|
Delaware
(State or other jurisdiction of incorporation or organization) |
| |
7374
(Primary Standard Industrial Classification Code Number) |
| |
92-2056803
(IRS Employer Identification No.) |
|
|
Ryan J. Dzierniejko
June S. Dipchand Skadden, Arps, Slate, Meagher & Flom LLP One Manhattan West New York, NY 10001 (212) 735-3000 |
| |
Curtis Cusinato
Matthew Hunt Bennett Jones LLP 3400 One First Canadian Place Toronto, ON M5X 1A4 (416) 863-1200 |
| |
Aniss Amdiss
Chief Legal Officer and Corporate Secretary, Hut 8 Mining Corp. 24 Duncan Street, Suite 500 Toronto, ON M5V 2B8 (647) 256-1992 |
| |
Daniella G. Silberstein
Raffael M. Fiumara Greenberg Traurig, P.A. 333 S.E. 2nd Avenue, Suite 4400 Miami, FL 33131 (305) 579-0500 |
| |
Amanda Linett
Stikeman Elliott LLP 5300 Commerce Court West 199 Bay Street Toronto, ON, M5L 1B9 (416) 869-5500 |
|
|
Large accelerated filer
☐
|
| |
Accelerated filer
☐
|
|
|
Non-accelerated filer
☒
|
| |
Smaller reporting company
☐
|
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| | | |
Emerging growth company
☒
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| | |
Three Months Ended June 30,
|
| |
Year ended December 31,
|
| ||||||||||||||||||
| | |
2023
|
| |
2022
|
| |
2022
|
| |
2021
|
| ||||||||||||
High
|
| | | $ | 1.3628 | | | | | $ | 1.3039 | | | | | $ | 1.3856 | | | | | $ | 1.2942 | | |
Low
|
| | | $ | 1.3151 | | | | | $ | 1.2451 | | | | | $ | 1.2451 | | | | | $ | 1.2040 | | |
Average
|
| | | $ | 1.3430 | | | | | $ | 1.2768 | | | | | $ | 1.3011 | | | | | $ | 1.2535 | | |
Period-End
|
| | | $ | 1.3240 | | | | | $ | 1.2886 | | | | | $ | 1.3544 | | | | | $ | 1.2678 | | |
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| | | | | 192 | | | |
| | | | | 197 | | | |
| | | | | 199 | | | |
| | | | | 202 | | | |
| | | | | 205 | | |
| | |
Six Months Ended
June 30, |
| |
Year Ended
December 31, |
| ||||||||||||||||||
(in thousands of Canadian dollars, except share numbers)
|
| |
2023
|
| |
2022
|
| |
2022
|
| |
2021
|
| ||||||||||||
Consolidated Statements of Operations and Comprehensive Income | | ||||||||||||||||||||||||
Revenue
|
| | | $ | 38,204 | | | | | $ | 97,178 | | | | | $ | 150,682 | | | | | $ | 173,774 | | |
Cost of revenue
|
| | | | (49,062) | | | | | | (84,564) | | | | | | (175,649) | | | | | | (84,976) | | |
Gross (loss) profit
|
| | | | (10,858) | | | | | | 12,614 | | | | | | (24,967) | | | | | | 88,798 | | |
General and administrative expenses
|
| | | | (36,885) | | | | | | (23,812) | | | | | | (49,821) | | | | | | (40,265) | | |
Gain on disposition of digital assets
|
| | | | 4,390 | | | | | | — | | | | | | — | | | | | | 182 | | |
Impairment of mining infrastructure and servers
|
| | | | — | | | | | | — | | | | | | (113,876) | | | | | | — | | |
Operating (loss) income
|
| | | | (43,353) | | | | | | (11,198) | | | | | | (188,664) | | | | | | 48,715 | | |
Foreign exchange gain (loss)
|
| | | | 291 | | | | | | (684) | | | | | | (1,276) | | | | | | (3,143) | | |
Net finance (expense) income
|
| | | | (2,869) | | | | | | (2,835) | | | | | | (6,670) | | | | | | 1,498 | | |
Amortization
|
| | | | (354) | | | | | | (572) | | | | | | (648) | | | | | | — | | |
Gain (loss) on revaluation of warrants liability
|
| | | | 212 | | | | | | 97,421 | | | | | | 98,810 | | | | | | (114,161) | | |
Net (loss) income before tax and revaluation on digital assets
|
| | | | (46,073) | | | | | | 82,132 | | | | | | (98,448) | | | | | | (67,091) | | |
Gain (loss) on revaluation of digital asset
|
| | | | 134,736 | | | | | | (104,898) | | | | | | (134,772) | | | | | | — | | |
Deferred income tax (expense) recovery
|
| | | | 3,127 | | | | | | (9,593) | | | | | | (9,593) | | | | | | (5,620) | | |
Net (loss) income
|
| | | $ | 91,790 | | | | | $ | (32,359) | | | | | $ | (242,813) | | | | | $ | (72,711) | | |
Other comprehensive (loss) income | | | | | | | | | | | | | | | | ||||||||||
Revaluation (loss) gain on digital assets, net of tax
|
| | | | 22,465 | | | | | | (103,540) | | | | | | (103,540) | | | | | | 57,859 | | |
Totals comprehensive (loss) income
|
| | | $ | 114,255 | | | | | $ | (135,899) | | | | | $ | (346,353) | | | | | $ | (14,852) | | |
Net income per common share
|
| | | | | | | | | | | | | | | ||||||||||
Basic
|
| | | $ | 0.42 | | | | | $ | (0.19) | | | | | $ | (1.29) | | | | | $ | (0.54) | | |
Diluted
|
| | | $ | 0.40 | | | | | $ | (0.19) | | | | | $ | (1.29) | | | | | $ | (0.54) | | |
(in thousands of Canadian dollars)
|
| |
As at June 30, 2023
|
| |
As at December 31, 2022
|
| ||||||
Consolidated Statements of Financial Position | | | | | | | | | |||||
Cash
|
| | | $ | 26,687 | | | | | $ | 30,515 | | |
Digital assets – held in custody
|
| | | | 334,764 | | | | | | 203,627 | | |
Digital assets – pledged as collateral
|
| | | | 34,178 | | | | | | — | | |
Total assets
|
| | | | 557,549 | | | | | | 412,937 | | |
Total liabilities
|
| | | | 86,383 | | | | | | 61,547 | | |
Total shareholder’s equity
|
| | | $ | 471,166 | | | | | $ | 351,390 | | |
| | |
Year Ended
June 30, |
| |||||||||
(in thousands of US dollars)
