Delaware | | | 81-3548560 |
(State or other jurisdiction of incorporation or organization) | | | (I.R.S. Employer Identification No.) |
Large accelerated filer | | | ☐ | | | | | Accelerated filer | | | ☐ | |
Non-accelerated filer | | | ☒ | | | | | Smaller reporting company | | | ☒ | |
| | | | | | Emerging growth company | | | ☒ |
(1) | We are a remote-first company. Accordingly, we do not maintain a headquarters. For purposes of compliance with applicable requirements of the Securities Act of 1933, as amended, and Securities Exchange Act of 1934, as amended, communications may be directed to 15418 Weir Street #333 Omaha, NE 68137. |
• | our business plans and strategy; |
• | projected profitability, performance or cash flows; |
• | future capital expenditures; |
• | our growth strategy, including our ability to grow organically and through mergers and acquisitions (“M&A”); |
• | anticipated financing needs; |
• | business trends; |
• | our capital allocation strategy; |
• | liquidity and capital management; and |
• | other information that is not historical information. |
Business |
• | Store of value or “payment” cryptocurrencies are primarily used to pay for goods and services and are often considered a substitute for gold, cash or forms of electronic payment. Merchants have begun to accept these types of cryptocurrencies as payment, although the cryptocurrency is often converted to a fiat currency, such as the U.S. dollar, immediately upon acceptance by the merchant. Examples of store of value and payment cryptocurrencies are Bitcoin and Litecoin; |
• | Cryptocurrencies that comprise part of a blockchain economy or blockchain platform typically have more functionality than a payment currency. Blockchain economies or platforms permit the use of the cryptocurrency to create other digital assets or tokens, run decentralized applications on the blockchain platform and build various types of functionality and features on the blockchain platform. Examples of cryptocurrencies that are part of blockchain economies include Ether, EOS and TRON; |
• | Privacy coins are cryptocurrencies created to focus on privacy and security. Privacy coin transaction details are typically encrypted, so that only the sender and receiver of the coins knows how many coins were involved in the transaction. In addition, the balance of a privacy coin wallet is known only to the owner of the wallet and cannot be viewed on the public blockchain record. An example of a privacy coin is Monero; |
• | Utility tokens are digital tokens run on a blockchain platform that are used solely to “pay for” or “power” products or services on that specific platform. Examples of utility tokens include Golem and Basic Attention Token; and |
• | Stablecoins are cryptocurrencies whose value is connected to an asset that will not significantly fluctuate in value. Different stablecoins have adopted different methods of stabilization. Examples of stablecoins are U.S. Dollar Coin (“USDC”), Tether, and DAI. |
• | creating a platform designed for our users to retain full control over the digital assets held in their Exodus wallet by encrypting the private keys locally on our users’ personal devices (private key data is not retained by Exodus); |
• | streamlining our users’ set up process by offering a range of wallet options to hold users’ private keys (including hot and cold wallets); |
• | providing quick access to digital assets without distractions of unnecessary or confusing technical information; |
• | hosting and maintaining our own robust server infrastructure to help enable maximum uptime for all digital assets and services offered on our platform; |
• | integrating third-party apps seamlessly into our highly functional platform to provide our users with a rich ecosystem of ways to use and manage their digital assets, as well as providing us with potential additional avenues for monetizing our platform; |
• | adapting and innovating the Exodus Platform to support our users’ ability to store other types of valuable assets such as personal information, traditional fiat currencies and other tokenized financial products; and |
• | providing timely support for users of our platform. |
• | Expanded geographic coverage. Limitations of regulatory and licensing requirements in certain jurisdictions may have less impact on our user experience; |
• | Increased service uptime. Individual API providers can experience downtime which directly impacts their ability to provide services to our users. Having multiple API providers may allow for redundancy and improved uptime; and |
• | More competition among API providers. API providers compete to provide the best offering, often translating to the best cost or lowest price, for our users. |
• | Exchanges that specialize in digital assets and offer a self-custodial wallet solution; |
• | Digital asset wallets; |
• | Banks, non-depository trust companies and other chartered financial institutions that offer digital asset custody services; and |
• | Exchanges or other FinTech companies with substantial infrastructure and market share that decide to and may be legally able to offer digital assets. |
• | platform features, quality, functionality and design; |
• | product pricing; |
• | breadth of features offered by a platform; |
• | quality of user support; |
• | security and trust; |
• | brand awareness and reputation; |
• | ease of adoption and use; |
• | accessibility of platform on multiple devices; |
• | user acquisition costs; and |
• | range of supported digital assets. |
Risk Factors |
• | increased management, travel, infrastructure and legal compliance costs associated with having operations in multiple jurisdictions; |
• | providing our platform and operating our business in different languages, among different cultures and time zones; |
• | compliance with foreign privacy, data protection, security laws and regulations, data localization requirements and the risks and costs of non-compliance; |
• | greater difficulty in enforcing contracts and accounts receivable collection; |
• | limitations on our ability to market our platform in foreign markets; |
• | differing technical standards, existing or future regulatory and certification requirements and required features and functionality; |
• | political and economic conditions and uncertainty in each country or region in which we operate; |
• | compliance with laws and regulations for foreign operations, including anti-bribery laws, import and export control laws, tariffs, trade barriers, economic sanctions and other regulatory or contractual limitations on our ability to acquire new users in certain foreign markets and the risks and costs of noncompliance; |
• | reduced or uncertain protection for intellectual property rights in some countries; |
• | greater risk of unexpected changes in regulatory practices, tariffs, tax laws and treaties; and |
• | differing employment practices and labor relations issues. |
• | strong and atypical retail investor interest, including on social media platforms and online forums; |
• | direct access by retail investors to broadly available trading platforms; |
• | the amount and status of short interest in our securities; |
• | access to margin debt; |
• | trading in options, derivatives or any other related hedging on our Class A common stock; |
• | actual or anticipated variations in our operating and financial performance, including projected operational and financial results and failure to meet those projections; |
• | our inability to pay dividends or other distributions or repurchase shares of our common stock; |
• | changes in market valuations of similar companies; |
• | market reaction to any additional equity, debt or other securities that we may issue in the future, and which may or may not dilute the holdings of our existing stockholders; |
• | any major change in our board of directors, management or key personnel; |
• | actions by institutional or significant stockholders; |
• | speculation in the press or investment community about our company or industry; |
• | strategic actions by us or our competitors, such as acquisitions or other investments; |
• | legislative, administrative, regulatory or other actions affecting our business or industry, including positions taken by the IRS; |
• | investigations, proceedings or litigation that involve or affect us; |
• | the occurrence of any of the other risk factors included in this Report; |
• | general market and economic conditions; and |
• | other trading factors. |
Financial Information |
• | Our revenues are primarily derived from digital asset related transactions and consist of fees from third party API agreements. Our expenses primarily consist of: |
• | Cost of revenues (primarily include software development, user support and security and wallet operations); |
• | Depreciation expense relating to software development; and |
• | General and administrative expenses. |
| | Years Ended December 31, | ||||||||||
(in thousands, except percentages) | | | 2023 | | | 2022 | | | $ Change | | | % Change |
OPERATING REVENUES | | | $56,185 | | | $50,606 | | | $5,579 | | | 11% |
COST OF REVENUES | | | 30,517 | | | 28,677 | | | 1,840 | | | 6 |
GROSS PROFIT | | | 25,668 | | | 21,929 | | | 3,739 | | | 17 |
| | | | | | | | |||||
OPERATING EXPENSES | | | | | | | | | ||||
General and administrative | | | 18,505 | | | 28,086 | | | (9,581) | | | (34) |
(Gain) impairment on digital assets, net | | | (1,431) | | | 18,308 | | | (19,739) | | | (108) |
Impairment on assets | | | 207 | | | 500 | | | (293) | | | (59) |
Total operating expenses | | | 17,281 | | | 46,894 | | | (29,613) | | | (63) |
Income (loss) from operations | | | 8,387 | | | (24,965) | | | 33,352 | | | (134) |
OTHER INCOME | | | | | | | | | ||||
Staking rewards | | | 72 | | | 151 | | | (79) | | | (52) |
Unrealized gain on investments | | | 248 | | | 295 | | | (47) | | | (16) |
Interest income | | | 2,174 | | | 427 | | | 1,747 | | | 409 |
Total other income | | | 2,494 | | | 873 | | | 1,621 | | | 186 |
Income (loss) before income taxes | | | 10,881 | | | (24,092) | | | 34,973 | | | (145) |
INCOME TAX BENEFIT | | | 1,905 | | | 946 | | | 959 | | | 101 |
NET INCOME (LOSS) | | | $12,786 | | | $(23,146) | | | $35,932 | | | (155) |
OTHER COMPREHENSIVE (LOSS) INCOME | | | | | | | | | ||||
Foreign currency translation adjustment | | | (783) | | | 94 | | | (877) | | | (933) |
COMPREHENSIVE INCOME (LOSS) | | | $12,003 | | | $(23,052) | | | $35,055 | | | (152)% |
| | December 31, 2023 | | | December 31, 2022 | | | $ Change | |
Cash provided by (used in) | | | | | | | |||
Operating activities | | | $692 | | | $44,420 | | | $(43,728) |
Investing activities | | | (9,128) | | | (32,059) | | | 22,931 |
Financing activities | | | (682) | | | 2,758 | | | (3,440) |
Net change in cash and cash equivalents | | | $(9,118) | | | $15,119 | | | $(24,237) |
| | Units | | | Carrying Value | | | Quoted Prices Level 1 | | | Significant Other Observable Inputs Level 2 | | | Significant Unobservable Inputs Level 3 | |
December 31, 2023 | | | | | | | | | | | |||||
Bitcoin | | | 1,787 | | | $32,262 | | | $75,050 | | | $— | | | $— |
Ethereum | | | 2,538 | | | 2,022 | | | 5,739 | | | — | | | — |
Other digital assets | | | 4,625,187 | | | 726 | | | 2,443 | | | — | | | — |
Digital assets, net | | | | | $35,010 | | | | | | | ||||
December 31, 2022 | | | | | | | | | | | |||||
Bitcoin | | | 1,391 | | | $17,549 | | | $22,974 | | | $— | | | $— |
Ethereum | | | 2,538 | | | 2,022 | | | 3,031 | | | — | | | — |
Other digital assets | | | 4,288,471 | | | 731 | | | 768 | | | — | | | — |
Digital assets, net | | | | | $20,302 | | | | | | |
| | Carrying Value | | | Quoted Prices Level 1 | | | Significant Other Observable Inputs Level 2 | | | Significant Unobservable Inputs Level 3 | |
December 31, 2023 | | | | | | | | | ||||
Cash and cash equivalents | | | $11,376 | | | $11,376 | | | $— | | | $— |
USDC | | | 517 | | | 517 | | | — | | | — |
Treasury bills | | | 43,151 | | | 43,151 | | | — | | | — |
Total liquid assets | | | $55,044 | | | | | | | |||
December 31, 2022 | | | | | | | | | ||||
Cash and cash equivalents | | | $20,494 | | | $20,494 | | | $— | | | $— |
Treasury bills | | | 31,981 | | | 31,981 | | | — | | | — |
Total liquid assets | | | $52,475 | | | | | | |
Properties |
Security Ownership of Certain Beneficial Owners and Management |
| | Class A Common Stock | | | Class B Common Stock | | | Total Voting Power %(1) | |||||||
