VOTING AND SUPPORT AGREEMENT
Exhibit 9
This Voting and Support Agreement (this “Agreement”), dated as of January 30, 2023, is entered into by and among TeraWulf Inc., a Delaware a corporation (the “Company”) and the undersigned holders (each, a “Stockholder”) of, as applicable (1) shares of common stock, par value $0.01 per share, of the Company (the “Common Shares”), and (2) shares of Series A convertible preferred stock of the Company (the “Preferred Shares”, and, together with the Common Shares, collectively, the “Shares”).
RECITALS
WHEREAS, in order to facilitate future capital raises, the Company desires to amend its Amended Certificate of Incorporation (the current charter, the “Charter”) to among, other things, increase the maximum number of authorized shares of common stock from 200,000,000 to 400,000,000 (such proposed charter amendments, the “Charter Amendments”);
WHEREAS, the Company is convening a special meeting (the “Special Meeting”) of its stockholders to approve the Charter Amendments (the “Stockholder Approval”);
WHEREAS, for the purpose of not exceeding the current maximum number of authorized shares prior to the receipt of Stockholder Approval at the Special Meeting, certain entities owned and/or controlled by Xxxx Xxxxxx and Xxxxx Xxxx (the “Exchanging Stockholders”) have agreed to enter into exchange agreements for the purpose of exchanging a certain number of Shares presently owned by them for newly issued warrants (such agreements, the “Exchange Agreements”), with such warrants becoming exercisable upon receipt of the Stockholder Approval;
WHEREAS, as of the date hereof, each Stockholder is the holder of record and “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) of and is entitled to dispose of and/or vote the number of shares of Common Shares and Preferred Shares of the Company set forth on each Stockholder’s signature page hereto (collectively, the “Owned Shares”; the Owned Shares and any additional shares of voting securities of the Company (or any securities convertible into or exercisable or exchangeable for voting securities of the Company) in which each Stockholder acquires record and beneficial ownership after the date hereof, including by purchase, as a result of a stock dividend, stock split, recapitalization, combination, reclassification, exchange or change of such shares, or upon exercise or conversion of any securities, are collectively referred to herein as the “Covered Shares”); and
WHEREAS, as a condition and inducement to the willingness of the Exchanging Stockholders to enter into the Exchange Agreements, the Company has agreed to obtain Voting and Support Agreements executed by the undersigned Stockholders.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the Company and each Stockholder, severally and not jointly, hereby agree as follows:
The obligations of each Stockholder specified in this Section 1 shall apply whether or not any action described above is recommended by the Company’s Board of Directors. For purposes of this Agreement, “Person” shall mean individual, corporation, partnership, limited partnership, limited liability company, syndicate, person (including, without limitation, a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality of a government.
Until the Termination Date (as defined below), each Stockholder hereby irrevocably appoints as its proxy and attorney-in-fact, the Company and any Person designated in writing by the Company, each of them individually, with full power of substitution and resubstitution, to vote the Covered Shares held by such Stockholder from time to time regarding the matters referred to in this Section 1 as provided herein prior to the Termination Date at any meeting of the stockholders of the Company (including any adjournment or postponement thereof) at which any of the matters described in this Section 1 is to be considered; provided, however, that each Stockholder’s grant of the proxy contemplated by this Section 1 shall be effective if, and only if, such Stockholder has not delivered to the Secretary of the Company at least ten (10) Business Days prior to the meeting at which any of the matters described in this Section 1 is to be considered a duly executed irrevocable proxy card validly directing that the Covered Shares held by such Stockholder at such time be voted in accordance with this Section 1. For purposes of this Agreement, “Business Day” shall mean any day other than a Saturday, a Sunday or a day on which banks are authorized or required to close in the City of New York, New York. This proxy, if it becomes effective, is coupled with an interest, is given as an additional inducement of the Exchanging Stockholders to enter into the Exchange Agreements and shall be irrevocable prior to the Termination Date, at which time any such proxy shall terminate. Each Stockholder (solely in its capacity as such) shall take such further actions or execute such other instruments as may be necessary to effectuate the intent of this proxy. The Company may terminate this proxy with respect to any Stockholder at any time at its sole election by written notice provided to the applicable Stockholder.
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if to a Stockholder, to it at the address and other contact information set forth on such Stockholder’s signature page to this Agreement;
if to the Company, to it at:
TeraWulf Inc.
0 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn:General Counsel’s Office
E-mail: xxxxx@xxxxxxxx.xxx
with a copy (which shall not constitute notice) to:
Xxxx, Xxxxx, Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn:Xxxxx X. Xxxxxxxxxx
E-mail: xxxxxxxxxxx@xxxxxxxxx.xxx
All such notices or communications shall be deemed to have been delivered and received: (a) if delivered in person, on the day of such delivery, (b) if by facsimile or electronic mail, on the day on which such facsimile or electronic mail was sent; provided, that receipt is personally confirmed by telephone, (c) if by certified or registered mail (return receipt requested), on the third (3rd) Business Day after the mailing thereof or (d) if by reputable overnight delivery service, on the first (1st) Business Day after the sending thereof.
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(o) references herein to “ordinary course of business” shall refer to ordinary course of business consistent with past practice.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.
COMPANY:
TeraWulf Inc.
By:
Name: Xxxx Xxxxxx
Title: Chief Executive Officer
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.
STOCKHOLDER:
Stammtisch Investments LLC
By:
Name: Xxxx Xxxxxx
Title: Manager
Address:
Email:
Owned Shares:
Common Stock:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.
STOCKHOLDER:
Lucky Liefern LLC
By:
Name: Xxxx Xxxxxx
Title: Manager
Address:
Email:
Owned Shares:
Common Stock:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.
STOCKHOLDER:
Heorot Power Holdings LLC
By:
Name: Xxxx Xxxxxx
Title: Manager
Address:
Email:
Owned Shares:
Common Stock:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.
STOCKHOLDER:
Somerset Operating Company, LLC
By:
Name: Xxxx Xxxxxx
Title: Manager
Address:
Email:
Owned Shares:
Common Stock:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.
STOCKHOLDER:
Xxxxx XXXX LLC
By:
Name: Xxxx Xxxxxx
Title: Manager
Address:
Email:
Owned Shares:
Common Stock:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.
STOCKHOLDER:
Xxxx Xxxxxx
Address:
Email:
Voted Shares:
Common Stock:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.
STOCKHOLDER:
Xxxx Xxxxxxx Holdings, LLC
By:
Name: Xxxxx Xxxx
Title: President
Address:
Email:
Owned Shares:
Common Stock:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.
STOCKHOLDER:
Xxxxx Xxxx
By:
Name: Xxxxx Xxxx
Address:
Email:
Owned Shares:
Common Stock:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.
STOCKHOLDER:
Bayshore Capital LLC
By:
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer, President, Secretary
Address:
Email:
Owned Shares:
Common Stock:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.
Revolve Capital LLC
By:
Name: Xxxxxx X’Xxxxxx
Title: President
Address:
Email:
Owned Shares:
Common Stock:
Series A Preferred Stock:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.
Opportunity Four of Parabolic Ventures Holdings LLC A DE Series
By:
Name: Xxxxx Xxxx
Title: Manager
Address:
Email:
Owned Shares:
Common Stock: