Exhibit 10.1

Line of Credit Agreement

This LINE OF CREDIT AGREEMENT (the “Agreement”) is entered into on this 19th day of October, 2022, by and between Innovative Digital Investors, LLC., a limited liability company, on behalf of Innovative Digital Investors Emerging Technology LP, whose address is 10845 Griffith Peak Drive #2, Las Vegas, NV 89135 ("Creditor" or ”IDI”) and BitMine lmmersion Technologies, Inc., a Delaware Corporation, whose principal address is 2030 Powers Ferry Road SE, Suite 212, Atlanta, GA. 30339 (the "Company" or "BitMine"), collectively referred to as the "Parties."

WHEREAS, Bitmine is a corporation with limited resources and from time to time may be in need of capital in order to advance the development of its operations, specifically equipment related to Cryptocurrency Mining and Infrastructure and working capital needs.

WHEREAS, loan proceeds may also be used for equipment to mine digital assets, equipment to host digital assets miners, and working capital needs of Bitmine, as approved in sole discretion of IDI up to the limit of this Agreement.

WHEREAS, IDI and Bitmine are desiring to enter into this Agreement for the purposes of advancing the development of BitMine's business plan as stated above.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, the parties hereby agree as follows:

1. Amount of Line of Credit: The amount of the Line of Credit shall be One Million Dollars ($1,000,000), which IDI shall loan to BitMine as follows:

A. Any requests to borrow funds shall be submitted with a “Use of Funds Statement.” If the request is to finance the purchase of equipment, the Use of Funds Statement shall include appropriate purchase or expense documentation documenting the equipment to be purchased with the proceeds. If the request is for general working capital, the Use of Funds Statement IDI shall indicate the types of expenses to be paid. All Use of Funds Statements shall be submitted to Jonathan Bates on behalf of IDI, and are subject to his approval. All amounts disbursed pursuant to a Use of Funds Statement shall be considered “Debt” under this Agreement.

B. Borrowing Period: The Company shall be entitled to borrow funds commencing with the signing of the line of credit agreement on October 19th, 2022 and continuing through April 15th, 2023.

C. Senior Debt Status: The Debt shall be senior to all other company debt for borrowed money, and the Company may not borrow money unless the loan is expressly subordinate in right of payment to the Debt.

2. Interest Rate: All Debt shall incur interest at the rate of Twelve Percent (12%) per annum, compounded on a 30/360 monthly basis until the Debt has been repaid in full.

3. Time of Payment:

A. Maturity Date: All amounts due IDI under this Agreement, including principal and interest, shall be due and payable on December 1, 2023.

B. Prepayment: Advance payment or payments may be made on any amounts due under this Note without penalty or forfeiture. There shall be no penalty for any prepayment.

4. Collateral: The Company hereby grants Creditor a security interest and lien on all machinery and equipment purchased with the proceeds of the Loan, as well as all other assets or cash balances of the Company, including any in proceeds thereof, to secure repayment of all amounts due under this Agreement.

5. [Intentionally Omitted]

6. Assignability: The rights or obligations under this Note may not be assigned and/or delegated by the Company without the express written consent of the other party. Holder may assign his rights without restriction.

7. Representations and Warranties of Company: The Company represents and warrants as follows:

A. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company bas the corporate power to own its properties and to carry on its business as now being conducted.

B. The Company has all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company. The Company's Board of Directors has approved this Agreement and the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency. reorganization, moratorium and other laws of general application affecting enforcement of creditors' rights generally and (b) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.

C. This Agreement is the legal, valid and binding obligation of the Company, except as limited by applicable bankruptcy, insolvency, and other similar laws affecting creditors' rights generally.

8. Representations and Warranties of Creditor: The Creditor represents and warrants as follows:

A. That the Creditor has knowledge and experience in financial and business matters and that he understands that the merits and risks associated with the execution of this Agreement.

9. Events of Default:

A. In the "Event of Default'' as that term is described in 9(B), the total amount under due under this Agreement shall become immediately due and payable.

B. The term, "Event of Default" shall mean:

i. The Company is unable to make any of the payments specified in paragraph 3(A), and fails to cure such default within 15 days after written notice from the Creditor.

ii. The Company shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts as they become due; or

iii. The Company shall file a voluntary petition in bankruptcy, or shall be the subject of an involuntary bankruptcy petition which is not dismissed within 30 days after it is filed, or adjudicated bankrupt or insolvent, or shall file any petition or answer seeking any reorganization arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the present or any future Federal Bankruptcy Code or other applicable federal, state or similar statute, law or regulation, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of the Company or of all or any substantial part of its assets.

C. Notice of Default: In the event of an action triggering an Event of Default, the Creditor shall promptly notify the Company by USPS Certified Mail of the Event of Default. The Company shall have ten (10) days from the mailing of the Event of Default notice to cure the Event of Default by making the specified payment(s) or taking the specified actions.

D. Remedies on Default. Upon a default, the Creditor shall be entitled to all remedies provided at law or in equity, including all remedies available under the Uniform Commercial Code, including repossession and sale of any collateral for the Debt.

10. Notices: All notices, requests or instructions hereunder shall be in writing and delivered personally or sent by FedEx mail or similar overnight delivery, postage prepaid, as follows:

If to IDI: C/o Innovative Digital Investors, LLC. Attn.: Jonathan Bates; 10845 Griffith Peak Dr. #2; Las Vegas NV, 89135

If to BITMINE: BitMine Immersion Technologies Inc. Attn.: Jonathan Bates, CEO; 2030 Powers Ferry Road SE; Suite 212; Atlanta, GA. 30339

11. Governing Law and Venue: The terms and provisions of this letter are solely for the benefit of the BitMine and IDI and their respective successors, assigns, heirs and personal representatives. and no other person shall acquire or have any right by virtue of this letter. IDI and the Company agree that any dispute concerning the interpretation, validity or enforceability of this agreement, and any action arising from any alleged breach hereof shall be adjudicated exclusively in State or Superior Court for the county in which IDl's principal executive office shall be located at the time of institution of such action, or in the applicable district and division of the U.S. District Court having venue for disputes in that same county. In the event of any litigation arising from or related to this Agreement, or the services provided under this Agreement. the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred including staff time, court costs, attorney's fees, and all other related expenses incurred in such litigation. In the event of a settlement of litigation between the parties or a resolution of a dispute by arbitration, the term "prevailing party" shall be determined by that process.

12. Entire Agreement: This Agreement, including all exhibits and schedules attached thereto, executed on even date herewith, constitutes the full and entire understanding and agreement between the parties with regard to the Debt, and no party shall be liable or bound to any other party in any manner by any representations, warranties, covenants and agreements.

13. Severability: The invalidity or unenforceability of any provision of this letter shall not affect the validity or enforceability of any other provisions of this letter, which shall remain in full force and effect.

14. Counterparts/Electronic Signatures: This Agreement may be executed in counterparts, all of which together shall constitute one agreement binding on all the parties hereto, notwithstanding that all such parties are not signatories to the original or the same counterpart. Facsimile or electronically transmitted signatures shall be deemed effective as originals.

15. Authority/Capacities/Entities: Each person signing this Agreement represents and warrants that he or she has complete authority and legal capacity to enter into this Agreement on behalf of the entity for which he or she is signing, and agrees to defend, indemnify. and hold harmless all other parties if that authority or capacity is challenged.

16. Knowing and Voluntary Agreement: The Parties represent they have read this Agreement, understand it. voluntarily agree to its terms, and sign it freely.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above written.

Innovative Digital Investors Emerging Technology LP

By: Innovative Digital Investors, LLC, its General Partner

By: /s/ Jonathan Bates                                              

Jonathan Bates, Managing Member of Innovative Digital Investors, LLC.,

BitMine Immersion Technologies, Inc.

By: /s/ Jonathan Bates                                             

Jonathan Bates,

Chief Executive Officer

Exhibit 10.2

PROMISSORY NOTE

For value received, ROC DIGITAL MINING I LLC, a Delaware limited liability company (“Borrower”) promises to pay to the order of BITMINE IMMERSION TECHNOLOGIES, INC., a Delaware corporation (“Lender”), the principal amount of One Million, Two Hundred Thousand and 00/100 Dollars ($1,200,000.00), or such lesser amount as may be outstanding from time to time, plus interest on the unpaid principal balance at the rate and in the manner described below, until all amounts owing under this Note are paid in full. This Note is being executed pursuant to that Transfer, Bill of Sale and Assignment between Borrower and Lender of even date herewith to evidence the Borrower’s obligation to pay Lender the purchase price of the equipment described therein (the “Equipment”).

1.                 INTEREST: So long as there is no default under this Note, this Note shall bear interest (“Interest”) at the rate of five percent (5%) per annum, compounded monthly.

2.                 PAYMENT SCHEDULE: Borrower shall pay the principal and interest according to the following schedule:

3.                 DEFAULT RATE: In the event of any default under this Note, all amounts owed to Lender, including but not limited to unpaid principal, shall bear interest at the rate of twelve percent (12.0%) per annum, compounded monthly.

4.                 APPLICATION OF PAYMENTS: All amounts received by Lender shall be applied first to amounts, other than principal and interest, due to Lender pursuant to this Note or any other agreements relating to the Note, including any late charges and expenses, then to accrued and unpaid interest, then to unpaid principal, or in any other manner as determined by Lender, in Lender's sole discretion, as permitted by law. Borrower irrevocably waives the right to direct the application of any and all payments at any time hereafter received by Lender from or on behalf of Borrower, and Borrower irrevocably agrees that Lender shall have the continuing exclusive right to apply any and all such payments against the then due and owing obligations of Borrower in such order of priority as Lender may deem advisable.

5.                 PREPAYMENT: All principal and accrued interest on this Note may be prepaid at any time in cash. Note may be prepaid in bitcoin, as long as the time of bitcoin prepayment is agreed upon between Lender and Borrower.   

6.                 LATE PAYMENT CHARGE: If any payment is received more than ten (10) days late, Borrower will be charged a late payment charge of the greater of $50 or 5% of the unpaid late installment.

7.                 SECURITY FOR REPAYMENT: This Note is secured by the Equipment pursuant to a Security Agreement executed by Lender and Borrower of even date herewith.

8.                 DEFAULT: The following are events of default under this Note (an “Event of Default”):

9.                 RIGHTS OF LENDER ON DEFAULT: Upon a default under this Note, Lender may declare the entire unpaid principal balance under this Note and all accrued and unpaid interest immediately due and payable in full, and may take any action permitted at law or in equity to recover same. Lender's rights are cumulative and may be exercised together, separately, and in any order. Lender's remedies under this paragraph are in addition to those available at common law, including, but not limited to, the right of set-off.

10.              MODIFICATION AND WAIVER: The modification or waiver of any of Borrower's obligations or Lender's rights under this Note must be contained in writing signed by Borrower and Lender. Lender may delay or fail to exercise any of its rights without causing a waiver of those obligations or rights. A waiver on one occasion will not constitute a waiver on any other occasion. Borrower's obligations under this Note shall not be affected if Lender amends, compromises, exchanges, fails to exercise, impairs or releases any of the obligations belonging to any co-borrower or guarantor or any of its rights against any co-borrower or guarantor of this Note or collateral securing this Note.

11.               SEVERABILITY: If any provision of this Note is invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

12.              ASSIGNMENT: Borrower will not be entitled to assign any of its rights, remedies or obligations described in this Note without the prior written consent of Lender which may be withheld by Lender in its sole discretion. Lender will be entitled to assign some or all of its rights and remedies described in this Note without notice to or the prior consent of Borrower in any manner.

13.              NOTICE: All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to either party as set forth in this Section. All notices shall be delivered by internationally recognized overnight courier (with all fees prepaid) or electronic mail if adequate confirmation of receipt is provided. Except as otherwise provided in this Master Agreement, a notice is effective only if (i) the receiving Party has received the notice and (ii) the Party giving the notice has complied with the requirements of this Section. Notice is deemed received: in the case of internationally recognized overnight courier, the date and time the courier confirms delivery; or in the case of electronic mail, the date and time the recipient’s server receives the electronic mail. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section):

If to Borrower:

Roc Digital Mining I LLC

33 Commercial Street

Raynham, Massachusetts 02767

Attn: Manager

Email Address: nickmarrocco@rocdigitalmining.com

If to Lender:

BitMine Immersion Technologies, Inc.

2030 Powers Ferry Road, SE

Suite 212

Atlanta, Georgia 30339

Attn: Chief Executive Officer

Email Address: jbates@bitminetech.io

14.              APPLICABLE LAW: This Note shall be governed, interpreted, construed and enforced under the laws of the state of Georgia (without giving effect to principles of conflicts of law). Borrower consents to the jurisdiction and venue of any state or federal court located in Georgia in the event of any legal proceeding arising out of or relating to this Note, the Security Agreement or the Bill of Sale, and agrees not to commence or seek to remove or transfer such legal proceeding in or to a different court.

15.              COLLECTION COSTS: If Lender hires an attorney or other entity to assist in collecting any amount due or enforcing any right or remedy under this Note, Borrower agrees to pay Lender's reasonable attorney's fees, and collection costs.

16.              INCONSISTENT REPRESENTATIONS: Borrower affirmatively states that no representative of Lender has made any representations which are inconsistent with the terms of this Note and Borrower has not relied on any such promise or representation of any representative of Lender in executing this Note.

17.              MISCELLANEOUS: Borrower and Lender agree that time is of the essence. Borrower waives presentment, demand for payment, notice of dishonor and protest. All references to Borrower in this Note shall include all of the parties signing this Note, and this Note shall be binding upon the heirs, successors and assigns of Borrower and Lender. This Note, the Security Agreement and the Bill of Sale represent the complete and integrated understanding between Borrower and Lender pertaining to the terms and conditions of such documents.

18.              JURY TRIAL WAIVER: BORROWER AND LENDER HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS NOTE, THE SECURITY AGREEMENT OR THE BILL OF SALE.

BORROWER ACKNOWLEDGES THAT BORROWER HAS READ, UNDERSTANDS, AND AGREES TO THE TERMS AND CONDITIONS OF THIS NOTE. BORROWER ACKNOWLEDGES RECEIPT OF AN EXACT COPY OF THIS NOTE.

NOTE DATE: October 13, 2022.

Exhibit 10.3

SECURITY AGREEMENT

THIS SECURITY AGREEMENT (“Security Agreement”), made as of October 13, 2022, by and between ROC DIGITAL MINING I LLC, a Delaware limited liability company (“Debtor”) promises to pay to the order of BITMINE IMMERSION TECHNOLOGIES, INC., a Delaware corporation (“Secured Party”).

W I T N E S S E T H:

WHEREAS, the Debtor has executed a Promissory Note of even date herewith which evidences a certain loan from the Secured Party to the Debtor in the aggregate principle sum of One Million Two Hundred Thousand Dollars and No Cents ($1,200,000.00) on the terms and conditions state therein (the “Note”); and

WHEREAS, the Debtor is entering into this Security Agreement in order to induce the Secured Party, among other things, to continue to extend credit to the Debtor under future notes and otherwise;

NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto hereby agree as follows:

1.       The Security Interest

In order to secure the due and punctual payment and performance of the indebtedness and obligations owning from the Debtor to the Secured Party arising under the Note (the “Obligations,” which term shall include all expenses, including reasonable attorneys’ fees incurred or paid by the Secured Party in exercising, protecting or seeking to protect any of its rights hereunder or in realizing on the Collateral), the Debtor hereby grants to the Secured Party a continuing security interest, and any proceeds thereof (“Security Interest”) the items of equipment listed on Schedule A attached hereto (hereinafter called the “Collateral”).

2.       Filing; Further Assurance

The Debtor will permit the Secured Party, at the Secured Party’s expense, to file and record financing statements covering the Collateral, in order to create, preserve, perfect or validate any security interest or to enable the Secured Party to exercise and enforce the Secured Party’s rights hereunder with respect to any of the Collateral.

The right is expressly granted to the Secured Party, at the Secured Party’s discretion, to file in those jurisdictions where the same is permitted one or more financing statements under the Uniform Commercial Code signed only by the Secured Party, naming the Debtor as debtor and the Secured Party as secured party, and indicating therein the types or describing the items of Collateral herein specified.

3.       Representations and Warranties of Debtor

The Debtor hereby represents and warrants to the Secured Party as follows:

(a)       The Debtor is a limited liability company duly organized and validly existing under the laws of the State of Delaware. The Debtor is qualified to do business in every jurisdiction in which it is doing business, except to the extent that the failure to so qualify will not have a material adverse effect on the Debtor or its business.

(b)       The Debtor has the power to execute, deliver and perform this Security Agreement. The execution, delivery and performance of this Security Agreement has been duly authorized, will not violate the operating agreement of the Debtor or any law, regulation or court order, and will not result in the default in any agreement or indenture to which the Debtor is a party or by which it or its assets are bound.

(c)       The Debtor has good and marketable title to the property and assets, which are reflected on its financial statements. All of the Collateral is owned by the Debtor, free and clear of all liens and encumbrances and liens and encumbrances in favor of the Secured Party. All of the other property and assets of the Debtor reflected on its financial statements is owned by the Debtor, free and clear of all liens and encumbrances. No effective financing statement covering the Collateral or any proceeds thereof is on file in any public office, except financing statements in favor of the Secured Party.

(d)       There are no actions, suits or proceedings at law or in equity pending or threatened before any court or administrative body in which it will be or is sought to restrain or prohibit or obtain damages or other relief in connection with the Security Agreement or the consummation of the transactions contemplated thereby. No restraining order or injunction shall prevent the transactions contemplated by the Security Agreement.

(e)       The Debtor has filed all federal, state and local tax returns and other reports, which it is required by law to file and has paid all taxes and other charges that are due and payable.

(f)       The Debtor’s principal place of business, chief executive office and place where it keeps its records concerning the Collateral is the location set forth on Schedule B attached hereto.

4.       Covenants of Debtor

The Debtor hereby covenants and agrees as follows:

(a)       The Debtor will not encumber, pledge, mortgage, grant a security interest in, assign, sell, lease or otherwise dispose of or transfer, whether by sale, merger, consolidation, liquidation, dissolution, or any levy, seizure or attachment which is not removed or stayed within thirty (30) days, or otherwise, any of the Collateral.

(b)       The Debtor will not change its name without giving the Secured Party thirty (30) days prior written notice in which it sets forth its new name and the date on which the new name shall first be used.

(c)       The Debtor will, upon demand, furnish to the Secured Party such further information and will execute and deliver to the Secured Party such financing statements, and other instruments or documents, and will do all such acts as the Secured Party may, at any time, or from time to time, reasonably request, or as may be necessary or appropriate to establish and maintain a valid and enforceable first priority security interest of the Secured Party in the Collateral.

(d)       The Debtor will notify the Secured Party, in writing, promptly upon its learning of any event, condition, litigation, administrative proceedings or other circumstance which may materially and adversely affect the operations, financial conditions or business of the Debtor or the Collateral or the Secured Party’s security interest therein.

(e)       The Debtor will preserve and keep in force its corporate existence, and will promptly pay all lawful taxes and assessments. Unless the Secured Party consents in writing, the Debtor will not incur, create or assume or suffer to exist any security interest, mortgage, pledge, lien or other encumbrance on the Collateral other than those in favor of the Secured Party created hereby.

5.       Location of Chief Executive Office and Collateral, Etc.

The Debtor will maintain its chief executive office at the address designated on Schedule B and shall maintain the Collateral at the locations set forth on Schedule B. The Debtor will not locate the Collateral at any other or additional location, except such other or additional location as the Secured Party may approve in writing.

The Debtor will keep the records concerning the Collateral at its chief executive office, as set forth on Schedule B, or at such other place or places as the Secured Party may approve in writing. The Debtor will hold and preserve such records and will furnish to the Secured Party such information and reports regarding the Collateral as the Secured Party may from time to time reasonably request.

6.       Events of Default

The Debtor shall be in default under this Security Agreement upon the occurrence of any one of the following events (herein referred to as an “Event of Default”):

(a)       Any representation or warranty made herein shall be false or misleading in any material adverse respect; or

(b)       Any event of default shall have occurred under the Note.

7.       Remedies Upon Event of Default

7.1       Remedies. Upon and after an Event of Default, the Secured Party shall have all of the rights and remedies of a secured party under the Uniform Commercial Code or other applicable law, all of which rights and remedies shall be cumulative and non-exclusive, to the extent permitted by law.

7.2.      Notice of Disposition by Secured Party. Any notice required to be given by the Secured Party of a sale, lease, or other disposition of the Collateral or any other intended action by the Secured Party, if given not less than ten (10) days prior to such proposed action, shall constitute commercially reasonably and fair notice thereof to the Debtor.

8.       Rights of Secured Party to Use and Control Collateral

Upon the occurrence of an Event of Default and while it is continuing, the Secured Party shall have the right and power to take possession of all or any part of the Collateral, and to exclude the Debtor and all persons claiming under the Debtor wholly or partly therefrom, and thereafter to hold, store, use, manage and control the same.