Name and Address of Beneficial Owner | | | Shares | | | % of Ownership | | | Shares | | | % of Ownership | | ||
Directors and Named Executive Officers | | | | | | | | | | | |||||
Jon Paul Richardson | | | 154,516(4) | | | 3.6% | | | 9,297,537 | | | 42.7% | | | 42.0% |
Daniel Castagnoli | | | 141,071(5) | | | 3.3% | | | 9,454,413 | | | 43.5% | | | 42.7% |
Veronica McGregor | | | 49,087(6) | | | 1.1% | | | — | | | — | | | • |
Margaret Knight | | | 2,083(7) | | | • | | | — | | | — | | | • |
Carol MacKinlay | | | — | | | — | | | — | | | — | | | — |
Tyler Skelton | | | — | | | — | | | — | | | — | | | — |
All executive officers and directors as a group | | | 459,266(8) | | | 10.6% | | | 18,751,950 | | | 86.2% | | | 84.7% |
| | | | | | | | | | ||||||
5% or more Shareholders | | | | | | | | | | | |||||
Alameda Research Ventures LLC(2) | | | 1,823,486 | | | 42.2% | | | — | | | — | | | • |
AIC Capital LLC(3) | | | 364,698 | | | 8.4% | | | — | | | — | | | • |
• | Represents beneficial ownership or voting power of less than 1% |
(1) | Percentage total voting power represents voting power with respect to all outstanding shares of our Class A common stock and Class B common stock, voting as a single class. |
(2) | Alameda Research Ventures LLC filed for bankruptcy in November 2022. The business address of Alameda Research Ventures LLC is 2000 Center Street, Floor 4, Berkeley, California 94704, United States. |
(3) | Silvio Micali has voting and investment control of the shares held by AIC Capital LLC and may be deemed to beneficially own the securities owned by AIC Capital LLC. The business address of AIC Capital LLC is c/o Campbells, Floor 4, Willow House, Cricket Square, George Town, Grand Cayman KY1-9010, Cayman Islands. |
(4) | Includes 29,089 shares of Class A Common Stock vesting 60 days after the year ended December 31, 2023. |
(5) | Includes 29,089 shares of Class A Common Stock vesting 60 days after the year ended December 31, 2023. |
(6) | Includes 9,837 shares of Class A Common Stock vesting 60 days after the year ended December 31, 2023. |
(7) | Includes 833 shares of Class A Common Stock vesting 60 days after the year ended December 31, 2023. |
(8) | Includes 89,643 shares of Class A Common Stock vesting 60 days after the year ended December 31, 2023. |
Directors and Executive Officers |
Name | | | Age | | | Position |
Directors and Executive Officers | | | | | ||
Margaret Knight | | | 45 | | | Director |
Carol MacKinlay | | | 61 | | | Director |
Tyler Skelton | | | 38 | | | Director |
Jon Paul Richardson | | | 40 | | | Chief Executive Officer and Director |
Daniel Castagnoli | | | 47 | | | Director, President of our wholly-owned subsidiary, 3ZERO LLC (“3ZERO”) |
James Gernetzke | | | 47 | | | Chief Financial Officer and Secretary |
Veronica McGregor | | | 61 | | | Chief Legal Officer |
Matias Olivera | | | 31 | | | Chief Technology Officer |
| | | | |||
Significant Employees | | | | | ||
John Staker | | | 49 | | | Vice President Infrastructure and Security |
Zanmei Yam | | | 32 | | | Vice President Community Support and Customer Success |
Executive Compensation |
Name and Principal Position | | | Year | | | Salary | | | Bonus | | | Stock Awards(1) | | | All Other Compensation(2) | | | Total |
Jon Paul Richardson Director, Chief Executive Officer | | | 2023 | | | $425,000 | | | $— | | | $1,500,000 | | | $7,682 | | | $1,932,682 |
Daniel Castagnoli Director, President of 3ZERO | | | 2023 | | | 335,000 | | | — | | | 1,500,000 | | | 7,331 | | | 1,842,331 |
Veronica McGregor Chief Legal Officer | | | 2023 | | | 500,000 | | | 208,288 | | | 500,002 | | | 19,100 | | | 1,227,390 |
(1) | Amounts represent the aggregate grant date fair value of restricted stock units (“RSUs”) granted in 2023 pursuant to the Company’s 2021 Plan in accordance with Accounting Standards Codification Topic 718 (“ASC Topic 718”), calculated based on the average closing price, as quoted on tZERO, of the Class A Common Stock on the applicable due date of the grant, which was $2.40 on January 1, 2023. |
(2) | All other compensation includes employee wellness and executive perks. |
| | Stock Awards | ||||
Name | | | Number of shares or units of stock that have not vested | | | Market value of shares or units of stock that have not vested(1) |
Jon Paul Richardson | | | 38,110(2) | | | $94,894 |
| 481,771(3) | | | 1,199,610 | ||
Daniel Castagnoli | | | 38,110(2) | | | 94,894 |
| 481,771(3) | | | 1,199,610 | ||
Veronica McGregor | | | 14,468(4) | | | 36,025 |
| 160,591(3) | | | 399,872 |
(1) | Based on the $2.49 closing price of a share of Class A Common Stock on December 11, 2023, the last day of the Company’s 2023 fiscal year on which there was trading, as quoted on tZERO |
(2) | These RSUs vest in equal monthly installments through January 1, 2026. |
(3) | These RSUs vest in equal monthly installments through January 1, 2027. |
(4) | These RSUs vest in equal monthly installments through January 4, 2026. |
Name | | | Fees Earned ($) | | | Stock Awards ($)(1) | | | Total |
Margaret Knight | | | $20,000 | | | $36,700 | | | $56,700 |
(1) | Amount represents the aggregate grant date fair value of RSUs granted in 2023 pursuant to the Company’s 2021 Plan in accordance with ASC Topic 718, calculated based on the average closing price, as quoted on tZERO, of the Class A Common Stock on the applicable date of grant, which was $3.67 on September 1, 2023. As of December 31, 2023, Ms. Knight held 8,750 unvested RSUs. |
Certain Relationships and Related Transactions, and Director Independence |
Legal Proceedings |
Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters |
Period | | | High(1) | | | Low(1) |
December 31, 2023 | | | | | ||
Fourth Quarter | | | $5.00 | | | $1.90 |
Third Quarter | | | 7.47 | | | 2.50 |
Second Quarter | | | 3.94 | | | 1.54 |
First Quarter | | | 4.48 | | | 2.00 |
| | | | |||
December 31, 2022 | | | | | ||
Fourth Quarter | | | 4.97 | | | 1.00 |
Third Quarter | | | 12.98 | | | 2.10 |
Second Quarter | | | 18.50 | | | 4.98 |
First Quarter | | | 20.50 | | | 12.00 |
(1) | This information was obtained from tZERO and Securitize, established alternative trading systems. Over-the- counter market quotations reflect inter-dealer prices, without retail mark-up, mark-down or commission and may not necessarily represent actual transactions. |
Plan Category | | | Number of securities to be issued upon exercise of outstanding options, warrants and rights(2) | | | Weighted average exercise price of outstanding options, warrants and rights(3) | | | Number of securities remaining available for future issuance under equity compensation plans |
Equity compensation plans approved by security holders(1) | | | | | | | |||
Class A Common Stock | | | 2,797,071 | | | — | | | 2,909,203 |
Class B Common Stock | | | 2,156,632 | | | $2.40 | | | — |
Equity compensation plans not approved by security holders | | | — | | | — | | | — |
(1) | Refers to our 2019 Equity Incentive Plan and our 2021 Equity Incentive Plan. Subject to adjustments as provided in our 2021 Equity Incentive Plan, the aggregate number of shares of Class A Common Stock that may be issued pursuant to awards under the 2021 Equity Incentive Plan will not exceed 6,530,000 shares of Class A Common Stock. Awards representing shares of Class B Common Stock were granted under the 2019 Equity Incentive Plan. Shares are no longer available for issuance under our 2019 Equity Incentive Plan. |
(2) | Includes outstanding options and RSUs. |
(3) | Weighted-average exercise price only reflects outstanding options as RSUs do not have an exercise price. |
Recent Sales of Unregistered Securities |
Description of Registrant’s Securities to be Registered |
• | Special Meetings of Stockholders. Our amended and restated certificate of incorporation and our amended and restated bylaws provide that special meetings of our stockholders may be called only by a majority of our board of directors, the chairperson of our board of directors or our chief executive officer or president, thus prohibiting a stockholder from calling a special meeting. These provisions might delay the ability of our stockholders to force consideration of a proposal or for stockholders to take any action, including the removal of directors. |
• | Advance Notice Requirements for Stockholder Proposals and Director Nominations. Our amended and restated bylaws provide advance notice procedures for stockholders seeking to bring business before our meetings of stockholders or to nominate candidates for election as directors at our meetings of |
• | No Cumulative Voting. The DGCL provides that stockholders are not entitled to the right to cumulate votes in the election of directors unless a corporation’s certificate of incorporation provides otherwise. Our amended and restated certificate of incorporation and amended and restated bylaws do not provide for cumulative voting. |
• | Issuance of Undesignated Preferred Stock. Our board has the authority, without further action by the stockholders, to issue up to 5,000,000 shares of undesignated preferred stock with rights and preferences, including voting rights, designated from time to time by our board of directors. The existence of authorized but unissued shares of preferred stock enables our board of directors to render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise. |
• | Choice of Forum. Our amended and restated bylaws provide that, to the fullest extent permitted by law, the Court of Chancery of the State of Delaware will be the sole and exclusive forum for any derivative action or proceeding brought on our behalf; any action asserting a breach of fiduciary duty; any action asserting a claim against us arising pursuant to the DGCL, our amended and restated certificate of incorporation or amended and restated bylaws; or any action asserting a claim against us that is governed by the internal affairs doctrine. This exclusive forum provision does not apply to claims as to which the Court of Chancery of the State of Delaware determines that there is an indispensable party not subject to the jurisdiction of such court (and the indispensable party does not consent to the personal jurisdiction of such court within 10 days following such determination), claims that are vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery of the State of Delaware, or claims for which the Court of Chancery of the State of Delaware does not have subject matter jurisdiction. For instance, the provision does not preclude the filing of claims brought to enforce any liability or duty created by the Exchange Act or Securities Act or the rules and regulations thereunder in federal court. In addition, our amended and restated bylaws provide that the federal district courts of the United States shall be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act. The enforceability of similar exclusive federal forum provisions in other companies’ organizational documents has been challenged in legal proceedings, and while the Delaware Supreme Court has ruled that this type of exclusive federal forum provision is facially valid under Delaware law, there is uncertainty as to whether other courts would enforce such provisions and that investors cannot waive compliance with the federal securities laws and the rules and regulations thereunder. |
• | Board Vacancies. Our amended and restated bylaws and certificate of incorporation authorize our board of directors to fill vacant directorships resulting from any cause or created by the expansion of our board of directors. In addition, the number of directors constituting our board of directors may be set only by resolution adopted by our board of directors. After the Class B Threshold Date such vacancies may not be filled by stockholders. These provisions prevent a stockholder from increasing the size of our board of directors and gaining control of our board of directors by filling the resulting vacancies with its own nominees. |
• | Classified Board. Our amended and restated certificate of incorporation provides that after the Class B Threshold Date our board of directors is classified into three classes of directors. The existence of a classified board of directors could delay a successful tender offeror from obtaining majority control of our board of directors, and the prospect of that delay might deter a potential offeror. |
