditions to the Company’s obligation to close under the Transaction Support Agreement and the BCA have been satisfied or waived.
Section 5.03 Establishment of Covered Taxes.
(a) Prior to issuing a Draw Down Notice, the Company shall furnish to the Purchaser (i) each assessment, audit paper and other communication with the relevant tax authorities indicating that a Covered Tax is due and payable; (ii) the relevant accounting records of NDAG and/or its Subsidiaries necessary for the calculation of the relevant Covered Taxes; and (iii) a tax legal analysis from a reputable tax advisor detailing the existence and amount of the relevant Covered Taxes for which the Company intends to issue a Draw Down Notice and the merits of the relevant tax authority’s determination that such Covered Tax is due and payable (a “Tax Notice”).
(b) If the Purchaser does not dispute a Tax Notice duly submitted by the Company within fifteen (15) Business Days in writing (email being sufficient) (a “Dispute Notice”), the existence of the relevant Covered Taxes shall be established for purposes of this Agreement, and, subject to the other conditions set forth herein, the Company may proceed to issue a Draw Down Notice.
(c) If the Purchaser provides the Company with a Dispute Notice, the Parties shall use reasonable endeavors to discuss the existence of the relevant Covered Taxes and reach an agreement within fifteen (15) Business Days after receipt of the Dispute Notice by the Company. If the Parties are unable to agree on the Covered Taxes within this time frame, they shall jointly select one of the big four accounting firms as an expert to resolve on the existence of the Covered Taxes and when such Covered Taxes are (i) due and payable or (ii) otherwise required to be accrued as a liability under IFRS and expected to be due and payable within twelve months (the “Expert”), provided that this may not be the tax advisor who has provided the analysis pursuant to Section 5.03(a).
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(d) The Parties shall duly cooperate with the Expert and furnish all documents and other information requested by the Expert in a timely manner, and the Company shall ensure that NDAG and its Subsidiaries will provide such information.
(e) The decision of the Expert shall be final and binding upon the Parties. The costs of the Expert shall be borne by the Parties in equal amounts.
ARTICLE VI
DRAW DOWN TERMS
Section 6.01 Draw Down Terms. Subject to the satisfaction of the conditions set forth in this Agreement, and subject to Section 6.02 below, the Parties agree (unless otherwise mutually agreed upon by the Parties in writing) as follows:
(a) At least ten (10) Business Days prior to the Closing, and subject to the consummation of the Closing, the Company may, in its sole discretion, issue a Draw Down Notice to the Purchaser for a specified Draw Down Amount Requested of up to $200,000,000 for the purpose of funding Covered Taxes that are (i) due and payable or (ii) otherwise required to be accrued as a liability under IFRS and expected to be due and payable within twelve months. The Purchaser shall pay a per-Share amount equal to $7.88 per Common Share and/or Pre-Funded Warrants (less the aggregate exercise price of the Pre-Funded Warrants, as applicable) (subject to adjustment for any stock split, reverse stock split or stock dividend) (the “Unaffected Price”) for any Common Shares and/or Pre-Funded Warrants, as applicable, purchased pursuant to this Section 6.01(a).
(b) From time to time following the Closing until the eighteen (18) month anniversary thereof, the Company may issue a Draw Down Notice to fund Covered Taxes that are (i) due and payable or (ii) otherwise required to be accrued as a liability under IFRS and expected to be due and payable within twelve months, subject to the Aggregate Limit. The Purchaser shall pay a per-Share amount equal to the Unaffected Price for any Common Shares purchased pursuant to this Section 6.01(b).
(c) Each Draw Down shall be settled within ten (10) Business Days of the Purchaser’s receipt of a Draw Down Notice (the “Settlement Date”); provided that the Settlement Date under Section 6.01(a) shall in all cases be the date of the Closing, on or after the consummation of the Closing.
(d) As a condition to the exercise of any Draw Down, the Company must (i) provide a notice to the Purchaser of the Company’s exercise of any Draw Down via email (the “Draw Down Notice”), substantially in the form attached hereto as Exhibit B, and (ii) deliver the Shares to the Purchaser in an amount equal to the Draw Down Amount Requested, in Direct Registration System (DRS) non-certificated book-entry form by the Company’s transfer agent and registered in the name of the Purchaser, in form and substance reasonably satisfactory, or, as applicable, deliver to Purchaser a duly executed Pre-Funded Warrant registered in the name of Purchase to purchase up to such number of Shares as determined pursuant to Section 2.01(b). The Draw Down Notice shall specify the Draw Down Amount Requested.
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(e) On each Settlement Date, the Purchaser shall (i) provide the Company a closing notice in the form of Exhibit C attached hereto and (ii) make payment for the Shares (and/or Pre-Funded Warrants, as applicable) acquired pursuant to this Agreement to the Company’s designated account by wire transfer of immediately available funds.
(f) Following Closing, the Company shall provide the Purchase with evidence reasonably satisfactory to Purchaser to show that the Company has actually utilized the funds from the sale of the Shares to settle the relevant Covered Taxes.
Section 6.02 Aggregate Limit. Notwithstanding anything to the contrary herein, in no event may the Company issue a Draw Down Notice to the extent that the sale of Shares (and/or Pre-Funded Warrants and/or loan amounts, as applicable) pursuant thereto and pursuant to all prior Draw Down Notices issued pursuant to Section 6.01 would cause the Company to sell or the Purchaser to purchase an aggregate number of Shares (and/or Pre-Funded Warrants and/or loan amounts, as applicable) exceeding the Aggregate Limit, taking into account any amounts already drawn under the Initial Financing Commitment Agreement. If the Company issues a Draw Down Notice that otherwise would permit the Purchaser to purchase a number of Shares (and/or Pre-Funded Warrants and/or loan amounts, as applicable) which would cause the aggregate purchases by Purchaser hereunder to exceed the Aggregate Limit, such Draw Down Notice shall be void ab initio.
ARTICLE VII
TERMINATION
Section 7.01 Term, Termination by Mutual Consent. This Agreement shall terminate automatically on the earlier of (i) the date the BCA is terminated resulting in the Closing not occurring and (ii) the date that is eighteen (18) months from the Closing (the “Investment Period”).
Section 7.02 Effect of Termination. If this Agreement is terminated as provided in Section 7.01 herein, this Agreement shall become void and of no further force and effect, except as provided in Section 8.09 hereof.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Fees and Expenses. Each party shall bear its own fees and expenses related to the transactions contemplated by this Agreement.
Section 8.02 Specific Enforcement, Consent to Jurisdiction.
(a) The Company and the Purchaser acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that either party shall be entitled to an injunction or injunctions from any court of competent jurisdiction or arbitral authority to prevent or cure breaches of the provisions of this Agreement by the other party and to enforce specifically the terms and provisions hereof; such right is in addition to any other remedy to which either party may be entitled by law or equity, without the necessity of posting a bond or other security or the burden of proving actual damages.
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(b) All disputes, controversies or claims between the Parties arising out of or in connection with this agreement (including its existence, validity or termination) which cannot be amicably resolved shall be finally resolved and settled under the Rules of Arbitration of the American Arbitration Association and its affiliate, the International Center for Dispute Resolution, in New York City. The arbitration tribunal shall be composed of one arbitrator. The arbitration will take place in New York City, New York, and shall be conducted in the English language. The arbitration award shall be final and binding on the Parties.