9.       General Authority

The Debtor hereby irrevocably appoints the Secured Party as the Debtor’s true and lawful attorney, with full power of substitution, in the name of either the Debtor or the Secured Party, but at the Debtor’s expense, to the extent permitted by law to exercise, at any time and from time to time after any Event of Default has occurred and while it is continuing, all or any of the following powers with respect to all or any of the Collateral (which powers shall be in addition and supplemental to any powers, rights, and remedies of the Secured Party described herein):

(a)       To settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto;

(b)       To sell, transfer, assign or otherwise deal in or with the same or the proceeds or avails thereof as fully and effectually as if the Secured Party was the absolute owner thereof; and

(c)       To discharge any taxes, liens, security interests or other encumbrances at any time placed thereon;

provided that the Secured Party shall give the Debtor not less than ten (10) days’ prior written notice of the time and place of any sale or other intended disposition of any of the Collateral (which period of time the Debtor agrees is reasonable), except any Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognizable market. The Secured Party and the Debtor agree that such notice constitutes “reasonable notification” within the meaning of Section 9-504(3) of the Uniform Commercial Code (“Code”).

10.     Application of Collateral and Proceeds

All distributions on account of, and the proceeds of any sale of, or other realization upon, all or any part of the Collateral shall be applied in the following order of priorities:

(a)       First, to pay the reasonable expenses of such sale or other realization, and all reasonable expenses, liabilities and advances incurred or made by the Secured Party in connection therewith, and any other reimbursed expenses for which the Secured Party is to be reimbursed pursuant to Section 11;

(b)       Second, to the payment of the Obligations in such order or manner as the Secured Party, in the Secured Party’s sole discretion, shall determine;

(c)       Third, to the satisfaction of any subordinate security interest in the Collateral if required under Section 9-504(1)(c) of the Code; and

(d)       Finally, to pay to the Debtor, or its successor and assigns, or as a court of competent jurisdiction may direct, any surplus then remaining from such proceeds.

11.     Expenses; Secured Party’s Lien

The Debtor will forthwith, upon demand, pay to the Secured Party:

(a)       The amount of any taxes which the Secured Party may have been required to pay by reason of the security interests herein created (including any applicable transfer taxes) or to free any of the Collateral from any lien thereon, and

(b)       The amount of any and all reasonable out-of-pocket expenses, including the reasonable fees and disbursements of its counsel and of any agents not regularly in its employ, which the Secured Party may incur in connection with (a) the collection, sale or other disposition of any of the Collateral; (b) the exercise by the Secured Party of any of the powers conferred upon it hereunder or (c) any default hereunder by the Debtor.

12.     Termination of Security Interest Release of Collateral

Upon the repayment and performance in full of all the Obligations, the security interest herein created shall terminate and all rights to the Collateral shall revert to the Debtor. Upon any such termination of the Security Interest or release of Collateral, the Secured Party will, at the Debtor’s expense, execute and deliver to the Debtor such documents as the Debtor shall reasonably request to evidence the termination of the Security Interest or the release of such Collateral, as the case may be.

13.     Notices

All notices, communications and distributions hereunder shall be in writing and shall be made by hand delivery, first class mail (certified, return receipt requested, postage prepaid), reputable national overnight air courier (e.g., Federal Express) addressed to the parties at the respective addresses set forth on the first page of this Security Agreement, by electronic mail if adequate confirmation of receipt is provided, or to such other address as the party receiving such notice shall have properly designated by notice to the other party hereto in accordance with this Section 13. Each such notice shall be deemed given at the time delivered by hand, if personally delivered; three (3) business days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if sent be electronic mail; and the next business day after timely delivery to courier, if sent by overnight air courier guarantying next day delivery.

14.       Waivers; Non-Exclusive Remedies

No failure on the part of the Secured Party to exercise, and no delay in exercising, and no course of dealing with respect to, any right, power or remedy under this Security Agreement shall operate as a waiver thereof; nor shall any single or partial exercise by the Secured Party of any right, power or remedy under this Security Agreement preclude any other right, power or remedy. The remedies in this Security Agreement are cumulative and are not exclusive of any other remedies provided by law.

15.     Changes in Writing

Neither this Security Agreement nor any provision hereof may be changed, waived, discharged or terminated orally but only by a statement in writing signed by an authorized agent of the party against which enforcement of the change, waiver, discharge or termination is sought.

16.     Georgia Law; Meaning of Terms

This Security Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, except as otherwise required by mandatory provisions of law and except to the extent that remedies provided by the laws of the any state other than New York are governed by the laws of such other state. Unless otherwise defined herein, or unless the context otherwise requires, all terms used herein which are defined in the Georgia Uniform Commercial Code have the meanings therein stated.

17.     Separability

If any provision hereof is invalid or unenforceable in any jurisdiction, the other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in favor of the Secured Party.

18.     Headings

The headings in this Security Agreement are for the purposes of reference only and shall not limit or otherwise affect the meaning hereof.

19.     Counterparts

This Security Agreement may be signed in any number of counter parts with the same effect as if the signature thereon and hereto were upon the same instrument.

20.     CONSENT TO JURISDICTION; WAIVER OF JURY TRAIL

THE DEBTOR HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE STATE OF GEORGIA AND WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS SECURITY AGREEMENT.

IN WITNESS WHEREOF, this Security Agreement has been executed by the undersigned as of the day and year first above written.

ROC DIGITAL MINING I LLC

By: ROC DIGITAL MINING MANAGER LLC, its Manager

By: /s/ Nick Marrocco                                

Name: Nick Marrocco

Title: Initial Manager

BITMINE IMMERSION TECHNOLOGIES, INC.

By: /s/ Jonathan Bates                               

Name: Jonathan Bates

Title: Chief Executive Officer

SCHEDULE A

to Security Agreement,

dated October 13, 2022 between

BitMine Immersion Technologies, Inc. and Roc Digital Mining I LLC

List of Equipment:

Four (4) 40ft Submer Immersion Mining Container Units ("Crypto Megapod”)

SCHEDULE B

to Security Agreement,

dated October 13, 2022 between

BitMine Immersion Technologies, Inc. and Roc Digital Mining I LLC

The Debtor’s chief executive office, principal place of business and place where the records relating to the Collateral shall be kept is located at:

33 Commercial Street, Raynham, MA 02767

The Collateral will be located at:

435 County Road, 420 East, #21B, Pecos, Texas

Exhibit 10.4

TRANSFER, BILL OF SALE AND ASSIGNMENT

THIS TRANSFER, BILL OF SALE AND ASSIGNMENT (the “Agreement”) is executed as of the date set forth below by BITMINE IMMERSION TECHNOLOGIES, INC., a Delaware corporation (“Grantor”) to evidence and effectuate the transfer and assignment of the personal property described herein to ROC DIGITAL MINING I LLC, a Delaware limited liability company (“Grantee”), for which the Grantee have paid $10.00 cash, and other good and valuable consideration to Grantor.

WHEREAS, the Grantor is the owner of that equipment listed and described on Exhibit A attached hereto (the “Equipment”);

NOW THEREFORE, for the consideration above specified, the receipt and sufficiency of which are acknowledged:

Grantor has GRANTED, CONVEYED, SOLD, TRANSFERRED, SET-OVER, and DELIVERED, and by these presents does hereby GRANT, CONVEY, SELL, TRANSFER, SET-OVER, and DELIVER unto Grantee, all of the Grantor’s right, title and interest in and to the Equipment, TO HAVE AND TO HOLD, all and singular, the Equipment unto Grantee forever:

Grantor does hereby bind itself to WARRANT and FOREVER DEFEND title to the Equipment unto Purchaser against the lawful claims and demands of all persons whomsoever claiming by, through or under Grantor but not otherwise.

Other than the assignment of the Manufacturer Warranty Rights, if any, to the Grantee, the Grantor makes no representations or warranties, express or implied, with respect to the Equipment, including without limitation any warranty of merchantability, any warranty of fitness for a particular purpose, or any warranty as to the condition or value of the Equipment. The Equipment is being sold and conveyed to the Grantee “as is, where is.”

EXECUTED to be effective as of the 13^th day of October 2022.

Exhibit A

Equipment sold to Grantee by Grantor:

Four (4) 40ft Submer Immersion Mining Container Units ("Crypto Megapod”) at $300,000 each.

Equipment contributed to Grantee by Grantor as a capital contribution pursuant to a Subscription Agreement executed simultaneously herewith:

One (1) 40ft Submer Immersion Mining Container Units ("Crypto Megapod”) at $300,000 each.

Six (6) GE Protec 1500 KVA Transformers at $125,000 each.

Exhibit 10.5

LIMITED LIABILITY COMPANY OPERATING AGREEMENT

OF

ROC DIGITAL MINING I LLC

A DELAWARE LIMITED LIABILITY COMPANY

July 27, 2022

THE UNITS REPRESENTED BY THIS LIMITED LIABILITY COMPANY OPERATING AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER. ANY TRANSFER OF SUCH UNITS IS SUBJECT TO COMPLIANCE WITH, OR THE AVAILABILITY OF EXEMPTIONS FROM COMPLIANCE WITH, THE REGISTRATION AND QUALIFICATION REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THE UNITS REPRESENTED BY THIS LIMITED LIABILITY COMPANY OPERATING AGREEMENT ARE SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER SET FORTH IN THIS AGREEMENT.

LIMITED LIABILITY COMPANY OPERATING AGREEMENT

OF

ROC DIGITAL MINING I LLC

A DELAWARE LIMITED LIABILITY COMPANY

This Limited Liability Company Operating Agreement (as the same may be amended from time to time, the “Agreement”) of Roc Digital Mining I LLC, a Delaware limited liability company (the “Company”), is entered into as of July 27, 2022, by and among the Company and the parties listed on Exhibit A hereto, and each person who hereafter executes a joinder to this Agreement on the form attached hereto as Exhibit B. The parties listed on Exhibit A, as the same may be amended from time to time in accordance with the provisions of this Agreement, are individually referred to as a “Member” and collectively as the “Members.”

WHEREAS, the Company was formed pursuant to the Delaware Limited Liability Company Act, as amended (the “Act”) by filing the Certificate of Formation with the office of the Secretary of State of Delaware on July 27, 2022; and

WHEREAS, the Company and the parties signatory hereto desire to set forth certain matters with respect to the Company in this Agreement, including with respect to the affairs of the Company, and the respective rights and obligations of the parties hereto, all in accordance with and subject to the terms and conditions of this Agreement.

NOW THEREFORE, in consideration of the covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

ARTICLE 1

DEFINITIONS

Section 1.1 Certain Defined Terms

The following capitalized terms shall have the following meanings when used in this Agreement.

Accounting Period means the period beginning on the day immediately succeeding the last day of the immediately preceding accounting period (or, in the case of the first accounting period, the date of this Agreement) and ending on the earliest to occur of the following: (i) the last day of the fiscal year; (ii) the day immediately preceding the day on which a Member makes an additional contribution to, or a full or partial withdrawal from, its Capital Account; (iii) the day immediately preceding the day on which a new Member is admitted to the Company; or (iv) the date of termination of the Company in accordance with this Agreement.

Accredited Investor means accredited investor as such term is defined in Regulation D promulgated under the Securities Act by virtue of such Member's income or net worth.

Act has the meaning set forth in the Recitals.

Affiliate means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, including, without limitation, any unitholder, subsidiary, related entity, or any member, managing member, manager, shareholder, general partner, officer or director of such particular Person. For purposes of this definition, control (including, with correlative meaning, the terms controlled by and under common control with), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct and cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract, or otherwise.

Agreement has the meaning ascribed to it in the preamble of this Agreement.

Authorized Capital means the Units authorized for issuance by the Manager pursuant to the terms of this Agreement, which capital may be comprised of one or more classes of Units with the relative rights, preferences and designations provided for in Article 9.

BitMine Note shall mean that certain promissory note by and between BitMine Immersion Technologies, Inc., as lender, to the Company, as borrower, having a maturity date of three and one half (3.5) years.

Capital Account means the capital account established for each Member and maintained pursuant to the terms of this Agreement in accordance with the provisions of Treasury Regulation Section 1.704-1(b)(2).

Capital Contribution means, as to each Member, contributions of cash and, to the extent permitted under this Agreement, other property contributed or other valuable consideration specified next to such Member's name in Exhibit A, or any subscription agreement between the Company and the Member, and any subsequent capital contribution made by a current or new Member to the Company. The amount of the Capital Contributions made by any Member as of any date will be deemed to equal the amount of cash and, to the extent permitted under this Agreement, the Fair Market Value of any other property contributed by a Member to the Company as of such date.

Capital Transaction means any sale of all or substantially all of its assets or similar change of control transaction (including by merger or otherwise), sale or exchange of all or any material portion of the assets or Units of the Company, or its subsidiaries, other than in the ordinary course of business, or the liquidation of the Company, or its subsidiaries.

Certificate means the Certificate of Formation of the Company filed with the Delaware Secretary of State, as it may be amended.

Class A Member(s) means the holder or holders of issued and outstanding Class A Units.

Class A Unit(s) means the voting Class A Units of the Company. Class A Units shall be “membership interests,” which shall include the Economic Interest associated with such Units, the right to vote associated with such Units, and such other rights and privileges that the Member may enjoy by being a Member.

Class B Member(s) means the holder or holders of issued and outstanding Class B Units. Class B Members shall be Economic Interest Holders. References in this Agreement to holders of Class B Units as “Members” or “Class B Members” are for purposes of convenience only; holders of Class B Units shall not be deemed to constitute Members for any other purpose under the Act or this Agreement.

Class B Unit(s) means the non-voting Class B Units of the Company, which shall only have Economic Interests associated with such interests and the right to vote shall not be associated with such Units.

Class B Term shall mean the seven (7) year anniversary from the final closing date of the Class B Unit round.

Code means the Internal Revenue Code of 1986, as amended.

Company has the meaning ascribed to it in the preamble of this Agreement.

Depreciation means, for each Fiscal Year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable for U.S. federal income tax purposes with respect to an asset for such Fiscal Year or other period, except that if the Gross Asset Value of an asset differs from its adjusted basis for U.S. federal income tax purposes at the beginning of such Fiscal Year or other period, Depreciation shall be an amount that bears the same ratio to such beginning Gross Asset Value as the U.S. federal income tax depreciation, amortization or other cost recovery deduction for such Fiscal Year or other period bears to such beginning adjusted tax basis; provided, however, that if the U.S. federal income tax depreciation, amortization or other cost recovery deduction for such Fiscal Year or other period is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Manager.

Dissolution Event has the meaning ascribed to it in Section 12.1.

Distributable Assets means all assets of the Company from any and all sources determined by the Manager to be available for distribution.

Distributions means those distributions made to the Members under this Agreement including, without limitation, any Tax Distributions made to, or earmarked to be made to, the Members under this Agreement.

Drag-Along Member has the meaning ascribed to it in Section 7.6.

Economic Interest shall mean an interest in the Net Profits, Net Losses and Distributions of the Company’s Distributable Assets pursuant to this Agreement but shall not include any right to vote on, consent to or otherwise participate in any decision of the Members or Manager or to participate in the management of the Company.

Economic Interest Holder means a holder of Units which only represent an Economic Interest and not any right to vote or otherwise participate in the affairs or management of the Company.

Effective Date means the date of this Agreement.

Fair Market Value means, with respect to any asset as of any date, the fair market value of such asset as determined by the Manager in good faith in its sole discretion, which determination will be conclusive and binding upon all Members; provided that to the extent applicable, in making any determination of Fair Market Value with respect to any assets that will be placed into service, the Manager may in good faith and in its sole discretion take into account the following factors : (i) the hash rate generated, (ii) the bitcoin mined / generated; (iii) the price of power, (iv) operations and maintenance costs and (v) the Fair Market Value of Bitcoin. The Fair Market Value of bitcoin will be determined using Coinbase or such other available Exchange or published source relied upon in good faith by the Manager. Coinbase or such other source determined by the Manager will be used to determine the average price of bitcoin for any such applicable period, which will be used as the Fair Market Value for such distributions at such dates and times as determined by the Manager in its sole discretion.

Fiscal Year has the meaning set forth in Section 2.4.

Gross Asset Value means, with respect to any asset, the asset’s adjusted basis for U.S. federal income tax purposes, except as follows:

If the Gross Asset Value of an asset has been determined or adjusted pursuant to clause (a), (b) or (d) above, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Profits and Losses.

Initial Capital Contribution means the Capital Contribution of each Member, as set forth in Exhibit A.

Initial Offering means the private offering of up to One Thousand (1,000) Class B Units in the Company at Four Thousand Four Hundred Dollars ($4,400) per Class B Unit, for total gross proceeds of Four Million Four Hundred Thousand Dollars ($4,400,000).

Insider(s) has the meaning ascribed to it in Section 4.10(a).

Insider Contracts has the meaning ascribed to it in Section 2.7(a).

Liquidation Event has the meaning ascribed to it in Section 13.4.

Manager means Roc Digital Mining Manager LLC, the Class A Member responsible for management of the Company, all in accordance with applicable provisions of the Act and this Agreement.

Members means any of the Persons admitted as members of the Company pursuant to the terms of this Agreement and the Act, prior to the time of withdrawal of such Person, in such Person's capacity as a member, which members hold in the aggregate all of the issued and outstanding Units of the Company. The Members shall constitute the members of the Company, as such term is defined in the Act.

Net Profits or Net Losses means, for each Fiscal Year or other period, an amount equal to the Company’s U.S. federal taxable income or loss for such Fiscal Year or period determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss, deduction or credit required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:

(a) Any income of the Company that is exempt from U.S. federal income tax and not otherwise taken into account in computing Net Profits or Net Losses pursuant to this definition of Net Profits and Net Losses shall increase the amount of such income and/or decrease the amount of such loss;

(b) Any expenditure of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Net Profits or Net Losses pursuant to this definition of Net Profits and Net Losses, shall decrease the amount of such income and/or increase the amount of such loss;

(c) Gain or loss resulting from any disposition of Company assets, where such gain or loss is recognized for U.S. federal income tax purposes, shall be computed by reference to the Gross Asset Value of the Company assets disposed of, notwithstanding that the adjusted tax basis of such Company assets differs from its Gross Asset Value;

(d) In lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such income or loss, there shall be taken into account Depreciation for such Fiscal Year or other period;

(e) To the extent an adjustment to the adjusted tax basis of any asset included in Company assets pursuant to Code Section 734(b) or Code Section 743(b) is required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member’s Interest, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the asset and shall be taken into account for the purposes of computing Net Profits and Net Losses;

(f) If the Gross Asset Value of any Company asset is adjusted, the amount of such adjustment shall be taken into account in the Fiscal Year of such adjustment as gain or loss from the disposition of such asset for purposes of computing Net Profits or Net Losses; and

(g) Notwithstanding any other provision of this definition of Net Profits and Net Losses, any items that are specially allocated pursuant to this Agreement shall not be taken into account in computing Net Profits or Net Losses.

Non-Class A Member(s) means each Member that is not a Class A Member.

Non-Class A Unit(s) means each Unit of the Company that is not a Class A Unit.

Partnership Representative means the Person designated in this Agreement as the Partnership Representative hereunder, consistent with Code Section 6223.

Permitted Transfer has the meaning ascribed to it in Section 7.3(a).

Person means any natural person, corporation, partnership, trust or other legal entity, whether organized for profit or not for profit.

Preferred Return means a non-cumulative, non-compounded preferred return equal to one percent (1%) per month (twelve percent (12%) per annum) of the amount of any Capital Contribution by a Class B Member.

Pro Rata Portion has the meaning ascribed to it in Sections 7.4(b) and 7.5(b).

Profits or Losses means for each fiscal year or other period, an amount equal to the Company's taxable income or loss for such fiscal year or period, determined in accordance with applicable provisions of the Code and Treasury Regulations.

Project Service Fee has the meaning ascribed to it in Section 4.3. 

Regulatory Allocations has the meaning ascribed to it in Section 10.4(e).

Relative means any parent, spouse, brother, sister, child, grandchild or relationship by marriage to or of any Member, or a member thereof, who is a natural person, as the case may be.

ROFO Acceptance has the meaning ascribed to it in Section 7.4(a).

ROFO Purchasing Member has the meaning ascribed to it in Section 7.4(a).

ROFO Sale Notice has the meaning ascribed to it in Section 7.4(a).

ROFO Sale Terms has the meaning ascribed to it in Section 7.4(a).

ROFO Selling Member has the meaning ascribed to it in Section 7.4(a).

ROFO Third-Party Purchaser has the meaning ascribed to it in Section 7.4(c).

ROFR Acceptance has the meaning ascribed to it in Section 7.5(a).

ROFR Purchasing Member has the meaning ascribed to it in Section 7.5(a).

ROFR Sale Notice has the meaning ascribed to it in Section 7.5(a).

ROFR Sale Terms has the meaning ascribed to it in Section 7.5(a).

ROFR Selling Member has the meaning ascribed to it in Section 7.5(a).

ROFR Third-Party Purchaser has the meaning ascribed to it in Section 7.5(a).

Securities Act means the Securities Act of 1933, as amended.

State means the State of Delaware.