• | Directors Removable Only for Cause. Our amended and restated certificate of incorporation provides that after the Class B Threshold Date stockholders may remove directors only for cause. |
• | Supermajority Requirements for Amendments of Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws. Our amended and restated certificate of incorporation further provides that, after the Class B Threshold Date, the affirmative vote of holders of at least 66 2/3% of our outstanding stockholder voting power is required to amend certain provisions of our amended and restated certificate of incorporation, including provisions relating to the classified board, the size of the board of directors, removal of directors, special meetings, actions by written consent, and designation of our preferred stock. After the Class B Threshold Date, the affirmative vote of holders of at least 66 2/3% of our outstanding stockholder voting power is required for the stockholders to amend or repeal our amended and restated bylaws, although our amended and restated bylaws may be amended by a simple majority vote of our board of directors. |
• | Stockholder Action. Our amended and restated certificate of incorporation provides that after the Class B Threshold Date our stockholders may not take action by written consent but may only take action at annual or special meetings of our stockholders. As a result, holders of our capital stock would not be able to amend our amended and restated bylaws or remove directors without holding a meeting of our stockholders called in accordance with our amended and restated bylaws. |
Indemnification of Directors and Officers |
Financial Statements and Supplementary Data |
| | December 31, 2023 | | | December 31, 2022 | |
ASSETS | | | | | ||
CURRENT ASSETS | | | | | ||
Cash and cash equivalents | | | $11,376 | | | $20,494 |
U.S. dollar coin ($500 restricted as of December 31, 2023) | | | 517 | | | — |
Treasury bills | | | 43,151 | | | 31,981 |
Accounts receivable | | | 3,240 | | | 1,488 |
Prepaid expenses | | | 1,440 | | | 2,752 |
Other current assets | | | 5 | | | 77 |
Total current assets | | | 59,729 | | | 56,792 |
OTHER ASSETS | | | | | ||
Fixed assets, net | | | 317 | | | 617 |
Digital assets, net | | | 35,010 | | | 20,302 |
Software assets, net | | | 8,051 | | | 7,490 |
Indefinite-lived assets | | | 1,945 | | | 1,945 |
Other investments | | | 100 | | | 694 |
Deferred tax assets | | | 6,567 | | | 1,369 |
Total other assets | | | 51,990 | | | 32,417 |
TOTAL ASSETS | | | $111,719 | | | $89,209 |
LIABILITIES AND STOCKHOLDERS’ EQUITY | | | | | ||
CURRENT LIABILITIES | | | | | ||
Accounts payable | | | $1,061 | | | $610 |
Other current liabilities | | | 6,485 | | | 2,389 |
Total current liabilities | | | 7,546 | | | 2,999 |
LONG-TERM LIABILITIES | | | | | ||
Long-term liabilities | | | 412 | | | 366 |
Total liabilities | | | 7,958 | | | 3,365 |
STOCKHOLDERS’ EQUITY | | | | | ||
Preferred stock | | | | | ||
$0.000001 par value, 5,000,000 shares authorized, no shares issued and outstanding | | | — | | | — |
Class A Common Stock | | | | | ||
$0.000001 par value, 32,500,000 shares authorized, | | | — | | | — |
4,320,005 issued and outstanding as of December 31, 2023 | | | — | | | — |
3,543,791 issued and outstanding as of December 31, 2022 | | | — | | | — |
Class B Common Stock | | | | | ||
$0.000001 par value, 27,500,000 shares authorized, | | | — | | | — |
21,760,855 issued and outstanding as of December 31, 2023 | | | — | | | — |
21,798,414 issued and outstanding as of December 31, 2022 | | | — | | | — |
ADDITIONAL PAID IN CAPITAL | | | 122,558 | | | 116,644 |
ACCUMULATED OTHER COMPREHENSIVE LOSS | | | (1,477) | | | (694) |
ACCUMULATED DEFICIT | | | (17,320) | | | (30,106) |
Total stockholders’ equity | | | 103,761 | | | 85,844 |
TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY | | | $111,719 | | | $89,209 |
| | Years Ended December 31, | ||||
| | 2023 | | | 2022 | |
OPERATING REVENUES | | | $56,185 | | | $50,606 |
COST OF REVENUES | | | 30,517 | | | 28,677 |
GROSS PROFIT | | | 25,668 | | | 21,929 |
OPERATING EXPENSES | | | | | ||
General and administrative | | | 18,505 | | | 28,086 |
(Gain) impairment on digital assets, net | | | (1,431) | | | 18,308 |
Impairment on investments | | | 207 | | | 500 |
Total operating expenses | | | 17,281 | | | 46,894 |
Income (loss) from operations | | | 8,387 | | | (24,965) |
OTHER INCOME | | |||||
Staking rewards | | | 72 | | | 151 |
Unrealized gain on investments | | | 248 | | | 295 |
Interest income | | | 2,174 | | | 427 |
Total other income | | | 2,494 | | | 873 |
Income (loss) before income taxes | | | 10,881 | | | (24,092) |
INCOME TAX BENEFIT | | | 1,905 | | | 946 |
NET INCOME (LOSS) | | | $12,786 | | | $(23,146) |
OTHER COMPREHENSIVE (LOSS) INCOME | | | | | ||
Foreign currency translation adjustment | | | (783) | | | 94 |
COMPREHENSIVE INCOME (LOSS) | | | $12,003 | | | $(23,052) |
Net income (loss) per share | | | | | ||
Basic - Class A | | | $3.27 | | | $(7.20) |
Diluted - Class A | | | $1.78 | | | $(7.20) |
Basic - Class B | | | $0.59 | | | $(1.01) |
Diluted - Class B | | | $0.53 | | | $(1.01) |
Weighted average shares outstanding | | | | | ||
Basic - Class A | | | 3,909 | | | 3,216 |
Diluted - Class A | | | 7,185 | | | 3,216 |
Basic - Class B | | | 21,797 | | | 22,826 |
Diluted - Class B | | | 23,976 | | | 22,826 |
| | Class A Shares | | | Class B Shares | | | Additional Paid In Capital | | | Accumulated Other Comprehensive Loss | | | (Accumulated Deficit) Retained Earnings | | | Total Stockholders’ Equity | |
December 31, 2021 | | | 2,730 | | | 22,510 | | | $111,705 | | | $(788) | | | $(6,960) | | | $103,957 |
Stock based compensation | | | — | | | — | | | 5,205 | | | — | | | — | | | 5,205 |
Exercised options, net of options withheld for taxes and strike price | | | — | | | 7 | | | 18 | | | — | | | — | | | 18 |
Shares repurchased and cancelled | | | (2) | | | — | | | (20) | | | — | | | — | | | (20) |
Issuance of Common Stock upon settlement of RSUs, net of shares withheld for taxes | | | 97 | | | — | | | (264) | | | — | | | — | | | (264) |
Conversion of Class B to Class A, as elected by shareholders | | | 719 | | | (719) | | | — | | | — | | | — | | | — |
Foreign currency translation adjustment | | | — | | | — | | | — | | | 94 | | | — | | | 94 |
Net loss | | | — | | | — | | | — | | | — | | | (23,146) | | | (23,146) |
December 31, 2022 | | | 3,544 | | | 21,798 | | | $116,644 | | | $(694) | | | $(30,106) | | | $85,844 |
Stock based compensation | | | — | | | — | | | 6,576 | | | — | | | — | | | 6,576 |
Exercised options, net of options withheld for taxes | | | — | | | 13 | | | 33 | | | — | | | — | | | 33 |
Issuance of Common Stock upon settlement of RSUs, net of shares withheld for taxes | | | 725 | | | — | | | (695) | | | — | | | — | | | (695) |
Conversion of Class B to Class A, as elected by shareholders | | | 51 | | | (51) | | | — | | | — | | | — | | | — |
Foreign currency translation adjustment | | | — | | | — | | | — | | | (783) | | | — | | | (783) |
Net income | | | — | | | — | | | — | | | — | | | 12,786 | | | 12,786 |
December 31, 2023 | | | 4,320 | | | 21,760 | | | $122,558 | | | $(1,477) | | | $(17,320) | | | $103,761 |
| | Years Ended December 31, | ||||
| | 2023 | | | 2022 | |
CASH FLOWS FROM OPERATING ACTIVITIES | | | | | ||
Net income (loss) | | | $12,786 | | | $(23,146) |
Adjustments to reconcile net income (loss) to | | | | | ||
Net cash provided by operating activities | | | | | ||
Depreciation and amortization | | | 4,570 | | | 3,460 |
Deferred tax benefit | | | (5,197) | | | (1,595) |
Gain on settlement of digital assets | | | (5,047) | | | (3,356) |
Impairment of digital assets | | | 3,616 | | | 21,664 |
Impairment on assets | | | 207 | | | 500 |
Non-cash revenue - related party | | | — | | | (135) |
Accrued interest income | | | (1,476) | | | — |
Unrealized gain on investments | | | (248) | | | (295) |
Stock-based compensation | | | 5,784 | | | 4,133 |
Non-cash activities settled in digital assets and USDC(1) | | | (17,241) | | | 39,833 |
Change in operating assets and liabilities: | | | | | ||
Prepaid expenses | | | 1,491 | | | 4,914 |
Other current assets | | | 72 | | | 161 |
Other assets | | | — | | | (248) |
Accounts payable | | | 471 | | | (1,378) |
Other current liabilities | | | 859 | | | (458) |
Other long-term liabilities | | | 45 | | | 366 |
Net cash provided by operating activities | | | 692 | | | 44,420 |
| | | | |||
CASH FLOWS FROM INVESTING ACTIVITIES | | | | | ||
Purchases of fixed assets | | | (67) | | | (324) |
Purchase of treasury bills | | | (83,909) | | | (35,935) |
Redemption of investments | | | 249 | | | — |
Redemption of treasury bills | | | 74,599 | | | 4,200 |
Net cash used in investing activities | | | (9,128) | | | (32,059) |
| | | | |||
CASH FLOWS FROM FINANCING ACTIVITIES | | | | | ||
Payment of shares repurchased and cancelled | | | — | | | (20) |
Proceeds from note receivable | | | — | | | 3,038 |
Repurchase of shares to pay employee withholding taxes | | | (715) | | | (264) |
Exercise of stock options | | | 33 | | | 4 |
Net cash (used in) provided by financing activities | | | (682) | | | 2,758 |
Change in cash and cash equivalents | | | (9,118) | | | 15,119 |
Cash and cash equivalents at beginning of period | | | 20,494 | | | 5,375 |
Cash and cash equivalents at end of period | | | $11,376 | | | $20,494 |
| | | | |||
SUPPLEMENTAL DISCLOSURE OF NON-CASH INVESTING AND FINANCING ACTIVITIES | | | | | ||
Non-cash stock options exercised - USDC | | | $— | | | $2 |
Non-cash stock options exercised | | | $— | | | $12 |
Non-cash issuance of stock | | | $20 | | | $— |
Non-cash capitalized software costs settled in digital assets (including stock-based compensation of $792 and $1,072, respectively) | | | $(4,742) | | | $(6,714) |
Non-cash purchase of fixed assets | | | $(21) | | | $(67) |
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION | | | | | ||
Cash paid for income taxes | | | $(2,371) | | | $(690) |
(1) | See Note 6, “Intangible Assets”. |
| | December 31, 2023 | | | December 31, 2022 | |
Exchange revenue: | | | | | ||
Company A | | | $11,455 | | | $9,782 |
Company B | | | 10,503 | | | 12,585 |
Company C | | | 9,251 | | | 6,965 |
Company D | | | 8,561 | | | 7,738 |
Company E | | | 7,467 | | | 6,773 |
• | Level 1 – Quoted prices for identical instruments in active markets. |
• | Level 2 – Quoted prices for similar instruments in active markets; quoted prices for identical or similar instruments in markets that are not active; and model-derived valuations in which all significant inputs are observable in active markets. |
• | Level 3 – Valuations derived from valuation techniques in which one or more significant inputs are not observable. |
• | Expected dividend yield. The expected dividend is assumed to be zero as we have never paid dividends and have no current plans to pay any dividends on our common stock. |
• | Expected stock-price volatility. The expected volatility is derived from the average historical volatilities of publicly traded companies within our industry that we consider to be comparable over a period approximately equal to the expected term. |
• | Risk-free interest rate. The risk-free interest rate is based on the U.S. Treasury yield in effect at the time of grant for zero coupon U.S. Treasury notes with maturities approximately equal to the expected term. |
• | Expected term. The expected term represents the period that the stock-based awards are expected to be outstanding. Our historical share option exercise experience does not provide a reasonable basis upon which to estimate an expected term because of a lack of sufficient data. Therefore, we estimate the expected term by using the simplified method provided by the SEC. The simplified method calculates the expected term as the average of the time-to-vesting and the contractual life of the options. |
• | Fair value per share. The fair value per share is the fair price or theoretical value for a call or a put option based on six variables such as volatility, type of option, underlying stock price, time, strike price and risk-free rate. |
| | Years Ended December 31, | ||||||||||
| | 2023 | | | 2022 | |||||||
Republic of the Marshall Islands | | | $17,812 | | | 31.7% | | | $14,703 | | | 29.1% |
Hong Kong | | | 11,592 | | | 20.6 | | | 11,369 | | | 22.5 |
British Virgin Islands | | | 11,181 | | | 19.9 | | | 9,468 | | | 18.7 |
Seychelles | | | 10,521 | | | 18.7 | | | 12,791 | | | 25.3 |
Other(1) | | | 5,079 | | | 9.1 | | | 2,275 | | | 4.4 |