|
| |
2023
|
| |
2022
|
| ||||||
Consolidated Statement of Operations Data:
|
| | | | | | | | | | | | |
Revenue: | | | | | | | | | | | | | |
Revenue, net – cryptocurrency mining
|
| | | $ | 49,247 | | | | | $ | 68,164 | | |
Mining equipment sales
|
| | | | 3,635 | | | | | | — | | |
Management fees
|
| | | | 7,551 | | | | | | — | | |
Cost reimbursements
|
| | | | 5,247 | | | | | | — | | |
Hosting services
|
| | | | 16,480 | | | | | | 5,566 | | |
Total revenue
|
| | | | 82,160 | | | | | | 73,730 | | |
Costs and expenses: | | | | | | | | | | | | | |
Cost of revenues (exclusive of depreciation and amortization shown below)
|
| | | ||||||||||
Services
|
| | | | 40,000 | | | | | | 25,783 | | |
Mining Equipment
|
| | | | 3,112 | | | | | | — | | |
Depreciation and amortization
|
| | | | 18,779 | | | | | | 11,591 | | |
General and administrative
|
| | | | 27,789 | | | | | | 31,325 | | |
Impairment of cryptocurrency
|
| | | | 3,703 | | | | | | 30,301 | | |
Realized (gain) on sale of cryptocurrency
|
| | | | (4,577) | | | | | | (5,455) | | |
Impairment of long-lived assets
|
| | | | 63,574 | | | | | | — | | |
Legal settlement
|
| | | | (1,531) | | | | | | — | | |
Total costs and expenses
|
| | | | 150,849 | | | | | | 93,545 | | |
Operating loss
|
| | | | (68,689) | | | | | | (19,815) | | |
Other expense: | | | | | | | | | | | | | |
Interest expense
|
| | | | (27,935) | | | | | | (6,919) | | |
Equity in earnings (losses) of unconsolidated joint venture
|
| | | | 6,132 | | | | | | — | | |
Gain on debt extinguishment
|
| | | | 23,683 | | | | | | — | | |
Total other income (expense)
|
| | | | 1,880 | | | | | | (6,919) | | |
Loss before income tax benefit (provision)
|
| | | | (66,809) | | | | | | (26,734) | | |
Income tax benefit (provision)
|
| | | | 1,198 | | | | | | (5,069) | | |
Net loss
|
| | | $ | (65,611) | | | | | $ | (31,803) | | |
Basic and diluted net loss per share
|
| | | $ | (1.52) | | | | | $ | (0.91) | | |
Basic and diluted weighted average number of shares outstanding
|
| | | | 43,133,307 | | | | | | 34,863,338 | | |
Additional Financial Data
|
| | | | | | | | | | | | |
Adjusted EBITDA(1)
|
| | | $ | 35,926 | | | | | $ | 7,240 | | |
(in thousands of US dollars)
|
| |
As of June 30, 2023
|
| |||
Consolidated Balance Sheet Data: | | | | | | | |
Cash | | | | $ | 10,379 | | |
Cryptocurrency, net
|
| | | | 851 | | |
Total assets
|
| | | | 189,997 | | |
Notes payable, less current portion
|
| | | | 149,891 | | |
Total liabilities
|
| | | | 162,624 | | |
Additional paid-in capital
|
| | | | 35,368 | | |
Accumulated deficit
|
| | | | (106,498) | | |
Total stockholders’ equity
|
| | | | 27,373 | | |
Total capitalization(1)
|
| | | | 177,264 | | |
| | |
Year Ended June 30,
|
| |||||||||
(in thousands of US dollars)
|
| |
2023
|
| |
2022
|
| ||||||
Adjusted EBITDA:
|
| | | | | | | | | | | | |
Net loss
|
| | | $ | (65,611) | | | | | $ | (31,803) | | |
Interest expense
|
| | | | 27,935 | | | | | | 6,919 | | |
Income tax (benefit) provision
|
| | | | (1,198) | | | | | | 5,069 | | |
Depreciation and amortization
|
| | | | 18,779 | | | | | | 11,591 | | |
Share of unconsolidated joint venture depreciation and amortization
|
| | | | 13,050 | | | | | | — | | |
Non-recurring transactions(1)
|
| | | | (1,531) | | | | | | 6,288 | | |
Impairment of long-lived assets(2)
|
| | | | 63,574 | | | | | | — | | |
Gain on debt extinguishment
|
| | | | (23,683) | | | | | | — | | |
Stock-based compensation expense
|
| | | | 4,611 | | | | | | 9,176 | | |
Adjusted EBITDA
|
| | | $ | 35,926 | | | | | $ | 7,240 | | |
(thousands of US dollars)
|
| |
For the Year Ended
June 30, 2023 |
| |||
Unaudited Pro Forma Combined Statement of Operations | | | | | | | |
Revenue
|
| | | $ | 152,365 | | |
Operating income (loss)
|
| | | | (256,909) | | |
Earnings/(loss) before income tax benefit
|
| | | | (258,223) | | |
Net earnings/(loss)
|
| | | | (251,758) | | |
Earnings/(loss) per common share — basic & diluted
|
| | | | (3.54) | | |
(thousands of US dollars)
|
| |
As at
June 30, 2023 |
| |||
Unaudited Pro Forma Combined Balance Sheet | | | | | | | |
Total assets
|
| | | $ | 773,752 | | |
Total liabilities
|
| | | | 216,782 | | |
Net assets
|
| | | | 556,970 | | |
| | |
Hut 8 Common Shares
|
| |
USBTC Capital Stock
|
| ||||||||||||
| | |
Nasdaq
|
| |
TSX
|
| |
—
|
| |||||||||
February 6, 2023
|
| | | $ | 2.38 | | | | | C$ | 3.19 | | | | | | N/A | | |
August 21, 2023
|
| | | $ | 2.39 | | | | | C$ | 3.25 | | | | | | N/A | | |
| | |
Enterprise Value/ Hashrate
(in exahashes per second) |
| |||
Argo Blockchain plc
|
| | | | 88.0× | | |
Bit Digital, Inc.
|
| | | | 28.5× | | |
Bitfarms Ltd.
|
| | | | 64.5× | | |
Cipher Mining Inc.
|
| | | | 98.9× | | |
CleanSpark, Inc.
|
| | | | 39.9× | | |
Coinbase Global, Inc.
|
| | | | — | | |
DMG Blockchain Solutions Inc.
|
| | | | 37.1× | | |
HIVE Blockchain Technologies Ltd.
|
| | | | 153.4× | | |
Iris Energy Limited
|
| | | | 64.8× | | |
Marathon Digital Holdings, Inc.
|
| | | | 147.9× | | |
Northern Data AG
|
| | | | 36.8× | | |
Riot Platforms, Inc.