Tax Distributions means those distributions, if any, made to, or earmarked to be made to, the Members under this Agreement for the payment of any and all taxes due by such Members in connection with the Profits and Losses of the Company, such Tax Distributions which shall be declared and paid at the maximum marginal tax rates for both federal, state, and/or local taxes, for each respective tax year. Additionally, in the event the Company is required to file a composite tax return on behalf of non-resident Members, and State estimated payments are paid by the Company for any non-resident Members, such estimated payments, and any remaining balances paid by the Company for such tax year, shall be considered Tax Distributions for the purpose of this Agreement. The maximum marginal tax rates shall be adjusted up or down from time to time by the Manager, with written notice to the Members, in the event the highest federal, state or local tax rate applicable to any Member changes from time to time. Notwithstanding the foregoing or anything herein to the contrary, a Tax Distribution shall only be made to any such Member upon (i) the authorization of the Manager in its sole and absolute discretion, and (ii) such time that income has been allocated to such Member in excess of cumulative Losses which have been allocated in the past to such Member.

Transfer means the sale, exchange, assignment, transfer, pledge, hypothecation or otherwise encumbrance, alienation or disposal of, voluntarily or by operation of law, all or any portion of, or right in or to, the Units.

Treasury Regulations means any regulations promulgated under the Code.

Units means limited liability company interests that are denominated as units of authorized capital of the Company from time to time outstanding.

Unreturned Capital Contributions means all Capital Contributions made by a Member, less all distributions to the Member pursuant to Section 10.2(a).

Section 1.2 Interpretation

For purposes of this Agreement, (a) the words "include," "includes," and "including" shall be deemed to be followed by the words "without limitation," (b) the word "or" is not exclusive, and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole. The definitions given for any defined terms in this Agreement shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine, and neuter forms. Unless the context otherwise requires, references herein (i) to Articles, Sections, and Exhibits mean the Articles and Sections of and Exhibits attached to this Agreement, (ii) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, restated, supplemented, and modified from time to time to the extent permitted by the provisions thereof, and (iii) to a statute or applicable law means such statute or applicable law as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.

ARTICLE 2

GENERAL

Section 2.1 Preliminary Statement

The Company was formed by the filing of the Certificate with the Secretary of the State of Delaware on July 27, 2022. The purposes of this Agreement are to (i) set forth the rights, obligations and duties of the Members and the Company and (ii) adopt this Agreement as the Limited Liability Company Operating Agreement of the Company, as contemplated by the Act. To the extent that the rights, powers, duties, obligations or liabilities of any Member are different by reason of any provision of this Agreement than they would have been in the absence of such provision, this Agreement shall, to the extent permitted by the Act, control. The Manager shall from time to time take all actions which it may deem to be necessary or advisable for the continuation of the Company as a limited liability company under the Act and qualify the Company to act in any other state where the Manager deems qualification necessary or desirable, so long as the liability of the Members is limited in substantially the same manner as provided under the Act and this Agreement.

Section 2.2 Name

The name of the Company shall be Roc Digital Mining I LLC or such other name or names as may be designated by the Manager; provided that the name shall always contain the words “limited liability company” or the abbreviation “LLC.” The Manager shall give prompt notice to the other Members of any change to the name of the Company. The Company may conduct business under any assumed or fictitious name required by applicable law or otherwise deemed desirable by the Manager.

Section 2.3 Office

(a)               The Company's principal place of business shall be at such place or places as the Manager may designate. The Manager may appoint agents for service of process in any jurisdiction in which the Company shall conduct business.

(b)               The Company shall maintain a registered office at 251 Little Falls Drive, Wilmington, Delaware 19808, or at such other office as may from time to time be determined by the Manager. The name and address of the Company’s registered agent for service of process in the State of Delaware as of the date of this Agreement is Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware 19808.

Section 2.4 Fiscal Year

The fiscal year of the Company shall end on December 31 (the “Fiscal Year”), or such other day as the Manager from time to time shall determine.

Section 2.5 Duration

The Company shall have a perpetual term, unless a specific term is set forth in its Certificate. The Company may be dissolved pursuant to this Agreement.

Section 2.6 Purposes of the Company

The Company is organized for the object and purpose of engaging in (a) construction, build-out, deployment, operation, maintenance and replacement/upgrade of digital asset infrastructure for the principal purpose of generating hash rate for use in bitcoin mining, (b) receipt and sale of bitcoin obtained pursuant to such mining, and (c) engage in all ancillary activities directly or indirectly related to such purpose and (d) engage in any and all other lawful activities permitted under the Act.

Section 2.7 Power and Authority

(a)       Subject to the provisions of this Agreement, the Company shall have the power and authority to take any and all actions necessary, appropriate, proper, advisable, convenient or incidental in furtherance of the purposes set forth in Section 2.6 above, including, without limitation, the power:

(b)       Subject to the provisions of this Agreement and the approval of the Manager, (i) the Company may enter into and perform any and all documents, agreements and instruments contemplated hereby, all without any further vote, act or approval of any other Members, and (ii) the Manager may authorize any person, including any Member or officer to enter into and perform any document, instrument or agreement on behalf of the Company.

Section 2.8 No State Law Partnership

The Members intend that the Company shall not be a partnership, either general or limited, or a joint venture in that no Member or officer shall be a partner or joint venturer of any other Member or officer for any purpose other than federal and, if applicable, state tax purposes, and this Agreement shall not be construed to the contrary. The Members intend that the Company shall be treated as a partnership for federal and, if applicable, state income tax purposes, and each Member and the Company shall file all tax returns and shall otherwise take all tax and financial reporting positions in a manner consistent with such treatment.

ARTICLE 3

MEMBERS

Section 3.1 Place of Meetings

Any meeting of the Members shall be held at the principal office of the Company or at such other place, located within or outside the State of Delaware, as shall be designated by the Manager, including without limitation telephonic meetings pursuant to Section 3.5.

Section 3.2 Notice of Member Meetings

Meetings of the Members may be held without call or notice at such places and at such times as the Manager may from time to time determine, provided, however, if the vote of the Non-Class A Members is required at such meeting, then written notice of the meeting to all Members shall be given by, or at the direction of, the person or persons calling such meeting at least three (3) days prior to the date of giving of such notice. Such notice shall be given by sending a copy thereof by email or facsimile transfer, by receipted hand delivery or by reputable overnight courier, or by certified mail return receipt requested to each Member. Such notice shall specify the place, day and hour of the meeting.

Section 3.3 Waiver of Notice

A waiver of notice, in writing, signed by the person or persons entitled to such notice, whether before or after the date stated therein, shall be deemed equivalent to the giving of such notice. Notice of a meeting need not be given to a Member who provided a waiver of notice or consent to holding the meeting or an approval of the minutes thereof in writing, whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to that Member. Unless otherwise required by law, neither the business to be transacted nor the purpose of the meeting need be specified in the waiver of notice of such meeting.

Section 3.4 Quorum

With respect to any meeting of Members, the presence in person or by proxy of the holders of a majority of the issued and outstanding Units of the Company shall constitute a quorum with respect to matters that require that vote of the Members, if applicable, in accordance with this Agreement or the Act. Members present at a duly organized meeting may continue to do business until adjournment, notwithstanding the withdrawal of the holders of enough issued and outstanding Units entitled to vote to leave less than a quorum. If a meeting cannot be organized because a quorum has not attended, those Members present may adjourn the meeting to such time and place as they may determine.

Section 3.5 Telephonic Meetings

One (1) or more Members may participate in any regular or special meeting of the Members by means of conference telephone or similar communications equipment by means of which all Persons participating in the meeting can hear each other.

Section 3.6 Voting Power and Rights

Except as otherwise provided for herein, only the holder of Class A Units shall be entitled to vote on all matters required by law or by the Certificate or this Agreement to be voted upon or approved by the Members. The Class A Member shall be entitled to vote at any regular or special meeting of the Members. To the extent a matter must be voted upon by all Members, all actions or vote with respect to such matter shall be a valid and effective act of the Company upon the consent of Members holding a majority of all the issued and outstanding Units. For purposes of clarity, Economic Interest Holders, including, without limitation, Class B Members, shall not constitute or otherwise be deemed “Members” and shall not be entitled to vote on any matter.

Section 3.7 Members

(a)               List of Members; Admission. Subject to the following sentence, the name, mailing address, Capital Contribution, date of Capital Contribution, number and number of Units of the Members as of the date of this Agreement are set forth on Exhibit A attached hereto, as such exhibit shall be amended from time to time in accordance with the terms of this Agreement. Any reference in this Agreement to Exhibit A shall be deemed to be a reference to Exhibit A, as amended and in effect from time to time. Upon (i) the execution and delivery of this Agreement and (ii) receipt of such Person's Capital Contribution, as set forth on Exhibit A, each Person listed on Exhibit A is hereby admitted to the Company as a Member of the Company with the number and class of Units set forth opposite such Person's name as of the date such person executes and delivers this Agreement. Each Member acknowledges and agrees that Exhibit A is confidential, and, at the Manager’s election, the Company may redact or remove any Member information or any other information (including the number of Units and Capital Contributions) in the event that Exhibit A is made available to Members or any particular Member.

(b)               Loans by Members. No Member shall be required to lend any funds to the Company or to make any additional contribution of capital to the Company, except as otherwise required by applicable law or the terms of this Agreement. In the event that any Member does make a loan to the Company, neither the principal of, nor interest accrued upon, such loan shall be deemed a Capital Contribution. The Company is prohibited from loaning any money to any Insiders. Any loan made by any Member to the Company shall be made at a 6% interest rate.

Section 3.8 No Liability of Members

Except for conduct that a court of competent jurisdiction deems to constitute fraud, willful misconduct or gross negligence, as otherwise required by applicable law, and as expressly set forth in this Agreement, no Member shall have any personal liability whatsoever in such Member's capacity as a Member, whether to the Company, to any of the other Members, to the creditors of the Company, or to any other Person, for the debts, liabilities, commitments or other obligations of the Company for any losses of the Company or to restore any deficit balance in such Member's Capital Account, or otherwise. Each Member shall be liable only to make such Member's Capital Contribution to the Company and any other payments specifically required hereunder.

Section 3.9 Other Activities

Except as otherwise provided herein, the Members and their Affiliates may engage in, possess interests in, own, operate or manage other businesses or investment ventures of every kind and description for their own account or jointly with others; provided that such business or investment venture is not directly competing with the business of the Company. Except as otherwise provided herein, neither the Company nor any Insider shall have any right, by virtue of this Agreement, in or to such other business or investment venture or the revenue or profits derived therefrom.

Section 3.10 Qualifications of Members

Each Member, to the extent required by applicable law, shall be an “Accredited Investor,” as defined in Regulation D promulgated under the Securities Act. Each Member shall be required to comply with and be in compliance with the regulations and rules promulgated, from time to time, by the State of Delaware, and agrees to either cure any breach of those relegations and rules, or sell their shares, if notified by the Company of any non-compliance with current regulations or rules of the State of Delaware.

Section 3.11 No Interest in Company Property

No real or personal property of the Company shall be deemed to be owned by any Member individually, but shall be owned by, and title shall be vested solely in, the Company. Without limiting the foregoing, each Member hereby irrevocably waives during the term of the Company any right that such Member may have to maintain any action for partition with respect to the property of the Company.

Section 3.12 Telephonic Meetings

The Members may participate in any regular or special meeting of the Members by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other.

Section 3.13 Action by Consent

Except as is otherwise specifically provided for herein, any action which may be taken at a meeting of the Members may be taken without a meeting if a consent or consents in writing, setting forth the action so taken, shall be signed by the Members who would be entitled to vote at such meeting and shall be filed with the records of proceedings of the Members of the Company.

Section 3.14 No Participation in Management.

Management of the business and affairs of the Company shall be vested in the Manager as provided in Article 4. The Members (in their respective capacity as such) and Economic Interest Holders, will have no power to participate in the management of the Company, except as expressly provided in this Agreement or the Certificate of Formation or expressly required by the Act. Except as provided in this Agreement, the approval or consent of the Members will not be required in order to authorize the taking of any action by the Company, and the Members will have no right to reject, overturn, override, veto or otherwise approve, consent or pass judgment upon any action taken by the Company or any authorized officer of the Company, in each case, unless and then only to the extent that (a) such approval or consent is expressly required by this Agreement, the Certificate of Formation or the Act or (b) the Manager has determined in its sole discretion that requiring such approval or consent would be appropriate or desirable. No Member, acting in the capacity of a Member, is an agent of the Company, nor will any Member, unless expressly authorized in writing to do so by the Manager, have any right, power or authority to bind or act on behalf of the Company in any way, to pledge its credit, to execute any instrument on its behalf or to render it liable for any purpose.

ARTICLE 4

MANAGEMENT OF THE COMPANY; MANAGER

Section 4.1 Manager

(a)               The business and affairs of the Company shall be managed by or under the direction of the Manager, which shall be Roc Digital Mining Manager LLC, a Delaware limited liability company.

(b)               To the extent applicable, in order to secure the obligations of each Member who now or hereafter holds any voting securities to vote such Member’s Units in accordance with the provisions of this Section 4.1, each Member hereby acknowledges and agrees to the grant of the power of attorney set forth in Section 16.6.

Section 4.2 Election of Manager; Terms; Voting

The Manager shall hold office until it no longer owns any of the issued and outstanding Class A Units, at which time, upon a vote of the majority of the Class A Members, a new Manager may be appointed.

Section 4.3 Compensation of Manager

(a)            As compensation for its services, Roc Digital Mining LLC, an Affiliate of the Manager, shall receive on a monthly basis compensation for services rendered or to be rendered at a rate equal to three percent (3.0%) of the Company’s monthly gross revenue, with a minimum fee of $10,000 per month and a maximum fee of $15,000 per month (the “Project Service Fee”). The Project Service Fee will be payable monthly in arrears commencing at the end of the first month of operations. The Project Service Fee shall be prorated for any partial month and shall be payable in monthly installments.

(b)            As compensation for its services, Roc digital Mining LLC shall receive a 1% acquisition and development fee, calculated as follows: one-time fee paid from the Company’s initial capital in an amount not to exceed one percent (1.0%) of the cost of the total assets acquired (the “Acquisition Fee”).

Section 4.4 Management of Manager

The Manager’s authority to act on behalf of the Company shall be subject to the limited liability company agreement or other governance documents of the Manager.

Section 4.5 Regular Meetings

The Manager shall hold such regular meetings at such times and places as it may determine.

Section 4.6 Special Meetings

The Manager shall have the right to hold such special meetings at such times and places as it may determine, to be designated in the notice of such meeting.

Section 4.7 Action by Consent

Except as is otherwise specifically provided for herein, any action which may be taken at a meeting of the Manager may be taken without a meeting if a consent or consents in writing, setting forth the action so taken, shall be signed by the Manager who would be entitled to vote at such meeting and shall be filed with the records of proceedings of the Manager of the Company.

Section 4.8 Telephonic Meetings

The Manager may participate in any regular or special meeting of the Manager by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other.

Section 4.9 Quorum; Requisite Vote

Except as is otherwise specifically provided for herein, the Manager in office shall be necessary to constitute a quorum for the transaction of business and the acts of the Manager present at a meeting at which a quorum is present shall be the acts of the Manager.

Section 4.10 Interested Manager, Member or Officer Contracts

(a) No contract or other transaction between the Company and (a) one or more of its Members, Manager, officers or Affiliates thereof (collectively, “Insiders”) or (b) any other entity in which one or more Insiders of the Company is an equity holder, director, manager or officer or has a financial interest, shall be void or voidable solely (i) for such reason, (ii) because such Insider is present at or participates in the meeting of the Members or Manager, as applicable, at which such contract is authorized or (iii) because the vote of such officer, Manager or Member is counted at the meeting of the Members or Manager, as applicable, at which such contract is authorized, if the Manager approves such transaction and one of the following conditions is satisfied:

Persons so interested may be counted when present at meetings of the Members or the Manager, as applicable, for the purpose of determining the existence of a quorum.

(b)        To the extent the Manager appoints any of its members to be officers of the Company, nothing in this Agreement shall prevent such persons from receiving a salary or other compensation from the Company.

Section 4.11 Removal or Replacement of Manager

The Manager, or whomever is authorized to act on its behalf, may only be removed or replaced by (i) the unanimous vote of the disinterested holders of Class A Units, which may then vote on a replacement Manager, to be elected by the unanimous vote of the disinterested holders of Class A Units, or (ii) the vote of the majority of the holders of Non-Class A Units, voting as a single class, if the Manager, or whomever is authorized to act on its behalf, is found by a court of competent jurisdiction to commit fraud, gross negligence or willful misconduct.

Section 4.12 Scope of Authority of Manager

Unless otherwise required by the Act or the express provisions of this Agreement, or the governance documents of the Manager, the Manager shall have the exclusive power and authority to manage the day-to-day business and affairs of the Company, and to carry out and exercise any and all of the purposes and powers of the Company set forth in Sections 2.6 and 2.7, without the necessity of a meeting of the Members including, without limitation, the power to:

(i)          open, maintain and close bank accounts and draw checks or other orders for the payment of money;

(ii)         effect a Capital Transaction of the Company or authorize a Liquidation Event of the Company;

(iii)        make a selection of any mining pool, custodian, exchange or broker for holding earned bitcoin and converting mined Bitcoin into USD, and agree to the terms and conditions of any contract with a mining pool, custodian, exchange or broker;

(iv)        make a selection of specialized computers and other mining equipment purchases and replacement computers or equipment) and the terms and conditions of the purchase agreement for such chips or other mining equipment;

(v)         make any material decisions regarding the use of the hash rate generated by any data centers of the Company and any conversion of generated hash rate into Bitcoins, including liquidation strategies or entering into agreements to pledge or encumber such hash rate or any mined Bitcoins;

(vi)        receive, acknowledge receipt for, account for, deposit, dispose of and/or otherwise handle all securities, checks, money and other assets or liabilities of the Company;

(vii)       the acquisition of any material asset or material property by the Company in an amount greater than that provided in any budget or annual operating plan, as applicable;

(viii)      hire employees, bankers, attorneys, accountants, consultants, custodians, contractors and other agents, and pay them reasonable compensation;

(ix)         maintain one or more offices within or without the State of Delaware and in connection therewith rent or acquire office space and do such other acts as may be advisable in connection with the maintenance of such offices;

(x)          obtain any and all types of insurance;

(xi)         negotiate, enter into, re-negotiate, extend, renew, terminate, modify, amend, waive, execute, acknowledge or take any other action with respect to any lease, contract, security, interest or other agreement or undertaking in respect of any of the Company's assets or liabilities;

(xii)        request additional Capital Contributions from existing Members pursuant to Section 9.6(a) herein;

(xiii)       borrow money and issue evidences of indebtedness and guaranty indebtedness and to secure the same by mortgage, pledge or other lien on the assets of the Company;

(xiv)      pay, collect, compromise, litigate, arbitrate or otherwise adjust or settle, any and all other claims or demands of or against the Company or to hold such proceeds against payment of contingent liability;

(xv)       settlement, compromise, submission to arbitration;

(xvi)      issue new non-Class A Units to an existing Member or other Person in the Initial Offering or other securities pursuant to Section 9.6(a) herein;

(xvii)     form any subsidiary and the ownership structure of any subsidiary of the Company, and the terms and provisions of the organizational documents and governing agreements of such entity;

(xviii)    make, execute, acknowledge and file any and all documents or instruments necessary, convenient or incidental to the accomplishment of the purposes of the Company;

(xix)       enter into any agreement that requires consideration for goods or services payable by or to the Company;

(xx)        pay, remit, reimburse or otherwise disburse fees, expenses, and other payment obligations incurred by the Company;

(xxi)       the investment of any Company funds;

(xxii)      upon the liquidation of the Company, the appointment of one or more Persons to act as the liquidator of the Company;

(xxiii)     conduct marketing, advertising or public relations efforts or campaigns of the Company, including, without limitation, developing, hosting and maintaining internet websites;

(xxiv)     design the logo and web site design;

(xxv)      prepare and update financial reports and forecasts;

(xxvi)     provide regular updates on progress to the Members;

(xxvii)    make any determination of Fair Market Value;

(xxviii)   obtain all required licenses needed to conduct the purposes of the Company; and

(xxix)       do any and all acts required of the Company with respect to its interest in any other Person.

No Member, unless such Member is the Manager, shall have any power or authority to manage the business or affairs of the Company.

Section 4.13 Other Activities

The Insiders, other than the Manager and Officers of the Company, and their respective Affiliates may engage in, possess interests in, own, operate or manage other businesses or investment ventures of every kind and description for their own account or jointly with others. Except as otherwise provided herein, neither the Company nor any Insider shall have any right, by virtue of this Agreement, in or to such other business or investment venture or the revenue or profits derived therefrom.

Section 4.14 Waiver of Fiduciary Duties. 

This Agreement is not intended to create or impose any fiduciary duty on any of the Manager or its Affiliates. Notwithstanding anything to the contrary contained in this Agreement or otherwise applicable provision of law or equity, to the maximum extent permitted by the Act and any other Applicable Law, the Manager and its Affiliates, shall owe no duties or liabilities (including fiduciary duties) to the Company or any Member; provided, however that the Manager shall have the duty to act in accordance with the implied contractual covenant of good faith and fair dealing; and provided further that such exclusion or limitation of liability shall not extend to misappropriation of assets or funds of the Company. The provisions of this Agreement, to the extent that they restrict or otherwise modify, or eliminate, the duties and liabilities, including fiduciary duties, of the Manager otherwise existing at law or in equity, are agreed by the Company, the Members and the Manager to replace such other duties and liabilities of the Manager. Any standard of care or duty imposed by or under the Act or any other law, rule or regulation (or any judicial decision based on or interpreting the same) shall be modified, waived or limited, to the extent permitted by law, as required to permit the Manager to act under this Agreement and to make any decision the Manager is authorized to make hereunder, as long as such action or decision complies with the standard of conduct set forth in this Section 4.14 of this Agreement and is in accordance with the other provisions of this Agreement. The Members expressly acknowledge and agree that this modification of fiduciary duties is binding.