Section 8.03 Entire Agreement; Amendment. This Agreement and the other Transaction Documents represent the entire agreement of the Parties with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by either party relative to the subject matter hereof not expressly set forth herein. No provision of this Agreement may be amended other than by a written instrument signed by both Parties.
Section 8.04 Notices.
(a) Any notice, request, claim, demand or other communication in connection with this Agreement (each, a “Notice”) shall be:
(i) in writing in English; and
(ii) delivered by hand, registered mail or by courier using an internationally recognized courier company, or transmitted by email
(b) A Notice to any Party shall be sent to such Party at the following address, or such other Person or address as such Party may designate by delivery of Notice to each other Party in accordance herewith:
| If to the Company: | Rumble, Inc. | |
| 444 Gulf of Mexico Dr. | ||
| Longboat Key, Florida 34228 | ||
| Attention: | ||
| Email: |
| With a copy (which shall | Willkie Farr & Gallagher LLP | |
| not constitute notice): | 787 Seventh Avenue | |
| New York, NY 10019-6099 | ||
| Attention: Russel L. Leaf, Sean M. Ewen | ||
| Email: rleaf@willkie.com; | ||
| sewen@willkie.com |
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| If to the Purchaser: | Tether Investments, S.A. de C.V. | |
| Final Av. La Revolucion, San Benito Edif. Centro, | ||
| Corporativo Presidente Plaza Nivel 12 | ||
| San Salvador, Republica de El Salvador | ||
| Attention: | ||
| Email: |
| With a copy (which shall | McDermott Will & Schulte Rechtsanwälte | |
| not constitute notice): | Steuerberater LLP | |
| Oberlindau 54-56 | ||
| 60323 Frankfurt am Main | ||
| Germany | ||
| Attention: Dr. Felix Ganzer | ||
| and | ||
| McDermott Will & Schulte LLP | ||
| One Vanderbilt Avenue | ||
| New York, NY 10017-3852 | ||
| Attention: Daniel Woodard | ||
| Email: dwoodard@mwe.com |
(c) A Notice shall be effective upon receipt and shall be deemed to have been received:
(i) at the time of delivery, if delivered by hand, registered post or courier; or
(ii) when sent by email (with email confirmation of receipt, including automated electronic confirmation of receipt).
Section 8.05 Waivers. No waiver by either party of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any other provisions, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter. No provision of this Agreement may be waived other than in a written instrument signed by the party against whom enforcement of such waiver is sought.
Section 8.06 Headings. The article, section and subsection headings in this Agreement are for convenience only and shall not constitute a part of this Agreement for any other purpose and shall not be deemed to limit or affect any of the provisions hereof.
Section 8.07 Successors and Assigns. Neither party may assign this Agreement to any Person without the prior consent of the other party.
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Section 8.08 Governing Law; Waiver of Jury Trial.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without giving effect to the choice of law provisions except Section 5-1401 of the New York General Obligations Law.
(b) EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
Section 8.09 Survival. The representations and warranties of the Company and the Purchaser contained in ARTICLE III and the covenants contained in ARTICLE IV shall survive the execution and delivery hereof until the termination of this Agreement, and the agreements and covenants set forth in Article VI of this Agreement shall survive the execution and delivery hereof.
Section 8.10 Counterparts. This Agreement and the other agreements referred to herein may be executed in any number of counterparts, each of which shall be deemed to constitute an original and all of which shall together constitute one and the same instrument. This Agreement shall become binding when any number of counterparts, individually or taken together, shall bear the signatures of and be delivered by all Parties. This Agreement may be executed and delivered by facsimile or any other electronic means, including “.pdf” or “.tiff” files, DocuSign, and any facsimile or electronic signature shall constitute an original for all purposes.
Section 8.11 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid, void or unenforceable, (a) a suitable and equitable provision shall be negotiated by the Parties in good faith in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
Section 8.12 Further Assurances. From and after the date of this Agreement, upon the request of the Purchaser or the Company, each of the Company and the Purchaser shall execute and deliver such instrument, documents and other writings as may be reasonably necessary or desirable to confirm and carry out and to effectuate fully the intent and purposes of this Agreement. Each Party hereby expressly agrees that, in the event that any action or determination of the Commission or other regulatory or governmental authority, or the refusal or failure of any other governmental approval, would or does prohibit or otherwise materially interfere with the ability of the Parties to effect the transactions contemplated by this Agreement in the manner contemplated by and described in it, each such Party shall use its good-faith best efforts to resolve and cure such condition, including, without limitation, by amending this Agreement to the extent necessary therefor.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed by their respective authorized officer as of the date first above written.
| RUMBLE INC. | ||
| By: | /s/ Chris Pavlovski | |
| Name: | Chris Pavlovski | |
| Title: | Chief Executive Officer | |
| TETHER INVESTMENTS, S.A. DE C.V. | ||
| By: | /s/ Giancarlo Devasini | |
| Name: | Giancarlo Devasini | |
| Title: | Sole Administrator | |
[Signature Page to Equity Commitment Agreement]
EXHIBIT A
form of PRE-FUNDED warrant
[Omitted.]
EXHIBIT B
FORM OF DRAW DOWN NOTICE
Reference is made to the Equity Commitment Agreement dated as of November 10, 2025 (the “Commitment Agreement”) by and among Rumble Inc., a corporation incorporated under the laws of the State of Delaware and Tether Investments, S.A. de C.V., a Salvadoran Sociedad Anónima de Capital Variable. Capitalized terms used and not otherwise defined herein shall have the meanings given such terms in the Commitment Agreement.
All conditions precedent to the obligations of the Purchaser contained in Section 5.02 of the Commitment Agreement have been met and the representations and warranties of the Company contained in Section 3.01 of the Commitment Agreement shall be true and correct in all material respects on and as of the Settlement Date.
In accordance with and pursuant to Section 6.01 of the Commitment Agreement, the Company hereby issues this Draw Down Notice to exercise a Draw Down request for the Draw Down Amount indicated below.
| Draw Down Amount Requested: | |
| Settlement Date: | |
| Dollar Amount and Number of Shares Currently Available under the Aggregate Limit: |
| Dated: _______________________ | By: | Rumble Inc. | |
| Name: | |||
| Title: | |||
EXHIBIT C
FORM OF CLOSING NOTICE
| To: |
Rumble, Inc.
444 Gulf of Mexico Dr.
Longboat Key, Florida 34228
Attention: Chris Pavlovski
Attention:
We refer to the equity commitment agreement (the “Agreement”) dated November 10, 2025, by and among us and yourselves and to the Draw Down Notice delivered to us on _______________ 20___. Terms defined in the Agreement have the same meaning herein.
We hereby request that you deliver such Shares in accordance with the following instructions:
Signed by: __________________________
Name: _____________________________
Date: ______________________________
For and on behalf of
Tether Investments, S.A. de C.V.
Exhibit 10.9
Execution Version
Advertising Services Master Agreement
This Advertising Services Master Agreement (this “Agreement”), dated as of November 10, 2025 is entered into between Rumble, Inc., a Delaware corporation (the “Service Provider”), and Tether Investments, S.A. de C.V., a Salvadoran Sociedad Anónima de Capital Variable (“Client”).