|
| | | | 90.6× | | |
Mean
|
| | | | 77.3× | | |
Median
|
| | | | 64.8× | | |
$ (in thousands of U.S. dollars)
|
| |
2023E
|
| |
2024E
|
| |
2025E
|
| |||||||||
Revenue
|
| | | | 82,623 | | | | | | 127,610 | | | | | | 131,171 | | |
Year-over-Year Revenue Growth
|
| | | | — | | | | | | 54% | | | | | | 3% | | |
Adjusted EBITDA(1)
|
| | | | 723 | | | | | | 25,349 | | | | | | 24,823 | | |
Adjusted EBITDA Margin(2)
|
| | | | 1% | | | | | | 20% | | | | | | 19% | | |
$ (in thousands of U.S. dollars)
|
| |
2023E
|
| |
2024E
|
| |
2025E
|
| |||||||||
Free Cash Flow(1)
|
| | | | (37,017) | | | | | | 8,682 | | | | | | 24,823 | | |
$ (in thousands of U.S. dollars)
|
| |
2023E
|
| |
2024E
|
| |
2025E
|
| |||||||||
Revenue
|
| | | | 95,793 | | | | | | 110,333 | | | | | | 127,121 | | |
Year-over-Year Revenue Growth
|
| | | | — | | | | | | 15% | | | | | | 15% | | |
Adjusted EBITDA(1)
|
| | | | 62,667 | | | | | | 67,226 | | | | | | 71,863 | | |
Adjusted EBITDA Margin(2)
|
| | | | 65% | | | | | | 61% | | | | | | 57% | | |
$ (in thousands of U.S. dollars)
|
| |
2023E
|
| |
2024E
|
| |
2025E
|
| |||||||||
Free Cash Flow(1)
|
| | | | 62,667 | | | | | | 32,851 | | | | | | 68,738 | | |
$ (in thousands of U.S. dollars)
|
| |
2023E
|
| |
2024E
|
| |
2025E
|
| |||||||||
Revenue
|
| | | | 176,959 | | | | | | 220,771 | | | | | | 222,953 | | |
Year-over-Year Revenue Growth
|
| | | | — | | | | | | 25% | | | | | | 1% | | |
Adjusted EBITDA(1)
|
| | | | 62,647 | | | | | | 84,184 | | | | | | 79,671 | | |
Adjusted EBITDA Margin(2)
|
| | | | 35% | | | | | | 38% | | | | | | 36% | | |
| | |
Six Months Ended June 30,
|
| |
Year Ended December 31,
|
| ||||||
| | |
2023
|
| |
2022
|
| |
2022
|
| |
2021
|
|
Total miners (EoP)
|
| |
36,192
|
| |
32,145
|
| |
36,192
|
| |
19,325
|
|
Total installed miners (EoP)(1)
|
| |
28,972
|
| |
32,145
|
| |
27,405
|
| |
19,325
|
|
Total installed hash-rate (EoP)
|
| |
2.6 EH/s
|
| |
2.8 EH/s
|
| |
2.5 EH/s
|
| |
2.0 EH/s
|
|
Network Hash-rate (EoP)
|
| |
334.8 EH/s
|
| |
197.0 EH/s
|
| |
274.2 EH/s
|
| |
179.8 EH/s
|
|
Difficulty (EoP)
|
| |
50.6T
|
| |
29.6T
|
| |
33.6T
|
| |
29.6T
|
|
Quantity of Bitcoin mined for company benefit
|
| |
874
|
| |
1,888
|
| |
3,568
|
| |
2,786
|
|
Net income (loss) (thousands of Canadian dollars)
|
| |
$91,790
|
| |
($32,359)
|
| |
($242,813)
|
| |
($72,711)
|
|
Adjusted EBITDA (thousands of Canadian dollars)
|
| |
$133,340
|
| |
($71,027)
|
| |
($102,738)
|
| |
$96,775
|
|
| | |
Six Months Ended June 30,
|
| |
Year Ended December 31,
|
| ||||||||||||||||||
| | |
2023
|
| |
2022
|
| |
2022
|
| |
2021
|
| ||||||||||||
Net (loss) income
|
| | | $ | 91,790 | | | | | $ | (32,359) | | | | | $ | (242,813) | | | | | $ | (72,711) | | |
Add (deduct) | | | | | | | | | | | | | | | | | | | | | | | | | |
Net finance expense
|
| | | | 2,869 | | | | | | 2,835 | | | | | | 6,670 | | | | | | (1,498) | | |
Depreciation and amortization
|
| | | | 20,705 | | | | | | 39,841 | | | | | | 94,528 | | | | | | 23,288 | | |
Impairment
|
| | | | — | | | | | | — | | | | | | 113,876 | | | | | | — | | |
Share based payment
|
| | | | 5,512 | | | | | | 3,276 | | | | | | 6,913 | | | | | | 9,876 | | |
Foreign exchange (gain) loss
|
| | | | (291) | | | | | | 684 | | | | | | 1,276 | | | | | | 3,143 | | |
Share based payment taxes withholding
|
| | | | — | | | | | | — | | | | | | — | | | | | | 1,246 | | |
One-time transaction costs
|
| | | | 15,175 | | | | | | 1,611 | | | | | | 5,116 | | | | | | 2,956 | | |
North Bay decommissioning costs
|
| | | | 919 | | | | | | — | | | | | | — | | | | | | — | | |
Deferred income tax (recovery) expense
|
| | | | (3,127) | | | | | | 9,593 | | | | | | 9,593 | | | | | | 5,620 | | |
Sales tax expense
|
| | | | — | | | | | | 913 | | | | | | 913 | | | | | | 10,694 | | |
Gain on revaluation of warrants
|
| | | | (212) | | | | | | (97,421) | | | | | | (98,810) | | | | | | 114,161 | | |
Adjusted EBITDA
|
| | | $ | 133,340 | | | | | $ | (71,027) | | | | | $ | (102,738) | | | | | $ | 96,775 | | |
Director
|
| |
Hut 8
DSUs |
| |||
Rick Rickertsen
|
| | | | 55,402 | | |
Bill Tai
|
| | | | 122,280 | | |
Alexia Hefti
|
| | | | 68,515 | | |
Joseph Flinn
|
| | | | 122,280 | | |
Executive
|
| |
Hut 8 RSUs
(all unvested) |
| |||
Jaime Leverton
|
| | | | 3,516,198 | | |
Shenif Visram
|
| | | | 500,000 | | |
Erin Dermer
|
| | | | 667,241 | | |
James Beer
|
| | | | 667,241 | | |
Suzanne Ennis
|
| | | | 667,241 | | |
Joshua Rayner
|
| | | | 394,828 | | |
Aniss Amdiss
|
| | | | 677,241 | | |
| | |
Payment in
Respect of Bonus(1) |
| |
Severance
|
| |
Total
|
| |||||||||
Jaime Leverton
|
| | | $ | 125,000 | | | | | $ | 500,000 | | | | | $ | 625,000 | | |
James Beer
|
| | | $ | 66,249 | | | | | $ | 265,000 | | | | | $ | 331,249 | | |
Shenif Visram
|
| | | $ | 275,000 | | | | | $ | 275,000 | | | | | $ | 550,000 | | |
Aniss Amdiss
|
| | | $ | 220,833 | | | | | $ | 220,833 | | | | | $ | 441,666 | | |
Erin Dermer
|
| | | $ | 56,250 | | | | | $ | 225,000 | | | | | $ | 281,250 | | |
Suzanne Ennis
|
| | | | — | | | | | $ | 7,692 | | | | | $ | 7,692 | | |
Joshua Rayner
|
| | | $ | 50,000 | | | | | $ | 200,000 | | | | | $ | 250,000 | | |
| | |
Year Ended June 30,
|
| |||
| | |
2023
|
| |
2022
|
|
Total miners (EoP)
|
| |
30,200
|
| |
24,725
|
|
Self-mining miners (EoP)
|
| |
30,200
|
| |
20,300
|
|
Hosted miners (EoP)
|
| |
—
|
| |
4,425
|
|
Total hash-rate (EoP)
|
| |
3.1 EH/s
|
| |
2.3 EH/s
|
|
Self-mining hash-rate (EoP)
|
| |
3.1 EH/s
|
| |
1.9 EH/s
|
|
Hosted hash-rate (EoP)
|
| |
—
|
| |
0.4 EH/s
|
|
Network hash-rate (EoP)
|
| |
334.8 EH/s
|
| |
197.0 EH/s
|
|
Difficulty (EoP)
|
| |
50.6T
|
| |
29.6T
|
|
Quantity of bitcoin mined for company benefit
|
| |
2,168 bitcoin
|
| |
1,636 bitcoin
|
|
Net income (loss)
|
| |
($65,611)
|
| |
($31,803)
|
|
Adjusted EBITDA
|
| |
$35,926
|
| |
$7,240
|
|
| | |
BTC Earned
|
| | ||||||||||||||
Month | | | | | 2021 | | | | | | 2022 | | | | | | 2023 | | |
January
|
| | | | 9.88 | | | | | | 163.13 | | | | | | 80.19 | | |
February
|
| | | | 13.68 | | | | | | 140.60 | | | | | | 104.24 | | |
March
|
| | | | 14.81 | | | | | | 153.23 | | | | | | 141.86 | | |
Quarterly total
|
| | | | 38.37 | | | | | | 456.96 | | | | | | 326.29 | | |
April
|
| | | | 13.96 | | | | | | 210.86 | | | | | | 149.89 | | |
May
|
| | | | 13.65 | | | | | | 225.06 | | | | | | 217.53 | | |
June
|
| | | | 29.34 | | | | | | 207.48 | | | | | | 200.65 | | |
Quarterly total
|
| | | | 56.95 | | | | | | 643.40 | | | | | | 568.07 | | |
July
|
| | | | 46.25 | | | | | | 255.18 | | | | | | | | |
August
|
| | | | 37.43 | | | | | | 269.65 | | | | | | | | |
September
|
| | | | 29.70 | | | | | | 240.79 | | | | | | | | |
Quarterly total
|
| | | | 113.38 | | | | | | 765.62 | | | | | | | | |
October
|
| | | | 76.75 | | | | | | 230.60 | | | | | | | | |
November
|
| | | | 165.34 | | | | | | 203.12 | | | | | | | | |
December
|
| | | | 180.64 | | | | | | 73.69 | | | | | | | | |