Section 4.15 Expenses Borne by the Company. 

(a)               The Company shall bear all expenses to operate the Company, including, without limitation:

(b)               The Company shall not bear any employment costs of management or officers of the Company.

ARTICLE 5

OFFICERS

Section 5.1 Number and Election

The Manager may appoint a President, a Treasurer and a Secretary, and may appoint such other officers and agents as the Manager may deem appropriate in its discretion. Any such officers shall have the authority of the Manager to act on behalf of and to bind the Company to the full extent of the Manager’s delegation of authority to such officers.

Section 5.2 Qualifications

A Person may hold more than one office. An officer may, but need not, be a Member of the Company.

Section 5.3 Term of Office

Each officer shall hold office until the end of the term for which such officer is appointed and until his or her successor shall have been elected, or until such Person's earlier death, resignation or removal.

Section 5.4 Chief Executive Officer, Chief Operating Officer and Chief Financial Officer

The Manager may appoint a Chief Executive Officer, Chief Operating Officer and Chief Financial Officer, such officers to have the authority of the Manager to act on behalf of and to bind the Company to the full extent of the Manager’s delegation of authority to such officers.

Section 5.5 President

The President shall supervise generally and have executive powers concerning all of the operations of the Company and shall perform all duties incident to the office of the President including, without limitation, exercise of general operating powers concerning all the property, business and affairs of the Company. The President shall be charged with carrying out the policies, programs, orders and resolutions adopted or approved by the Manager, and shall have all powers and perform all duties incident to the office, and any further powers and duties as from time to time may be prescribed by the Manager. The President shall report to the Manager.

Section 5.6 Vice President

In the absence of the President, the Vice President shall perform the duties of the President. The Vice President shall report to the Manager and shall have any further powers and duties as from time to time may be prescribed by the Manager.

Section 5.7 Treasurer

The Treasurer shall be the chief financial officer of the Company and shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the Company, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital and shares. The Treasurer shall have custody of the funds and securities of the Company and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all monies and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Manager or the President of the Company. The Treasurer shall have such other powers and perform such other duties as may from time to time be prescribed by the President or the Manager.

Section 5.8 Secretary

The Secretary shall attend meetings of the Members, keep minutes thereof and Company documents and materials in suitable books, and in general, perform all duties incident to the office of Secretary.

Section 5.9 Initial Officers.

The Manager may appoint a President, Chief Executive Officer, a Treasurer, and a Secretary, and may appoint such other officers and agents as the Manager may deem appropriate. Any such officers shall have the authority of the Manager to act on behalf of and to bind the Company to the full extent of the Manager’s delegation of authority to such officers.

Section 5.10 Other Activities

Except as otherwise provided herein, the officers of the Company, the Manager, and their respective Affiliates may engage in, possess interests in, own, operate or manage other business or investment ventures of every kind and description for their own account or jointly with others. No transaction or contract to which the Company is or may be a party, shall be void, voidable or a breach of fiduciary duty for reason that the Manager, any Member or any Affiliate of the Manager, or any Member, is a party thereto. The Company, Manager and Members hereby agree that, to the extent permitted under applicable law, the Company, the Manager, and their respective Affiliates shall not be liable to the Company for any claim arising out of, or based upon, (i) the investment by such party in any entity competitive with the Company, or (ii) actions taken by any partner, officer or other representative of such party to assist any such competitive company, whether or not such action was taken as a member of the board of directors of such competitive company or otherwise, and whether or not such action has a detrimental effect on the Company; provided, however, that the foregoing shall not relieve any such party from liability associated with the unauthorized disclosure of the Company’s confidential information obtained pursuant to this Agreement. Except as otherwise provided herein, neither the Company nor any Insider shall have any right, by virtue of this Agreement, in or to such other business or investment venture or the revenue or profits derived therefrom.

Section 5.11 Salaries of Officers

The Manager shall determine and set salaries and other compensation for the Company’s officers. Officers of the Company may be entitled to a salary and other compensation regardless if he or she is a member of the Manager.

ARTICLE 6

EXECUTION OF DOCUMENTS

Section 6.1 Checks, Etc.

The Manager, or with its approval, one or more officers, may from time to time designate such employees, persons, entities, officers or agents who shall have power on behalf of the Company, in its name, to sign and endorse checks and drafts and to authorize the wire transfers of funds.

Section 6.2 Other Documents.

Unless otherwise authorized in writing by the Manager, all contracts, leases, deeds, deeds of trust, mortgages, negotiable instruments, powers of attorney to transfer the equity interests of Members and for other purposes, and all other documents requiring the authorization of the Manager of the Company shall be executed for and on behalf of the Company by the Person(s) designated in the Certificate, or if no Persons are so designated, by an officer or the Manager or by one (1) or more other Persons designated in writing by the Manager.

ARTICLE 7

UNIT CERTIFICATES AND TRANSFERS

Section 7.1 Unit Certificates

Units, which shall represent the limited liability company ownership interests of the Members in the Company, shall be uncertificated, unless the Manager determines Units shall be evidenced by a certificate, in such form as the Manager may from time to time determine. Each certificate representing Units in the Company now or hereafter issued shall include a conspicuous legend, stating that the certificate and the rights represented by the certificate, including, without limitation, all rights to transfer such certificate, are subject to the terms of this Agreement, as it may be amended from time to time, and such other legend(s) as the Manager may deem to be appropriate.

Section 7.2 Loss or Destruction of Unit Certificates

In case of loss or destruction of a Unit certificate, no new certificate shall be issued in lieu thereof except upon satisfactory proof to the Manager or its designee of such loss or destruction, which proof may be in the form of an affidavit signed under the penalties of perjury and upon the giving to the Company of satisfactory security or indemnity against loss, by bond or otherwise, if such security or indemnity is deemed appropriate by the Manager. Any such new certificate shall be plainly marked “Duplicate” upon its face.

Section 7.3 Transfers of Units

(a)       Restrictions on the Transfer of Interests. Notwithstanding anything to the contrary contained herein, all classes of Units held or controlled by the Class A Member or an Affiliate shall be freely transferrable and shall not be subject to Sections 7.4 and 7.5 (the “Class A Transfer Exception”). Subject to the Class A Transfer Exception and the exceptions below, no non-Class A Member (or an Affiliate) may Transfer any portion of any Units to any other Person without the prior consent of the Manager, which consent may be granted or withheld for any or no reason. Notwithstanding anything to the contrary contained herein, including, without limitation, the provisions of Sections 7.4 and 7.5, any Member may Transfer all or a portion of its Units (the following, each, a “Permitted Transfer”): (w) to another Member, (x) in the case of a Member who is a natural person, to (i) such Member's Relative, (ii) any trust, limited partnership, limited liability or other company primarily for the benefit of a Relative, (iii) any trust, limited partnership, limited liability or other company the beneficial owner of which includes only such Member, or (iv) any trust, limited partnership, limited liability or other company which is controlled directly or indirectly by such Member; (y) in the case of a Member who is not a natural person, to any shareholder, partner, parent, subsidiary, equity holder or Affiliate of such Member; or (z) to another natural person or entity upon approval by the Manager; provided that any such transferee under clauses (w), (x), (y) or (z) immediately above shall agree in writing to be bound by, and the Units so transferred shall remain subject to, the terms and conditions of this Agreement; provided, however, that with respect to (w), (x), and (y) above, such Transfer under this Section 7.3 may be affected without, in each case, the necessity of obtaining the prior consent of the Manager, but subject to delivering prior written notice to the Manager; provided, further, that any proposed Transfer under this Section 7.3 must meet the following conditions unless so waived by the Manager, which conditions are intended, among other things, to ensure compliance with the provisions of applicable laws:

(b)       Admission of Transferee as Member. Any transferee of all or any part of the Member's Units pursuant to the terms of this Article 7 shall be admitted to the Company as a substitute Member (and, to the extent applicable, a member of the Company for purposes of the Act; provided, however, that any transferee of an Economic Interest shall not constitute or otherwise be deemed a member of the Company for purposes of the Act). In such event, such substitute Member shall, to the extent of such transfer, succeed to the Capital Account, rights and obligations hereunder of the Member making such transfer.

(c)       Effective Date of Transfer. The Manager may, in its sole discretion, permit a Transfer to become effective as of the first day of the Accounting Period following such Transfer.

(d)       No Dissolution. Admission of a substitute Member shall not be a cause for dissolution of the Company.

(e)       Attempted Transfer in Violation of Agreement. Any purported transfer of any Units, in whole or in part, not made in accordance with this Article 7 shall be null and void ab initio and the Manager and all Members are authorized to continue to treat the purported transferor as a Member for all purposes of this Agreement.

(f)       No Admission. No Person shall be admitted as a Member if (i) such admission will cause the Company to be classified as other than a partnership for Federal income tax purposes; (ii) such admission will constitute a violation of any applicable registration provisions of the Securities Act or any other applicable State or Federal securities laws; (iii) if such admission will cause the Company to lose, or pose a potential risk to the Company of losing, any licenses, permits or approvals held by or is in the process of being held by the Company (iv) such Person is not an accredited investor; or (v) such Person is prohibited from admission under any other applicable State or Federal laws, regulations, ordinances, or rules.

(g)       No Transfers to Prohibited Persons. No Member may Transfer, in whole or in part, its Units, or any interest therein or Units thereunder, to (i) a minor or incompetent, unless by will or intestate succession, (ii) any Person with a conviction or plea of nolo contendere of a felony or crime involving moral turpitude or civil judgment for fraud or larceny, (iii) any Person that may interfere with the ability of the Company or any of its Affiliates to conduct its business, or (iv) any foreign agents. As determined by the Manager in its sole discretion, subject to applicable law, any proposed Transferee may be required to undergo a background check in advance of admission as a Member to the Company.

(h)       No Transfers to Competitors. No Member may Transfer, in whole or in part, its Membership Interest, Economic Interest, or any interest therein or Units thereunder, to any other Person engaged, or who reasonably anticipates engaging, directly or indirectly, in whole or in part, in the business, in any state in which the Company, the Manager, or any of their respective Affiliates currently does business in or reasonably anticipates it might do business in in the future (a “Competitor”); provided that a Competitor shall not include a Person that owns, directly or indirectly, up to 4.9% of the aggregate voting securities of any Competitor.

Section 7.4 Right of First Offer

(a)       In the event that at any time any Non-Class A Member (a “ROFO Selling Member”) desires to Transfer its Units but has not received an offer from a third-party, the ROFO Selling Member shall provide written notice (the “ROFO Sale Notice”) of such desire to Transfer its Units to all other Members. The ROFO Sale Notice shall include the terms under which the ROFO Selling Member would be willing to sell such Units, including, without limitation, the purchase price for such Units (the “ROFO Sale Terms”). Each Member, subject to the last sentence of this Section 7.4(a), shall have the exclusive right, not more than thirty (30) days after receipt of the ROFO Sale Notice (during which time the ROFO Selling Member may not sell such Units), to either: (i) decline to purchase such Units from the ROFO Selling Member, or (ii) provide to the ROFO Selling Member a written notice (the “ROFO Acceptance”) stating that the other Member, subject to the following sentence (a “ROFO Purchasing Member”), has agreed to acquire the Units of the ROFO Selling Member in accordance with the ROFO Sale Terms. For the avoidance of doubt, each Member may purchase Units under this Section 7.4; provided that the Class A Member shall have preference over Non-Class A Members with respect to the right to purchase all or any of such Units. With respect to any right to purchase hereunder, the Class A Member may assign its rights to make any such purchase hereunder to one or more of its existing Members, or any entity comprised entirely of existing members of the Class A Member.

(b)       If a ROFO Acceptance is given by a ROFO Purchasing Member to the ROFO Selling Member as provided in Section 7.4(a) above, the ROFO Selling Member shall sell the subject Units to the ROFO Purchasing Member pursuant to the ROFO Sale Terms. If more than one ROFO Purchasing Member delivers a ROFO Acceptance, each such ROFO Purchasing Member shall be allocated its Pro Rata Portion of the offered Units, unless otherwise agreed by such ROFO Purchasing Members. For the purposes of this Section 7.4, “Pro Rata Portion” means, with respect to any eligible ROFO Purchasing Member, on the date of the ROFO Sale Notice, the number of Units equal to the product of: (A) the total number of offered Units, and (B) a fraction determined by dividing: (y) the number of Units owned by such ROFO Purchasing Member by (z) the total number of Units owned by all of the ROFO Purchasing Members.

(c)        Failure of all other Members to deliver the ROFO Acceptance within thirty (30) days of their receipt of the ROFO Sale Notice shall be deemed to be an election by the other Members not to purchase the Units of the ROFO Selling Member as provided pursuant to Section 7.4(a). In the event the other Members elect not to purchase such Units of the ROFO Selling Member, the ROFO Selling Member may then sell such Units to any third-party purchaser (a “ROFO Third-Party Purchaser”), provided that such sale to the ROFO Third-Party Purchaser is pursuant to terms not less favorable than the ROFO Sale Terms, as certified to the other Members by the ROFO Selling Member. If the ROFO Selling Member desires to sell the applicable Units to a ROFO Third-Party Purchaser on terms less favorable than the ROFO Sale Terms provided to the other Members, the ROFO Selling Member may not sell such Units without first providing the other Members with a revised ROFO Sale Notice and complying with the terms and provisions of this Section 7.4. The time period for the other Members to review and accept or deny such revised ROFO Sale Terms shall be fifteen (15) days after receipt of the revised ROFO Sale Notice. Any permitted Transfer of Units to a ROFO Third-Party Purchaser under this Section 7.4(c) shall be subject to such ROFO Third-Party Purchaser's compliance with Section 7.3 hereof in all respects.

(d)       Notwithstanding the foregoing, this Section 7.4 shall not apply and a Member shall not have the right to purchase the Units of the other Member in connection with a Permitted Transfer.

Section 7.5 Right of First Refusal

(a)        In the event that a Non-Class A Member receives an offer from a third party to purchase any or all of the Member's Units (a “ROFR Third-Party Purchaser”), such Member (the “ROFR Selling Member”) shall provide written notice (the “ROFR Sale Notice”) to all other Members stating the terms of such proposed sale, including, without limitation, the purchase price for such Units (the “ROFR Sale Terms”), and including copies of all materials (including, without limitation, a signed term sheet) with respect to such proposed sale. Each Member, subject to the last sentence of this Section 7.5(a), shall have the exclusive right, not more than thirty (30) days after receipt of the ROFR Sale Notice (during which time the ROFR Selling Member may not sell such Units to the ROFR Third-Party Purchaser), to either: (i) decline to purchase such Units from the ROFR Selling Member, or (ii) provide to the ROFR Selling Member a written notice (the “ROFR Acceptance”) stating that the other Member, subject to the following sentence (a “ROFR Purchasing Member”), has agreed to acquire the Units of the ROFR Selling Member in accordance with the ROFR Sale Terms. For the avoidance of doubt, each Member may purchase Units under this Section 7.5; provided that the Class A Member shall have preference over Non-Class A Members with respect to the right to purchase all or any of such Units. With respect to any right to purchase hereunder, the Class A Member may assign its rights to make any such purchase hereunder to one or more of its existing Members, or any entity comprised entirely of existing members of the Class A Member.

(b)       If a ROFR Acceptance is given by a ROFR Purchasing Member to the ROFR Selling Member as provided in Section 7.5(a) above, the ROFR Selling Member shall sell the subject Units to the ROFR Purchasing Member pursuant to the ROFR Sale Terms. If more than one ROFR Purchasing Member delivers a ROFR Acceptance, each such ROFR Purchasing Member shall be allocated its Pro Rata Portion of the subject Units, unless otherwise agreed by such ROFR Purchasing Members. For the purposes of this Section 7.5, “Pro Rata Portion” means, with respect to any eligible ROFR Purchasing Member, on the date of the ROFR Sale Notice, the number of Units, equal to the product of: (A) the total number of offered Units and (B) a fraction determined by dividing: (y) the number of Units owned by such ROFR Purchasing Member by (z) the total number of Units owned by all of the ROFR Purchasing Members.

(c)        Failure of all other Members to deliver the ROFR Acceptance within thirty (30) days after receipt of the ROFR Sale Notice shall be deemed to be an election by the other Members not to purchase the Units of the ROFR Selling Member as provided pursuant to Section 7.5(a). In the event the other Members elect not to purchase such Units of the ROFR Selling Member, the ROFR Selling Member may then sell such Units to the ROFR Third-Party Purchaser, provided that such sale to the ROFR Third-Party Purchaser is pursuant to terms not less favorable than the ROFR Sale Terms, as certified to the other Member by the ROFR Selling Member. If the ROFR Selling Member desires to sell the applicable Units to a ROFR Third-Party Purchaser on terms less favorable than the ROFR Sale Terms provided to the other Members, the ROFR Selling Member may not sell such Units without first providing the other Members with a revised ROFR Sale Notice and complying with the terms and provisions of this Section 7.5. The time period for the other Members to review and accept or deny such ROFR Sale Terms shall be fifteen (15) days after receipt of such revised ROFR Sale Notice. Any Permitted Transfer of Units to a ROFR Third-Party Purchaser under this Section 7.5(c) shall be subject to such ROFR Third-Party Purchaser's compliance with Section 7.3 hereof in all respects.

(d)       Notwithstanding the foregoing, this Section 7.5 shall not apply and a Member shall not have the right to purchase the Units of the other Members in connection with a Permitted Transfer.

Section 7.6 Drag-Along Rights

(a)        Definitions. A “Sale of the Company” shall mean, subject to unanimous approval by the Class A Members, either: (i) a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from the holders of Units representing more than fifty percent (50%) of the outstanding voting power of the Company (a “Unit Sale”); or (b) a transaction that qualifies as a Capital Transaction.

(b)       Actions to be Taken. In the event that the Class A Members approve a Sale of the Company in writing, specifying that this Section 7.6(b) shall apply to such transaction, then the Class A Members shall have the right to require that each other Member, including all of the Class B Members and the Company, hereby agree:

(i)              with respect to all Units that such Member owns or over which such Member otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Units in favor of, and adopt, such Sale of the Company (together with any related amendment to this Agreement required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;

(ii)            if such transaction is a Unit Sale, to sell the same proportion of Units beneficially held by such Member as is being sold by the selling Member(s) (the “Selling Members”) to the Person to whom the Selling Members propose to sell their Units, and, except as permitted in Section 7.6(b)(iii) below, on the same terms and conditions as the Selling Members;

(iii)           to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Members in order to carry out the terms and provision of this Section 7.6(b)(iii), including executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, and any similar or related documents;

(iv)           not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Units owned by such party or Affiliate in a voting trust or subject any Units to any arrangement or agreement with respect to the voting of such Units, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;

(v)            to refrain from exercising any dissenters’ rights or rights of appraisal under Applicable Law at any time with respect to such Sale of the Company;

(vi)           if the consideration to be paid in exchange for the Units pursuant to this Section 7.6(b)(iv) includes any securities and due receipt thereof by any Member would require under Applicable Law (A) the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities; or (B) the provision to any Member of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Member in lieu thereof, against surrender of the Units which would have otherwise been sold by such Member, an amount in cash equal to the fair value (as determined in good faith by the Manager) of the securities which such Member would otherwise receive as of the date of the issuance of such securities in exchange for the Units; and

(vii)          in the event that the Selling Members, in connection with such Sale of the Company, appoint a Member representative (the “Member Representative”) with respect to matters affecting the Members under the applicable definitive transaction agreements following consummation of such Sale of the Company, (A) to consent to (1) the appointment of such Member Representative, (2) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (3) the payment of such Member’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Member Representative in connection with such Member Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Members, and (B) not to assert any claim or commence any suit against the Member Representative or any other Member with respect to any action or inaction taken or failed to be taken by the Member Representative in connection with its service as the Member Representative, absent fraud or willful misconduct.