WHEREAS, Service Provider is in the business of providing a video-sharing platform and sells advertising services; and
WHEREAS, Client desires to retain Service Provider to provide advertising services.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
| 1. | Service Provider Services and Responsibilities. |
1.1. Services.
(a) Commencing on February 15, 2026 (the “Initial Service Date”) and continuing thereafter during the Term, Service Provider shall sell and provide to Client the advertising services (the “Services”) set out more specifically in one or more insertion orders in the form attached hereto as Exhibit A (including the Rumble Advertising Terms and Conditions referenced therein, as such may be amended from time to time, each, an “Insertion Order” or “IO”). to be issued by Client and accepted by Service Provider The parties shall set forth each agreed task in an Insertion Order. Insertion Orders shall be deemed accepted and incorporated into this Agreement only if signed by the Service Provider and the Client. In the event of any inconsistency between an IO and this Agreement, the terms of this Agreement shall control.
(b) Service Provider shall provide to Client and Client shall purchase such Services so as to meet the minimum purchase obligation of $50,000,000 for each year of the Term (“Minimum Purchase Obligation”). The Minimum Purchase Obligation is on a take-or-pay basis. If, during any calendar year during the term, Client fails to meet the Minimum Purchase Obligation for such calendar year, Client shall pay Service Provider, within sixty (60) days after the end of such calendar year, an amount in cash equal to the difference between the Minimum Purchase Obligation less the aggregate Fees (as defined in Section 3.1) from the actual purchases of Services made by Client during such calendar year.
(c) Service Provider shall use commercially reasonable efforts to provide the Services: (a) in accordance with the terms and subject to the conditions set forth in the respective Insertion Order and this Agreement; (b) using personnel with appropriate skill, experience, and qualifications; (c) in a workmanlike and professional manner; and (d) in accordance with generally recognized industry standards in the advertising field.
1.2. Service Provider Personnel.
(a) Service Provider shall hire, supervise, direct, and discharge all employees and Permitted Subcontractors (as defined in Section 1.2(c)) necessary to perform the Services (the “Service Provider Personnel”); and
(b) Service Provider shall be responsible for the payment of all compensation owed to the Service Provider Personnel, including, if applicable, the payment and withholding of social security and other payroll taxes, withholding of income taxes, unemployment insurance, workers’ compensation insurance payments, and disability benefits.
(c) Service Provider shall obtain Client’s prior written approval (email being sufficient), which may be given or withheld in Client’s sole discretion, prior to entering into agreements with or otherwise engaging any person who is not a Service Provider employee, including any independent consultants, contractors, subcontractors, or affiliates of Service Provider (each such approved third party, a “Permitted Subcontractor”), to provide any Services or Deliverables (as defined in Section 4.1(a)) to Client. Client’s approval shall not relieve Service Provider of its obligations under this Agreement, and Service Provider shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Service Provider’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Client and any Permitted Subcontractor. Service Provider shall require each Permitted Subcontractor to be bound in writing by the confidential information and intellectual property provisions of this Agreement, and, on Client’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement with Service Provider in a form that is reasonably satisfactory to Client.
(d) All persons employed by Service Provider in connection with the Services shall either be employees of Service Provider or Permitted Subcontractors retained by Service Provider and Service Provider shall be solely responsible for complying with all laws and collective bargaining agreements affecting such persons.
1.3. Influencer Campaign. If Service Provider engages a personality, celebrity, or other individual to post on Service Provider’s social media platforms (“Influencer”) to promote Client’s products and/or services pursuant to the Services hereunder during the Term, Service Provider shall manage the Influencer campaign as follows:
(a) Service Provider shall require each Influencer to agree to Service Providers’ Host-Read Advertisement Terms and Conditions, included at https://ads.rumble.com/terms and as may be amended from time to time (the “HRA T&C”).
(b) During the term of any Influencer campaign, Service Provider shall monitor content published by Influencers engaged by Service Provider on behalf of Client on all platforms owned and operated by Service Provider and use commercially reasonable efforts to ensure that all such content complies with the HRA T&C. Service Provider shall use commercially reasonable efforts to provide Client with a monthly written report of Influencer activity including any failures by Influencers to adhere to their obligations.
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(c) Service Provider shall use commercially reasonable efforts to report all Influencer compliance failures to Client and to require Influencers to correct their failures immediately. In the event an Influencer refuses to correct a non-compliance or repeatedly fails to comply with an Influencer’s obligations, Service Provider shall promptly notify Client and at Client’s request, make necessary corrections, withhold payment from an Influencer, terminate an Influencer, or take other mutually agreed upon corrective measures. Service Provider shall keep records of how all noncompliant posts are handled.
1.4. Compliance with Laws; Industry Standards. Service Provider shall at all times comply with all applicable federal, state, and local laws, ordinances, regulations, and orders that are applicable to the operation of its business and to this Agreement and its performance hereunder, including any laws or regulations regarding data privacy, data protection, or otherwise related to or governing the collection, processing, disclosure, or security or personal information, except to the extent that failure to comply could not, in the aggregate, reasonably be expected to have a material adverse effect on its business or on its ability to comply with its obligations under this Agreement.
1.5. Client Approval. Prior to their public release, Service Provider shall submit to Client for approval any Deliverables intended to be displayed, published, reproduced, distributed, or otherwise made publicly available. Within five (5) Business Days after receiving a submission and request for approval from Service Provider, Client shall provide Service Provider with written approval or disapproval of the materials submitted. If Client does not respond within five (5) Business Days, (a) the submission will be deemed disapproved and (b) until Service Provider revises the materials to the satisfaction of Client, the materials shall not be publicly released. Client approval will not modify in any way Service Provider’s representations, warranties, covenants, and other obligations under this Agreement.
1.6. Status Reports; Meetings. Service Provider shall provide quarterly written status reports, including written confirmation of completion of Services, IOs, and each milestone in an IO. On Client’s reasonable prior written request, the Service Provider Personnel shall attend and shall cause appropriate Service Provider Personnel to attend, in-person or telephonic meetings with Client to discuss the Services and IOs.
1.7. Non-Disparagement. Neither party shall make any maliciously false statements about the other party its brands, affiliates, franchisees, licensees, sponsors, employees, officers, or directors in any public forum. This Section 1.7 shall not (a) restrict either party from making truthful statements as required by law, regulation, legal process, or in connection with enforcing its rights under this Agreement or any other agreements between the parties or (b) apply to internal communications or ordinary course business discussions. This Section 1.7 will survive the termination or expiration of this Agreement.
| 2. | Client Obligations and Responsibilities. Client shall: |
2.1. Provide copies of or access to Client’s information, documents, samples, products and/or services, or other materials (collectively, “Client Materials”) as Service Provider may reasonably request in order to carry out the Services in a timely manner and which Client considers reasonably necessary. Client and its licensors are, and shall remain, the sole and exclusive owner of all right, title, and interest in and to all Client Materials, including all copyrights, trademarks, service marks, trade dress, trade names, trade secrets, patents, mask works, and other intellectual and industrial property rights (collectively “Intellectual Property Rights”) therein. Service Provider shall have no right or license to use any Client Materials other than during the Term to the extent necessary to provide the Services to Client, and all other rights in and to the Client Materials are expressly reserved by Client.
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2.2. Use commercially reasonable efforts to respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform the Services in accordance with the requirements of this Agreement.
| 3. | Fees; Payment Obligations. |
3.1. Fees. In consideration of the provision of the Services and the rights granted to Client under this Agreement, Client shall pay Service Provider the fees as mutually agreed from time to time (the “Fees”). If Service Provider shall at any time during the Term sell the same Services at the same or lower volume to a different buyer at prices below those provided to Client, Service Provider must notify Client, apply the lower price for the Services sold to Client and issue Client a credit for Client’s overpayment that may have applied toward future purchases of Services.