Quarterly total
|
| | | | 422.73 | | | | | | 507.41 | | | | | | | | |
Total per year
|
| | | | 631.43 | | | | | | 2,373.39 | | | | | | 894.36 | | |
Inception to date total
|
| | | | | | | | | | | | | | | | 3,899.46 | | |
Grant Date
|
| |
Number of Shares Subject to
Options Granted |
| |
Per Share Exercise
Price of Options |
| |
Fair Value per Share
on Grant Date |
| |||||||||
July 2021(1) | | | | | 1,072,000 | | | | | $ | 1.11 | | | | | $ | 1.11 | | |
August 2021(1) | | | | | 338,750 | | | | | $ | 1.11 | | | | | $ | 1.11 | | |
November 2021
|
| | | | 1,284,250 | | | | | $ | 2.27 | | | | | $ | 2.27 | | |
December 2021
|
| | | | 179,500 | | | | | $ | 2.27 | | | | | $ | 2.27 | | |
March 2022
|
| | | | 152,250 | | | | | $ | 4.34 | | | | | $ | 4.34 | | |
August 2022(1)(2) | | | | | 724,000 | | | | | $ | 1.78 | | | | | $ | 0.01 | | |
January 2023(3)
|
| | | | 3,920,507 | | | | | $ | 0.26 | | | | | $ | 0.26 | | |
Grant Date
|
| |
Number of Shares of
Restricted Common Stock |
| |
Fair Value per Share
of Common Stock on Grant Date |
| ||||||
December 10, 2020
|
| | | | 1,125,000 | | | | | $ | 1.07 | | |
January 31, 2021
|
| | | | 5,187,500 | | | | | $ | 1.07 | | |
February 1, 2021
|
| | | | 375,000 | | | | | $ | 1.07 | | |
March 17, 2021
|
| | | | 8,369,250 | | | | | $ | 1.13 | | |
October 10, 2021
|
| | | | 3,339,500 | | | | | $ | 2.27 | | |
September 2, 2022
|
| | | | 7,250 | | | | | $ | 0.01 | | |
January 5, 2023
|
| | | | 1,048,912 | | | | | $ | 0.26 | | |
| | |
Year Ended June 30,
|
| |||||||||
| | |
2023
|
| |
2022
|
| ||||||
Revenue: | | | | | | | | | | | | | |
Revenue, net – digital asset mining
|
| | | $ | 49,247 | | | | | $ | 68,164 | | |
Mining equipment sales
|
| | | | 3,635 | | | | | | — | | |
Management fees
|
| | | | 7,551 | | | | | | — | | |
Cost reimbursements
|
| | | | 5,247 | | | | | | — | | |
Hosting services
|
| | | | 16,480 | | | | | | 5,566 | | |
Total revenue
|
| | |
|
82,160
|
| | | |
|
73,730
|
| |
Costs and expenses: | | | | | | | | | | | | | |
Cost of revenues (exclusive of depreciation and amortization shown below)
|
| | | | | | | | | | | | |
Services
|
| | | | 40,000 | | | | | | 25,783 | | |
Mining equipment
|
| | | | 3,112 | | | | | | — | | |
Depreciation and amortization
|
| | | | 18,779 | | | | | | 11,591 | | |
General and administrative
|
| | | | 27,789 | | | | | | 31,325 | | |
Impairment of digital assets
|
| | | | 3,703 | | | | | | 30,301 | | |
Realized gain on sale of digital assets
|
| | | | 4,577 | | | | | | (5,455) | | |
Impairment of long-lived assets
|
| | | | 63,574 | | | | | | — | | |
Legal settlement
|
| | | | (1,531) | | | | | | — | | |
Total costs and expenses
|
| | |
|
150,849
|
| | | |
|
93,545
|
| |
Operating loss
|
| | | | (68,689) | | | | | | (19,815) | | |
Other income (expense): | | | | | | | | | | | | | |
Interest expense
|
| | | | (27,935) | | | | | | (6,919) | | |
Equity in earnings of unconsolidated joint venture
|
| | | | 6,132 | | | | | | — | | |
Gain on debt extinguishment
|
| | | | 23,683 | | | | | | — | | |
Total other income (expense)
|
| | | | 1,880 | | | | | | (6,919) | | |
Loss before income tax benefit (provision)
|
| | | | (66,809) | | | | | | (26,734) | | |
Income tax benefit (provision)
|
| | |
|
1,198
|
| | | |
|
(5,069)
|
| |
Net loss
|
| | | $ | (65,611) | | | | | $ | (31,803) | | |
| | |
Year Ended June 30,
|
| |||||||||
| | |
2023
|
| |
2022
|
| ||||||
Net loss
|
| | | $ | (65,611) | | | | | $ | (31,803) | | |
Interest expense
|
| | | | 27,935 | | | | | | 6,919 | | |
Income tax (benefit) provision
|
| | | | (1,198) | | | | | | 5,069 | | |
Depreciation and amortization
|
| | | | 18,779 | | | | | | 11,591 | | |
Share of unconsolidated joint venture depreciation and amortization
|
| | | | 13,050 | | | | | | — | | |
Non-recurring transactions(1)
|
| | | | (1,531) | | | | | | 6,288 | | |
Gain on debt extinguishment
|
| | | | (23,683) | | | | | | — | | |
Impairment of long-lived assets(2)
|
| | | | 63,574 | | | | | | — | | |
Stock-based compensation expense
|
| | | | 4,611 | | | | | | 9,176 | | |
Adjusted EBITDA
|
| | | $ | 35,926 | | | | | $ | 7,240 | | |
| | |
Year Ended
June 30, 2023 |
| |
Year Ended
June 30, 2022 |
| ||||||
Net cash provided by (used in): | | | | | | | | | | | | | |
Cash flows used in operating activities
|
| | | $ | (29,337) | | | | | $ | (42,915) | | |
Cash flows provided by (used in) investing activities
|
| | | | 25,248 | | | | | | (134,365) | | |
Cash flows (used in) provided by financing activities
|
| | | | (6,599) | | | | | | 191,629 | | |
Net change in cash
|
| | | $ | (10,688) | | | | | $ | 14,349 | | |
Name and Principal Position
|
| |
Year
Ended June 30, |
| |
Salary
($) |
| |
Bonus
($) |
| |
Stock Awards
($) |
| |
Option
Awards ($) |
| |
All Other
Compensation ($) |
| |
Total
($) |
| |||||||||||||||||||||
Michael Ho, Chief
Executive Officer |
| | | | 2022 | | | | | | — | | | | | | — | | | | | | 2,976,127 | | | | | | — | | | | | | 2,102,790 | | | | | | 5,078,917 | | |
| | | 2023 | | | | | | — | | | | | | — | | | | | | 272,717 | | | | | | — | | | | | | 250,000 | | | | | | 522,717 | | | ||
Asher Genoot, President
|
| | | | 2022 | | | | | | 250,000 | | | | | | — | | | | | | 3,273,853 | | | | | | — | | | | | | 1,940,218 | | | | | | 5,464,071 | | |
| | | 2023 | | | | | | 250,000 | | | | | | — | | | | | | — | | | | | | 272,717 | | | | | | — | | | | | | 522,717 | | | ||
Joel Block, Chief Financial Officer
|
| | | | 2022 | | | | | | 200,000 | | | | | | — | | | | | | — | | | | | | 587,400 | | | | | | — | | | | | | 787,400 | | |
| | | 2023 | | | | | | 300,000 | | | | | | — | | | | | | — | | | | | | 38,480 | | | | | | — | | | | | | 338,480 | | |
| | |
Option Awards
|
| |
Stock Awards
|
| ||||||||||||||||||||||||||||||
Name
|
| |
Number of
Securities Underlying Unexercised Options (#) Exercisable |
| |
Number of
Securities Underlying Unexercised Options (#) Unexercisable |
| |
Option
Exercise Price ($) |
| |
Option
Expiration Date |
| |
Number of
Shares or Units of Stock That Have Not Vested (#) |
| |
Market
Value of Shares or Units of Stock That Have Not Vested ($) |
| ||||||||||||||||||
Michael Ho, Chief Executive Officer
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Asher Genoot, Chief Operating Officer
|
| | | | — | | | | | | 1,048,912 | | | | | | 0.26 | | | | | | 01/04/2033 | | | | | | — | | | | | | — | | |
Joel Block, Chief Financial Officer
|
| | | | 327,000(1) | | | | | | — | | | | | | 0.26 | | | | | | 11/15/2031 | | | | | | — | | | | | | — | | |
| | | | | | | | | 148,000(1) | | | | | | 0.26 | | | | | | 01/04/2033 | | | | | | — | | | | | | — | | |
Director or Executive Officer
|
| |
USBTC Options
|
| |
Current Exercise Price
|
| ||||||
Asher Genoot
|
| | | | 1,048,912 | | | | | $ | 0.26 | | |
Joel Block
|
| | | | 475,000 | | | | | $ | 0.26 | | |
Matthew Prusak
|
| | | | 475,000 | | | | | $ | 0.26 | | |
Stanley O’Neal
|
| | | | 366,000 | | | | | $ | 0.26 | | |