(c)       Exceptions. Notwithstanding the foregoing, a Member will not be required to comply with Section 7.6(a) above in connection with any proposed Sale of the Company (the “Proposed Sale”), unless:

(i)             any representations and warranties to be made by such Member in connection with the Proposed Sale made in respect of such Member and such Member’s ownership of Units are limited to those representations and warranties also provided by all other Members related to authority, ownership and the ability to convey title to such Units, including representations and warranties that (A) the Member holds all right, title and interest in and to the Units such Member purports to hold, free and clear of all liens and encumbrances; (B) the obligations of the Member in connection with the transaction have been duly authorized, if applicable; (C) the documents to be entered into by the Member have been duly executed by the Member and delivered to the acquirer and are enforceable against the Member in accordance with their respective terms; and (D) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Member’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;

(ii)            the Member shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Member of any of identical representations, warranties and covenants provided by all Members);

(iii)           the liability for indemnification, if any, of such Member in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Members in connection with such Proposed Sale made in respect of the Company, whether several or joint and several with any other Person (and with any funds to be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Member of any of identical representations, warranties and covenants provided by all Members), and subject to the provisions of this Agreement related to the allocation of the escrow, does not exceed the amount of consideration paid to the Members in connection with such Proposed Sale;

(iv)           upon the consummation of the Proposed Sale (A) each holder of each class or series of Units will receive the same form of consideration for their Units of such class or series as is received by other holders in respect of their Units of such same class or series; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for any Units pursuant to this Section 7.6(c)(iv) includes any securities and due receipt thereof by any Member would require under Applicable Law (1) the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities; or (2) the provision to any Member of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Member in lieu thereof, against surrender of the Units which would have otherwise been sold by such Member, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Member would otherwise receive as of the date of the issuance of such securities in exchange for the Units; and

(v)            subject to clause (iv) above, requiring the same form of consideration to be available to the holders of any single class or series of Units, if any holders of any Units are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such Units will be given the same option; provided, however, that nothing in this Section 7.6(c) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Members.

ARTICLE 8

INDEMNIFICATION OF MEMBERS, OFFICERS AND OTHERS

Section 8.1 Indemnification

To the fullest extent permitted under Applicable Law, the Company shall severally indemnify and hold harmless any Person, including, but not limited to, the Manager and its Affiliates (an “Indemnified Party”), who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (including any action by or in the right of the Company) by reason of or arising from any acts or omissions (or alleged acts or omissions) on behalf of the Company or in furtherance of the interests of the Company arising out of the Indemnified Party’s activities as a Manager, Tax Matters Representative, officer, employee, trustee or agent of the Company against losses, damages or expenses (including reasonable attorneys’ fees, judgments, fines and amounts paid in settlement) actually and reasonably incurred by such Indemnified Party in connection with such action, suit or proceeding and for which such Indemnified Party has not otherwise been reimbursed, so long as such Indemnified Party did not act in bad faith or in a manner constituting gross negligence or willful misconduct or materially breach this Agreement. The termination of any action, suit or proceeding by judgment, order, settlement or upon a plea of nolo contendere or its equivalent shall not of itself (except insofar as such judgment, order, settlement or plea shall itself specifically provide) create a presumption that the Indemnified Party acted in bad faith or in a manner constituting gross negligence or willful misconduct or materially breached this Agreement.

Section 8.2 Advance Payment

Subject to the determination of the Manager in its sole discretion, the right to indemnification provided for in this Article 8 may include the right to be paid or reimbursed by the Company, the reasonable expenses incurred by a Person of the type entitled to be indemnified under Section 8.1, in advance of the final disposition of any such actions, suit or proceeding and without any determination as to the Person's ultimate entitlement to indemnification; provided that the payment of such expenses incurred by any such Person in advance of the final disposition shall be made only upon delivery to the Company of a written affirmation of such Person of his or her good faith belief that such Person has met the standard of conduct necessary to be indemnified under this Article 8 and a written undertaking in form and substance acceptable to the Manager by or on behalf of such Person to repay all amounts so advanced if it shall ultimately be determined that such indemnified person is not entitled to be indemnified under this Article 8 or otherwise.

Section 8.3 Non-Exclusivity of Article 8

The indemnification provided by this Article and/or the Certificate of the Company shall not be deemed exclusive of nor deemed to exclude any other rights (whether arising under any indemnification agreement, under applicable law, or otherwise) to which those seeking indemnification may be entitled, and shall continue as to a Person who has ceased to be a Manager, employee, counsel or agent of the Company and shall inure to the benefit of the heirs, executors and administrators of such Person.

Section 8.4 Insurance

The Company may, but is not obligated to, purchase and maintain insurance, at its expense, to protect itself, any Person entitled to indemnification hereunder and any other employee or agent of the Company or any Affiliate, whether or not the Company would have the power to indemnify such Person against such expense liability or loss under this Article 8. 

Section 8.5 Exculpation

Notwithstanding any other provision of this Agreement, no officer, counsel or Manager of the Company shall be liable to the Company or to any Member or third-party for any act or failure to act undertaken in good faith with the reasonable belief that such act or failure to act was in the best interest of the Company and its Members. It is the intent of the parties that the provisions of this Section 8.5 shall be enforceable to the maximum extent permitted by law.

Section 8.6 Savings Clause

If this Article 8 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless such person indemnified pursuant to this Article 8 as to cost, charges and expenses, including reasonable attorneys' fees, judgments, fines and amounts paid in settlement with respect to any suit, action or proceeding including any appeal thereof to the full extent permitted by any applicable portion of this Article 8 that shall not have been so invalidated and to the fullest extent permitted by applicable law.

ARTICLE 9

CAPITAL

Section 9.1 Authorized Capital and Units

(a)        Authorized Capital. As of the date hereof, the classes and number of issued and outstanding Units of Authorized Capital are as set forth on Exhibit A to this Agreement. The Manager may authorize the issuance of additional classes of Units.

(b)       Class A Units. The holder of Class A Units shall have the right to vote, on the basis of one vote per Class A Unit, on all matters of the Company. The holder of Class A Units shall have the rights to participate in Profits, Losses, and distributions of the Company in the manner set forth in this Agreement.

(c)        Non-Class A Units. The Non-Class A Members shall have the right to participate in Profits, Losses and Distributions of the Company in the manner set forth in this Agreement. Except as otherwise set forth in this Agreement or determined by the Manager in writing, all Non-Class A Units shall be Economic Interests and holders of Non-Class A Units shall be Economic Interest Holders. Except as specifically provided by the non-waivable provisions of the Act or this Agreement, the Non-Class A Members shall not be entitled to vote, shall not be entitled to undertake any activities on behalf of the Company, and shall not have any power to sign for or to bind the Company.

(d)       Class B Term. Upon expiration of the Class B Term, each Class B Member acknowledges and agrees that the Manager shall, in its discretion, elect at its sole option to (i) cause the Company to redeem all Class B Units in exchange for nominal consideration, or (ii) require the transfer of all Class B Units to the Manager in exchange for nominal consideration. Upon and contemporaneously with the foregoing, each Class B Member agrees that any and all rights and interests, including, without limitation, its Economic Interests, on account of its Class B Units shall immediately and automatically terminate.

Section 9.2 Capital Contributions

(a)        Class A Member. The Class A Member has made the Capital Contributions as set forth on Exhibit A to the Company in connection with the issuance of its Units.

(b)       Non-Class A Members. Each Non-Class A Member has paid to the Company the Capital Contribution in cash or other property valued at the Fair Market Value as set forth on Exhibit A to the Company in connection with the issuance of their Units.

(c)        Payment of Capital Contributions. As a condition precedent to the issuance of Units, and a subscriber being admitted to the Company as a new Member, such subscriber shall first make a contribution to the capital of the Company in an amount equal to its Capital Contribution. All Capital Contributions shall be made in cash, by certified check or by wire transfer of funds at the direction of the Manager, or in such assets, property, “convertible virtual currency,” digital assets, including other valuable consideration as the Manager may permit, to an account, to their cryptocurrency wallet address, or other payment designation directed by the Manager in accordance with such instructions provided by the Manager in writing. No Member shall be obligated, or have the right, to make capital contributions to the Company in excess of its Capital Contribution commitment.

Section 9.3 Capital Accounts

A Capital Account shall be maintained for each Member in accordance with Section 704 of the Code and the Treasury Regulations adopted thereunder. Without limitation of the foregoing, each such Capital Account shall be increased pursuant to the terms hereof, with the Member's Capital Contributions and with its share of the Profits, shall be decreased by its share of Losses and distributions, and shall otherwise appropriately reflect transactions of the Company and the Members. Profits, Losses and other Capital Account adjustments shall be determined in accordance with Treasury Regulations adopted under Section 704 of the Code.

Section 9.4 Withdrawals from Capital Accounts

No Member shall be entitled to receive interest on or to withdraw any amount from such Member Capital Account, other than as expressly provided herein.

Section 9.5 Issuance of Units and Other Securities

The Manager is authorized, subject to and requiring the unanimous approval of all Class A Members and the provisions of applicable law, the Company's Certificate and this Agreement, without any further action to issue Class B Units in the Initial Capital Contribution and Initial Offering.

Section 9.6 Additional Capital from Existing Members; Admission of New Members; Other Capital Raises; Dilution

(a)        Capital Calls; Preemptive Right. If the Manager determines in good faith that additional capital is required by the Company upon terms and conditions as shall be determined in the exercise of the business judgment of the Manager, subject to the unanimous vote of the Class A Members and the governance documents of the Manager, the Manager may determine to raise capital through the issuance of (i) additional Class B Units (in addition to the Class B Units issuable in the Initial Offering), (ii) a new class of Units, (iii) debt convertible into Class B Units or a new class of units (but only to the extent the Company is otherwise entitled to issue debt), (iv) options or warrants to purchase Class B Units or a new class of Units, or (v) any combination of the above, on such terms and conditions as the Manager determines to be reasonable, appropriate and in the best interests of the Company (a “Secondary Offering”). Upon determining to issue securities in a Secondary Offering, the Manager shall so notify the Non-Class A Members in writing, together with a statement of the amount of capital required, the reasons therefor and the terms upon which the Manager desires to raise such capital. Each of the Non-Class A Members may, but shall not be required to, subscribe to purchase additional securities in the Secondary Offering on a pro rata basis. If less than all of the securities are initially subscribed for by the Non-Class A Members (the “Initial Unsold Securities”), then the Manager shall offer the Initial Unsold Securities to the Non-Class A Members who initially subscribed for the securities in the Secondary Offering. If the Initial Unsold Securities are oversubscribed, then the Initial Unsold Securities shall be allocated among the Non-Class A Members who desire to participate in the Initial Unsold Securities on a pro rata basis based on their proportionate Capital Contributions in the Company prior to the commencement of the Secondary Offering. If less than all of the securities issuable in the Secondary Offering are purchased by the existing Non-Class A Members, then the Manager may offer the unsubscribed for securities to third parties. Capital contributions shall be due and payable within the period specified in the Manager’s written notice to the Members, or on such other terms as the Manager may reasonably determine to be necessary and appropriate.

(b)       Notwithstanding the foregoing, in no event shall this Section 9.6 apply to (i)) any issuance by the Company of indebtedness to institutional or commercial lenders, or (ii) any issuance of Units or other securities of the Company pursuant to acquisitions or strategic transactions approved by the Manager pursuant to this Agreement, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.

ARTICLE 10

PROFITS, LOSSES, DISTRIBUTIONS AND FEES

Section 10.1 Distributable Assets

For any particular period, the term “Distributable Assets” as used in this Agreement shall mean the aggregate cash receipts and digital assets collected by the Company (including, without limitation, sales in the ordinary course of business, interest income, proceeds from the sale of capital assets and the proceeds from any business interruption insurance, but excluding Capital Contributions from Members, proceeds of any debt financing and the proceeds of any casualty, life, or other insurance, unless otherwise determined by the Manager) less (i) the payment or accrual for payment of all current operating expenses; (ii) any debt service payments; (iii) provisions for the reasonable capital requirements of the Company, including working capital, appropriate to enable the Company to carry out its purposes, but disregarding depreciation, amortization and other noncash items; and (iv) the payment or accrual for payment of the Project Service Fee to Roc Digital Mining LLC. The Manager’s determination of Distributable Assets and its components, including, without limitation, the incurring of capital expenses and provisions for reasonable present or future capital requirements and appropriate investments and reinvestments of by or in Company, shall be conclusive, in the absence of bad faith.

Section 10.2 Distribution

(a)        Subject to the admission of additional Members and classes of Units, distributions of Distributable Assets shall be made by the Company to the Members if, when and in such amounts as determined in good faith by the Manager (except as provided in Section 10.2(a)(i)), as follows:

(b)       Distributions of Distributable Assets made only to a specific class of Members shall be made to the Members in such class in a pro rata manner in accordance with the number of Units held by all such Members in such class.

(c)        Distributions of Distributable Assets shall be made to Members of record as of the record date established by the Manager, provided that the record date may not be more than 60 days prior to the date of the distribution, and further provided that tax distributions governed by the provisions of Section 10.2(a)(i) shall be made to each Person who has been allocated Net Profits with respect to which the tax distribution relates, irrespective of whether such person is still a Member on the record date or the actual date of the tax distribution.

(d)       Notwithstanding anything to the contrary set forth in paragraph (a) of this Section 10.2, any Distributable Assets which arises during the dissolution or liquidation of the Company shall be distributed in accordance with Section 13.4 below.

(e)        The Company may make distributions in kind, which distributions will be allocated among the parties as provided in Section 10.2. Specifically, the Company may, in the discretion of the Manager, make distributions of bitcoin or cash generated from its business operations to the Members by directing the transfer of such bitcoin to a digital wallet account or bank account of the Member. For purposes of determining the dollar amount of a distribution in kind of bitcoin, the bitcoin will be valued at the price of the bitcoin as of 5:00 p.m., eastern time, each day, as reported by Coinbase (or if Coinbase is unavailable for quotes, an alternative exchange selected by Manager) to come up with the average monthly price of the bitcoin to be distributed. Unrealized gains and losses with respect to assets distributed in kind will be deemed to have been realized immediately before such distribution for all purposes of this Agreement.

Section 10.3 Allocation of Net Profits and Net Losses

(a)        Except as otherwise provided herein, each item of Net Profits and Net Losses of the Company (determined in accordance with U.S. federal income tax principles as applied to the maintenance of capital accounts) shall be allocated among the Capital Accounts of the Members as of the end of each Fiscal Year or as circumstances otherwise require or allow, in a manner that as closely as possible causes each Member’s Adjusted Capital Account balance to equal the amount that would be distributed to such member pursuant to Section 13.4 if the Company sold all of its assets for their Gross Asset Values, repaid all of its liabilities, and distributed the balance pursuant to Section 13.4.

(b)       For any Fiscal Year during which a Member’s Units in the Company is assigned by such Member (or by an assignee or successor in interest to a Member), the portion of the items of Net Profits and Net Losses that is allocable in respect of such Member’s interest shall be apportioned between the assignor and the assignee of such Member’s Interest using any permissible method under Code Section 706 and the Regulations thereunder, as determined by the Manager.

Section 10.4 Allocations to Comply With Regulations

In order to comply with the provisions of applicable Treasury Regulation, the following special allocations of income, gain, loss and expense shall be made notwithstanding the provisions of Section 10.3 hereof.

(a)       Deficit Capital Account Allocations Subject to the remaining provisions of this Section 10.4, in accordance with Treasury Regulation Section 1.704-1(b)(2), no allocation of expenses or losses shall be made pursuant to Section 10.3 hereof to the extent such allocation would cause or increase a net deficit balance in a Member's Capital Account as of the end of the period to which such allocation relates. Such expenses and losses shall instead be allocated among the other Members not subject to this limitation in accordance with the number of Units held by each. For purposes of this paragraph (a), the following rules shall apply:

(b)       Qualified Income Offset Provision. If a Member unexpectedly receives an adjustment, allocation or distribution under this Agreement which causes or increases a net deficit balance in such Member's Capital Account as of the end of the period to which such adjustment, allocation or distribution relates, such Member will be allocated items of income and gain in an amount and manner sufficient to eliminate such net deficit balance as quickly as possible. The rules set forth in subparagraph (a)(i) and (a)(ii) of this Section 10.4 shall apply for purposes of determining whether any adjustment, allocation or distribution would cause or increase a net deficit balance in any Member's Capital Account.

(c)        Minimum Gain Chargeback Provision. If there is a net decrease in the Minimum Gain of the Company (as determined pursuant to Treasury Regulation Section 1.704-2) during any period, then each Member shall be allocated items of income and gain in accordance with the provisions of Treasury Regulation Section 1.704-2.

(d)       Subsequent Allocations. Any special allocations of items of income, gain, loss or expense made pursuant to this Section 10.4 shall be taken into account in computing subsequent allocations of income, gain, loss and expense pursuant to Section 10.3 hereof, so that the net amount of any item of income, gain, loss and expense allocated to each Member pursuant to Section 10.3 hereof and this Section 10.4 shall, to the extent possible, be equal to the amount of such items of income, gain, loss and expense that would have been allocated to such Member pursuant to such sections if the special allocations of income, gain, loss or expense required by this Section 10.4 had not been made.

(e)        Interpretation of these Provisions. The provisions of subsections (a) through (d) (collectively, the “Regulatory Allocations”) of this Section 10.4 are intended to comply with the provisions of Treasury Regulation Sections 1.704-1(b)(2) and 1.704-2 and shall be interpreted consistently therewith. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, Profits, Loss, or deduction pursuant to this Section 10.4(e). Therefore, notwithstanding any other provision of this Agreement (other than the Regulatory Allocations), the Manager shall make offsetting special allocations of Company income, Profits, Losses or deductions in whatever manner it deems appropriate so that, after such offsetting allocations are made, each Member’s Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of this Agreement and all Company items were allocated pursuant to Section 10.3.

(f)        Holdback. A portion of the bitcoin mined may be retained in order to pay necessary monthly and annual expenses of the Company. Determinations of the amounts and such times to be held back shall be in the Manager’s sole discretion.

ARTICLE 11

BOOKS OF ACCOUNT AND RECORDS

Section 11.1 Books and Records

The Manager shall keep or cause to be kept complete and accurate books and records reflecting all activities of the Company. The Company, acting through the officers and Manager, shall maintain complete and accurate books of account and records using either the cash method or the accrual method of accounting, as the Manager may determine, and otherwise in accordance with Generally Accepted Accounting Principles (GAAP), consistently applied during the term of the Company, wherein all transactions, matters and things relating to the business and properties of the Company shall be currently entered. The accounting books and records, minutes of resolutions of the Members and Manager and all other information pertaining to the Company that is required to be made available to the Members under the Act shall be kept at such place or places designated by the Manager or in the absence of such designation, at the principal place of business of the Company. The minutes shall be kept in written form and the accounting books and records and other information shall be kept either in written form or in any other form capable of being converted into written form.

Section 11.2 Tax Information; Reports

The Manager shall cause to be prepared the Company’s appropriate state and federal income tax returns and shall use every effort to furnish the appropriate information tax returns to each Member within ninety (90) days after the end of the Company’s fiscal year. The Manager shall prepare or cause to be prepared and shall furnish to each Member such other summary financial information of the Company as the Manager may determine in its discretion, including but not limited to quarterly management reports and unaudited financial statements due within forty-five (45) days following each quarter end.

Section 11.3 Inspection

The Company shall permit any Member, upon written demand under oath stating a purpose (which purpose shall be directly related to the interest of such Person as a Member) therefore reasonably related to its interest as a Member, during normal business hours and at such other times as the Member may reasonably request, to (i) examine the Company's financial records and make copies thereof or extracts therefrom at the Member's sole expense and (ii) discuss the affairs, finances and accounts of the Company with the Manager and officers of the Company; provided that Company shall not be obligated to provide any information or access to a Member if or to the extent the Company is advised by its legal counsel that such action would result in a waiver of attorney/client privilege as between the Company and its legal counsel. The Company may require, as a condition precedent to permitting inspection and copy of such records, that the requesting Member agree in writing and email that such Member will not provide the information to third parties other than legal counsel, accounting or other professional advisors, or make any other use of such information not directly related to such Person's interest as a Member. Five (5) business days notice shall be given for such requests.

ARTICLE 12

DISSOLUTION OF THE COMPANY

Section 12.1 Events of Dissolution

The happening of any of the following events (each, a “Dissolution Event”) shall result in the immediate dissolution of the Company:

(a)        the written agreement of the Manager and Members holding at least sixty-five percent of the issued and outstanding Units of the Company;

(b)       the sale or exchange of all or substantially all of the assets of the Company or the Units; or

(c)       the entry of a decree of judicial dissolution under the Act.

ARTICLE 13

ADDITIONAL PROVISIONS CONCERNING

DISSOLUTION OF THE COMPANY

Section 13.1 Winding Up Affairs; Liquidation

In the event of the dissolution of the Company for any reason, the Manager, or if the Manager is unable to do so, a liquidating agent or committee selected by the Manager, shall commence to wind up the affairs of the Company and to liquidate its assets in accordance with the Act and the terms of this Agreement, and shall cause the Certificate to be cancelled in accordance with the provisions of the Act. Allocations of income, gain, loss, expense, deductions, tax preference items and tax credits shall continue to be made among the Members during the period of liquidation in accordance with the provisions of this Agreement. The Manager or any such liquidating agent or committee, as the case may be, shall have the full right and unlimited discretion to determine the time, manner and terms of (i) any sale or sales of Company assets pursuant to such liquidation, having due regard to the activity and condition of the relevant market and general financial and economic conditions, and (ii) any in-kind liquidating distributions to Members, so long as any nonratable distributions of property interests result in the distributees receiving value in accordance with the provisions of this Agreement.

Section 13.2 Time for Liquidation

A reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the discharge of its liabilities so as to enable the Manager or liquidating agent or committee, as the case may be, to minimize the normal losses attendant to any such liquidation.

Section 13.3 Required Reports

If requested by the Manager, the liquidating agent or committee, as the case may be, shall furnish each Member with a statement audited and certified by an independent firm of certified public accountants showing: (i) the Net Profit or Net Loss of the Company from the date of the last annual statement prepared hereunder, to the date of the final distribution of the proceeds of the liquidation to the Members and (ii) the manner in which the proceeds of liquidation were distributed.

Section 13.4 Distribution of Proceeds From Sale and Liquidation of Company Property

Upon the liquidation, wind-up or wind-down, or dissolution of the Company in any form of transaction, including, but not limited to, or the sale of all or substantially all of its assets or similar change of control transaction (including by merger or otherwise) (a “Liquidation Event”), the net proceeds of such Liquidation Event and any other funds or property of the Company shall be distributed and applied to the extent available in the following order of priority:

(a)        to the payment of debts and liabilities of the Company including any debts and liabilities to a Member, including, but not limited to, any unpaid Tax Distributions pursuant to Section 10.2(a)(i), if applicable;

(b)       to the setting up of any reserves which the Manager or the liquidating agent or committee, as the case may be, deem reasonably necessary in his, her or its sole and reasonable discretion, for contingent or unforeseen liabilities or obligations of the Company; and

(c)        after taking into account any and all prior allocations and distributions by the Company for the current fiscal year, in the same manner set forth above in Section 10.2(a)(ii).

In the event that the Manager or the liquidating agent or committee distributes any assets of the Company other than cash pursuant to this Section 13.4, the Fair Market Value of such assets will apply to such distribution.

Section 13.5 Capital Account Adjustments

For purposes of Section 13.4 hereof, the respective balance in the Capital Account of each Member shall be determined (i) after allocating all income, gain, loss and expense of the Company pursuant to Article 10 above and (ii) after taking into account all prior distributions to the Members.

Section 13.6 Compliance With Treasury Regulations.

In the event the Company is liquidated within the meaning of Treasury Regulation Section 1.704-1(b)(2), the following action shall be taken by the later to occur of (i) the last day of the Company's taxable year in which such liquidation occurred or (ii) the ninetieth (90th) day following the date of such liquidation:

(a)        Distributions shall be made to the Members in accordance with Section 13.4 including, without limitation, distribution to Members who have positive Capital Account balances in compliance with Treasury Regulation Section 1.704-1(b).

(b)       In the discretion of the Manager or the liquidating agent or committee, as the case may be, distributions pursuant to this Section 13.6 may be distributed to a trust of which the Manager or the liquidating agent or committee is (are) the trustee(s) (hereinafter the “Trustee”) established for the benefit of the Members for the purposes of liquidating Company assets, collecting amounts owed to the Company, and paying any contingent or unforeseen liabilities or obligations of the Company so long as an opinion of counsel is obtained to the effect that such trust will not be taxed as an association taxable as a corporation. The assets of any such trust shall be distributed to the Members from time to time, in the reasonable discretion of the Trustee, in the same proportions as the amount distributed to such trust by the Company would otherwise have been distributed to the Members pursuant to this Agreement; and a portion or all of such assets may be withheld by the Trustee to provide a reasonable reserve for liabilities.

Section 13.7 Limitation Obligation to Restore Deficit Capital Accounts

Absent the express unqualified requirements of applicable law, no Member having a deficit Capital Account balance upon the liquidation of the Company, or such Member's interest in the Company, as determined after taking into account all Capital Account adjustments for the fiscal year of the Company in which such event occurs, shall be required to restore such deficit. Such deficit shall not be considered a debt owed to the Company or to any other Person for any purpose whatsoever.

ARTICLE 14

AMENDMENTS

Except to the extent specifically set forth herein, this Agreement may be altered or amended only by the vote of the Manager. Any amendment to this Agreement approved in accordance with the terms of this Article 14 shall be binding upon all Members, whether or not they consented to or joined in such amendment, and the Manager shall have the right to execute and deliver any amendment to this Agreement approved in accordance with the terms hereof, in the name and on behalf of any such Member pursuant to the power of attorney set forth in Section 16.6 of this Agreement. Any amendment so approved shall for all purposes, including, without limitation, the purposes of the Act, have the same force and effect as an amendment manually signed and delivered by all of the Members. Notwithstanding the foregoing or anything contained in this Agreement to the contrary, except as may be prohibited by applicable law, any amendment to this Agreement that materially adversely affects the rights of the Non-Class A Members shall also require the vote of at least a majority of the then issued and outstanding Non-Class A Units, as applicable.

ARTICLE 15

REPRESENTATIONS AND WARRANTIES

Section 15.1 Representations and Warranties

(a)        Each of the undersigned Members of the Company hereby represents and warrants to the other Members and to the Company and the Manager as follows:

(i)          The undersigned is acquiring the Units of the Company solely for his own account, as a principal, for investment purposes only, and with no present intention agreement or arrangement to resell, transfer or assign any of such Units.

(ii)         The undersigned acknowledges that: (i) the Units have not been registered under the Securities Act, or under the securities laws of any state, and therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of one or more states, or an exemption from registration is available; (ii) the Company is under no obligation to register the Units and the Company has no intention of making publicly available the information necessary for the Member to use the exemption from registration provided in Rule 144 promulgated under the Securities Act; (iii) there is no established or anticipated public market for the Units; (iv) the offering price of the Units has been arbitrarily determined; (v) the value of the Units is speculative; and (vi) transfer of the Units is restricted under the terms of this Agreement and by applicable law.

(iii)        The undersigned has the legal right, power and authority to enter into this Agreement and represents and warrants that the execution and delivery of this Agreement and the performance of the Member's obligations hereunder do not conflict with any agreement, instrument, court or administrative order to which such Member is a party or by which such Member is bound.

(iv)        The undersigned has not seen, received, been presented with, or been solicited by any leaflet, public promotional meeting, article or any other form of advertising or general solicitation with respect to the sale of Units.

(v)         Except as indicated in writing to the Company prior to the admission of such Member to the Company, such Member is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D under the Securities Act. Such Member is familiar with the criteria for status as an “accredited investor” and, in connection with the proposed investment in the Company, will notify the Manager if it qualifies as an “accredited investor” under other criteria or is otherwise unable to make the foregoing representations.

(vi)        Upon the execution and delivery of this Agreement by the undersigned, it shall represent the valid, binding and legal obligation of the undersigned, enforceable in accordance with its terms.

(vii)       The undersigned has the exclusive ownership of the assets being contributed as a Capital Contribution to the Company, free and clear of any lien, security interest, infringement or adverse claim.

ARTICLE 16

MISCELLANEOUS PROVISIONS

Section 16.1 Tax Controversies

(a)        Nick Marrocco shall be designated the Partnership Representative and shall have sole authority to act on behalf of the Company for purposes of subchapter C of Chapter 63 of the Code and any comparable provisions of state or local income tax laws for so long as it is a Member and willing to serve in that capacity. For purposes of this Section 16.1, unless otherwise specified, all references to provisions of the Code shall be to such provisions as enacted by the Bipartisan Budget Act of 2015 as such provisions may subsequently be modified. Should there be any questions or controversy with the Internal Revenue Service or other taxing authority involving the Company, such person shall act as the agent of the Company to resolve such question or controversy and may, on behalf of the Company, incur any expenses he deems necessary or advisable in the interest of the Members in connection with any such question or controversy, including professional fees and the cost of any protest, litigation and/or appeals;

(b)       The initial Partnership Representative shall be designated by the Manager, and shall have sole authority to act on behalf of the Company for purposes of subchapter C of Chapter 63 of the Code and any comparable provisions of state or local income tax laws.  For purposes of this Section 16.1(ii), unless otherwise specified, all references to provisions of the Code shall be to such provisions as enacted by the Bipartisan Budget Act of 2015 as such provisions may subsequently be modified;

(c)        If the Company qualifies to elect pursuant to Code Section 6221(b) (or successor provision) to have federal income tax audits and other proceedings undertaken by each Member rather than by the Company, then the Partnership Representative may cause the Company to make such election;

(d)       Notwithstanding other provisions of this Agreement to the contrary, if any “partnership adjustments” (as defined in Code Section 6241(2)) is determined with respect to the Company, the Partnership Representative, in its discretion, may cause the Company to elect pursuant to Code Section 6226 to have such adjustment passed through to the Member for the year to which the adjustment relates (i.e., the “reviewed year” within the meaning of Code Section 6225(d)(1)). In the event that the Partnership Representative has not caused the Company to so elect pursuant to Code Section 6226, then any “imputed underpayment” (as determined in accordance with Code Section 6225) or “partnership adjustment” that does not give rise to an “imputed underpayment” shall be apportioned among the Members of the Company for the taxable year in which the adjustment is finalized in such manner as may be necessary (as determined by the tax representative in good faith) so that, to the maximum extent possible, the tax and economic consequences of the partnership adjustment and any associated interest and penalties are borne by the Members based upon their interests in the Company for the reviewed year; and

(e)        The Partnership Representative is authorized to (A) extend the statute of limitations for assessment and (B) enter into a settlement agreement with the Internal Revenue Service on behalf of the Company.

Section 16.2 Tax Elections

In the event of the transfer of any interest in the Company or the distribution of property to any Member, the Company may, at the determination of the Manager, file an election under Code Section 754 to cause the basis of the Company's assets to be adjusted for federal income tax purposes as provided by Code Sections 734 and 743.

Section 16.3 Applicable Law Forum

This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any conflict or choice of law provisions that would make applicable the domestic substantive law of any other jurisdiction.

Section 16.4 Counterparts

This Agreement may be executed in multiple counterparts and by way of facsimile or scanned email transfer, each of which shall constitute an original, and all of which together shall constitute one and the same agreement. Each party may rely upon machine copies of the signed Agreement to the same extent as a manually signed original copy hereof.

Section 16.5 Severability of Provisions

Each provision of this Agreement shall be considered separately and if, for any reason, any provision which is not essential to the effectuation of the basic purposes of this Agreement is determined to be invalid or contrary to any existing or future law, such invalidity shall not impair the operation or affect any other provision of this Agreement which is valid, nor shall it affect the subject provision, except to the extent necessary to conform to then prevailing law.

Section 16.6 Power of Attorney

Each Member hereby constitutes and appoints the Manager of the Company, and each of them from time to time in office, such Member's true and lawful attorney in fact for such Member and in such Member's name, place and stead to (a) secure the obligations of each Member who now or hereafter holds any voting securities to vote such Member’s Units; (b) make, execute, sign, acknowledge, file for recording, and publish, such documents and instruments as may be necessary from time to time to carry out the provisions of this Agreement; (c) effect the transfer of Units in the Company; (d) appoint a successor Partnership Representative as provided hereunder; (e) effectuate the issuance of Units in the Company and the admission of new Members, all in accordance with the terms of this Agreement; and (f) execute and deliver any certificate or instrument required to amend this Agreement pursuant to its terms, or otherwise to conform the terms of this Agreement to the provisions of the Act, the Code, and any Treasury Regulations promulgated thereunder, as these may change from time to time. The foregoing grant of authority is hereby declared to be irrevocable and a power coupled with an interest, and shall survive the bankruptcy, death or incapacity or termination of legal existence of a Member, and the assignment by any Member of his interest in the Company; provided, that in the event of such an assignment, the foregoing power of attorney of the assignor Member shall survive such assignment only until such time as the assignee is admitted as a Member of the Company, and all required documents and instruments have been duly executed, filed and recorded to effect such substitution. No Member shall grant any proxy or become party to any voting trust or other agreement which is inconsistent with, conflicts with, or violates any provision of this Agreement.

Section 16.7 Entire Agreement

This Agreement, together with the Exhibits hereto, sets forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings pertaining thereto, including without limitation the Existing Agreement, and there are no promises, agreements or understandings, oral or written, expressed or implied, among the Members or any of them relating to the subject matter of this Agreement except as set forth herein.

Section 16.8 Separate Counsel

Each Member represents that such Person has had the opportunity to consult with separate legal counsel as to the terms and provisions of this Agreement, the terms and provisions of all documents and agreements referenced herein, the nature of the business of the Company, the application of all laws, regulations and rules relating thereto, at the expense of the undersigned Person, prior to signing and delivering this Agreement, and has signed and delivered this Agreement to the Company with the intent to be legally bound hereby. The Member further acknowledges that he/she/it is not being represented by Prince Lobel Tye LLP (“PLT”), counsel to the Company and the Manager, in connection with the review or negotiation of the terms of this Agreement. The Member is not relying on PLT and understands and agrees that it should consult its own attorneys, accountants, investment advisors and other professional advisors as to legal, tax and related matters concerning this Agreement.

Section 16.9 Waiver of Jury Trial

TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, EACH MEMBER WAIVES, AND COVENANTS THAT SUCH MEMBER WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH THE DEALINGS OF ANY MEMBER OR THE COMPANY IN CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT OR OTHERWISE. The Company or any Member may file an original counterpart or a copy of this Section 16.9 with any court as written evidence of the consent of the Members to the waiver of their rights to trial by jury.

Section 16.10 Confidentiality

Unless otherwise required by law, each Member shall, and shall cause each of his or its Affiliates to, maintain, at all times from and after the date of such Member’s execution of this Agreement (including after any time such Person ceases to be a Member), the confidentiality of all information furnished to him or it pertaining to the Company, other than information that such Member can demonstrate (a) is generally known to the public (other than as a result of dissemination by such Member or his Affiliates), (b) was obtained by such Member from a third party who is not prohibited from transmitting the information to such Member by a contractual, legal or fiduciary obligation to the Company, or (c) that the Manager has consented to in writing; provided that the prohibitions set forth in this Section 16.10 shall not apply to any information that a Member is required by law to disclose, so long as such Member provides the Company with as much prior notice as is practicable to the extent such notice is legally permissible.

Section 16.11 Consent to Jurisdiction.

Subject to Article 17, each Member:

Section 16.12 Notices.

Any notice, demand or other communication given to a Member or the Company under this Agreement shall be deemed to be given if given in writing and in email addressed as provided below, and if either (a) delivered to such address (by reputable same day or overnight courier, or (b) actually delivered in person by hand. All notices shall be given: (i) if to the Manager or the Company, to the Company’s corporate offices; and (ii) if to any Member, to it at its, his or her address set forth on Exhibit A.

Section 16.13 Waiver of Partition.

Each Member hereby waives any rights to partition the property of the Company.

Section 16.14 Successors.

This Agreement shall be binding on the executors, administrators, estates, heirs, legal representatives, successors and assigns of each of the Members.

ARTICLE 17

ARBITRATION

The parties hereby agree that unless otherwise specifically required by law, any and all disputes, and legal and equitable claims arising between or among the Members, the Manager, the officers, the Company, or any of them or any combination of them, which relate to the rights and obligations of such Persons under the terms of this Agreement, any agreement contemplated hereby, or any future agreement, understanding or instrument to which two or more such Persons may be parties, shall be submitted to binding arbitration in the State of Delaware, in accordance with the commercial rules of the American Arbitration Association. Any Person who commences any litigation in violation of the terms hereof, and fails to prevail, shall be liable for all reasonable costs and expenses of the arbitration or litigation, including without limitation the fees of the arbitrator(s) and legal counsel to all parties, and witness fees of all parties to the proceeding.

[Remainder of Page Intentionally Left Blank; Signature Page Follows.]

IN WITNESS WHEREOF, the parties have executed this Limited Liability Company Operating Agreement under seal as of the date set forth above.

[SIGNATURE PAGES OF MEMBERS
TO FOLLOW]

CONFIDENTIAL

EXHIBIT A

EXHIBIT B

Form of Joinder Agreement

The undersigned hereby agrees, effective as of the date set forth below and upon becoming the owner of any units of Roc Digital Mining I LLC (the “Company”) to become a party to that certain Limited Liability Company Operating Agreement (the “Agreement”) dated as of July 27, 2022, by and among the Company and the parties named therein and for all purposes of the Agreement. The undersigned further confirms that the representations and warranties contained in Article 15 of the Agreement are true and correct as to the undersigned as of the date hereof. The mailing address and email address to which notices may be sent to the undersigned is as follows:

___________________________________

Name:

Address:

Exhibit 10.6

OPERATING AGREEMENT

OF

ROC DIGITAL MINING MANAGER LLC

THIS OPERATING AGREEMENT of ROC DIGITAL MINING MANAGER LLC (the “Company”) is entered into and made effective as of the 27^th day of July, 2022 (the “Agreement”), by and among the Persons who are identified as Members on Schedule 1 attached hereto, each of whom has executed a counterpart signature page of this Agreement as a “Member” pursuant to the Act.

RECITALS

WHEREAS, the Company was formed as a Delaware limited liability company by the filing of its Certificate of Formation with the Secretary of the State of Delaware on July 27, 2022; and

WHEREAS, the parties hereto wish to provide for the ongoing operation and administration of the Company and to set out fully the rights, obligations and duties of the Members in accordance with the Act (as defined below).

NOW, THEREFORE, in consideration of the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE ONE

DEFINED TERMS

Section 1.01. Defined Terms. The defined terms used in this Agreement shall, unless the context otherwise requires, have the respective meanings specified in this Section 1.01. For all purposes of this Agreement, the following definitions are to be equally applicable to both the singular and plural forms of the terms defined.

“Act” shall refer to the Delaware Limited Liability Company Act in effect as of the date of this Agreement, and as amended from time to time.

“Additional Members” shall refer to those persons admitted to the Company as Members after the date of this Agreement.

“Affiliated Person” or “Affiliate” means, with respect to any Member, as the case may be, any other Person who is a member of the Member’s Immediate Family, or a Parent, a Subsidiary, or a Subsidiary of a Parent with respect to such Member.

“Aggregate Capital Contribution” means the total Capital Contribution made by a Member as reduced by (i) any distributions of cash to the Member, other than Tax Distributions made under Section 4.02 hereof, and (ii) the fair market value (reduced by associated liabilities) of any property distributed to the Member.

“Agreement” means this Operating Agreement, as the same may be hereafter amended, modified or restated from time to time.

“Available Cash Flow” means the aggregate cash receipts collected by the Company (including, without limitation, sales in the ordinary course of business, interest income, proceeds from the sale of capital assets and the proceeds from any business interruption insurance, but excluding Capital Contributions from Members, proceeds of any debt financing and the proceeds of any casualty, life, or other insurance, unless otherwise determined by the Initial Manager) less (i) the payment or accrual for payment of all current operating expenses; (ii) any debt service payments; and (iii) provisions for the reasonable capital requirements of the Company, including working capital, appropriate to enable the Company to carry out its purposes, but disregarding depreciation, amortization and other noncash items. The Initial Manager’s determination of Available Cash Flow and its components, including, without limitation, the incurring of capital expenses and provisions for reasonable present or future capital requirements and appropriate investments and reinvestments of by or in Company, shall be conclusive, in the absence of bad faith.

“Bankruptcy” means, with respect to a Member: (a) the making of an assignment for the benefit of such Member’s creditors; (b) the filing of a voluntary petition in bankruptcy by such Member; (c) adjudication of such Member as bankrupt or insolvent, or the entry against such Member of an order of relief in any bankruptcy or insolvency proceeding; (d) the filing of a petition or answer by such Member seeking for such Member any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute or regulation; (e) the filing by such Member of an answer or other pleading admitting or failing to contest the material allegations of a petition filed against him, her or it in any proceeding of this nature; or (f) seeking consent to or acquiescence in the appointment of a trustee, receiver or liquidator of such Member or all or any substantial part of his, her, or its properties.

“Capital Account” means the capital account of a Member, maintained in accordance with the provisions of Section 3.03 of this Agreement.

“Capital Contribution” means, with respect to any Member, the total amount of cash and fair market value (reduced by associated liabilities) of property contributed to the Company by such Member.

“Code” means the Internal Revenue Code of 1986, as amended from time to time (or any corresponding provisions of succeeding law).

“Distributable Assets” means all assets of the Company from any and all sources determined by the Initial Manager to be available for distribution, including, but not limited to, Available Cash Flow.

“Entity” means any general partnership, limited partnership, corporation, trust, business trust, cooperative, limited liability company, limited liability partnership, association or any other form which is a legal entity under applicable law.

“Fiscal Year” means the Fiscal Year as described in Section 8.02 of this Agreement.

“Immediate Family” means, with respect to any Member, his or her spouse, children, grandchildren, the spouses of any of the foregoing’ or trusts for their benefit.

“Initial Manager” means the Initial Manager as described in Section 5.02 of this Agreement.

“IRS” means the Internal Revenue Service.

“Legal Representatives” means, with respect to any individual, a duly appointed executor, administrator, guardian, conservator, personal representative or other legal representative appointed as a result of the death or incompetency of such individual.

“Managed Entity” means Roc Digital Mining I LLC, a Delaware limited liability company.

“Manager or Managers” shall refer to the Person or Persons listed as Managers on Schedule 1 attached hereto and any Person who becomes an additional, substitute or replacement Manager as permitted by this Agreement, in each such Person’s capacity as a Manager of the Company.

“Members” shall refer to the Persons listed as Members on Schedule 1 attached hereto, any Additional Members, and any Substituted Members listed as such in the books and records of the Company who shall, from time to time, be Members of the Company. Notwithstanding anything herein to the contrary, the Initial Manager shall have the authority to amend Schedule 1 from time to time to reflect the books and records of the Company.