3.2. Payment. Service Provider agrees to invoice Client on the last day of the quarter for that quarter’s Fees. Except for any amounts disputed by Client in good faith and in accordance with Section 3.4, Client agrees to pay such invoice within thirty (30) days of receipt by Client. Payment to Service Provider of the Fees shall constitute payment in full for the performance of the Services, and Client shall not be responsible for paying any other fees, costs, or expenses.
3.3. Taxes. All fees payable by Client under this Agreement are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on such amounts. Service Provider shall be responsible for any taxes imposed on, or with respect to, Service Provider’s income, revenues, gross receipts, personnel, or real or personal property, or other assets. Client shall be solely responsible for the payment of any sales and use taxes assessed against the sale of Client’s products and services.
3.4. Invoice Disputes. Client shall notify Service Provider in writing of any dispute with an invoice (along with a reasonably detailed description of the dispute) within fifteen (15) days from the Client’s receipt of such invoice. Client will be deemed to have accepted all invoices for which Service Provider does not receive timely notification of dispute and shall pay all undisputed amounts due under such invoices within the period set forth in Section 3.2. The parties shall seek to resolve all such disputes expeditiously and in good faith.
| 4. | Intellectual Property Rights; Ownership. |
4.1. Ownership of Deliverables.
(a) Except as set forth in Sections 4.1(e) and 4.1(f), and in exchange for the Fees (as defined in Section 3.1), Client owns all worldwide right, title, and interest in and to all written, graphic, coded, audio, and visual materials and other work product (whether finished or unfinished and whether used by Client or not) that are specifically and exclusively delivered to or developed for Client under this Agreement or are specifically and exclusively prepared by or on behalf of Service Provider in the course of performing the Services, including all Intellectual Property Rights therein, together with all of the goodwill associated therewith (collectively, the “Deliverables”). Except as set forth in Sections 4.1(e) and 4.1(f), the Deliverables shall include, without limitation (whether finished or unfinished and whether used by Client or not), all copy, blogs, storyboards, concepts, ideas, inventions, discoveries, domain names, logos, taglines, slogans, website design, style, content, structure and look and feel, internet portals, videos, research, studies, reports, presentations and proposals, artwork, videos, music, lyrics, photographs, graphic materials, audiovisual works, and telephone numbers for use by Client’s consumers.
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(b) All Deliverables protectable under United States copyright law shall be owned by Client as “works made for hire” as defined in Section 101 of the United States Copyright Act. To the extent that any or all of such Deliverables are not deemed a work made for hire, Service Provider assigns to Client all right, title, and interest in and to the worldwide copyrights in such Deliverables. With respect to all other Intellectual Property Rights in the Deliverables, Service Provider irrevocably assigns to Client all worldwide right, title, and interest in and to all Intellectual Property Rights in such Deliverables.
(c) Upon the reasonable request of Client, Service Provider shall, and shall cause the Service Provider Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect, or record its rights in or to any Deliverables and all Intellectual Property Rights therein.
(d) Service Provider shall cause all Service Provider Personnel to agree that all Deliverables that may qualify as “works made for hire” will be deemed “works made for hire” for Client and, to the extent that any of the Deliverables does not constitute a “work made for hire,” or is protected under other Intellectual Property Rights, to irrevocably assign, to Client, in each case without additional consideration, all worldwide right, title, and interest in and all the Intellectual Property Rights in such Deliverables.
(e) Notwithstanding anything herein to the contrary, Client’s ownership of the Deliverables shall be subject to (i) the rights of third parties whose materials or services are contained in the Deliverables with Client’s prior knowledge and written approval (for example, stock footage, photos, music, and software) and used under a license or other permission granted to Service Provider or Client (“Third-Party Materials”), or (ii) all materials (including all Intellectual Property Rights therein) owned by or developed or created by Service Provider prior to, or independent from, the performance of Services under this Agreement, and all methodologies, forms, software, applications, processes or procedures used, created, or developed by Service Provider in the general conduct of its business, excluding those developed specifically for Client at Client’s request and funded by Client or that mutually agreed by the Parties in writing to be Deliverables (collectively, “Pre-Existing Materials”). To the extent any Deliverables incorporate any Pre-Existing Materials, subject to and in accordance with the terms and conditions of this Agreement, Service Provider hereby grants Client a non-exclusive, royalty-free, perpetual, worldwide license to any Service Provider Materials to use at part of (but not separate from) the Deliverables. Service Provider shall disclose in writing to Client all usage limitations on Third-Party Materials prior to their use in or launch of any Deliverables.
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(f) Service Provider may create Derivative Data from any data or materials provided by Client. Unless otherwise agreed in writing, Client acknowledges that between Client and Service Provider, Service Provider owns all right, title and interest in the Derivative Data (and if such ownership right is unenforceable, then Client hereby grants Service Provider a world-wide, non-exclusive, transferable, royalty-free, perpetual, irrevocable license (with right to sublicense through multiple tiers) to use, reproduce, electronically distribute, store, process, and display the Derivative Data that is derived from Client materials or Intellectual Property Rights) and that Derivative Data is Service Provider Confidential Information. “Derivative Data” means data sets created by Service Provider that may include or be created from aggregated Client materials or Intellectual Property Rights that is anonymized or de-identified such that it does not, or cannot be used to, identify Client, its customers, or any individual.
(g) Notwithstanding anything to the contrary in this Agreement, Service Provider and its personnel may use information retained in their unaided memories resulting from the Services to develop or improve their general knowledge, skills, experience, ideas, concepts, know-how, techniques, and generalized learnings; provided that no Client Confidential Information is disclosed to any third party.
(h) Service Provider grants no other right or license to any of its Intellectual Property Rights to Client by implication, estoppel, or otherwise. Client acknowledges that Service Provider owns all right, title, and interest in, to, and under all its Intellectual Property Rights and, except as expressly set forth in this Agreement, that Client shall not acquire any proprietary rights therein. Any use by Client or any affiliate, employee, officer, director, partner, shareholder, agent, attorney, third-party advisor, successor, or permitted assign (collectively, “Representatives”) of Client of any of Service Provider’s Intellectual Property Rights and all goodwill associated therewith shall inure to the benefit of Service Provider
4.2. License to Certain Client Intellectual Property.
(a) Subject to and in accordance with the terms and conditions of this Agreement, Client grants Service Provider a limited, non-transferable, non-sublicensable (except to Permitted Subcontractors), royalty-free, fully paid-up, non-exclusive license during the Term to use, solely in connection with its performance of the Services and as part of the Derivative Data: (i) Client’s Intellectual Property Rights required to create the Deliverables or incorporated into the Usage Data; and (ii) Client’s website addresses, websites, and URLs required to create the Deliverables.
(b) Client grants no other right or license to any of its Intellectual Property Rights to Service Provider by implication, estoppel, or otherwise. Service Provider acknowledges that Client owns all right, title, and interest in, to, and under all its Intellectual Property Rights and that Service Provider shall not acquire any proprietary rights therein. Any use by Service Provider or any Representative of Service Provider or Permitted Subcontractors of any of Client’s Intellectual Property Rights and all goodwill associated therewith shall inure to the benefit of Client.