Jonathan Koch
|
| | | | 122,000 | | | | | $ | 0.26 | | |
Amy Wilkinson
|
| | | | 366,000 | | | | | $ | 0.26 | | |
Mayo A. Shattuck III
|
| | | | 366,000 | | | | | $ | 0.26 | | |
Name
|
| |
Age
|
| |
Position
|
|
Executive Officers | | | | | | | |
Jaime Leverton | | |
45
|
| | Chief Executive Officer and Director | |
Asher Genoot | | |
28
|
| | President and Director | |
Michael Ho | | |
30
|
| | Chief Strategy Officer and Director | |
Shenif Visram | | |
50
|
| | Chief Financial Officer | |
Non-Executive Officer Directors | | | | | | | |
Bill Tai | | |
61
|
| | Chair | |
Stanley O’Neal | | |
71
|
| | Independent Director | |
Mayo Shattuck III | | |
68
|
| | Independent Director | |
Amy Wilkinson | | |
51
|
| | Independent Director | |
Rick Rickertsen | | |
63
|
| | Independent Director | |
Alexia Hefti | | |
35
|
| | Independent Director | |
Joseph Flinn | | |
58
|
| | Independent Director | |
|
New Hut
|
| |
USBTC
|
|
|
Organizational Documents
|
| |||
|
The rights of New Hut stockholders are governed by the New Hut certificate of incorporation, the New Hut bylaws and Delaware law, including the Delaware General Corporations Law.
|
| |
The rights of USBTC stockholders are currently governed by the USBTC Articles, USBTC Bylaws and the Nevada Revised Statutes.
|
|
|
Authorized Capital Stock
|
| |||
|
The total number of shares of capital stock which New Hut shall have authority to issue is 1,025,000,000 shares. This authorized capital stock consists of 1,000,000,000 shares of common stock having a par value of $0.01 per share and 25,000,000 shares of preferred stock having a par value of $0.01 per share.
Following completion of the Business Combination, we expect that there will be approximately 88.5 million shares of New Hut common stock outstanding.
|
| |
The authorized capital stock of USBTC consists of (i) 125,000,000 shares of USBTC common stock, and (ii) 40,000,000 shares of preferred stock, $0.00001 par value per share (“USBTC preferred stock”) of which 7,855,500 shares are designated as Series A Preferred, 10,000,000 shares are designated as Series B Preferred, 3,750,000 are designated as Series B-1 Preferred, and 16,557,000 shares of the USBTC Preferred stock are designated as “Series C Preferred.” The number of authorized shares of USBTC common stock may be increased or decreased (but not below the number of shares thereof then outstanding) by (in addition to any vote of the holders of one or more series of USBTC preferred stock that may be required by the terms of the USBTC Articles) the affirmative vote of the holders of shares of capital stock of USBTC representing a majority of the votes represented by all outstanding shares of capital stock of USBTC entitled to vote, irrespective of the provisions of Section 78.390(2) of the Nevada Revised Statutes.
|
|
|
Preferred Stock
|
| |||
|
The New Hut board is authorized to from time to time issue one or more series of preferred stock in series and to establish the terms of such series.
|
| |
Under USBTC’s Articles, at any time when at least 1,963,750 shares of Series A Preferred stock are outstanding, holders of a majority of the outstanding shares of Series A Preferred stock (voting together as a single and separate class on an as-converted basis) including the affirmative vote of JHS Bitcoin Mining LLC, must approve the following: (i) liquidation, dissolution or winding-up of the business and affairs of USBTC or a merger or consolidation or any
|
|
|
New Hut
|
| |
USBTC
|
|
| | | |
deemed liquidation event/merger (other than primarily for capital-raising purposes), (ii) amendment to the USBTC Articles or USBTC Bylaws in a manner that materially and adversely modifies or adversely effects the rights of Series A Preferred stock, (iii) the creation of any additional class or series of capital stock or other securities unless the same ranks junior to the Series A Preferred stock, or increase or decrease the authorized number of shares of any class or series of capital stock, (iv) reclassification, alteration or amendment of any existing security of USBTC, (v) unless approved by the USBTC Board, including the approval of the Series A preferred director, cause or permit any of its subsidiaries to sell, issue, sponsor, create or distribute any digital tokens, digital assets or other blockchain-based assets, (vi) purchase or redeem, or pay any dividends or make any distribution on, any capital stock, other than (a) dividends or distributions on the Series A Preferred stock, (b) dividends or other distributions payable on the USBTC common stock solely in the form of additional shares of USBTC common stock, (c) repurchases of stock from former employees, officers, directors, consultants or other persons who performed services for USBTC and (d) in connection with the cashless exercise, tax surrender or similar net exercise of options, warrants or other rights to purchase USBTC common stock, (vii) unless approved by the USBTC Board (including the approval of the Series A preferred director), create or authorize the creation of, or issue, or authorize the issuance of any debt security or create any lien or security interest or incurred other indebtedness for borrowed money, (viii) increase or decrease to the authorized number of directors, (ix) unless approved by the USBTC Board, make any material change to USBTC’s line of business as presently conducted or contemplated, (x) unless approved by the USBTC Board (including the approval of the Series A preferred director), enter into any transaction or enter into or modify any agreement with any executive officer, director or founder providing for compensation, other than ordinary course salaries, reimbursement of expenses and benefits or (xi) unless approved by the USBTC Board (including the Series A preferred director), adopt, amend or terminate any new or other equity plan, employee equity ownership plan or similar plan.
|
|
|
Voting Rights
|
| |||
|
Each holder of a share of New Hut common stock will be entitled to one vote for each share upon all questions presented to the stockholders, and the common stock will have the exclusive right to vote for the election of directors and for all other purposes.
|
| |
The holders of the USBTC common stock are entitled to one vote for each share of USBTC common stock held at all meetings of stockholders (and written actions in lieu of meetings); provided, however, that, except as otherwise required by law, holders of USBTC common stock, as such, shall not
|
|
|
New Hut
|
| |
USBTC
|
|
| | | |
be entitled to vote on any amendment to the USBTC Articles that relates solely to the terms of one or more outstanding series of USBTC preferred stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other series, to vote thereon pursuant to the USBTC Articles or pursuant to the Nevada Revised Statutes. There shall be no cumulative voting.