“Notification” means a written notice containing the information required by this Agreement to be communicated to any Person and sent by registered, certified, Federal Express, first-class mail, e-mail, or facsimile transmission (“fax”) to such Person at the last known address of such Person; provided, however, that any communication containing such information actually received by such Person shall constitute Notification.

“Offered Shares” means the Shares subject to a ROFR Offer as provided in Section 6.03 in this Agreement.

“Parent” means, with respect to any Entity, any Person which (A) owns directly, or indirectly through one or more Entities, fifty percent (50%) or more of the voting or beneficial interest in such Entity or (B) otherwise has the right or power, whether through ownership of securities, rights under agreements or otherwise, to control such Entity.

“Person” means any individual or Entity, and the heirs, executors, administrators, legal representatives, successors and assigns of such individual or Entity where the context so admits.

“Profits” and “Losses” means for each year or other period, an amount equal to the Company’s taxable income or loss for such year or period, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss).

“Regulations” means, except where the context indicates otherwise, the permanent, temporary, proposed or proposed and temporary regulations of the Department of the Treasury under the Code, as such regulations may be lawfully changed from time to time.

“ROFR Offer” means a written offer to the Company and other Members by a Member who wishes to sell all or part of his, her or its Shares and has received a bona fide written offer as provided in Section 6.03 of this Agreement.

“Share” or “Shares” means the equity interests in the Profits, Losses, cash flow, and distributions from the Company designated as Shares in Section 3 of this Agreement. As of the date hereof, the Company has issued the number of Shares listed on Schedule 1 hereto.

“Subsidiary” means, with respect to any Person, (A) any Entity in which such Person owns directly, or indirectly through one or more Subsidiaries, fifty percent (50%) or more of the voting or beneficial interest or (B) any Entity which such Person otherwise has the right or power to control, whether through ownership of securities, rights under agreements or otherwise.

“Substituted Member” means any Person admitted to the Company as a Member pursuant to the provisions of Section 6.02D and who is listed as such in the books and records of the Company.

“Tax Distribution” has the meaning set forth in Section 4.02 of this Agreement.

“Transfer” or “Transferred” or any other capitalized grammatical variation thereof, unless otherwise specifically provided, refers to the sale, exchange, assignment, distribution (upon liquidation or otherwise), encumbrance, hypothecation, gift, pledge, transfer or other disposition or alienation, including a transfer incident to a divorce or separation, whether absolute, contingent or collateral, in any way, of all or any part of a Share or, as the context may require, of an interest, whether direct or indirect, in any Entity which owns any Shares, except any pledge or other hypothecation effected for the purpose of securing any borrowing of the Company which has been approved by the Members in accordance with this Agreement.

ARTICLE TWO

NAME, OFFICE, AGENT, NATURE OF BUSINESS, AUTHORITY AND TERM

Section 2.01. Name and Principal Place of Business. The name of the Company shall be Roc Digital Mining Manager LLC. The Initial Manager may change the Company’s name at any time or from time to time. The initial principal place of business of the Company shall be located at 33 Commercial Street, Raynham, MA 02767 (the “Principal Office”). The Initial Manager may, at any time, change the location of the Principal Office upon five (5) days’ notice to the Members.

Section 2.02. Agreement.

The Agreement shall be the sole source of agreement of the Members, and, except to the extent a provision of the Agreement expressly incorporates Federal income tax rules by reference to Sections of the Code or Regulations or is expressly prohibited or ineffective under the Act, the Agreement shall govern even when inconsistent with, or different than, the provisions of the Act or any other law or rule.

Section 2.03. Nature of Business.

The purpose of the company is to render management services to certain businesses, including, without limitation, operating in the bitcoin and other digital asset mining industry and such other industries as determined by the Initial Manager, to charge fees for the management services provided, and to engage in any other lawful business, purpose or activity for which limited liability companies may be organized under the Act. The Company may engage in any and all activities to further and accomplish the purpose described in the preceding sentence, and in addition may engage in any lawful business permitted by the Act or the laws of any jurisdiction in which the Company may do business, provided that such activities are in furtherance of, and consistent with, the Company’s primary purpose, which is to serve as manager of the Managed Entity (the “Primary Business”). In engaging in the Primary Business, the Members agree as follows:

A.        all services in relation to the organization, promotion, management and administration of Managed Entity will be handled by Roc Digital Mining LLC (“ROCDM”), a Member of the Company, directly without compensation or reimbursement of expenses from the Company, with any compensation and expenses necessary to provide those services to the Managed Entity being paid by ROCDM solely from any compensation it is entitled to receive under the terms of the operating agreement for the Managed Entity and its share of distributions from the Company, unless all Members agree otherwise, provided, that the Company is authorized to engage legal, accounting and other professionals directly for the organization and offering of interests in the Managed Entity;

B.         Consistent with the above agreement of the Members, the Company shall have the authority to do all things necessary or convenient to accomplish its purpose and to operate its business as described herein.

Section 2.04. Authority of the Company.

In order to carry out its purposes and not in limitation thereof, the Company is empowered and authorized to do any and all acts and things necessary, appropriate, proper, advisable, incidental to or convenient for the furtherance and accomplishment of its purposes, and for the protection and benefit of the Company, as permitted under the Act.

Section 2.05. Term.

The Company shall continue in full force until the dissolution of the Company pursuant to the provisions of Article Seven or under the Act.

Section 2.06. Registered Agent for Service of Process and Registered Office.

The registered agent for the service of process and the registered office shall be that Person and location reflected in the Certificate of Formation as filed in the office of the Secretary of State of the State of Delaware. The Initial Manager may, from time to time, change the registered agent or office through appropriate filings in the office of the Secretary of State of the State of Delaware. In the event the registered agent ceases to act as such for any reason or the registered office shall change, the Initial Manager shall promptly designate a replacement registered agent or file a notice of change of address as the case may be. If the Initial Manager shall fail to designate a replacement registered agent or change of address of the registered office, any Member may designate a replacement registered agent or file a notice of change of address.

Section 2.07. Foreign Qualification.

The Manager shall cause to be filed on behalf of the Company such corporate, assumed or fictitious name or foreign qualification certificate or certificates as may from time to time be required by law in any jurisdiction in which the Company conducts business.

ARTICLE THREE

MEMBERS AND CAPITAL

Section 3.01. Shares.

Upon execution and delivery of this Agreement, the initial Members of the Company shall be the Persons identified on Schedule 1 hereto. The Aggregate Capital Contributions as of the date hereof and the number of Shares issued to each Member are set forth on Schedule 1 to this Agreement.

THE SHARES ISSUED PURSUANT TO THIS OPERATING AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES OR “BLUE SKY” LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE SOLD OR TRANSFERRED UNLESS THEY ARE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY OTHER APPLICABLE SECURITIES OR “BLUE SKY” LAWS, OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. SUCH SHARES ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN THIS AGREEMENT.

Section 3.02. Reserved.

Section 3.03. Share Certificates.

Shares or other membership interests of the Company shall not be certificated unless otherwise determined by the Initial Manager. In the event the Initial Manager determines that certificates shall represent such Member’s ownership of Shares or other membership interests of the Company, any such certificate shall be in such form as may be prescribed from time to time by the Initial Manager (“Share Certificates”), which shall include, without limitation, a signature by any one Manager, conspicuously noted on the face or back of the certificate a statement of the existence of applicable restrictions on transfer pursuant to this Agreement, applicable security laws or any agreement to which the Company is a party and a statement that the Company will furnish a copy of the restriction to the holder of such Share Certificate upon written request and without charge.

Section 3.04. Capital Accounts.

A. The Company shall maintain a separate capital account for each Member. Each Member’s initial Capital Account balance shall equal such Member’s initial contribution to the capital of the Company. Each Member’s Capital Account shall thereafter be increased by (i) any cash or the fair market value of any property thereafter contributed by such Member (net of liabilities assumed by the Company and liabilities to which such contributed property is subject), (ii) the amount of any Company liabilities that are assumed by such Member, and (iii) such Member’s distributive share of the Company’s Profits and items in the nature of income and gain. Each Member’s Capital Account shall be decreased by (i) such Members distributive shares of the Company’s Losses and items in the nature of losses and deductions, (ii) the amount of such Member’s individual liabilities that are assumed by the Company, and (iii) the amount of cash or the fair market value of any property distributed by the Company to such Member (net of liabilities assumed by such Member and liabilities to which such distributed property is subject). Other appropriate adjustments to each Member’s Capital Account shall also be made from time to time, in accordance with the rules set forth in applicable Regulations under Section 704 of the Code or the requirements of any other applicable proposed, final or temporary regulations thereunder. It is the intent of the Members that the Capital Accounts shall be determined and maintained in accordance with said Code Section and said Regulations, and this Section 3.04 shall be construed in a manner consistent therewith. No Member shall be entitled to interest on his, her or its Capital Account or on any Capital Contribution.

B. Except as may be specifically provided herein, no Member shall have the right to withdraw all or any part of his, her or its Capital Contribution from the Company. No Member shall have any right to demand or receive property or cash of the Company in return of his, her or its Capital Contribution except as may be specifically provided in this Agreement.

C. The original Capital Account established for any Substituted Member shall be in the same amount as, and shall replace, the Capital Account of the Member which such Substituted Member succeeds, and, for the purposes of this Agreement, such Substituted Member shall be deemed to have made the Capital Contribution, to the extent actually paid in, of the Member which such Substituted Member succeeds. To the extent a Substituted Member receives less than 100% of the Shares of a Member he, she or it succeeds, the original Capital Account and Capital Contribution of such Substituted Member shall be in proportion to the Shares he, she or it receives, and the Capital Account and Capital Contribution of the Member who retains Shares in the Company shall be in proportion to the Shares he, she or it retains.

Section 3.05. Liability of the Members. Additional Capital Contributions.

Except as otherwise required by this Agreement or the Act, no Member shall be liable for any debts, liabilities, contracts or any other obligations of the Company. Except as otherwise required by this Agreement or the Act, a Member has no liability in excess of the amount of contributions that he, she or it is obligated to make to the Company and his, her or its share of the Company’s assets and undistributed profits. No Member shall be required to lend any funds to the Company or, after his, her or its initial Capital Contribution has been paid, to make any further Capital Contributions to the Company.

ARTICLE FOUR

DISTRIBUTIONS. ALLOCATIONS OF PROFITS AND LOSSES

Section 4.01 Allocation of Profits and Losses.

Subject to the provisions of Sections 4.03, 4.04, 4.05 and 6.04 hereof, Profits and Losses shall be allocated among all Members in proportion to the number of Shares held by each such Member during any Fiscal Year in accordance with the rules of Section 706 of the Code and applicable Regulations thereunder.

Section 4.02 Tax Distributions.

In addition to the distributions to be made pursuant to Section 4.03 below, the Company shall attempt, but not be compelled, to make a distribution (“Tax Distribution”) to each Member in an amount which the Initial Manager shall determine in good faith (in consultation with the Company’s independent accountants, if so desired) is sufficient to fund the tax obligations attributable to all Shares of such Member on account of the cumulative allocation to them of taxable income in excess of tax losses pursuant to this Agreement. For purposes of this Section 4.02, the highest effective combined income tax rate applicable to any individual Member shall be used to determine the amount sufficient to fund the tax obligations of all Members on account of the cumulative allocation to them of taxable income in excess of tax losses pursuant to this Agreement. All amounts distributed to a Member with respect to any fiscal year pursuant to this Section 4.03 shall be reduced by any distributions made pursuant to Section 4.03 for such fiscal year or prior to the expiration of the ninety (90) day period following the end of such fiscal year. Any amount distributed pursuant to this Section 4.02 will be deemed to be an advance distribution of amounts otherwise distributable to the Members pursuant to Section 4.03 and will reduce the amounts that would subsequently otherwise be distributable to the Members pursuant to those Sections.

Section 4.03. Distributions of Distributable Assets.

In addition to and following any Tax Distribution, Distributable Assets, if any, shall be distributed at the discretion of the Initial Manager, at such times and in such amounts as the Initial Manager deems appropriate after satisfying all current Company obligations and establishing such cash reserves as the Initial Manager determines advisable in their sole and absolute discretion. Distributable Assets not in redemption of a Member’s Shares or in liquidation of the Company shall be distributed to all of the Members pro rata in accordance with the number of Shares held by each such Member.

Section 4.04. Allocations with Respect to Contributed Property.

Notwithstanding any other provision of this Agreement to the contrary (and consistent with Section 4.05), items of income, gain, loss, and deduction with respect to property contributed to the Company by any Member shall be allocated among the Members so as to take into account the variation between the basis of the property to the Company and its fair market value at the time of contribution in accordance with the requirements of Section 704(c) of the Code and applicable Regulations thereunder.

Section 4.05. Curative Allocations.

A.        The provisions of this Agreement with respect to maintenance of Capital Accounts (Section 3.03), Allocation of Profits and Losses (Section 4.01), Distributions of Distributable Assets (Section 4.03), Allocations With Respect to Contributed Property (Section 4.04) and Liquidation (Section 7.02), among others, are designed (a) to give effect to the parties agreement that all Members generally will share in Company distributions in accordance with their respective Share ownership, and (b) to comply with all relevant Code requirements concerning the distributive allocation of the Company’s items of income, gain, loss, deduction and credit to the Members (the “Distributive Allocations”).

B.        To the extent that the Distributive Allocations set forth herein are otherwise contrary to any Code requirements, then, notwithstanding any other provision of this Agreement, such Distributive Allocations shall be adjusted to the extent necessary to satisfy all said Code requirements.

ARTICLE FIVE

MANAGEMENT

Section 5.01. Management of the Company.

The overall management and control of the Company’s business and affairs shall be vested in not less than one (1) nor more than three (3) Managers, and if there shall be only one, in the Initial Manager. Within the limits specified, the number of Managers shall be determined from time to time by vote of the Managers or by the Members, as the case may be. All management and other responsibilities not specifically reserved to the Members in this Agreement shall be vested in the Managers, and the Members shall have no voting rights except as specifically provided in this Agreement. Each Manager shall devote such time to the affairs of the Company as is reasonably necessary for performance by each Manager of his or her duties, provided such Persons shall not be required to devote full time to such affairs.

A.        Except as provided in subsection 5.01(C) and (D), the Managers shall have all power and authority necessary to carry out the purposes, business and objectives of the Company and the Managed Entity consistent with the Primary Business, including:

B.         Notwithstanding Sections 5.01(A) or (B), the Managers shall not, without the unanimous consent of all Members, be entitled to take any of the following actions in relation to the Company, except to the extent authorized herein:

C.         Notwithstanding Sections 5.01(A) or (B), the Managers shall not, without the unanimous consent of all Members, be entitled to take any of the following actions in relation to the Managed Entity, except to the extent authorized herein:

D.        A meeting of the Managers shall be conducted only in the presence of a quorum of the Managers. If there are more than two (2) Managers of the Company, then a quorum shall be a majority of the Managers. If there are two (2) or fewer Managers of the Company, then a quorum shall be all of the then Managers. A Manager may participate in a meeting through use of a telephone, electronic video screen communication or real-time electronic transmission by and to the meeting. Participation by a Manager in a meeting through use of such device shall be considered presence of that Manager for purposes of a quorum. Notice of a meeting of the Managers shall be given to each Manager by telephone, e-mail or in writing at least 48 hours in advance of the meeting. Notice shall comprise, and need not comprise more than, a statement of the time and place of the meeting. If all Managers consent, a meeting of the Managers may commence before 48 hours have passed from the delivery of notice. Presence or participation in a meeting by a Manager shall be deemed waiver of such notice by such Manager. The Managers may approve items without being present at a meeting via written consent.

Section 5.02. Designation of Managers. Duty to Continue.

As of the date hereof, the Managers of the Company shall be Nick Marrocco and John Kelly, with Nick Marrocco acting as Initial Manager. The Initial Manager shall have the power, subject to the eligibility criteria set forth herein, to appoint new Manager(s) and to remove any Manager at any time, for any or no reason, with or without cause. The removal of a Manager may entail, in the sole discretion of the Initial Manager, cancellation of the entirety of that Manager’s Shares in the Company, except as to any then accrued rights in respect thereof. Any additional or successor Manager(s) shall be chosen by the Initial Manager if he, she, or it so decide. Upon the resignation, retirement or other removal of the final Manager, a successor Manager shall be chosen by the Initial Manager.

Section 5.03. Binding the Company.

Any action taken by the Initial Manager as Initial Manager of the Company shall bind the Company and any other Managers and shall be deemed to be the action of the Company and of any other Managers. The signature of the Initial Manager on any agreement, contract, instrument or other document shall be sufficient to bind the Company in respect thereof and conclusively evidence the authority of such Manager and the Company with respect thereto, and no third-party need look to any other evidence or require joinder or consent of any other party. Notwithstanding the foregoing, if the Managers are in disagreement concerning how to proceed with respect to any matter affecting the Company, the determination of how to proceed will be made by the Initial Manager.

Section 5.03. Members Have No Managerial Authority.

Except as expressly authorized by this Article 5 or as expressly required under the Act, no Member shall otherwise have the right, power, or authority to participate in the management of the Company. Unless expressly and duly authorized in writing to do so by a Manager or Managers, no Member shall have any power or authority to bind or act on behalf of the Company in any way, to pledge its credit, or to render it liable for any purpose.

Section 5.04. Compensation of Managers and Members.

A.         Expenses incurred by a Manager or Member on behalf of the Company shall be borne by such individual Member of the Company. Expenses incurred by a Manager or Member on behalf of the Managed Entity may be reimbursed by the Managed Entity pursuant to a reimbursement policy approved by the unanimous consent of the Members.

B.         No payment shall be made by the Company to any Manager or Member, or their Affiliates, for such Manager’s, Member’s or Affiliate’s services to the Company. No payment shall be made by the Managed Entity to any Member or Manager, or their Affiliates, for such Manager’s, Member’s or Affiliate’s services to the Managed Entity, except as set for the in the operating agreement for the Managed Entity.

Section 5.05. Reserved.

Section 5.06. Indemnification. Limitation of Liability.

Each Manager shall not be liable, responsible or accountable for damages or otherwise to the Company, or to the Members, and, to the fullest extent allowed by law, the Managers shall be entitled to indemnity from and held harmless by the Company for any liability incurred and/or for any act performed by them within the scope of the authority conferred on them, by this Agreement, and/or for any act omitted to be performed except for their gross negligence or willful misconduct, which indemnification shall include all reasonable expenses incurred, including reasonable legal and other professional fees and expenses. The doing of any act or failure to do any act by a Manager, the effect of which may cause or result in loss or damage to the Company, if done in good faith to promote the best interests of the Company, shall not subject the Manager to any liability to the Members except for gross negligence or willful misconduct. No Manager shall be personally liable to the Company or to any of its Members for monetary damages for any breach of fiduciary duty by such Manager as such notwithstanding any provision of law imposing such liability. The rights of indemnification provided in this section are intended to provide indemnification of the Managers to the fullest extent permitted by the Act (or any successor thereto), including any restrictions or limitations contained therein, regarding an LLC’s indemnification of its Managers, and will be in addition to any rights to which such Manager may otherwise be entitled by contract or as a matter of law and shall extend to its, hers, or his heirs, personal representatives and assigns. No amendment to or repeal of this Section shall apply to or have any effect on the liability or alleged liability of any Manager for or with respect to any acts or omissions of such Manager occurring prior to the effective date of such amendment or repeal. Any act or omission suffered or taken by the Managers on behalf of the Company or in furtherance of the interests of the Company in good faith in reliance upon and in accordance with the advice of legal counsel, accountants, financial or others advisors will be full justification for any such act or omission, and the Managers will be fully protected in so acting or omitting to act so long as such legal counsel, accountants, financial or others advisors were selected with reasonable care.

Section 5.07. Waiver of Fiduciary Duties.

This Agreement is not intended to create or impose any fiduciary duty on any of the Managers or their Affiliates. Notwithstanding anything to the contrary contained in this Agreement or otherwise applicable provision of law or equity, to the maximum extent permitted by the Act and any other Applicable Law, the Managers and their Affiliates, shall owe no duties or liabilities (including fiduciary duties) to the Company or any Member; provided, however that the Managers shall have the duty to act in accordance with the implied contractual covenant of good faith and fair dealing; and provided further that such exclusion or limitation of liability shall not extend to misappropriation of assets or funds of the Company. The provisions of this Agreement, to the extent that they restrict or otherwise modify, or eliminate, the duties and liabilities, including fiduciary duties, of the Managers otherwise existing at law or in equity, are agreed by the Company, the Members and the Managers to replace such other duties and liabilities of the Managers. Any standard of care or duty imposed by or under the Act or any other law, rule or regulation (or any judicial decision based on or interpreting the same) shall be modified, waived or limited, to the extent permitted by law, as required to permit the Managers to act under this Agreement and to make any decision the Managers are authorized to make hereunder, as long as such action or decision complies with the standard of conduct set forth in this Article 5 of this Agreement and is in accordance with the other provisions of this Agreement. The Members expressly acknowledge and agree that this modification of fiduciary duties is binding.

Section 5.08. Other Activities.