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| 5. | Representations, Warranties, and Certain Covenants. |
5.1. Service Provider Representations, Warranties, and Covenants. Service Provider represents, warrants, and covenants to Client that:
(a) it has or shall obtain and shall maintain in full force and effect during the Term, at its own expense, all certifications, credentials, authorizations, licenses, and permits necessary to perform its obligations under this Agreement;
(b) it shall comply in all material respects with, and ensure that all Service Provider Personnel and Permitted Subcontractors comply with, all specifications, rules, regulations and policies of Service Provider that are communicated to Client in writing, including the terms of this Agreement;
(c) Client will receive good and valid title to all Deliverables, free and clear of all encumbrances and liens of any kind;
(d) none of the Services, Deliverables, or Client’s use thereof in accordance with the terms of this Agreement infringe or violate or will infringe or violate the publicity and privacy rights or any other Intellectual Property Rights of any third party; and
(e) to the knowledge of Service Provider, no Deliverables provided in electronic form by Service Provider to Client contain or will contain any (i) trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access or to disable, erase, or otherwise harm any computer, systems or software, or (ii) any time bomb, drop dead device or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of a person other than an authorized licensee or owner of a copy of the program or the right and title in and to the program.
5.2. Client Representations, Warranties, and Covenants. Client represents, warrants and covenants to Service Provider that:
(a) it has or shall obtain and shall maintain in full force and effect during the Term, at its own expense, all certifications, credentials, authorizations, licenses, and permits necessary to the exercise of its rights and the performance of its obligations under this Agreement;
(b) it shall comply in all material respects with advertising guidelines and policies of Service Provider communicated to Client in writing;
(c) none of Client’s Intellectual Property licensed to Service Provider under this Agreement, or Service Provider’s use thereof in accordance with the terms of this Agreement infringe or violate or will infringe or violate the publicity and privacy rights or any other Intellectual Property Rights of any third party;
(d) any personal information that Client may disclose or transfer to Service Provider in the course of the performance of this Agreement has been collected and processed in a manner compliant with applicable privacy, data protection, and data security laws, and Service Provider’s processing (including, as appropriate, disclosure to its own service providers and vendors) of such information in furtherance of its performance of this Agreement does not and will not infringe or violate any applicable privacy, data protection, or data security law; and
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(e) to the knowledge of Client, no Client materials provided in electronic form by Client to Service Provider contain or will contain any (i) trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access or to disable, erase, or otherwise harm any computer, systems or software, or (ii) any time bomb, drop dead device or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of a person other than an authorized licensee or owner of a copy of the program or the right and title in and to the program.
5.3. NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 5 OF THIS AGREEMENT.
| 6. | Indemnification. |
6.1. Service Provider Indemnification Obligations. Service Provider shall defend, indemnify, and hold harmless Client, and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Client Indemnified Party”), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers (“Losses”) arising out of or resulting from any third-party claim alleging: (a) breach by Service Provider or any Service Provider Personnel of any representation, warranty, covenant, or other obligations set forth in this Agreement; and (b) gross negligence or more culpable act or omission of Service Provider or any Service Provider Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement.
6.2. Client Indemnification Obligations. Client shall defend, indemnify, and hold harmless Service Provider, and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Service Provider Indemnified Party”), from and against any and all Losses arising out of or resulting from any third-party claim alleging: (a) breach by Client of any covenant, or other obligations set forth in this Agreement; and (b) gross negligence or more culpable act or omission of Client (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement.
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6.3. Indemnification Procedures. A party seeking indemnification under this Section 6 (the “Indemnified Party”) shall give the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt Notice (as defined in Section 10.3) of the relevant claim; provided, however, that failure to provide such Notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Indemnifying Party’s expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
6.4. EXCLUSIVE REMEDY. THIS SECTION 6 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY OF EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION 6.
| 7. | Limitation of Liability. |
7.1. NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2. MAXIMUM LIABILITY. EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATLEY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
| 8. | Confidentiality. |
8.1. From time to time during the Term, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”) information about its business affairs and services, confidential information, and materials comprising or relating to Intellectual Property, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”).
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8.2. Confidential Information does not include information that, at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 8 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; or (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information.
8.3. The Receiving Party shall, for two years from receipt of such Confidential Information: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except (i) to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement, or (ii) pursuant to Section 8.4.
8.4. To the extent the Receiving Party (or any of its representatives, advisors or affiliates) is required to disclose any Confidential Information by applicable law, regulation, rule, stock exchange requirements, subpoena, court order, or other governmental or regulatory process applicable to and binding on it, the Receiving Party shall, where legally permissible, inform the Disclosing Party prior to such disclosure so that appropriate remedies may be sought or appropriate representations made. The parties agree to assist each other and duly cooperate in connection with any reasonable action they may decide to take to prevent or mitigate such disclosure. If the Disclosing Party decides not to take any action, the Receiving Party shall only make a disclosure to the extent required by applicable law, court or administrative order.
8.5. The Receiving Party shall be responsible for any breach of this Section 8 caused by any of its Representatives. On the expiration or earlier termination of this Agreement, the Receiving Party and its Representatives shall, pursuant to Section 9.4, promptly destroy all Confidential Information and copies thereof that it has received under this Agreement.
| 9. | Term; Termination. |
9.1. Term. The term of this Agreement commences on the Initial Service Date and continues for a period of two (2) years from the Initial Service Date unless it is earlier terminated in accordance with the terms of this Agreement (the “Term”).
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9.2. Termination for Cause. Either party may terminate this Agreement, effective upon written Notice, to the other party (the “Defaulting Party”) if the Defaulting Party: (i) breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within fifteen (15) days after receipt of written Notice of such breach; or (ii) becomes insolvent or is generally unable to pay its debts as they become due; files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; makes or seeks to make a general assignment for the benefit of its creditors; applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or is dissolved or liquidated.
9.3. Termination without Cause.
(a) Client may terminate any Insertion Order in its discretion on thirty (30) days’ prior written Notice to Service Provider.
(b) After the first year of the Term, Client may terminate this Agreement in its discretion on thirty (30) days’ prior written Notice to Service Provider, provided, however, that Client shall have paid to Service Provider a termination fee in an amount equal to the difference between the Minimum Purchase Obligation and the aggregate Fees from the actual purchases of Services made by Client for the second year of the Term.
9.4. Effect of Expiration or Termination.
(a) Upon the expiration or termination of this Agreement for any reason, each party shall promptly: (i) destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other party’s Confidential Information; (ii) permanently erase all of the other party’s Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery or information technology backup systems, which it shall destroy upon the normal expiration of its backup files; and (iii) confirm in writing to the other party that it has complied with the requirements of this clause; provided, however, that Client may retain copies of any Confidential Information of Service Provider incorporated in the Deliverables or to the extent necessary to allow it to make full use of the Services and any Deliverables.
(b) Upon expiration or termination of this Agreement for any reason, Service Provider shall: (i) promptly deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and all Client Materials; (ii) provide reasonable cooperation and assistance to Client in transitioning the Services to an alternate Service Provider; and (iii) on a pro-rata basis, repay any fees and expenses paid in advance for any Services or Deliverables that have not been provided.
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(c) In no event shall Client be liable for any Service Provider Personnel termination costs arising from the expiration or termination of this Agreement.
| 10. | Miscellaneous. |
10.1. Entire Agreement. This Agreement, including the related schedules attached hereto, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
10.2. Survival. Subject to the limitations and other provisions of this Agreement, Section 4, Section 6, Section 7, Section 8, Section 9, and Section 10 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement for the period specified therein, or if nothing is specified for a period of one year after such expiration or termination.