Operating revenues | | | $56,185 | | | 100% | | | $50,606 | | | 100.0% |
(1) | No other individual country accounted for more than 10% of total revenue. |
| | Years Ended December 31, | ||||||||||
| | 2023 | | | 2022 | |||||||
Exchange aggregation | | | $52,521 | | | 93.5% | | | $49,180 | | | 97.2% |
Fiat onboarding | | | 2,381 | | | 4.2 | | | 584 | | | 1.2 |
Staking revenue earned through an API provider | | | 881 | | | 1.6 | | | 697 | | | 1.4 |
Consulting | | | 307 | | | 0.5 | | | 25 | | | — |
Other(1) | | | 95 | | | 0.2 | | | 98 | | | 0.2 |
Gaming | | | — | | | — | | | 22 | | | — |
Operating revenues | | | $56,185 | | | 100.0% | | | $50,606 | | | 100.0% |
(1) | For the year ended December 31, 2023, there were no related party revenues included in other revenues. For the year ended December 31, 2022 there was $0.1 million of related party revenues included in other revenues. See Note 14, “Related Party”. |
| | December 31, 2023 | | | December 31, 2022 | |
Accounting, consulting, and legal services | | | $688 | | | $39 |
Prepaid cloud services | | | 413 | | | 2,154 |
Prepaid software | | | 281 | | | 559 |
Prepaid insurance | | | 58 | | | — |
Prepaid expenses | | | $1,440 | | | $2,752 |
| | December 31, 2023 | | | December 31, 2022 | |
Computer equipment | | | $870 | | | $1,049 |
Vehicles | | | 256 | | | 256 |
Furniture and fixtures | | | 21 | | | 18 |
Fixed assets, gross | | | 1,147 | | | 1,323 |
Less: accumulated depreciation | | | (830) | | | (706) |
Fixed assets, net | | | $317 | | | $617 |
| | December 31, 2023 | | | December 31, 2022 | |
Domain name | | | $1,945 | | | $1,945 |
Indefinite-lived assets | | | $1,945 | | | $1,945 |
| | Units | | | Carrying Value | | | Quoted Prices Level 1 | | | Significant Other Observable Inputs Level 2 | | | Significant Unobservable Inputs Level 3 | |
December 31, 2023 | | | | | | | | | | | |||||
Bitcoin | | | 1,787 | | | $32,262 | | | $75,050 | | | $— | | | $— |
Ethereum | | | 2,538 | | | 2,022 | | | 5,739 | | | — | | | — |
Other digital assets | | | 4,625,187 | | | 726 | | | 2,443 | | | — | | | — |
Digital assets, net | | | | | $35,010 | | | | | | | ||||
December 31, 2022 | | | | | | | | | | | |||||
Bitcoin | | | 1,391 | | | $17,549 | | | $22,974 | | | $— | | | $— |
Ethereum | | | 2,538 | | | 2,022 | | | 3,031 | | | — | | | — |
Other digital assets | | | 4,288,471 | | | 731 | | | 768 | | | — | | | — |
Digital assets, net | | | | | $20,302 | | | | | | |
| | Years Ended December 31, | ||||
| | 2023 | | | 2022 | |
Accounts receivable | | | $(1,751) | | | $1,175 |
Digital assets, revenue | | | (56,185) | | | (50,471) |
Digital assets, expenses | | | 38,241 | | | 58,772 |
Conversion of digital assets and USDC to cash | | | — | | | 30,000 |
Payroll liabilities | | | 2,510 | | | 263 |
| | Years Ended December 31, | ||||
| | 2023 | | | 2022 | |
Deferred revenue | | | 727 | | | — |
Currency translation related to digital assets | | | (783) | | | 94 |
Non-cash activities settled in digital assets and USDC | | | $(17,241) | | | $39,833 |
| | December 31, 2023 | | | December 31, 2022 | |
Internal use software, gross | | | $16,208 | | | $11,640 |
Less: accumulated amortization | | | (8,157) | | | (4,150) |
Software assets, net | | | $8,051 | | | $7,490 |
2024 | | | $4,584 |
2025 | | | 2,628 |
2026 | | | 839 |
Total | | | $8,051 |
| | December 31, 2023 | | | December 31, 2022 | |
Payroll liabilities | | | $4,770 | | | $2,259 |
Income taxes payable | | | 988 | | | 113 |
Deferred revenue(1) | | | 727 | | | — |
Consulting liabilities | | | — | | | 17 |
Other current liabilities | | | $6,485 | | | $2,389 |
(1) | See Note 2, “Summary of Significant Accounting Policies” |
| | Options | | | Weighted Average Exercise Price | |
Outstanding as of December 31, 2021 | | | 2,265,725 | | | $2.40 |
Exercised | | | (7,174) | | | 2.46 |
Forfeited | | | (67,572) | | | 2.43 |
Outstanding as of December 31, 2022 | | | 2,190,979 | | | 2.40 |
Exercised | | | (13,802) | | | 2.39 |
Forfeited | | | (20,545) | | | 2.51 |
Outstanding as of December 31, 2023 | | | 2,156,632 | | | 2.40 |
Vested and exercisable as of December 31, 2023 | | | 2,137,102 | | | $2.40 |
| | Years Ended December 31, | ||||
| | 2023 | | | 2022 | |
Cost of revenues | | | $2,824 | | | $2,290 |
General and administrative | | | 3,752 | | | 2,915 |
Stock-based compensation | | | $6,576 | | | $5,205 |
| | Years Ended December 31, | ||||
| | 2023 | | | 2022 | |
U.S. federal | | | | | ||
Current | | | $3,206 | | | $570 |
Deferred | | | (5,047) | | | (1,584) |
Foreign | | | | | ||
Current | | | — | | | 2 |
Deferred | | | — | | | (11) |
State and local | | | | | ||
Current | | | 86 | | | 77 |
Deferred | | | (150) | | | — |
Income tax benefit | | | $(1,905) | | | $(946) |
| | December 31, 2023 | | | December 31, 2022 | |
Federal statutory rate | | | 21.0% | | | 21.0% |
State and local income taxes, net of federal tax benefit | | | 0.2 | | | — |
Foreign derived intangible income deduction | | | (14.7) | | | — |
Tax credits | | | (1.8) | | | 0.3 |
Foreign Tax - net of foreign tax credit | | | — | | | (2.9) |
Stock-based compensation deferred expense | | | 5.9 | | | — |
Other | | | 1.5 | | | (1.3) |
Cost basis variance in digital asset acquisition costs | | | 13.5 | | | 6.0 |
Impact of change in rates | | | (0.7) | | | — |
Change in valuation allowance | | | (42.2) | | | (19.3) |
Effective tax rate for income from continuing operations | | | (17.3)% | | | 3.8% |
| | December 31, 2023 | | | December 31, 2022 | |
Prepaid expenses | | | $(304) | | | $(576) |
Intangible assets | | | 791 | | | — |
Other | | | (47) | | | (96) |
Fixed assets | | | (31) | | | (97) |
Capitalization software, net of amortization | | | — | | | (193) |
Digital assets | | | 5,050 | | | 5,953 |
| | December 31, 2023 | | | December 31, 2022 | |
Stock-based compensation | | | 950 | | | 928 |
Unrealized loss on investment | | | 147 | | | 92 |
Net operating loss carryforward | | | 206 | | | 206 |
Total | | | 6,762 | | | 6,217 |
Less: valuation allowance | | | (195) | | | (4,848) |
Net deferred tax assets | | | $6,567 | | | $1,369 |
| | Years Ended December 31, | ||||
| | 2023 | | | 2022 | |
Balance as of January 1 | | | $366 | | | $— |
Additions for tax positions of prior years | | | 46 | | | 366 |
Balance as of December 31 | | | $412 | | | $366 |
| | Carrying Value | | | Fair Value | | | Quoted Prices Level 1 | | | Significant Other Observable Inputs Level 2 | | | Significant Unobservable Inputs Level 3 | |
December 31, 2023 | | | | | | | | | | | |||||
Mutual funds | | | $8,477 | | | $8,477 | | | $8,477 | | | — | | | — |
Treasury bills | | | 45,463 | | | 45,463 | | | 45,463 | | | — | | | — |
Security Token Group investment | | | 100 | | | (A) | | | — | | | — | | | — |
| | $54,040 | | | | | | | | | |||||
December 31, 2022 | | | | | | | | | | | |||||
Mutual funds | | | $10,986 | | | $10,986 | | | $10,986 | | | — | | | — |
Treasury bills | | | 35,971 | | | 35,971 | | | 35,971 | | | — | | | — |
tZERO investment | | | 348 | | | 348 | | | 348 | | | — | | | — |
Certificate of deposit | | | 246 | | | 246 | | | — | | | 246 | | | — |
Security Token Group investment | | | 100 | | | (A) | | | — | | | — | | | — |
| | $47,651 | | | | | | | | |
(A) | This investment is recorded at cost. |
| | Years Ended December 31, | ||||
| | 2023 | | | 2022 | |
Numerator: | | | | | ||
Net income (loss), basic and diluted | | | $12,786 | | | $(23,146) |
| | | | |||
Denominator: | | | | | ||
Basic weighted average common shares – Class A | | | 3,909 | | | 3,216 |
Basic weighted average common shares – Class B | | | 21,797 | | | 22,826 |
Basic net income (loss) per share: | | | | | ||
Basic net income (loss) per share - Class A | | | $3.27 | | | $(7.20) |
Basic net income (loss) per share - Class B | | | $0.59 | | | $(1.01) |
| | | | |||
Denominator: | | | | | ||
Diluted weighted average common shares – Class A | | | 7,185 | | | 3,216 |
Diluted weighted average common shares – Class B | | | 23,976 | | | 22,826 |
Diluted net income (loss) per share: | | | | | ||
Diluted net income (loss) per share - Class A | | | $1.78 | | | $(7.20) |
Diluted net income (loss) per share - Class B | | | $0.53 | | | $(1.01) |
| | Year Ended December 31, | |
| | 2022 | |
Stock options outstanding | | | 2,222 |
Unvested RSUs | | | 554 |
Number of anti-dilutive shares | | | 2,776 |
• | There was less than $0.1 million of consulting expense for both of the years ended December 31, 2023 and 2022. |
• | No revenue attributable to tZERO was recorded for the year ended December 31, 2023. In December 31, 2022, $0.1 million was settled in tZERO Preferred Shares. |
• | Unrealized loss on investments attributable to tZERO of $0.1 million and unrealized gain on investments attributable to tZERO of $0.1 million for the years ended December 31, 2023 and 2022, respectively. |
• | There were no related party transactions attributable to tZERO in other investments as of December 31, 2023 and $0.3 million as of December 31, 2022. |
• | The Company’s relationship with tZERO ended on December 11, 2023. Upon termination, the Company paid a less than $0.1 million off-boarding fee included in consulting expense and the investment in tZERO was fully impaired. $0.2 million was recorded in impairment of assets for the year ended December 31, 2023. |
Changes in and Disagreements with Accountants on Accounting and Financial Disclosures |
Financial Statements and Exhibits |
(a) | Financial Statements |
Consolidated Balance Sheets as of December 31, 2023 and December 31, 2022 | | | |
Consolidated Statements of Operations and Comprehensive Income (Loss) for the Years Ended December 31, 2023 and 2022 | | | |
Consolidated Statement of Stockholders’ Equity for the Years Ended December 31, 2023 and 2022 | | | |
Consolidated Statements of Cash Flows for the Years Ended December 31, 2023 and 2022 | | |
(b) | Exhibits |
Exhibit Number | | | Description |
| | Amended and Restated Certificate of Incorporation of Exodus Movement, Inc. | |
| | Amended and Restated Bylaws of Exodus Movement, Inc. (incorporated by reference to Exhibit 2.2 to the Company’s Form 1-A filed April 8, 2021). | |
| | Exodus Movement, Inc. 2019 Equity Incentive Plan of Exodus Movement, Inc. (incorporated by reference to Exhibit 6.1 to the Company’s Form 1-A filed April 8, 2021). | |
| | Amended form of API Agreement (U.S. Crypto-to-Crypto Exchanges). | |
| | Form of API Agreement (International Crypto-to-Crypto Exchanges) (incorporated by reference to Exhibit 6.3 to the Company’s Form 1-A filed April 8, 2021). | |
| | Platform Services, Transfer Agent and Registrar Agreement, dated as of December 23, 2020, by and between Securitize LLC. and Exodus Movement, Inc. (incorporated by reference to Exhibit 6.5 to the Company’s Form 1-A filed April 8, 2021). | |
| | Order Form 2, dated as of January 14, 2021, by and between Securitize LLC and Exodus Movement, Inc. (incorporated by reference to Exhibit 6.6 to the Company’s Form 1-A filed April 8, 2021). | |
| | Exodus Movement, Inc. 2021 Equity Incentive Plan (incorporated by reference to Exhibit 6.7 to the Company’s Form 1-K filed March 7, 2022). | |
| | Form of Restricted Stock Unit Award Agreement under the Exodus Movement, Inc. 2021 Equity Incentive Plan. | |
| | Offer Letter, dated as of June 14, 2022, by and between Exodus Movement, Inc. and Matias Olivera, (incorporated by reference to Exhibit 6.11 to the Company’s Form 1-K filed May 1, 2023). | |
| | Director Offer Letter, dated as of August 10, 2023, by and between Exodus Movement, Inc. and Margaret Knight. | |
| | Director Offer Letter, dated as of January 26, 2024, by and between Exodus Movement, Inc. and Carol MacKinlay. | |
| | Director Offer Letter, dated as of January 24, 2024, by and between Exodus Movement, Inc. and Tyler Skelton. | |
| | Letter from WithumSmith+Brown, P.C., dated January 6, 2023 (incorporated by reference to Exhibit 9.1 to the Company’s Form 1-U filed January 9, 2023). | |
| | Subsidiaries of the Registrant. |
* | Filed herewith. |
† | Indicates a management contract or compensatory plan |
EXODUS MOVEMENT, INC. | | | | | | | |||||||||
| | | | | | | | | | ||||||
| | Date | | | February 28, 2024 | | | | | By: | | | /s/ James Gernetzke | ||
| | | | | | | | | | James Gernetzke | |||||
| | | | | | | | | | Chief Financial Officer |
![]() |
![]() |
1. |
The name of the Company is Exodus Movement, Inc. The Company’s original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on July 25, 2016.
|
2. |
This Certificate of Amendment to the Amended and Restated Certificate of Incorporation (this “Certificate of Amendment”) was duly adopted in accordance with Section 242 of the General Corporation Law
of the State of Delaware, and has been duly approved by the written consent of the stockholders of the Company in accordance with Section 228 of the General Corporation Law of the State of Delaware.
|
3. |
Article IV of the Company’s Amended and Restated Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on August 27, 2020, is hereby amended and restated in its entirety to read in its entirety as
follows:
|
![]() |
|
Jon Paul Richardson
Chief Executive Officer
|
EXODUS MOVEMENT, INC.
|
PROVIDER.
|
|||
By:
|
By:
|
|||
James Gernetzke
|
[Name]
|
|||
Chief Financial Officer
|
[Title]
|
Grant Date
|
[DATE]
|
Number of Restricted Stock Unit Awards
|
[NUMBER]
|
Vesting Commencement Date
|
Grant Date
|
Vesting Schedule
|
See Section 1
|
Effect of Termination of Continuous Service
|
See Section 1
|
Governing Plan
|
2021 Equity Incentive Plan (the “Plan”)
|
EXODUS MOVEMENT, INC.: | GRANTEE: | |
Aliah Church | Name | |
Director of People and Talent | ||
Date |
1. |
Award. The Company is granting to you the Restricted Stock Unit Awards (the “Units”) designated above subject to the terms and conditions of this Agreement.
|
Event
|
Results
|
a. Continuous Service to a Vesting Date
|
Vesting of 1/4 of the Units on the first anniversary of the Grant Date; and vesting of 1/48 of the Units on the first
day of each month thereafter through and including [DATE] (each is a “Vesting Date”).
Vesting will cease upon the termination of your Continuous Service. Subject to the terms and conditions of this Agreement and the Plan, any Units that have not yet vested
will be forfeited on the termination of your Continuous Service.
|
b. Termination Due to Death
|
Immediate vesting of all nonvested Units.
|
c. Termination Due to Disability
|
Immediate vesting of all nonvested Units.
|
d. Change in Control
|
Immediate vesting of all nonvested Units.
|
e. Voluntary Termination on or After Attaining Age 62 ‘Retirement’
|
If you had attained age 62 with at least five (5) years of Continuous Service with the Company on your termination date, and retire at least one
year after the Grant Date, your nonvested Units will continue vesting through the end of the month of your retirement. Thereafter, any nonvested Units will be forfeited.
|
f. Involuntary Termination Without Cause
|
If your Continuous Service is involuntarily terminated without Cause (as determined by written notice to you from the Company), your nonvested
Units will continue vesting through the end of the month of your termination of employment. Thereafter, any nonvested Units will be forfeited.
|
g. Any Other Voluntary or Involuntary Termination
|
If your Continuous Service is voluntarily or involuntarily terminated for any other reason (including for Cause), your vested and nonvested Units will be forfeited.
|
2. |
Prior Agreements. This Agreement amends, restates and supersedes any and all prior Restricted Stock Unit award agreements by and between the
parties. No other representations or statements, verbal or written, shall modify, add to, or change the terms of this Agreement.
|
3. |
Settlement. The Units granted to you under this
Agreement will be converted to shares of the Company’s Class A Common Stock (“Common Stock”) and delivered to you within a
reasonable period of time following the Vesting Date (“Settlement”). The Units that vest in connection with your termination
of Continuous Service as provided above will be converted to shares of Common Stock and distributed to you within a reasonable period of time following your termination of Continuous Service. The portion of the Units that vest in
connection with your termination of Continuous Service as provided in Section 1 above will be converted to shares of Common Stock and distributed to you within a reasonable period of time following the Vesting Date. Any forfeited
nonvested Units shall remain in the Plan and shall be available for future awards by the Company.
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4. |
Withholding of Tax. Generally, when the Units are
vested you will be required, for income tax purposes, to recognize the value of the shares of Common Stock delivered to you. The value of a share of Common Stock is the Fair Market Value on the Vesting Date. You must satisfy any required
income tax and employment tax withholding when your Units vest. You may satisfy any related minimum statutory tax withholding obligations by tendering a cash payment, reducing the number of shares otherwise deliverable to you and/or by
deducting an amount from other cash compensation that is payable to you. You must notify the Company of your election on or prior to the Vesting Date; if you do not provide such notice, you are hereby authorizing the Company to deduct
the appropriate mandatory withholding amounts from other cash compensation payable to you. Any amounts required to be withheld, not covered by the foregoing provisions, shall be paid through a payroll deduction on your next paycheck.
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5. |
Certain Rights. The Units are not entitled to
dividends payable on Common Stock. If any adjustment in the Company’s capitalization as described in the Plan occurs, appropriate adjustments will be made (as provided in the Plan) to the remaining Units under this Agreement in such a
manner as the Board determines to be equitable in its sole discretion. You shall be a general, unsecured creditor of the Company with respect to the Company’s obligations under this Agreement.
|
6. |
Voting Rights. The Units are not entitled to the
voting rights associated with Common Stock.
|
7. |
Transferability. Except as otherwise provided in this Section 7, the Units are not transferable, except by will or by the
laws of descent and distribution, and are exercisable during your life only by you.
|
7.1 |
You may transfer the Units to a trust if you are considered to be the sole beneficial owner (determined under Section 671 of the Code and applicable state law) while the Units are held in the trust. You and
the trustee must enter into transfer and other agreements required by the Company.
|
7.2 |
Provided that you and the designated transferee enter into transfer and other agreements required by the Company, you may transfer the Units pursuant to the terms of a domestic relations order, official
marital settlement agreement or other divorce or separation instrument as permitted by Treasury Regulation 1.421-1(b)(2) that contains the information required by the Company to effectuate the transfer. You are encouraged to discuss the
proposed terms of any division of the Units with the Company prior to finalizing the domestic relations order or marital settlement agreement to help ensure the required information is contained within the domestic relations order or
marital settlement agreement.
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7.3 |
You may, by delivering written notice to the Company, in a form approved by the Company and any broker designated by the Company to handle the Units, designate a third party who, on your death, will
thereafter be entitled to the Units. In the absence of such a designation, your executor or administrator of your estate will be entitled to the Units.
|
8. |
Restrictive Covenants.
|
8.1 |
In consideration of your rights under this Agreement and in addition to the restrictive covenants contained in any employment agreement with the Company, you agree and covenant not to:
|
a. |
disclose any of the Company’s Confidential Information except as expressly authorized in writing by the Company or as may be required by applicable law or a valid court order. “Confidential Information”
means any information that relates to the Company’s actual or anticipated business or research and development, customer information, product information, technical data, trade secrets or know-how, and all other information that is marked
or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary. Confidential Information does not include any of the foregoing information that is or becomes
publicly known through no wrongful act or omission by you or by others who were under confidentiality obligations as to the disclosed information; or
|
b. |
during the twelve (12) months following termination of your Continuous Service for any reason, directly or indirectly, solicit, hire, recruit, attempt to hire or recruit, or induce the termination of employment of
any employee of the business(es) of the Company, its affiliates or subsidiaries if you have been involved with such business(es) or had access to the Confidential Information of such business(es).
|
8.2 |
In the event of a breach of any of the covenants contained in Section 8.1:
|
a. |
you hereby consent and agree that the Company shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against such breach from any court of
competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief
shall be in addition to, not in lieu of, legal remedies, monetary damages, or other available forms of relief; and
|
b. |
any vested or nonvested Units will be terminated effective as of the date of such breach, unless sooner terminated by operation of another term or condition of this Agreement or the Plan.
|
8.3 |
The Company and you agree that, to the extent permitted under applicable law, any court of competent jurisdiction is expressly authorized to modify any unenforceable provision of this Section 8 in lieu of severing
such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, adding additional language to the offending provision, or by making such other modifications as it deems warranted to carry out
the intent and agreement of the parties as embodied herein to the maximum extent permitted by law. The Company and you expressly agree that this Agreement as so modified by the court shall be binding and enforceable.
|
9. |
Code Section 409A. Some or all of the Units may
be subject to Code Section 409A. If a Unit is subject to Code Section 409A and if you are a “specified employee” (as defined under Code Section 409A) on the date your Continuous Service is terminated, the settlement of any such Unit that
is due upon your termination of Continuous Service will be deferred until the seventh calendar month following the calendar month of your “separation from service” (as defined under Code Section 409A).
|
10. |
Lock-Up Period. You agree that you will not sell, dispose of, transfer, make any short sale of, grant any option for the purchase of, or enter into any hedging or
similar transaction with the same economic effect as a sale with respect to any of the Units, Common Stock or other securities of the Company held by you, for a period of 180 days following the effective date of a registration statement of
the Company filed under the Securities Act or such longer period as the underwriters or the Company will request to facilitate compliance with FINRA Rule 2711 or NYSE Member Rule 472 or any successor or similar rules or regulation (the “Lock-Up Period”); provided, however, that nothing contained in this section will prevent the exercise of a repurchase option, if any, in favor of the Company during the Lock-Up Period.
You further agree to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriters that are consistent with the foregoing or that are necessary to give further effect thereto. In order to
enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to your Units, Common Stock or other securities of the Company until the end of such period.
|
11. |
General.
|
11.1 |
Capitalized terms used, and not otherwise defined, herein shall have the same meanings given to them in the Plan.
|
11.2 |
If there is any conflict between the terms in this Agreement and the Plan, the terms of the Plan will control.
|
11.3 |
You have been advised as to how you can obtain a copy of the Plan and you agree that the Units shall be subject to all of the terms and conditions set forth in the Plan, including future amendments thereto, if
any, pursuant to the terms thereof, which Plan is incorporated herein by reference as part of this Agreement.
|
11.4 |
The authority to manage and control the operation and administration of this Agreement shall be vested in the Board, and the Board shall have all powers with respect to this Agreement as it has with respect to the
Plan. Any interpretation of the Agreement by the Board and any decision made by it with respect to the Agreement is final and binding.
|
11.5 |
Provided you continue to provide Continuous Service to the Company, or any of its affiliates or subsidiaries, your rights to the Units will not be affected by any change of your duties or position. Nothing in this
Agreement shall confer upon you any right to provide Continuous Service to the Company or to interfere in any way with the right of the Company to terminate your Continuous Service at any time. The transfer of Continuous Service between any
combination of the Company and any of its affiliates or subsidiaries shall not be deemed a termination of Continuous Service.
|
11.6 |
The Company is not obligated to issue or deliver any shares of Common Stock if the issuance or delivery thereof shall constitute a violation of any provision of any law or any regulation of any governmental
authority or any national securities exchange.
|
11.7 |
You have read and understand this entire Agreement and agree to be bound by its terms.
|
12. |
Binding Effect. This Agreement shall be binding
upon and inure to the benefit of any successors to the Company and all persons lawfully claiming to be your successor.
|
13. |
Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware.
|
Exhibit 10.9
Exodus Movement, Inc.