Except as otherwise required by law, on any matter presented to the stockholders of USBTC for their action or consideration at any meeting of stockholders of USBTC (or by written consent of stockholders in lieu of meeting), each holder of outstanding shares of USBTC preferred stock shall be entitled to cast the number of votes equal to the number of whole shares of USBTC common stock into which the shares of USBTC preferred stock held by such holder are convertible as of the record date for determining stockholders entitled to vote on such matter. Except as provided by law or by the other provisions of the USBTC Articles, holders of USBTC preferred stock shall vote together with the holders of USBTC common stock as a single class and on an as-converted to USBTC common stock basis.
USBTC’s Articles provides that there shall be no cumulative voting.
|
|
|
Number and Qualification of Directors
|
| |||
|
The New Hut board, in accordance with the Business Combination Agreement and the New Hut bylaws, will consist of ten (10) directors.
The New Hut board will consist of ten (10) directors. Five (5) of the ten directors will be persons designated by Hut. Five (5) of the ten directors will be persons designated by USBTC.
|
| |
USBTC’s Articles provide that the size of the USBTC Board shall be seven.
There are currently six directors serving on the USBTC Board.
|
|
|
Structure of Board of Directors; Term of Directors; Election of Directors
|
| |||
| The New Hut board will be elected annually. | | |
USBTC’s Bylaws provide that the USBTC Board shall be elected at each annual meeting of stockholders by the holders of the outstanding capital stock as provided in the USBTC Articles, or if there is no provision, by the holders of USBTC common stock. USBTC’s Articles provide that the holders of record of the shares of Series A Preferred stock, voting together as a single class and on an as-converted to USBTC common stock basis, shall be entitled to elect one (1) director of USBTC (the “Series A Preferred Director”). The holders of record of the shares of USBTC common stock, exclusively and as a separate class, shall be entitled to elect five (5) directors of USBTC. The holders of record of the shares of USBTC common stock and of any other class or series of voting stock (including the USBTC preferred stock), exclusively and voting together as a single class, shall be entitled to elect the balance of
|
|
|
New Hut
|
| |
USBTC
|
|
| | | |
the total number of directors of USBTC.
USBTC’s Bylaws provide that each director shall hold office until his or her successor is elected and qualified or until his or her death, earlier resignation, removal or disqualification.
|
|
|
Removal of Directors
|
| |||
|
In accordance with the DGCL, the entire New Hut board or any individual director may be removed at any time, with or without cause, only by the affirmative vote of the recordholders of a majority of the voting power of all of the shares of capital stock of New Hut then entitled to vote generally in the election of directors except for those directors, if any, elected solely and exclusively by the holders of any class or series of capital stock of New Hut as provided for by the Certificate of Incorporation.
|
| |
USBTC’s Bylaws provide that any director or the entire USBTC Board may be removed, with or without cause, by holders of not less than two-thirds of the voting power of the outstanding shares of the outstanding capital stock. Any vacancy on the USBTC Board caused by any such removal may be filled by a majority of the remaining directors at any time before the end of the unexpired term.
USBTC’s Articles provide that any of the five (5) directors elected by the holders of record of the shares of USBTC common stock, exclusively and as a separate class, may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders.
|
|
|
Vacancies on the Board of Directors
|
| |||
|
Any vacancies on the New Hut board caused by death, removal or resignation of any director or any other cause, and any newly created directorships resulting from an increase in the authorized number of directors, will be permitted to be filled only by a majority vote of the directors then in office, even if less than a quorum, or by a sole remaining director, or by the stockholders at the next annual or special meeting.
|
| |
If the holders of shares of Series A Preferred stock or USBTC common stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the USBTC Articles, then any directorship not so filled shall remain vacant until such time as the holders of the Series A Preferred stock or USBTC common stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of USBTC other than by the stockholders of USBTC that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class.
|
|
|
Stockholder Action by Written Consent
|
| |||
|
New Hut bylaws provide that any action which may be taken or is required by the DGCL to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action taken, is signed by the recordholders of shares representing no less than the minimum number of votes necessary to authorize or take such action at a meeting at which the recordholders of all shares entitled to vote were present and voted.
|
| |
Pursuant to Section 78.320 of the Nevada Revised Statutes, unless otherwise provided in the articles of incorporation or the bylaws of a company, any action required or permitted to be taken at a meeting of the stockholders may be taken without a meeting if, before or after the action, a written consent thereto is signed by stockholders holding at least a majority of the voting power, except that if a different proportion of voting power is required for such an action at a meeting, then that proportion of written consents is required. In no instance where action is authorize by written consent need a meeting of stockholders be
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New Hut
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USBTC
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called or notice given.
USBTC’s Bylaws provide that unless otherwise restricted by the USBTC Articles, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
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Quorum
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New Hut’s bylaws provide that, except where otherwise provided by law or by the New Hut certificate of incorporation, the recordholders of a majority of the shares entitled to vote (whether in person or by proxy) constitute a quorum at all meetings of stockholders, whether annual or special.
If quorum is not present at any meeting of the stockholders, the stockholders entitled to vote may adjourn the meeting in accordance with the New Hut bylaws until quorum is present.
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USBTC’s Bylaws provide that at each meeting of stockholders, except where otherwise provided by law or the USBTC Articles or USBTC Bylaws, the holders of a majority in voting power of the outstanding shares of stock entitled to vote on a matter at the meeting, present in person or represented by proxy, shall constitute a quorum. Shares entitled to vote as a separate class or series may take action on a matter at a meeting only if a quorum of those shares is present. Where a separate vote by class or classes or a series or multiple series is required for any matter, the holders of a majority in voting power of the outstanding shares of such class or classes or a series or multiple series, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. In the absence of a quorum of the holders of any class or series of stock entitled to vote on a matter, the holders of such class or series so present or represented may, by majority vote, adjourn the meeting of such class or series with respect to that matter from time to time in the manner provided for in the USBTC Bylaws until a quorum of such class or series shall be so present or represented.
USBTC’s Articles provide that at any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director.
USBTC’s Bylaws provide that at all meetings of the USBTC Board a majority of the directors then in office shall constitute a quorum for the transaction of business at such meeting. In case at any meeting of the USBTC Board a quorum is not present, a majority of the directors present may, without notice other than announcement at the meeting, adjourn the meeting from time to time until a quorum can be obtained.
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New Hut
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USBTC
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Special Meeting of Stockholders
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The New Hut bylaws provide that special meetings of stockholders may be called at any time by the chairman of the board of the New Hut Board, the chief executive officer of the corporation, or the directors entitled to cast a majority of the votes of the whole New Hut Board.
Notice of a special meeting of stockholders may be given by the persons calling the meeting, or upon request of those persons, shall be given by the Secretary of New Hut. Copies of a notice of a special meeting of stockholders shall be delivered to the Secretary. Each request to the Secretary for giving of notice of a special meeting shall state the purposes of such a meeting.