10.3. Notices. All notices, requests, consents, claims, demands, waivers, and other similar communications hereunder (each, a “Notice”) must be in writing and will be deemed given to a Party when (a) delivered to the appropriate address by hand or by nationally recognized overnight courier service (costs prepaid), (b) sent by e-mail or (c) received or rejected by the addressee, if sent by certified mail, return receipt requested, in each case to the following addresses or e-mail addresses and marked to the attention of the individual (by name or title) designated below (or to such other address, e-mail address or individual as a Party may designate by notice to the other Party):
if to Client:
Tether Investments, S.A. de C.V.
Final Av. La Revolucion, San Benito Edif. Centro,
Corporativo Presidente Plaza Nivel 12
San Salvador, Republica de El Salvador
Attention:
Email:
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with a simultaneous copy (which will not constitute notice) to:
McDermott Will & Schulte Rechtsanwälte Steuerberater LLP
Oberlindau 54-56
60323 Frankfurt am Main
Germany
Attention: Dr. Felix Ganzer
Email: fganzer@mwe.com
and
McDermott Will & Schulte LLP
One Vanderbilt Avenue
New York, NY 10017-3852
Attention: Daniel Woodard
Email: dwoodard@mwe.com
if to Service Provider:
Rumble, Inc.
444 Gulf of Mexico Dr.
Longboat Key, Florida 34228
Attention:
E-mail:
with a simultaneous copy (which will not constitute notice) to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019-6099
Attention: Russell L. Leaf, Sean M. Ewen
Email: rleaf@willkie.com; sewen@willkie.com
10.4. Severability. This Agreement (along with the Transaction Support Agreement, Transaction Documents and the other documents delivered contemporaneously with or pursuant to this Agreement) constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This Agreement may not be amended, supplemented or otherwise modified except in a written document executed by the Party against whose interest the modification will operate.
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10.5. Waiver. No waiver by either party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
10.6. Cumulative Remedies. Except as set forth in Section 6, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise.
10.7. Further Action. Upon the request of any Party to this Agreement, and subject to the terms and conditions hereof, the other Party will (a) furnish to the requesting Party any additional information, (b) execute and deliver, at its own expense, any other documents reasonably acceptable to such Party, and (c) take any other actions as the requesting Party may reasonably require to more effectively carry out the intent of this Agreement.
10.8. Specific Performance. The Service Provider acknowledges that the rights of Client pursuant to this Agreement are unique and recognizes and affirms that in the event of a breach of this Agreement by the Service Provider, money damages are inadequate and Client would have no adequate remedy at law. It is accordingly agreed that Client shall be entitled to seek (and the Service Provider shall not oppose on the basis that injunctive relief or specific performance is not available due to availability of an adequate remedy at law) an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, without the necessity of showing any actual damages or that monetary damages would not afford an adequate remedy, and without the necessity of posting any bond or other security, this being in addition to any other remedy to which it is entitled at law or in equity.
10.9. Assignment. Neither party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, that either party may assign this Agreement to an affiliate; provided, that, such affiliate has the financial, technical and operational capability to perform its obligations under this Agreement. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
10.10. No Third-Party Beneficiaries. Except as expressly stated herein, nothing expressed or referred to in this Agreement will be construed to give any Person, other than the parties, any legal or equitable right, remedy or claim under or with respect to this Agreement or any provision of this Agreement except such rights as may inure to a successor or permitted assignee
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10.11. Publicity. Notwithstanding anything to the contrary set forth in this Agreement, Client expressly acknowledges and agrees that: (a) Service Provider may reference Client as a user or customer of the Services and use Client’s name, trademark, service mark or logo, as applicable, in listings of users of the Services appearing on Service Provider website and for other marketing, business and promotional purposes, including press release, relating to the Services, and (b) Service Provider may use promotional copies of any Deliverables made public by Customer in promotional and marketing materials and portfolios as examples of Service Provider’s services.
10.12. Choice of Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of New York, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York.
10.13. Choice of Forum. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, interpretation, breach or termination, will be referred to and finally resolved by arbitration administered by the London Court of International Arbitration (LCIA) under the LCIA Rules, which are deemed to be incorporated by reference herein. The number of arbitrators will be one. The seat, or legal place, of arbitration will be London, England. The language to be used in the arbitral proceedings will be English. All proceedings, including any negotiations, mediations, arbitrations and/or litigations, conducted pursuant to this Agreement will be confidential. Except as may be required by law, neither a Party nor any arbitrator(s) may disclose or publish the existence, content, documents exchanged, pleadings or written submissions filed, testimony rendered or arguments made, orders or awards issued or results of any proceedings conducted hereunder without the prior written consent of both parties. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
10.14. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10.15. Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the parties. Service Provider is an independent contractor pursuant to this Agreement. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
10.16. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by email is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| SERVICE PROVIDER: | ||
| RUMBLE INC. | ||
| By: | /s/ Christopher Pavlovski | |
| Name: | Christopher Pavlovski | |
| Title: | Chief Executive Officer | |
| CLIENT: | ||
| TETHER INVESTMENTS, S.A. DE C.V. | ||
| By: | /s/ Giancarlo Devasini | |
| Name: | Giancarlo Devasini | |
| Title: | Sole Administrator | |
[Signature Page to Advertising and Marketing Services Master Agreement]
EXHIBIT A
Insertion Order
[Omitted.]
Exhibit 10.10
Execution Version
Sale and Transfer and AMENDMENT and restatement AGREEMENT
dated 10 November 2025
between
northern data ag
as Borrower
TETHER INVESTMENTS, S.A. DE C.V.
as Lender
and
Rumble Inc.
as Purchaser
relating to a loan agreement originally dated 2 November 2023
TABLE OF CONTENTS
| Page | ||
| 1. | Definitions and Interpretation | 1 |
| 2. | Sale and transfer by assumption of contract (Vertragsübernahme) of Original Loan Agreement | 2 |
| 3. | Amendment and restatement of Original Loan Agreement; Temporary option to capitalize interest; Limited waiver | 3 |
| 4. | Cash Consideration Amount | 4 |
| 5. | Representations and warranties | 4 |
| 6. | Termination | 4 |
| 7. | Miscellaneous | 5 |
| 8. | Governing Law | 5 |
| 9. | Costs and Expenses | 5 |
| Schedule 1 Conditions Precedent | 6 | |
| Schedule 2 Form of Amended Loan Agreement | 7 | |
-i-
THIS AGREEMENT is dated 10 November 2025 and made between:
| (1) | Northern Data AG, a stock corporation governed by German law, registered with the commercial register of the local court of Frankfurt am Main under HRB 106465 (the “Borrower”); |
| (2) | TETHER INVESTMENTS, S.A. DE C.V., a Salvadoran Sociedad Anónima de Capital Variable, whose registered office is at Final Av. La Revolucion, Colonia San Benito, Edif. Centro, Corporativo Presidente Plaza, Nivel 12, Oficina 2, Distrito de San Salvador, Municipio de San Salvador Centro, Republica de El Salvador (formerly Tether Investments Ltd.) (the “Lender”); and |
| (3) | Rumble Inc., a corporation established under the laws of the state of Delaware, United States of America (“Purchaser”) |
(together the “Parties”, and each a “Party”).