The Members, Managers and any Affiliates of any of them may engage in and possess interests in other business ventures and investment opportunities of every kind and description, independently or with others, including serving as managers and general partners of other limited liability companies and partnerships with purposes similar to those of the Company. Neither the Company nor any other Member or Manager shall have any rights in or to such ventures or opportunities or the income or profits therefrom.

ARTICLE SIX

TRANSFERABILITY OF SHARES. REDEMPTION OF SHARES

Section 6.01. Restrictions on Transfer.

Except as otherwise expressly permitted in this Agreement, no Member shall have the right to Transfer any of his, her or its Shares or any interest in an Entity owning Shares without the written consent of (x) the Initial Manager, which consent shall be given or denied in the Initial Manager’s sole and absolute discretion, (y) unanimous approval by the Members, and (z) compliance with Sections 6.02 and 6.03 herein, provided that any Member may transfer its Shares in the Company to a wholly-owned subsidiary of the Member without complying with subsections (x), (y) or (z) above. Except as otherwise expressly permitted in this Agreement, any attempt to Transfer without the above required express written consent shall be void and ineffectual and shall not bind the Company.

Section 6.02. Transferees and Substituted Members.

A.         If a Member is in Bankruptcy, the bankruptcy trustee shall have all the rights of a Member as the bankrupt possessed to Transfer all or any part of the Member’s Shares and to join with the transferee thereof in satisfying conditions precedent to such assignee becoming a Substituted Member.

B.         Where the Initial Manager and the requisite Members have consented to a Transfer of Shares pursuant to Section 6.01, the Company need not recognize such assignment for any purpose unless there shall have been filed with the Company a duly executed counterpart of the instrument making such assignment signed by both the assignor and the transferee which evidences the written acceptance by the assignee of his, her or its agreement to be bound by all of the terms and provisions of this Agreement and any other agreement with the Company to which the transferor was a party and represents that such Transfer was made in accordance with all applicable laws and regulations (including investor suitability requirements).

C.         If a Member Transfers all of his, her or its Shares, the Member shall cease to be a Member of the Company upon the admission of a Substituted Member in his, her or its stead.

D.        Any Person who is a transferee of any Shares of a Member shall become a Substituted Member when the Initial Manager has accepted such Person as a Member of the Company, the books and records of the Company reflect such Person as admitted to the Company as a Member, such Person has satisfied the requirements of Section 6.01, Section 6.02B and Section 9.01A, and when such Person shall have paid all reasonable legal fees and filing costs incurred by the Company in connection with his, her or its substitution as a Member; provided, however, that the Initial Manager’s consent to the substitution of any transferee of Shares as a Substituted Member may be granted or withheld in their sole discretion.

E.         Any Person who is the transferee of any of the Shares of a Member but who does not become a Substituted Member and desires to make a further Transfer of any such Shares shall be subject to all the provisions of this Article Six to the same extent and in the same manner as any Member desiring to make a Transfer of the Shares.

Section 6.03. Right of First Refusal.

A.        If any Member receives a bona fide written offer for his, her or its Shares and desires to sell all or part of such Shares, such Member shall be under an obligation, at the time such Member requests written consent to such assignment as required by Section 6.01, to offer in writing (the “ROFR Offer”) all of such Shares to the Company and the other nonoffering Members for purchase. The ROFR Offer shall state the name and address of the proposed transferee, the number of Shares to be purchased by the proposed transferee (the “Offered Shares”), the price per Share to be paid by the proposed transferee and all other terms or conditions of such proposed sale or transfer. The Company may, at any time within thirty (30) days after receipt by it of such ROFR Offer, elect to accept such ROFR Offer with respect to all or part of the Offered Shares, by so notifying the offering Member in writing and delivering to him, her or it a written acceptance of such ROFR Offer.

B.         In the event that the Company does not elect to accept the ROFR Offer or elects to accept only part of the Offered Shares within such 30-day period, the Company shall notify the offering Member and each non-offering Members. The non-offering Members, or any of them, may, at any time within fifteen (15) days after receipt of such notice from the Company, elect to accept all or part of the remaining Offered Shares (pro rata unless the accepting Members designate different proportions) by notifying the offering Member in writing and delivering to the offering Member written acceptance of such ROFR Offer.

C.        Within 30 days after the acceptance of the ROFR Offer, the offering Member shall tender to the Company or to the non-offering Members who shall have accepted the ROFR Offer, as the case may be, at the principal offices of the Company the certificate or certificates representing the accepted Offered Shares, duly endorsed in blank by the offering Member or with duly endorsed stock powers attached thereto, all in form suitable for the transfer of such Offered Shares to the Company or such non-offering Members, as the case may be. Upon receipt of such Offered Shares, the Company or the non-offering Members, as the case may be, shall deliver to the offering Member the consideration for such Offered Shares in the amount described in the ROFR Offer.

D.        After the time at which any Offered Shares are required to be delivered to the Company for transfer to the Company or the non-offering Members (who shall have accepted the ROFR Offer) pursuant to Section 6.03C above, the Company shall not make distributions to the offering Member on account of such Offered Shares or permit the offering Member to exercise any of the privileges or rights of a Member with respect to such Offered Shares, but shall, in so far as permitted this Agreement and by law, treat the Company or such non-offering Members as the owner of such Offered Shares.

E.         If the Company and the non-offering Members do not elect to accept all of the Offered Shares, the offering Member may sell the remaining Offered Shares to the proposed transferee named in the ROFR Offer, such sale to be made only in strict accordance with the terms therein stated provided, however, that such Transfer of Offered Shares is made pursuant to the terms of Section 6.01. If the offering Member shall fail to make such transfer within thirty (30) days following the obtaining of written consent to Transfer as required by Section 6.01, such Offered Shares shall again become subject to all the restrictions of this Section 6.03. The right of the Company to accept the ROFR Offer is assignable to any successor or assignee.

Section 6.04. Termination Events.

In the event of the divorce of a Member, as a result of which the Member does not succeed to all of his or her spouse’s community property interest, if any, in the Shares held by such Member (the “Spousal Interest”), there shall be deemed to have occurred a “Termination Event” with respect to the Member. Upon the occurrence of such a Termination Event, the Spousal Interest may be purchased from the spouse, as applicable, by the Company in the sole and absolute discretion of the Managers, for the benefit of the Members in accordance with the terms set forth in this Article 6, subject to the foregoing provisions in this Section 6.03.

Section 6.05. Allocations Subsequent to Transfer.

In the event of the admission or withdrawal of a Member, or in the event all or any Shares are validly transferred under the terms of this Article 6, all Company items allocated under Article 4 hereof shall be further allocated based upon the ownership of the respective Shares prior to and following the effective date of such admission, withdrawal or transfer in a manner consistent with the requirements of Section 706 of the Code.

Section 6.06. Compulsory Withdrawal.

A.        Any Member who shall intentionally breach a material term of this Agreement and who remains in breach thirty (30) days after receiving written notice of breach and after having reasonable opportunity to cure, and who fails to cure, shall withdraw (“Withdrawing Member”) from the Company when requested to do so, upon thirty (30) days written notice by the remaining Members. The gross amount to be paid to the Withdrawing Member an amount equal to the value of Withdrawing Member's capital account, except as modified under Subsection (b) hereunder.

B.         Thereafter, from said gross amount due to such Withdrawing Member, there shall also be deducted, all damages resulting from his breach of this Agreement.

ARTICLE SEVEN

DISSOLUTION AND LIQUIDATION OF THE COMPANY

Section 7.01. Events Causing Dissolution.

A.       The Company shall be dissolved only on the first to occur of the following

events:

(i)     the entry of an order for relief with respect to the Company in the U.S. Bankruptcy Court;

(ii)    the sale of substantially all of the Company’s assets (taken as a whole) and distribution of the proceeds therefrom unless the Managers, with the written consent of the Requisite Members, elect to continue the Company;

(iii)   the decision of the Managers to liquidate the Company, with the written consent of the Requisite Members (taking into account Members that are Managers); or

(iv)   upon the occurrence of any of the events described in Section 701 or 702 of the Act, which events include (but are not limited to) the death, retirement, resignation, expulsion, bankruptcy or dissolution of any Member, the Managers, with the written consent of the remaining Requisite Members, elect to dissolve the Company within ninety (90) days following such event.

Dissolution of the Company shall be effective on the day on which the event occurs giving rise to the dissolution. The Company shall not be terminated until the assets of the Company shall have been liquidated and distributed as provided in Section 7.02. Notwithstanding the dissolution of the Company, prior to the termination of the Company, as aforesaid, the business of the Company and the affairs of the Members as such shall continue to be governed by this Agreement.

B. Members shall look solely to the assets of the Company for all distributions with respect to the Company and their Capital Contribution thereto, and shall have no recourse therefore (upon dissolution or otherwise) against any Member (including a Member that is a Manager), or any Affiliate of a Member.

Section 7.02. Liquidation.

A. Upon the dissolution of the Company, its affairs shall be wound up and it shall be liquidated and the proceeds of such liquidation and the Company’s other assets shall be distributed as follows:

(i)     All of the Company’s ascertained debts and liabilities to creditors, including Members, shall be paid and discharged in the order provided by applicable law.

(ii)    A reserve shall be set aside in an amount reasonably required in the judgment of the Initial Manager to provide for contingent or other liabilities of the Company.

(iii)   The Company’s Profit or Loss (including without limitation any gain or loss resulting from any sales or other dispositions of Company property in connection with the liquidation of the Company) shall be computed and shall be allocated to the Members in accordance with Article 4 hereof, and the Members’ Capital Accounts shall be adjusted in accordance with Section 3.03 hereof.

(iv)   Distribution shall be made to the Members, in liquidation of the Shares of all of the Members, to those Members with positive Capital Account balances, after taking into account all Capital Account adjustments provided for in Section 3.03 hereof (other than those made as a result of any such liquidating distributions) in the ratios of such positive Capital Account balances, as so adjusted.

(v)    The remainder of the Company assets, if any, shall be distributed to the Members in accordance with their Shares.

(vi)   Each Member shall receive his, her or its share of such distributions in cash and/or in kind, and the portion of such share that is received in cash may vary from Member to Member, all as the Managers may in their sole discretion determine. Notwithstanding the foregoing, if any assets of the Company are to be distributed in kind, such assets shall be distributed on the basis of the fair market value thereof, and any Member entitled to any interest in such assets shall receive such interest therein as a tenant-in-common with all other Members so entitled (except in the case of any Shares held by Members as joint tenants or tenants by the entirety). If any asset is to be distributed in kind, the Members’ Capital Accounts shall be adjusted as provided for in Section 3.03 hereof (consistent with the requirements of Regulations under Sections 704(b) and 704(c) of the Code) before any such distribution is made to reflect the increases or decreases to said Capital Accounts which would have occurred if such asset to be distributed in kind had been sold for its fair market value by the Company immediately prior to such distribution.

(vii)  As soon as reasonably practicable, the remaining balance, if any, of the reserve established in accordance with Subparagraph (ii) hereof shall be distributed to the Members in the manner set forth herein.

B.        Distribution of Distributable Assets, cash or other property to the Members in accordance with the provisions of Paragraph A hereof shall constitute a complete return to the Members of their respective interests in the Company assets.

C.        The winding up of the Company’s affairs and the liquidation and distribution of its assets shall, subject to the provisions of the Act, be conducted exclusively by the Managers, who are empowered and authorized to do any and all acts authorized by law for these purposes.

ARTICLE EIGHT

BOOKS AND RECORDS, ACCOUNTING. REPORTS, TAX ELECTIONS. ETC.

Section 8.01. Books and Records.

The books and records of the Company shall be maintained by the officers of the Company, or if no officers shall have been appointed, by the Managers in accordance with applicable law at the principal office of the Company and shall be available for examination at such location by any Manager or such Manager’s duly authorized representative at any and all reasonable times for any purpose reasonably related to the Manager’s interest in the Company.

Section 8.02. Accounting and Fiscal Year.

The books of the Company shall be maintained in accordance with accounting methods employed for Federal income tax reporting purposes. The Fiscal Year of the Company shall end December 31 of each year, unless otherwise required by Section 706 of the Code.

Section 8.03. Bank Accounts and Investments.

The funds of the Company shall be held in the name of the Company. These funds shall be deposited in the name of the Company in such bank accounts in such banking institutions as the Initial Manager shall determine, and withdrawals therefrom shall be made only in the regular course of Company business on such signature or signatures as the Members shall determine. The funds of the Company shall not be commingled with the funds of any Person.

Section 8.04. Reports.

The Company shall deliver to the Members with respect to each Fiscal Year no later than the date prescribed for filing such information as shall be necessary for the preparation of Members’ Federal, state or other income tax returns.

ARTICLE NINE

MISCELLANEOUS PROVISIONS

Section 9.01. Appointment of the Initial Manager as Attorney-in-Fact.

A.        Each Member, including each Additional or Substituted Member, by the execution and delivery of this Agreement, irrevocably constitutes and appoints the Initial Manager as his, her or its true and lawful agent and attorney-in-fact with full power and authority in such Member’s name, place and stead to execute, acknowledge, deliver, swear to, file and record at the appropriate public offices such documents as may be necessary or appropriate to carry out the provisions of this Agreement, including but not limited to:

(i)     all counterparts of this Agreement, and any amendment or restatement thereof, including all certificates (including the certificate(s) contemplated by Section 9.03C. hereof) and instruments, which the Initial Manager deems appropriate to organize, qualify or continue the Company as a limited liability company in the jurisdictions in which the Company may conduct business or in which such organization, qualification or continuation is, in the opinion of the Initial Manager, necessary or desirable to protect the limited liability of any Member;

(ii)    all amendments to this Agreement adopted in accordance with the terms hereof and all instruments which the Initial Manager deems appropriate to reflect a change or modification of the Agreement in accordance with the terms hereof;

(iii)   all documents or instruments which the Initial Manager deems appropriate to reflect the admission of a Member (including any Substituted Member), the dissolution of the Company, sales or transfers of Shares, or the initial amount or increase or reduction in amount of any Member’s Capital Contribution or reduction in any Member’s Capital Account; and

(iv)   any document or instrument deemed necessary to effectuate the provisions of this Agreement.

B.        The appointment by the Members of the Initial Manager as attorney-in-fact in Section 9.01A, shall be deemed to be a power coupled with an interest, in recognition of the fact that each of the Members under this Agreement will be relying upon the power of the Initial Manager to act as contemplated by this Agreement in any filing and other action on behalf of the Company, and shall survive, and not be affected by the subsequent bankruptcy, death, incapacity, disability, adjudication of incompetence or insanity, or dissolution of any Person hereby giving such power or the transfer or Transfer of all or any of the Shares of such Person; provided however, that in the event of the Transfer of all of a Member’s Shares, the foregoing power of attorney of a transferor Member shall survive such transfer only until such time as the transferee shall have been admitted to the Company as a Substituted Member and all required documents and instruments shall have been duly executed, filed and recorded to effect such substitution.

Section 9.02. Counterparts.

A.        The Members and any Additional or Substituted Member shall each become a signatory hereof by signing such number of counterpart signature pages to this Agreement and such other instruments and in such manner as the Members shall determine. By so signing, the Members, any Additional or Substituted Member, as the case may be, shall be deemed to have adopted, and to have agreed to be bound by, all the provisions of this Agreement.

B.         This Agreement may be executed in several counterparts, all of which together shall constitute one agreement binding on all parties hereto, notwithstanding that all the parties have not signed the same counterpart.

Section 9.03. Amendments.

A.        In addition to the amendments otherwise authorized herein, amendments may be made to this Agreement from time to time by the Managers; provided, however, that without the consent of all of the Members, this Agreement may not be amended so as to (i) modify the limited liability of a Member; (ii) alter the Shares of a Member (except in connection with the admission or withdrawal of a Member to or from the Company or in connection with the issuance of Shares in exchange for an additional Capital Contribution by a Member ) or reduce the percentage of Shares which is required to consent to any action hereunder; or (iii) modify this Section 9.03A.

B.         If this Agreement shall be amended in connection with the adding or substituting a Member, the amendment to this Agreement shall be signed by the Members and by the Person to be substituted or added and, if a Member is to be substituted, by the assigning Member.

C.         In making any amendments, there shall be prepared and filed for recordation by the Members such documents and certificates as shall be required to be prepared and filed under the Act and under the laws of any other jurisdictions under which the Company is then formed or qualified.

Section 9.04. Partnership Representative.

A.         The Initial Manager shall be designated as the “partnership representative” (the “Partnership Representative”) of the Company. The Partnership Representative shall have sole authority to act on behalf of the Company for purposes of subchapter C of Chapter 63 of the Code and any comparable provisions of state or local income tax laws for so long as it is a Member and willing to serve in that capacity. For purposes of this Section 9.04, unless otherwise specified, all references to provisions of the Code shall be to such provisions as enacted by the Bipartisan Budget Act of 2015 as such provisions may subsequently be modified. Should there be any questions or controversy with the Internal Revenue Service or other taxing authority involving the Company, such person shall act as the agent of the Company to resolve such question or controversy and may, on behalf of the Company, incur any expenses he deems necessary or advisable in the interest of the Members in connection with any such question or controversy, including professional fees and the cost of any protest, litigation and/or appeals;

B.          If the Company qualifies to elect pursuant to Code Section 6221(b) (or successor provision) to have federal income tax audits and other proceedings undertaken by each Member rather than by the Company, then the Partnership Representative may cause the Company to make such election;

C.          Notwithstanding other provisions of this Agreement to the contrary, if any “partnership adjustments” (as defined in Code Section 6241(2)) is determined with respect to the Company, the Partnership Representative, in its discretion, may cause the Company to elect pursuant to Code Section 6226 to have such adjustment passed through to the Member for the year to which the adjustment relates (i.e., the “reviewed year” within the meaning of Code Section 6225(d)(1)). In the event that the Partnership Representative has not caused the Company to so elect pursuant to Code Section 6226, then any “imputed underpayment” (as determined in accordance with Code Section 6225) or “partnership adjustment” that does not give rise to an “imputed underpayment” shall be apportioned among the Members of the Company for the taxable year in which the adjustment is finalized in such manner as may be necessary (as determined by the tax representative in good faith) so that, to the maximum extent possible, the tax and economic consequences of the partnership adjustment and any associated interest and penalties are borne by the Members based upon their interests in the Company for the reviewed year; and

D.          The Partnership Representative is authorized to (A) extend the statute of limitations for assessment and (B) enter into a settlement agreement with the Internal Revenue Service on behalf of the Company.

Section 9.05. Binding Provisions.

The covenants and agreements contained herein shall be binding upon, and inure to the benefit of, the heirs, executors, administrators, personal representatives, successors and assigns of the respective parties hereto.

Section 9.06. Applicable Law.

This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware.

Section 9.07. Notice.

Any notice or other communication required or permitted hereunder shall be in writing and shall be deemed to have been given when received, if personally delivered or sent by facsimile, and when deposited, if placed in the U.S. mails for delivery by registered or certified mail, return receipt requested, postage prepaid, addressed to the Members at the addresses shown on Schedule 1. Addresses may be changed by written notice given pursuant to this section of the Agreement. Any notice given hereunder may be given on behalf of any party by his, her or its counsel or other authorized representatives.

Section 9.08. Separability of Provisions.

Each provision of this Agreement shall be considered separable and if for any reason any provision or provisions hereof are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those portions of this Agreement which are valid.

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IN WITNESS WHEREOF, the undersigned have signed this Operating Agreement of ROC DIGITAL MINING MANAGER LLC as of the day and year indicated below and effective as of the day and year first above written.

ROC DIGITAL MINING MANAGER LLC

Schedule 1

As of July 27, 2022

ROC DIGITAL MINING MANAGER LLC

OPERATING AGREEMENT

SPOUSAL CONSENT

I, being the spouse of a party to the Operating Agreement dated ____ __, 2022 (the “Agreement”) of Roc Digital Mining Manager LLC, a Delaware limited liability company (the “Company”) who is a Member of the Company, do hereby consent to the provisions of the Agreement and acknowledge and certify on my own behalf that:

1.          I have read the Agreement and understand its contents.

2.          I am aware that, by the provisions of the Agreement, under certain limited circumstances my spouse agrees to sell to the other Members, or otherwise grants to the other Members an option to purchase, part or all of his or her Shares in the Company, including my community property interest (if any) in such Shares.

3.          I am aware that, by the provisions of the Agreement, in the event that my spouse and I are divorced, I, or my legal representatives, may be required to sell my community property interest (if any) in the Shares of my spouse (the “Spousal Interest”) to the Members of the Company if my spouse does not succeed to such community property interest.

4.          I hereby consent to the sale of my community property interest (if any) pursuant to the terms and conditions of the Agreement, approve of the provisions of the Agreement and agree that my spouse’s Shares and my Spousal Interest in it are subject to the provisions of the Agreement. I promise that I will not take action at any time to hinder the operation of the Agreement with respect to my spouse’s Shares and my Spousal Interest in it, in accordance with the terms of the Agreement.

5.          I have been given the opportunity to retain and consult with separate legal counsel with respect to the Agreement and my community property interest (if any) in the Shares of my spouse.

In the case of any inconsistency between this Spousal Consent and the provisions of the Agreement, the provisions of the Agreement shall control.