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Under USBTC’s Bylaws, special meetings of stockholders entitled to vote at such meeting may be called at any time by the chairman of the USBTC Board, the president (if he is also a member of the USBTC Board) or the USBTC Board, to be held at such date, time and place, if any, either within or outside the State of Nevada as may be determined by such person or persons calling the meeting and stated in the notice of the meeting. A special meeting shall be called by the president or the secretary upon one or more written demands (which shall state the purpose or purposes therefore) signed and dated by the holders of shares representing not less than 10% of all votes entitled to be cast on any issue(s) that may be properly proposed to be considered at the special meeting. If no place is designed in the notice, the place of the meeting shall be the principal office of USBTC. Business transacted at any special meeting of stockholders shall be limited to the purpose or purposes stated in the notice of such meeting.
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Notice of Stockholder Meetings
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The New Hut bylaws provide that, except as otherwise required by law, written notice of each annual or special meeting shall be given personally or by first-class mail or by airmail to each recordholder of shares entitled to vote no less than ten (10) and no more than sixty (60) days before the date of the meeting. The notice shall state the place, date and time of the meeting. If the meeting is a special meeting, the notice must state the purposes for which the meeting is to be held.
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Under USBTC’s Bylaws, whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting stating the place, if any, date and hour of the meeting, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given to each stockholder entitled to vote at such meeting. Unless otherwise provided by law, the USBTC Articles or the USBTC Bylaws, the notice of any meeting shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of USBTC. Notice may be given by Internet in accordance with the rules of the Securities and Exchange Commission even if the provisions of such rules do not apply to USBTC.
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Notice Requirements for Stockholder Nominations and Other Proposals
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Nominations of one or more individuals for election to the New Hut Board by the stockholders generally entitled to vote and the proposal of any question or business other than a nomination to be considered by the stockholders generally entitled to vote may be made at an annual meeting of stockholders only (A) pursuant to New Hut’s notice of meeting (or any supplement thereto); (B) by or at the direction of the New Hut Board or (C) by any stockholder of New
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Pursuant to USBTC’s Bylaws, nomination of persons to stand for election to the USBTC Board at any annual or special stockholders meeting may be made by the holders of USBTC common stock only if written notice of such stockholder’s intent to make such nomination has been given to the Secretary of USBTC not later than 30 days prior to the meeting. At any meeting of stockholders, a resolution or motion shall be considered for vote only if the
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New Hut
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USBTC
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Hut who was a stockholder of record of New Hut at the time the notice stockholder provided notice to the secretary, who is entitled to vote at the meeting and (z) who complies with the procedures set forth in New Hut’s bylaws and Rule 14a-19 under the Exchange Act, if applicable.
For nominations or business to be properly brought before an annual meeting of stockholders by a stockholder pursuant to the New Hut bylaws, the stockholder must have given timely notice thereof in writing to the secretary and any proposed business must constitute a proper matter for stockholder action. In general, to be timely, a stockholder’s notice shall be delivered to the secretary at the principal executive offices of New Hut not later than the close of business on the ninetieth (90th) day nor earlier than the close of business on the one hundred twentieth (120th) day prior to the first anniversary of the preceding year’s annual meeting of stockholders.
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proposal is brought properly before the meeting, which shall be determine by the chairman of the meeting in accordance with the provisions set forth in the USBTC Bylaws. Such proposals may be made by holders of shares of USBTC common stock, although such authority shall not be construed to require USBTC to include any stockholder proposal in its proxy statements sent to stockholders, except as may be required by the proxy rules promulgated by the Securities and Exchange Commission. Any proposal made by the holders of shares of USBTC common stock may be made at any time prior to or at the meeting if only the holders of USBTC common stock are entitled to vote thereon. Holders of USBTC common stock may only make a proposal with respect to which such holders are entitled to vote. Any proposal on which holders of USBTC common stock are entitled to vote and concerning which proxies may be solicited by the proponent or by management must be delivered to, or mailed and received by, the Secretary of USBTC not less than 90 days prior to the meeting; provided, however, that in the event that less than 100 days’ notice of prior public disclosure of the date of the meeting is given or made to stockholders, to be timely, notice by the stockholder must be so received not later than the close of business on the 10th day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made.
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Amendment of Certificate of Incorporation
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New Hut’s certificate of incorporation provides that New Hut reserves the right to amend, alter, change or repeal any provision in the certificate of incorporation, subject to the provisions of the certificate of incorporation and the DGCL.
The DGCL provides that an amendment to a corporation’s certificate of incorporation requires that (i) the board of directors adopt a resolution setting forth the proposed amendment and either call a special meeting of the stockholders entitled to vote in respect thereof for consideration of such amendment or direct that the amendment be considered at the next annual meeting of the stockholders (provided a meeting or vote is required pursuant to Section 242 of the DGCL) and (ii) the stockholders approve the amendment by a majority of outstanding shares entitled to vote (and a majority of the outstanding shares of each class entitled to vote, if any).
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Pursuant to Section 78.390 of the Nevada Revised Statutes, every amendment to a company’s articles of incorporation after issuance of stock must be made in the following manner: (1) the board of directors must adopt a resolution setting forth the amendment proposed and either call a special meeting of the stockholders entitled to vote on the amendment or direct that the proposed amendment be considered at the next annual meeting of the stockholders entitled to vote on the amendment and (2) at the stockholder meeting, of which notice must be given to each stockholder entitled to vote pursuant to the provisions of the Nevada Revised Statutes, a vote of the stockholders entitled to vote in person or by proxy must be taken for and against the proposed amendment and such amendment will be approved if at least a majority of the stockholders approve such amendment (or such greater proportion of the voting power as may be required in the case of a vote by classes or series, as provided in the Nevada Revised Statutes, or as may be required by the provisions of the articles of incorporation). Except as otherwise provided in Section 78.390 of the Nevada Revised Statutes, if any proposed amendment would adversely alter or change any preference or any relative or other
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New Hut
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USBTC
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right given to any class or series of outstanding shares, then the amendment must be approved by the vote, in addition to the affirmative vote otherwise required, of the holders of shares representing a majority of the voting power of each class or series adversely affected by the amendment regardless of limitations or restrictions on the voting power thereof. The amendment does not have to be approved by the vote of the holders of shares representing a majority of the voting power of each class or series whose preference or rights are adversely affected by the amendment if the articles of incorporation specifically deny the right to vote on such an amendment. Provision may be made in the articles of incorporation requiring, in the case of any specified amendments, a larger proportion of the voting power of stockholders than that required by the Nevada Revised Statutes.
USBTC’s Articles provide the following: (i) except as otherwise required by law, the holders of USBTC common stock shall not be entitled to vote on any amendment to the USBTC Articles that relates solely to the terms of one or more outstanding series of USBTC preferred stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other series, to vote therein pursuant to the USBTC Articles or Nevada Revised Statutes and (ii) at any time when at least 1,963,750 shares of Series A Preferred stock are outstanding, USBTC shall not amend, alter or repeal any provision of the USBTC Articles or USBTC Bylaws in a manner that materially and adversely modifies or adversely effects the powers, preferences or rights of the Series A Preferred stock, without the written consent or affirmative vote of a majority of the outstanding shares of Series A Preferred stock (voting together as a single and separate class on an as-converted basis) including the affirmative vote of JHS Bitcoin Mining LLC, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class.
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New Hut
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USBTC
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Amendment of Bylaws
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The New Hut bylaws provide that any bylaw may be altered, amended or repealed by a vote of the recordholders of a majority of the shares then entitled to vote at an election of directors or by a vote of the board of by written consent of the directors as provided by the New Hut bylaws and certificate of incorporation.