RECITALS:
| (A) | Reference is made to the loan agreement dated 2 November 2023 between the Borrower and originally Zettahash Inc. as lender as amended from time to time prior to the date of this Agreement (the “Original Loan Agreement”). The Lender has acquired all rights and obligations under the Original Loan Agreement from Zettahash Inc. |
| (B) | It has been agreed that (i) the rights and obligations of the Lender under the Original Loan Agreement shall be assigned and transferred by assumption of contract (Vertragsübernahme) to a subsidiary to be designated by the Purchaser as set out in this Agreement and (ii) the terms of the Original Loan Agreement shall be amended and restated in the manner (and subject to the conditions) set out below. |
IT IS AGREED as follows:
| 1. | Definitions and Interpretation |
| 1.1 | Definitions |
In this Agreement:
“2025 Amendment Date” means, unless this Agreement has been terminated by any Party in accordance with Clause 6 below, the date on which the Lender has received all of the documents and other evidence listed in Schedule 1 (Conditions Precedent) in form and substance satisfactory to it or has waived receipt of such documents and evidence. The Lender shall notify the Borrower promptly upon being so satisfied.
“Amended Loan Agreement” means the Original Loan Agreement, as amended and restated in the form set out in Schedule 2 (Form of Amended Loan Agreement).
“Business Combination Agreement” means the business combination agreement to be entered into between the Borrower and Rumble Inc. on or around the date hereof.
“Existing Defaults” means the Q1 2025 Financial Covenant Breaches, as defined in the Reservation of Rights Letter.
“Reservation of Rights Letter” means the reservation of rights letter dated 20 May 2025 from the Lender to the Borrower issued under the Original Loan Agreement.
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“Rumble NODE HoldCo” means an indirect wholly-owned subsidiary of Rumble Inc. to be formed as part of the consummation of the Tender Offer under the laws of the Republic of Ireland, which shall directly hold all shares in the entity making the Tender Offer.
“Tender Offer” has the meaning given to that term in the Amended Loan Agreement.
“Tether/Rumble Loan Agreement” means the loan agreement to be entered into between the Lender as lender and Rumble NODE HoldCo as borrower on or around the 2025 Amendment Date.
“Transaction Support Agreement” means the transaction support agreement to be entered into between the Lender and Rumble Inc. on or around the date hereof.
| 1.2 | Incorporation of defined terms |
Unless a contrary indication appears, a term defined in the Original Loan Agreement has the same meaning in this Agreement.
| 1.3 | Clauses |
In this Agreement, any reference to a “Clause” or a “Schedule” is, unless the context otherwise requires, a reference to a Clause in, or a Schedule to, this Agreement.
| 2. | Sale and transfer by assumption of contract (Vertragsübernahme) of Original Loan Agreement |
| 2.1 | The Parties agree that with effect as of the 2025 Amendment Date: |
| (a) | the Lender hereby sells and transfers (verkauft und tritt ab) by way of assignment and transfer by assumption of contract (Vertragsübernahme) to the Purchaser all rights and obligations of the Lender under the Original Loan Agreement, including any rights in respect of the Loan, including all rights and obligations resulting therefrom and connected thereto, in particular the right to receive interest payments in respect of the Loan and repayment of the Outstanding Loan Amount, in each case in accordance with the terms and conditions of the Original Loan Agreement. The Purchaser hereby accepts (nimmt an) such sale and transfer by way of assignment and transfer by assumption of contract (Vertragsübernahme) from the Lender and, upon the occurrence of the 2025 Amendment Date, the Purchaser hereby assumes the Lender’s position as lender under the Original Loan Agreement with debt discharging effect (schuldbefreiende Vertragsübernahme) from the Lender; and |
| (b) | the Purchaser hereby accepts (nimmt an) such sale and transfer by way of assignment and transfer by assumption of contract (Vertragsübernahme) from the Lender and agrees to assume the Lender’s position as lender under the Original Loan Agreement, including in respect of the Loan, with debt discharging effect (schuldbefreiende Vertragsübernahme) from the Lender. |
| 2.2 | With effect as of the 2025 Amendment Date, the Lender shall cease to have any rights and obligations under or in connection with the Original Loan Agreement and shall cease to be a party to the Original Loan Agreement. |
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| 2.3 | The purchase price to be paid by the Purchaser to the Lender as consideration for the sale and transfer of the Original Loan Agreement, and all rights and obligations pertaining thereto (in each case as set out above), in particular the claim for repayment of the Loan, (the “Purchase Price”) shall be equal to the Outstanding Loan Amount as at the 2025 Amendment Date. The Lender and the Purchaser agree that the Purchase Price shall not be paid in cash, but shall be settled by (i) Rumble NODE HoldCo exchanging 50.0% of the Purchase Price for the number of shares of the Purchaser’s Class A common stock (which the Purchaser shall have contributed to Rumble NODE HoldCo for issuance to the Lender) equal to such share of the Purchase Price divided by $7.88 (subject to adjustment for any stock split, reverse stock split or stock dividend) (as converted to € using the exchange rate as promulgated by the European Central Bank on the last trading day prior to the applicable exchange date) (the “Equity Issuance”) and (ii) the remaining 50.0% of the Purchase Price as loan from the Lender to Rumble NODE Holdco, subject to, and in accordance with, the provisions of the Tether/Rumble Loan Agreement. |
| 2.4 | The parties agree that the mechanics for the Equity Issuance shall be done in accordance with the same mechanics set forth in that certain Equity Commitment Agreement, dated as of the date hereof, between the Purchaser and the Lender, applied mutatis mutandis, under Section 2.01(b) (ability to receive pre-funded warrant in lieu of shares), Section 2.02 (exemption and legending), Section 3 (Representations and Warranties) and Section 4 (Covenants). |
| 2.5 | The Borrower hereby consents to the transfer and assignment by way of assumption of contract (Vertragsübernahme) of the Original Loan Agreement, including any rights in respect of the Loan, including any rights and obligations related thereto, pursuant to this Clause 2. |
| 3. | Amendment and restatement of Original Loan Agreement; Temporary option to capitalize interest; Limited waiver |
| 3.1 | On the 2025 Amendment Date, immediately following the effectiveness of the sale and transfer of the Original Loan Agreement pursuant to Clause 2 above, the Original Loan Agreement shall be amended and restated in the form set out in Schedule 2 (Form of Amended Loan Agreement). |
| 3.2 | In respect of the Outstanding Loan Amount after lapse of each Interest Period starting as from 1 July 2025 until the Interest Period during which the closing of the Tender Offer occurs (each a “Relevant Interest Period”), the Borrower may notify the Lender in a written capitalization notice (e-mail sufficient), which shall be delivered at the latest 10 Business Days after the last day of the Relevant Interest Period, with reference to this Clause 3.2 that it intends to elect to capitalize the interest to be payable on the last day of the Relevant Interest Period (each a “Relevant Interest Payment Date”) pursuant to Clause 5.4 of the Original Loan Agreement (the “Relevant Capitalization Notice” and the “Relevant Capitalization Amount”). If the Borrower has notified the Lender with the Relevant Capitalization Notice, the Relevant Capitalization Amount shall then, with effect from the Relevant Interest Payment Date, not be payable in cash and will be added to the outstanding principal amount of the Loan and shall for the purposes of the Original Loan Agreement, as amended from time to time, be treated as part of the principal amount of the Outstanding Loan Amount and forthwith bear interest in accordance with the terms of this Agreement as part of the Outstanding Loan Amount. |