15418 Weir St., Suite 333
Omaha, NE, 68137
August 10, 2023
Margaret Knight
18663 Howe St.
Omaha, NE 68130
maggieknight@crieghton.edu
Dear Ms. Knight:
This letter serves to confirm your agreement to serve as a member of the Board of Directors (the “Board”) of Exodus Movement, Inc. (the “Company”), on the following terms and conditions.
1. | Position. You agree to serve as a member of the Board, subject to your appointment and any required stockholder approval in accordance with the Company’s amended and restated certificate of incorporation and amended and restated bylaws (the “Governing Documents”). Your appointment shall be for a period of two years beginning on August 31st, 2023, and ending on August 30th, 2025, unless earlier terminated due to your resignation or other removal pursuant to the Governing Documents. Upon the forthcoming creation of the Company’s Audit Committee, it is anticipated that you will be nominated to serve as the Chair of the Audit Committee. |
2. | Meetings. The Board’s meeting schedule is expected to include quarterly regular meetings, plus additional special meetings as called by the Board from time to time. Additionally, to the extent that you serve on any committees of the Board, those committees may have additional meetings. Board and committee meetings may be held in person or via telephone/video conference. We expect that your schedule would permit, absent unusual circumstances, you to attend all the meetings of the Board and any committees of which you are a member. Additionally, members of the Board may be periodically expected to attend training sessions to enhance their knowledge of relevant laws, corporate governance trends, and company policies. |
3. | Compensation. Your initial compensation for your service on the Board is as set forth on Schedule A; provided, however, that (i) your entitlement to any such compensation is subject to your continued service as a Board member, and any policies adopted by the same, (ii) nothing in this letter agreement or any agreement granting you any equity-based awards should be construed to interfere with or otherwise restrict in any way the rights of the Company, the Board or the Company’s stockholders from removing you or any other Director from, or failing to reelect you to, the Board or any committee in accordance with the provisions of applicable law and the Governing Documents, and (iii) the Company does not intend to afford you any rights as an employee, including without limitation, the right to employment or any other benefits. |
Your compensation may be modified from time to time on the same basis as similarly situated Board members, which may include, without limitation, any compensation policy or program that the Board may adopt from time to time for non-employee members of the Board.
4. | Business Expenses. Reasonable travel and other business expenses incurred by you in the performance of your duties to the Company for which you receive advance permission will be reimbursed by the Company in accordance with the Company’s policies in effect from time to time. |
5. | Indemnification. You will be indemnified to the fullest extent provided by the Company’s Governing Documents, the provisions of which related to indemnification, successful defense, limitation of liability, and advancement of expenses, as in effect as of the date of this Agreement, shall not be modified without prior written notice to you. Should such provisions of the Company’s Governing Documents be amended, you shall have the right to immediately terminate this Agreement, with prorated compensation due within thirty (30) days of such termination. The Company will maintain at least $2.5 Million in D&O coverage for the duration of your term as a Director and will agree to review the D&O policy for increased coverage during the policy’s renewal period in May. In addition to the foregoing, to the fullest extent permitted by law, Company shall defend, indemnify, and hold you harmless, and your affiliates, agents, successors, and assigns (collectively, the “Indemnified Persons”) from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees) arising out of or resulting from (a) any actions taken or omitted to be taken by you on behalf of, or in connection with, the Company, (b) any third party claims based on actions taken or omitted to be taken by the Company in connection with services provided by you, or (c) for any violation by the Company of any applicable law or violation of this Agreement. The indemnification provided by this Section shall not be deemed to be exclusive of any other rights to which any Indemnified Person may be entitled under any agreement, as a matter of law, in equity, or otherwise, including but not limited to the Company’s Governing Documents. The parties hereto acknowledge and agree that the indemnification obligations set forth in this Agreement shall survive termination of this Agreement. |
6. | Confidentiality. At all times during your service as a Director, you agree not to disclose any Company confidential information outside of the Company, and you further agree not to use any such information for any purpose outside of your role as a Director without express written consent from the Company. As a condition of your appointment to the Company’s Board of Directors, you will be required to sign the Company’s Standard Non-Disclosure Agreement for Directors. |
7. | Conflicts. The Company is a Delaware corporation and your rights and duties as a Board member are prescribed by Delaware law and the Governing Documents, as well as by the policies established by our Board from time to time and the rules and regulations of any exchange on which the Company’s securities may become listed. In accepting this offer, you are representing to us that you do not know of any conflict that would restrict you from becoming a director of the Company and exercising your fiduciary duties as required under Delaware law. You also agree that, during the term of your directorship with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during the term of your directorship, nor will you engage in any other activities that conflict with your obligations to the Company, without the express written consent of the Company. |
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8. | Miscellaneous. |
(a) | This letter agreement is personal to the parties hereto, and accordingly, neither the letter agreement nor any right hereunder or interest herein may be assigned, transferred or charged by either party, without the express written consent of the other. |
(b) | This letter agreement constitutes the complete, final and exclusive entire agreement between you and the Company with respect to the terms and conditions of your membership on the Board and it supersedes any other agreement or promises made to you by anyone whether oral or written. This letter agreement will be construed and interpreted in accordance with the laws of the State of Delaware. |
We hope that you find the foregoing terms acceptable. You may indicate your agreement with these terms by signing and dating this letter agreement and returning it to the Company.
(Remainder of page intentionally left blank)
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EXODUS MOVEMENT, INC.
By: | /s/ Jon Paul Richardson | |
Name: | Jon Paul Richardson | |
Title: | Chief Executive Officer and Director |
I have read and accept this letter agreement.
MARGARET KNIGHT | |
/s/ Margaret Knight |
Schedule A
Cash compensation: $60,000 per year, payable in equal monthly installments on the first day of each calendar month. All payments will be made to the BTC address you provide to the company, which you may change at any time.
Equity compensation: It will be recommended that the Board approve a one-time award of restricted stock units covering 10,000 shares of Class A Common Stock of the Company, which will be scheduled to vest on a monthly basis in equal installments over a two-year period. Vesting will commence as of the date your service to the Company begins, subject to your continued status as a service provider through the applicable monthly vesting dates, and such other terms and conditions as set forth in the Company’s 2021 Equity Incentive Plan.
Exhibit 10.10
Exodus Movement, Inc.
15418 Weir St., Suite 333
Omaha, NE, 68137
January 26th, 2024
Carol MacKinlay
187 Ocean View Boulevard,
Pacific Grove, CA 93950.
Dear Carol,
This letter serves to confirm your agreement to serve as a member of the Board of Directors (the “Board”) of Exodus Movement, Inc. (the “Company”), on the following terms and conditions.
1. | Position. You agree to serve as a member of the Board, subject to your appointment and any required stockholder approval in accordance with the Company’s amended and restated certificate of incorporation and amended and restated bylaws (the “Governing Documents”). Your appointment shall be for a period of two years beginning on February 1st, 2024, and ending on February 1st, 2026 unless earlier terminated due to your resignation or other removal pursuant to the Governing Documents. It is anticipated that you will be the Compensation Committee Chair. |
2. | Meetings. The Board’s meeting schedule is expected to include quarterly regular meetings, plus additional special meetings as called by the Board from time to time. Additionally, to the extent that you serve on any committees of the Board, those committees may have additional meetings. Board and committee meetings may be held in person or via telephone/video conference. We expect that your schedule would permit, absent unusual circumstances, you to attend all the meetings of the Board and any committees of which you are a member. Additionally, members of the Board may be periodically expected to attend training sessions to enhance their knowledge of relevant laws, corporate governance trends, and company policies. |
3. | Compensation. Your initial compensation for your service on the Board is as set forth on Schedule A; provided, however, that (i) your entitlement to any such compensation is subject to your continued service as a Board member, and any policies adopted by the same, (ii) nothing in this letter agreement or any agreement granting you any equity-based awards should be construed to interfere with or otherwise restrict in any way the rights of the Company, the Board or the Company’s stockholders from removing you or any other Director from, or failing to reelect you to, the Board or any committee in accordance with the provisions of applicable law and the Governing Documents, and (iii) the Company does not intend to afford you any rights as an employee, including without limitation, the right to employment or any other benefits. |
Your compensation may be modified from time to time on the same basis as similarly situated Board members, which may include, without limitation, any compensation policy or program that the Board may adopt from time to time for non-employee members of the Board.
4. | Business Expenses. Reasonable travel and other business expenses incurred by you in the performance of your duties to the Company for which you receive advance permission will be reimbursed by the Company in accordance with the Company’s policies in effect from time to time. |
5. | Indemnification. You will be indemnified to the fullest extent provided by the Company’s Governing Documents, subject to your execution of applicable undertakings, as provided by such Governing Documents. The Company will also provide you with director and officer liability insurance coverage to the extent provided to the directors of the Company generally. |
6. | Confidentiality. At all times during your service as a Director, you agree not to disclose any Company confidential information outside of the Company, and you further agree not to use any such information for any purpose outside of your role as a Director without express written consent from the Company. As a condition of your appointment to the Company’s Board of Directors, you will be required to sign the Company’s Standard Non-Disclosure Agreement for Directors. |
7. | Conflicts. The Company is a Delaware corporation and your rights and duties as a Board member are prescribed by Delaware law and the Governing Documents, as well as by the policies established by our Board from time to time and the rules and regulations of any exchange on which the Company’s securities may become listed. In accepting this offer, you are representing to us that you do not know of any conflict that would restrict you from becoming a director of the Company and exercising your fiduciary duties as required under Delaware law. You also agree that, during the term of your directorship with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during the term of your directorship, nor will you engage in any other activities that conflict with your obligations to the Company, without the express written consent of the Company. |
8. | Miscellaneous. |
(a) | This letter agreement is personal to the parties hereto, and accordingly, neither the letter agreement nor any right hereunder or interest herein may be assigned, transferred or charged by either party, without the express written consent of the other. |
(b) | This letter agreement constitutes the complete, final and exclusive entire agreement between you and the Company with respect to the terms and conditions of your membership on the Board and it supersedes any other agreement or promises made to you by anyone whether oral or written. This letter agreement will be construed and interpreted in accordance with the laws of the State of Delaware. |
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We hope that you find the foregoing terms acceptable. You may indicate your agreement with these terms by signing and dating this letter agreement and returning it to the Company.
(Remainder of page intentionally left blank)
-3- |
EXODUS MOVEMENT, INC.
By: | /s/ Jon Paul Richardson | |
Name: | Jon Paul Richardson | |
Title: | Chief Executive Officer and Director |
I have read and accept this letter agreement.
Carol MacKinlay | ||
Signature: | /s/ Carol MacKinlay |
Schedule A
Cash compensation: $60,000 per year, payable in equal monthly installments on the first day of each calendar month. All payments will be made to the BTC address you provide to the Company, which you may change at any time.
Equity compensation: It will be recommended that the Board approve a one-time award of restricted stock units covering 10,000 units of Class A Common Stock of the Company, which will be scheduled to vest on a monthly basis in equal installments over a two-year period. Vesting will commence as of the date your service to the Company begins, subject to your continued status as a service provider through the applicable monthly vesting dates, and such other terms and conditions as set forth in the Company’s 2021 Equity Incentive Plan.
Exodus Movement, Inc.
Board of Directors Confidentiality Agreement
This Board of Directors Confidentiality Agreement (“Agreement”) is made effective as of February 1st, 2024 (the “Effective Date”), by and between EXODUS MOVEMENT, INC., a Delaware corporation, on behalf of itself, its subsidiaries, and other corporate affiliates (“Company”), and Carol MacKinlay, (“Director”). Company and Director, are individually a “Party,” and collectively, the “Parties.”