| 3.3 | As from the date of this Agreement until the earliest of (i) the date on which any of the conditions of the Tender Offer can no longer be satisfied or the Tender Offer is otherwise terminated or suspended, (ii) the date on which the Transaction Support Agreement is terminated, and (iii) the date on which the Business Combination Agreement is terminated, the Lender agrees not to enforce any rights it may have pursuant to clause 4.2 of the Original Loan Agreement in respect of any Existing Default (the “Suspended Rights”), provided that the Borrower remains in compliance with clauses 4 and 5 of the Reservation of Rights Letter. The Lender and the Borrower agree that the Tender Offer, including any preparatory acts and the negotiation, execution and consummation of the Tender Offer or any other agreement or transaction entered into under, or in connection with, the Tender Offer, shall not constitute a misrepresentation under, or breach of any undertaking in, the Reservation of Rights Letter, whether or not the Tender Offer is finally consummated and further provided that following the 2025 Amendment Date, the Lender definitely and without any further declaration by the Lender foregoes each of the Suspended Rights. |
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| 4. | Cash Consideration Amount |
| 4.1 | If a Cash Payment (as defined in the Business Combination Agreement) is to be paid to shareholders of the Borrower under the Business Combination Agreement and earnouts are to be paid to the Lender under the Transaction Support Agreement and other shareholders of the Borrower having entered into similar agreements (the aggregate amount of such payments the “Cash Consideration Amount”), the Purchaser may fund the Cash Consideration Amount by drawing a corresponding amount under the Tether/Rumble Loan Agreement. To this end, the Purchaser shall deliver a corresponding draw-down request no later than five (5) Business Days prior to the requested funding date, provided that no funding shall be due prior to closing of the Tender Offer. |
| 4.2 | The portion of the Loan granted to fund the Cash Consideration Amount shall bear interest of (i) zero percent per annum. for the period from and including the date of the closing of the Tender Offer to and including the date falling six months after the date of the closing of the Tender Offer and (ii) the same rate as the Tether/Rumble Loan Agreement thereafter. |
| 4.3 | The Purchaser shall repay the amount borrowed to fund the Cash Consideration Amount on the date on which all other amounts outstanding under the Tether/Rumble Loan Agreement that do not constitute the Cash Consideration Amount are repaid. |
| 5. | Representations and warranties |
The Borrower represents and warrants to the Lender that:
| (a) | no default (other than the Existing Defaults) is continuing under the Original Loan Agreement as at the date of this Agreement or is reasonably likely to result from the entry into, the performance of, or any transaction contemplated by, this Agreement; and |
| (b) | all the representations and warranties set out in clause 8 of the Amended Loan Agreement are true and correct as of, and with reference to the facts and circumstances existing on, the date of this Agreement (assuming that a reference in such representations and warranties to “this Agreement” shall include a reference to this Agreement and the Amended Loan Agreement). |
| 6. | Termination |
Any Party (in case of paragraphs (a) and (b) below) or the Lender (in case of paragraphs (c) and (d) below) may terminate this Agreement with immediate effect by notifying the other Party if:
| (a) | the Business Combination Agreement or the Transaction Support Agreement is terminated; |
| (b) | any of the conditions of the Tender Offer can no longer be satisfied or the Tender Offer is otherwise terminated or suspended; or |
| (c) | any of the representations and warranties made by the Borrower in connection with this Agreement and the transactions contemplated herein (including, but not limited to, those set out in Clause 5 (Representations and warranties) above) is or proves to have been incorrect or misleading when made. |
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| 7. | Miscellaneous |
| 7.1 | Designation of new purchaser |
The Purchaser is entitled, by delivery to each of the other Parties of a designation notice substantially in the form attached in the Schedule hereto duly executed by the Purchaser and Rumble NODE HoldCo, to designate Rumble NODE HoldCo (following its formation) as “Purchaser” for the purposes of this Agreement and Rumble NODE HoldCo shall, upon its countersignature of this Agreement as contemplated below, assume all the rights and obligations of Rumble Inc. under this Agreement. Upon such countersignature by Rumble NODE HoldCo of this Agreement, Rumble Inc. shall cease to have any rights and obligations under or in connection with this Agreement, the Tether/Rumble Loan Agreement or the Amended Loan Agreement (befreiende Vertragsübernahme), except for the obligation to ensure the Equity Issuance in accordance with the terms of this Agreement and the Equity Issuance as defined in and in accordance with the Tether/Rumble Loan Agreement.
| 7.2 | Incorporation of terms |
The provisions of clause 13 (Notices), clause 14.3 and clause 16 (Severability) of the Original Loan Agreement and clause 7.1 of the Reservation of Rights Letter shall be incorporated into this Agreement as if set out in full in this Agreement and as if references in those clauses to “this Agreement” are references to this Agreement.
| 7.3 | Counterparts |
This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
| 8. | Governing Law |
This Agreement and any dispute or claim arising out of or in connection with it, including any question regarding its existence, validity or termination, or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, German law. Venue for all disputes arising out of or in connection with this Agreement and its Schedules or their validity shall, to the extent legally possible, be Frankfurt am Main, Germany. Nothing in this Clause 8 shall affect the choice of law and venue in the Amended Loan Agreement.
| 9. | Costs and Expenses |
The Borrower shall pay all costs and expenses, including legal fees, incurred by the Lender relating to the preparation, negotiation and execution of this Agreement.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
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Schedule
1
Conditions Precedent
| 1. | A copy of this Agreement duly executed by the parties hereto. |
| 2. | A copy of the Tether/Rumble Loan Agreement duly executed by the parties hereto. |
| 3. | A copy of the Business Combination Agreement duly executed by the parties hereto. |
| 4. | Evidence reasonably satisfactory to the Lender confirming that the Transaction Support Agreement has been consummated. |
| 5. | Consummation of the Tender Offer. |
6
Schedule
2
Form of Amended Loan Agreement
[Omitted.]
7
SIGNATURES
THE BORROWER
SIGNED for and on behalf of NORTHERN DATA AG |
) ) ) |
/s/ John Hoffman |
| Signature | ||
| John Hoffman | ||
| Name | ||
| Co-Chief Executive Officer | ||
| Title |
[Signature page to the Sale and Transfer and Amendment and Restatement Agreement]
8
THE LENDER
| SIGNED
for and on behalf of TETHER INVESTMENTS, S.A. DE C.V. as the Lender |
) ) ) |
/s/ Giancarlo Devasini |
| Signature | ||
| Giancarlo Devasini | ||
| Name | ||
| Sole Administrator | ||
| Title |
[Signature page to the Sale and Transfer and Amendment and Restatement Agreement]
9
THE Purchaser
SIGNED for and on behalf of Rumble Inc. as the Purchaser |
) ) ) |
/s/ Christopher Pavlovski |
| Signature | ||
| Christopher Pavlovski | ||
| Name | ||
| Chief Executive Officer | ||
| Title |
[Signature page to the Sale and Transfer and Amendment and Restatement Agreement]
10
In accordance with Clause 7.1 (Designation of new purchaser) of this Agreement, we hereby designate
____________________________________
as the “Purchaser” for all purposes of this Agreement and the Tether/Rumble Loan Agreement. We confirm that we shall remain responsible for the obligation to ensure the Equity Issuance in accordance with the terms of this Agreement and the Equity Issuance as defined in and in accordance with the Tether/Rumble Loan Agreement.
Date:
__________________________________________
For and on behalf of
Rumble Inc.
***
We hereby acknowledge and agree (i) to become the “Purchaser” for all purposes of this Agreement and the Tether/Rumble Loan Agreement and (ii) to the terms of this Agreement and the Tether/Rumble Loan Agreement.
Date:
_________________________________________
For and on behalf of
[●]
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