In consideration of Director’s compensation as a member of the Company’s Board of Directors, which Director acknowledges to be good and valuable consideration for Director’s obligations hereunder, Company and Director hereby agree as follows:
1. | Confidentiality. |
(a) Confidential Information. Director acknowledges that during the course of performance of Director’s duties as a member of the Company’s Board of Directors, Director will have access to and will learn about confidential, secret, and proprietary documents, materials, data, and other information, in tangible and intangible form, of and relating to the Company and its businesses and existing and prospective customers, suppliers, investors, and other associated third parties (“Confidential Information”). Director further understands and acknowledges that this Confidential Information and the Company’s ability to reserve it for the exclusive knowledge and use of the Company is of great competitive importance and commercial value to the Company, and that improper use or disclosure of the Confidential Information by Director would cause irreparable harm to the Company, for which remedies at law will not be adequate and may also cause the Company to incur financial costs, loss of business advantage, liability under confidentiality agreements with third parties, civil damages, and criminal penalties. For purposes of this Agreement, Confidential Information includes, but is not limited to, all information not generally known to the public, in spoken, printed, electronic, or any other form or medium, relating directly or indirectly to: business processes, practices, methods, policies, plans, publications, documents, research, operations, services, strategies, techniques, agreements, contracts, transactions, potential transactions, know-how, trade secrets, computer programs, computer software, applications, operating systems, software design, web design, work-in-process, databases, device configurations, embedded data, compilations, metadata, technologies, manuals, systems, supplier information, vendor information, financial information, accounting information, accounting records, legal information, pricing information, design information, personnel information, employee lists, supplier lists, vendor lists, developments, market studies, sales information, business plans, API partnerships, planned partnerships that have not yet been announced, revenue, costs, formulae, communications including emails, slack messages, customer service inquiries, and any other forms of communication, threats of private legal action, to the extent they exist, inquiries from government agencies, algorithms, product plans, designs, ideas, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, customer information, customer lists, client information, and client lists of the Company or its businesses, or of any other person or entity that has entrusted information to the Company in confidence.
Director understands that the above list is not exhaustive and that Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used. Confidential Information shall not include information that is generally available to and known by the public, provided that such disclosure to the public is through no direct or indirect fault of the Director or person(s) acting on Director’s behalf.
(b) Disclosure and Use Restrictions. Director understands and acknowledges that as a member of the Company’s Board of Directors, Director has a fiduciary duty to the Company and its shareholders. To that end, director agrees and covenants:
(i) to treat all Confidential Information as strictly confidential;
(ii) not to directly or indirectly disclose, publish, communicate, or make available Confidential Information, or allow it to be disclosed, published, communicated, or made available, in whole or part, to any entity or person whatsoever not having a need to know and authority to know and to use the Confidential Information in connection with the business of the Company and, in any event, not to anyone outside of the direct employ of the Company except as required in the performance of any of Director’s authorized duties to the Company and only after execution of a confidentiality agreement by the third party with whom Confidential Information will be shared (and then, such disclosure shall be made only within the limits and to the extent of such duties); and
(iii) not to access or use any Confidential Information, and not to copy any documents, records, files, media, or other resources containing any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of the Company. Director understands and acknowledges that Director’s obligations under this Agreement regarding any particular Confidential Information begin immediately and shall continue during and after Director’s service to the Company, until the Confidential Information has become public knowledge other than as a result of Director’s breach of this Agreement or a breach by those acting in concert with Director or on Director’s behalf.
Page 2 of 7
Board of Directors Confidentiality and Proprietary Rights Agreement
(c) Permitted Disclosures. Nothing in this Agreement shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. Director shall promptly provide written notice of any such order to an authorized officer of the Company.
(d) Permitted Communications. Nothing in this Agreement prohibits or restricts Director (or Director’s attorney) from initiating communications directly with, responding to an inquiry from, or providing testimony before the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), any other self-regulatory organization, or any other federal or state regulatory authority regarding a possible securities law violation.
(e) Notice of Immunity; Defend Trade Secrets Act of 2016. In accordance with the Defend Trade Secrets Act of 2016, Director understands that he/she may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a suspected violation of law, or if the disclosure is made in the complaint or other document that is filed under seal in a lawsuit or other proceeding.
(f) Other Rights. This Agreement is intended to supplement, and not to supersede, any rights the Company may have in law or equity with respect to the protection of trade secrets or confidential or proprietary information.
2. | Proprietary Rights. |
(a) Company Property; Company Information. Director acknowledges and agrees that Director has no expectation of privacy with respect to the Company’s telecommunications, networking, or information processing systems (including, without limitation, files, email messages, and slack messages) and that Director activity and any files or messages on or using any of those systems may be monitored at any time without notice.
(b) Security and Access. Director agrees and covenants to comply with all Company security policies and procedures as in force from time to time including without limitation those regarding computer equipment, telephone systems, monitoring, key cards, access codes, Company intranet, internet, computer systems, email systems, computer networks, document storage systems, software, data security, passwords and any and all other Company facilities, IT resources and communication technologies (“Information Technology Resources”). Director further agrees not to access or use any Information Technology Resources except as authorized by the Company and not to access or use any Information Technology Resources in any manner after the termination of the Director’s service to the Company, whether voluntary or involuntary.
Page 3 of 7
Board of Directors Confidentiality and Proprietary Rights Agreement
3. | Representations and Covenants. |
(a) Facilitation of Agreement. Director agrees to execute promptly, both during and after the end of his/her service to the Company, any proper oath, and to verify any proper document, required to carry out the terms of this Agreement, upon the Company’s written request to do so.
(b) No Conflicts. Director represents his/her performance of all the terms of this Agreement does not and will not breach any agreement Director has entered, or will enter, with any third party, including without limitation any agreement to keep in confidence proprietary information or materials acquired by Director in confidence or in trust prior to or during the term of this Agreement. Director will not disclose to the Company or use any inventions, confidential or non-public proprietary information or material belonging to any previous client, the Company, or any other party. Director will not induce the Company to use any inventions, confidential or non-public proprietary information, or material belonging to any previous client, the Company, or any other party. Director agrees not to enter into any written or oral agreement that conflicts with the provisions of this Agreement.
4. Acknowledgement. Director acknowledges and agrees that the services to be rendered by him/her to the Company are of a special and unique character; that Director will obtain knowledge and skill relevant to the Company’s industry, methods of doing business, and marketing strategies by virtue of Director’s service to the Company; and that the terms and conditions of this Agreement are reasonable under these circumstances. Director further acknowledges that the amount of his/her compensation reflects, in part, his/her obligations and the Company’s rights under this Agreement; that he/she has no expectation of any additional compensation, royalties, or other payment of any kind not otherwise referenced herein in connection herewith; and that he/she will not be subject to undue hardship by reason of his/her full compliance with the terms and conditions of this Agreement or the Company’s enforcement thereof.
Page 4 of 7
Board of Directors Confidentiality and Proprietary Rights Agreement
5. | General Provisions. |
(a) Governing Law. This Agreement shall be governed by the laws of the State of Delaware without giving effect to the conflict of laws rules thereof to the extent that the application of the law of another jurisdiction would be required thereby.
(b) Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and Director relating to subject matter herein and merges all prior discussions between the Parties. No amendment to this Agreement will be effective unless in writing signed by both parties to this Agreement. the Company shall not be deemed hereby to have waived any rights or remedies it may have in law or equity, nor to have given any authorizations or waived any of its rights under this Agreement, unless, and only to the extent, it does so by a specific writing signed by a duly authorized officer of the Company, it being understood that, even in Director’s capacity, Director will not have authority to give any such authorizations or waivers for the Company under this Agreement without specific approval by the full Board of Directors. Any subsequent change or changes in Director’s duties, obligations, rights or compensation will not affect the validity or scope of this Agreement.
(c) Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, and both of which together shall constitute one and the same instrument.
(d) Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this Agreement shall be held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the Parties with any such modification to become a part hereof and treated as though originally set forth in this Agreement. The Parties further agree that any such court is expressly authorized to modify any such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, by adding additional language to this Agreement, or by making such other modifications as it deems warranted to carry out the intent and agreement of the Parties as embodied herein to the maximum extent permitted by law. The Parties expressly agree that this Agreement as modified by the court shall be binding upon and enforceable against each of them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had not been set forth herein.
Page 5 of 7
Board of Directors Confidentiality and Proprietary Rights Agreement
(e) Successors and Assigns. This Agreement will be binding upon Director’s heirs, executors, administrators and other legal representatives, and Director’s successors and assigns, and will be for the benefit of the Company, its successors, and its assigns.
6. Remedies. The Company may seek injunctive and other equitable relief if Director breaches this Agreement, in particular but not limited to Section 1, Section 2, or Section 3, and it will not be a defense to any request for such relief that the Company has an adequate remedy at law. In any such proceeding for injunctive or other equitable relief, the Company will not be required to post bond or other security. The Company will also have such other legal remedies as may be appropriate under the circumstance including, inter alia, recovery of damages occasioned by a breach. The Company’s rights and remedies are cumulative and the exercise or enforcement of any one or more of them will not preclude the Company from exercising or enforcing any other right or remedy.
7. Advice of Counsel. DIRECTOR ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, DIRECTOR HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND DIRECTOR HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
[SIGNATURE PAGE TO FOLLOW]
Page 6 of 7
Board of Directors Confidentiality and Proprietary Rights Agreement
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date first above written.
Company:
Exodus Movement, Inc.
By: | /s/ JP Richardson | |
Name: | JP Richardson | |
Title: | CEO |
Director:
(Print Name) Carol Mackinlay
/s/ Carol Mackinlay | |
(Signature) |
Page 7 of 7
Board of Directors Confidentiality and Proprietary Rights Agreement
Exhibit 10.11
Exodus Movement, Inc.
15418 Weir St., Suite 333
Omaha, NE, 68137
January 24th 2024
Tyler Skelton
1768 Hollingsworth Blvd
NW Atlanta, GA 30318
tskelton2024@gmail.com
Dear Tyler,
This letter serves to confirm your agreement to serve as a member of the Board of Directors (the “Board”) of Exodus Movement, Inc. (the “Company”), on the following terms and conditions.
1. | Position. You agree to serve as a member of the Board, subject to your appointment and any required stockholder approval in accordance with the Company’s amended and restated certificate of incorporation and amended and restated bylaws (the “Governing Documents”). Your appointment shall be for a period of one year beginning on February 1st, 2024, and ending on February 1st, 2025 unless earlier terminated due to your resignation or other removal pursuant to the Governing Documents. It is anticipated that you will serve on both the audit committee and compensation committee. |
2. | Meetings. The Board’s meeting schedule is expected to include quarterly regular meetings, plus additional special meetings as called by the Board from time to time. Additionally, to the extent that you serve on any committees of the Board, those committees may have additional meetings. Board and committee meetings may be held in person or via telephone/video conference. We expect that your schedule would permit, absent unusual circumstances, you to attend all the meetings of the Board and any committees of which you are a member. Additionally, members of the Board may be periodically expected to attend training sessions to enhance their knowledge of relevant laws, corporate governance trends, and company policies. |
3. | Compensation. Your initial compensation for your service on the Board is as set forth on Schedule A; provided, however, that (i) your entitlement to any such compensation is subject to your continued service as a Board member, and any policies adopted by the same, (ii) nothing in this letter agreement or any agreement granting you any equity-based awards should be construed to interfere with or otherwise restrict in any way the rights of the Company, the Board or the Company’s stockholders from removing you or any other Director from, or failing to reelect you to, the Board or any committee in accordance with the provisions of applicable law and the Governing Documents, and (iii) the Company does not intend to afford you any rights as an employee, including without limitation, the right to employment or any other benefits. |
Your compensation may be modified from time to time on the same basis as similarly situated Board members, which may include, without limitation, any compensation policy or program that the Board may adopt from time to time for non-employee members of the Board.
4. | Business Expenses. Reasonable travel and other business expenses incurred by you in the performance of your duties to the Company for which you receive advance permission will be reimbursed by the Company in accordance with the Company’s policies in effect from time to time. |
5. | Indemnification. You will be indemnified to the fullest extent provided by the Company’s Governing Documents, subject to your execution of applicable undertakings, as provided by such Governing Documents. The Company will also provide you with director and officer liability insurance coverage to the extent provided to the directors of the Company generally. |
6. | Confidentiality. At all times during your service as a Director, you agree not to disclose any Company confidential information outside of the Company, and you further agree not to use any such information for any purpose outside of your role as a Director without express written consent from the Company. As a condition of your appointment to the Company’s Board of Directors, you will be required to sign the Company’s Standard Non-Disclosure Agreement for Directors. |
7. | Conflicts. The Company is a Delaware corporation and your rights and duties as a Board member are prescribed by Delaware law and the Governing Documents, as well as by the policies established by our Board from time to time and the rules and regulations of any exchange on which the Company’s securities may become listed. In accepting this offer, you are representing to us that you do not know of any conflict that would restrict you from becoming a director of the Company and exercising your fiduciary duties as required under Delaware law. You also agree that, during the term of your directorship with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during the term of your directorship, nor will you engage in any other activities that conflict with your obligations to the Company, without the express written consent of the Company. |
8. | Miscellaneous. |
(a) | This letter agreement is personal to the parties hereto, and accordingly, neither the letter agreement nor any right hereunder or interest herein may be assigned, transferred or charged by either party, without the express written consent of the other. |
(b) | This letter agreement constitutes the complete, final and exclusive entire agreement between you and the Company with respect to the terms and conditions of your membership on the Board and it supersedes any other agreement or promises made to you by anyone whether oral or written. This letter agreement will be construed and interpreted in accordance with the laws of the State of Delaware. |
-2-
We hope that you find the foregoing terms acceptable. You may indicate your agreement with these terms by signing and dating this letter agreement and returning it to the Company.
(Remainder of page intentionally left blank)
-3-
EXODUS MOVEMENT, INC.
By: | /s/ Jon Paul Richardson | |
Name: | Jon Paul Richardson | |
Title: | Chief Executive Officer and Director |
I have read and accept this letter agreement.
Tyler Skelton
Signature: | /s/ Tyler Skelton |
Schedule A
Cash compensation: $50,000 per year, payable in equal monthly installments on the first day of each calendar month. All payments will be made to the BTC address you provide to the Company, which you may change at any time.
Equity compensation: It will be recommended that the Board approve a one-time award of restricted stock units covering 5,000 units of Class A Common Stock of the Company, which will be scheduled to vest on a monthly basis in equal installments over a one-year period. Vesting will commence as of the date your service to the Company begins, subject to your continued status as a service provider through the applicable monthly vesting dates, and such other terms and conditions as set forth in the Company’s 2021 Equity Incentive Plan.
Exodus Movement, Inc.
Board of Directors Confidentiality Agreement
This Board of Directors Confidentiality Agreement (“Agreement”) is made effective as of February 1st, 2024 (the “Effective Date”), by and between EXODUS MOVEMENT, INC., a Delaware corporation, on behalf of itself, its subsidiaries, and other corporate affiliates (“Company”), and Tyler Skelton, (“Director”). Company and Director, are individually a “Party,” and collectively, the “Parties.”
In consideration of Director’s compensation as a member of the Company’s Board of Directors, which Director acknowledges to be good and valuable consideration for Director’s obligations hereunder, Company and Director hereby agree as follows:
1. | Confidentiality. |
(a) Confidential Information. Director acknowledges that during the course of performance of Director’s duties as a member of the Company’s Board of Directors, Director will have access to and will learn about confidential, secret, and proprietary documents, materials, data, and other information, in tangible and intangible form, of and relating to the Company and its businesses and existing and prospective customers, suppliers, investors, and other associated third parties (“Confidential Information”). Director further understands and acknowledges that this Confidential Information and the Company’s ability to reserve it for the exclusive knowledge and use of the Company is of great competitive importance and commercial value to the Company, and that improper use or disclosure of the Confidential Information by Director would cause irreparable harm to the Company, for which remedies at law will not be adequate and may also cause the Company to incur financial costs, loss of business advantage, liability under confidentiality agreements with third parties, civil damages, and criminal penalties. For purposes of this Agreement, Confidential Information includes, but is not limited to, all information not generally known to the public, in spoken, printed, electronic, or any other form or medium, relating directly or indirectly to: business processes, practices, methods, policies, plans, publications, documents, research, operations, services, strategies, techniques, agreements, contracts, transactions, potential transactions, know-how, trade secrets, computer programs, computer software, applications, operating systems, software design, web design, work-in-process, databases, device configurations, embedded data, compilations, metadata, technologies, manuals, systems, supplier information, vendor information, financial information, accounting information, accounting records, legal information, pricing information, design information, personnel information, employee lists, supplier lists, vendor lists, developments, market studies, sales information, business plans, API partnerships, planned partnerships that have not yet been announced, revenue, costs, formulae, communications including emails, slack messages, customer service inquiries, and any other forms of communication, threats of private legal action, to the extent they exist, inquiries from government agencies, algorithms, product plans, designs, ideas, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, customer information, customer lists, client information, and client lists of the Company or its businesses, or of any other person or entity that has entrusted information to the Company in confidence.
Director understands that the above list is not exhaustive and that Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used. Confidential Information shall not include information that is generally available to and known by the public, provided that such disclosure to the public is through no direct or indirect fault of the Director or person(s) acting on Director’s behalf.
(b) Disclosure and Use Restrictions. Director understands and acknowledges that as a member of the Company’s Board of Directors, Director has a fiduciary duty to the Company and its shareholders. To that end, director agrees and covenants:
(i) | to treat all Confidential Information as strictly confidential; |
(ii) not to directly or indirectly disclose, publish, communicate, or make available Confidential Information, or allow it to be disclosed, published, communicated, or made available, in whole or part, to any entity or person whatsoever not having a need to know and authority to know and to use the Confidential Information in connection with the business of the Company and, in any event, not to anyone outside of the direct employ of the Company except as required in the performance of any of Director’s authorized duties to the Company and only after execution of a confidentiality agreement by the third party with whom Confidential Information will be shared (and then, such disclosure shall be made only within the limits and to the extent of such duties); and
(iii) not to access or use any Confidential Information, and not to copy any documents, records, files, media, or other resources containing any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of the Company. Director understands and acknowledges that Director’s obligations under this Agreement regarding any particular Confidential Information begin immediately and shall continue during and after Director’s service to the Company, until the Confidential Information has become public knowledge other than as a result of Director’s breach of this Agreement or a breach by those acting in concert with Director or on Director’s behalf.
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Board of Directors Confidentiality and Proprietary Rights Agreement
(c) Permitted Disclosures. Nothing in this Agreement shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. Director shall promptly provide written notice of any such order to an authorized officer of the Company.
(d) Permitted Communications. Nothing in this Agreement prohibits or restricts Director (or Director’s attorney) from initiating communications directly with, responding to an inquiry from, or providing testimony before the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), any other self-regulatory organization, or any other federal or state regulatory authority regarding a possible securities law violation.
(e) Notice of Immunity; Defend Trade Secrets Act of 2016. In accordance with the Defend Trade Secrets Act of 2016, Director understands that he/she may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a suspected violation of law, or if the disclosure is made in the complaint or other document that is filed under seal in a lawsuit or other proceeding.
(f) Other Rights. This Agreement is intended to supplement, and not to supersede, any rights the Company may have in law or equity with respect to the protection of trade secrets or confidential or proprietary information.
2. | Proprietary Rights. |
(a) Company Property; Company Information. Director acknowledges and agrees that Director has no expectation of privacy with respect to the Company’s telecommunications, networking, or information processing systems (including, without limitation, files, email messages, and slack messages) and that Director activity and any files or messages on or using any of those systems may be monitored at any time without notice.
(b) Security and Access. Director agrees and covenants to comply with all Company security policies and procedures as in force from time to time including without limitation those regarding computer equipment, telephone systems, monitoring, key cards, access codes, Company intranet, internet, computer systems, email systems, computer networks, document storage systems, software, data security, passwords and any and all other Company facilities, IT resources and communication technologies (“Information Technology Resources”). Director further agrees not to access or use any Information Technology Resources except as authorized by the Company and not to access or use any Information Technology Resources in any manner after the termination of the Director’s service to the Company, whether voluntary or involuntary.
Page 3 of 7
Board of Directors Confidentiality and Proprietary Rights Agreement
3. | Representations and Covenants. |
(a) Facilitation of Agreement. Director agrees to execute promptly, both during and after the end of his/her service to the Company, any proper oath, and to verify any proper document, required to carry out the terms of this Agreement, upon the Company’s written request to do so.
(b) No Conflicts. Director represents his/her performance of all the terms of this Agreement does not and will not breach any agreement Director has entered, or will enter, with any third party, including without limitation any agreement to keep in confidence proprietary information or materials acquired by Director in confidence or in trust prior to or during the term of this Agreement. Director will not disclose to the Company or use any inventions, confidential or non-public proprietary information or material belonging to any previous client, the Company, or any other party. Director will not induce the Company to use any inventions, confidential or non-public proprietary information, or material belonging to any previous client, the Company, or any other party. Director agrees not to enter into any written or oral agreement that conflicts with the provisions of this Agreement.
4. Acknowledgement. Director acknowledges and agrees that the services to be rendered by him/her to the Company are of a special and unique character; that Director will obtain knowledge and skill relevant to the Company’s industry, methods of doing business, and marketing strategies by virtue of Director’s service to the Company; and that the terms and conditions of this Agreement are reasonable under these circumstances. Director further acknowledges that the amount of his/her compensation reflects, in part, his/her obligations and the Company’s rights under this Agreement; that he/she has no expectation of any additional compensation, royalties, or other payment of any kind not otherwise referenced herein in connection herewith; and that he/she will not be subject to undue hardship by reason of his/her full compliance with the terms and conditions of this Agreement or the Company’s enforcement thereof.
Page 4 of 7
Board of Directors Confidentiality and Proprietary Rights Agreement
5. | General Provisions. |
(a) Governing Law. This Agreement shall be governed by the laws of the State of Delaware without giving effect to the conflict of laws rules thereof to the extent that the application of the law of another jurisdiction would be required thereby.
(b) Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and Director relating to subject matter herein and merges all prior discussions between the Parties. No amendment to this Agreement will be effective unless in writing signed by both parties to this Agreement. the Company shall not be deemed hereby to have waived any rights or remedies it may have in law or equity, nor to have given any authorizations or waived any of its rights under this Agreement, unless, and only to the extent, it does so by a specific writing signed by a duly authorized officer of the Company, it being understood that, even in Director’s capacity, Director will not have authority to give any such authorizations or waivers for the Company under this Agreement without specific approval by the full Board of Directors. Any subsequent change or changes in Director’s duties, obligations, rights or compensation will not affect the validity or scope of this Agreement.
(c) Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, and both of which together shall constitute one and the same instrument.
(d) Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this Agreement shall be held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the Parties with any such modification to become a part hereof and treated as though originally set forth in this Agreement. The Parties further agree that any such court is expressly authorized to modify any such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, by adding additional language to this Agreement, or by making such other modifications as it deems warranted to carry out the intent and agreement of the Parties as embodied herein to the maximum extent permitted by law. The Parties expressly agree that this Agreement as modified by the court shall be binding upon and enforceable against each of them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had not been set forth herein.
Page 5 of 7
Board of Directors Confidentiality and Proprietary Rights Agreement
(e) Successors and Assigns. This Agreement will be binding upon Director’s heirs, executors, administrators and other legal representatives, and Director’s successors and assigns, and will be for the benefit of the Company, its successors, and its assigns.
6. Remedies. The Company may seek injunctive and other equitable relief if Director breaches this Agreement, in particular but not limited to Section 1, Section 2, or Section 3, and it will not be a defense to any request for such relief that the Company has an adequate remedy at law. In any such proceeding for injunctive or other equitable relief, the Company will not be required to post bond or other security. The Company will also have such other legal remedies as may be appropriate under the circumstance including, inter alia, recovery of damages occasioned by a breach. The Company’s rights and remedies are cumulative and the exercise or enforcement of any one or more of them will not preclude the Company from exercising or enforcing any other right or remedy.
7. Advice of Counsel. DIRECTOR ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, DIRECTOR HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND DIRECTOR HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
[SIGNATURE PAGE TO FOLLOW]
Page 6 of 7
Board of Directors Confidentiality and Proprietary Rights Agreement
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date first above written.
Company:
Exodus Movement, Inc.
By: | /s/ JP RICHARDSON | |
Name: | JP Richardson | |
Title: | CEO |
Director:
Print name: Tyler Skelton
/s/ TYLER SKELTON | |
(Signature) |
Page 7 of 7
Board of Directors Confidentiality and Proprietary Rights Agreement
SUBSIDIARIES OF EXODUS MOVEMENT, INC.
|
JURISDICTION OF
|
As of December 31, 2023
|
INCORPORATION
|
Proper Trust AG
|
Switzerland
|
3ZERO, LLC
|
Delaware
|
OSMIUM, LLC
|
Delaware
|
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