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USBTC’s Bylaws provide that the USBTC Board is authorized to adopt, amend or repeal the USBTC Bylaws. The holders of shares of capital stock entitled to vote also may adopt additional bylaws and may amend or repeal any bylaw, whether or not adopted by them. The power of the USBTC Board to adopt, amend or repeal bylaws may be limited by an amendment to the USBTC Articles or an amendment to the USBTC Bylaws adopted by the holders of capital stock that provides that a particular bylaw or bylaws may only be adopted, amended or repealed by the holders of capital stock.
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Limitation on Director and Officer Liability
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New Hut’s certificate of incorporation provides that to the fully extended permitted by the DGCL, no director of New Hut shall be personally liable to New Hut or its stockholders for monetary damages for breach of fiduciary duty as director.
The DGCL requires that such liability for breach of fiduciary duty as a director does not arise from (1) any breach of the director’s duty of loyalty to New Hut or its stockholders; (2) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (3) unlawful payments of dividends, certain stock repurchases or redemptions; or (4) any transaction from which the director derived an improper personal benefit.
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USBTC’s Articles provide that to the fullest extent permitted by law, a director of USBTC shall not be personally liable to USBTC or its stockholders for monetary damages for breach of fiduciary duty as a director.
Under Nevada law, unless otherwise provided in the articles of incorporation or pursuant to certain statutory exceptions, a director or officer is not liable for damages as a result of an act or failure to act in his or her capacity as a director or officer unless a statutory presumption that such person acted in good faith, on an informed basis and with a view to the interests of the corporation has been rebutted and, in addition, it has been proven both that the act or failure to act constituted a breach of a fiduciary duty as a director or officer and that such breach involved intentional misconduct, fraud or a knowing violation of law.
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Indemnification
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The New Hut certificate of incorporation contains provisions that provide for indemnification of officers and directors to the fullest extent permitted by, the DGCL.
Section 145 of the DGCL empowers a Delaware corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding,
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Under USBTC’s Articles, to the fullest extent permitted by applicable law, USBTC is authorized to provide indemnification of (and advancement of expenses to) directors, officers and agents of USBTC (and any other persons to which Nevada Revised Statutes permits USBTC to provide indemnification) through bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 78.7502 of the Nevada Revised Statutes. USBTC’s Bylaws provide that USBTC shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of USBTC or, while a
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New Hut
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USBTC
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provided that such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. A Delaware corporation may indemnify directors, officers, employees and other agents of such corporation in an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the person to be indemnified has been adjudged to be liable to the corporation. Where a present or former director or officer of the corporation is successful on the merits or otherwise in the defense of any action, suit or proceeding referred to above or in defense of any claim, issue or matter therein, the corporation must indemnify such person against the expenses (including attorneys’ fees) which he or she actually and reasonably incurred in connection therewith.
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director or officer of USBTC, is or was serving at the request of USBTC as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such person. USBTC shall be required to indemnify such person in connection with a proceeding mentioned above (or part thereof) commenced by such person only if the commencement of such proceeding (or part thereof) by such person was authorized in the specific case by the USBTC Board. Such indemnity shall not include any expenses incurred by such person relating to or arising from any proceeding in which USBTC asserts a direct claim against such person, or such person asserts a direct claim against USBTC, whether such claim is termed a complaint, counterclaim, crossclaim, third-party complaint or otherwise.
Pursuant to USBTC’s Bylaws, USBTC may purchase and maintain insurance on behalf of any person that USBTC is permitted to indemnify in accordance with the USBTC Bylaws against any liability asserted against any such person and incurred by such person whether or not USBTC would have the power to indemnify such person against such liability under the Nevada Revised Statutes.
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Preemptive Rights
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New Hut’s stockholders do not have preemptive rights. Thus, if additional shares of New Hut common stock are issued, the current New Hut stockholders will own a proportionately smaller interest in a larger number of outstanding shares of common stock to the extent that they do not participate in the additional issuance.
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Under USBTC’s A&R IRA, subject to certain exceptions, if USBTC proposes to offer or sell any new securities, USBTC shall first offer such new securities to each Series A investor. A Series A investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself and (ii) its affiliates; provided that each such affiliate (x) is not a competitor, unless such party’s purchase of new securities is otherwise consented to by the USBTC Board, and (y) agrees to enter into the A&R IRA and USBTC’s Stockholders Agreement. USBTC shall give notice to each Series A investor, stating (i) its bona fide intention to offer such new securities, (ii) the number of such new securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such new securities. By notification to USBTC within five (5) days after the office notice is given, each Series A investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the offer notice, up to that portion of such new securities which equals the proportion that the USBTC common stock then held by such Series A investor bears to the total USBTC common stock then outstanding.
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New Hut
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USBTC
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Distributions to Stockholders
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The DGCL provides that, subject to any restrictions in a corporation’s certificate of incorporation, dividends may be declared from the corporation’s surplus, or if there is no surplus, from its net profits for the fiscal year in which the dividend is declared and for the preceding fiscal year. Dividends may not be declared out of net profits, however, if the corporation’s capital has been diminished to an amount less than the aggregate amount of all capital represented by the issued and outstanding stock of all classes having a preference upon the distribution of assets until the deficiency in the amount of capital represented by the issued and outstanding stock of all classes having a preference upon the distribution of assets is repaired.
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Under Nevada law/, distributions may not be made if, after giving them effect, either i) the corporation would be unable to pay its debts as they become du in the usual course of business or ii) except as otherwise specifically allowed by the articles of incorporation, the corporation’s total assets would be less than: (x) the sum of its total liabilities; and (y) the amount needed, if the corporation were dissolved immediately after the distribution, to satisfy the preferential rights on dissolution of shares of any class or series of the corporation’s capital stock having preferential rights superior to those receiving the distribution.
USBTC’s Bylaws provide that subject to the provisions of the Nevada Revised Statutes, dividends and other distributions may be declared by the USBTC Board in such form, frequency and amounts as the condition of the affairs of USBTC shall render advisable.
USBTC’s Articles provide that if USBTC declares, pays or sets aside any dividends on shares of any other class or series of capital stock of USBTC other than the USBTC preferred stock that are payable in shares of USBTC common stock then, in addition to the obtaining of any consents required elsewhere in the USBTC Articles, the holders of the USBTC preferred stock then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of USBTC preferred stock in an amount at least equal to (i) in the case of a dividend on USBTC common stock or any class or series that is convertible into USBTC common stock, that dividend per share of USBTC preferred stock as would equal the product of (A) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into USBTC common stock and (B) the number of shares of USBTC common stock issuable upon conversion of a share of USBTC preferred stock, in each case calculated on the record date for determination of holders entitled to receive such dividend or (ii) in the case of a dividend on any class or series that is not convertible into USBTC common stock, at a rate per share of USBTC preferred stock determined by (A) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (B) multiplying such fraction by an amount equal to the original issue Price; provided that, if USBTC declares, pays or sets aside, on the same date, a
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New Hut
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USBTC
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dividend on shares of more than one class or series of capital stock of USBTC, the dividend payable to the holders of USBTC preferred stock shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest applicable USBTC preferred stock dividend.
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Subdivisions or Combinations
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| N/A | | |
USBTC’s Articles provide that if USBTC shall at any time or from time to time after the date on which the first share of Series C Preferred stock was issued effect a subdivision of the outstanding USBTC common stock, the applicable conversion price in effect immediately before that subdivision shall be proportionately decreased so that the number of shares of USBTC common stock issuable on conversion of each share of the applicable series of USBTC preferred stock shall be increased in proportion to such increase in the aggregate number of shares of USBTC common stock outstanding. If USBTC shall at any time or from time to time after the Series C original issue date combine the outstanding shares of USBTC common stock, the applicable conversion price in effect immediately before the combination shall be proportionately increased so that the number of shares of USBTC common stock issuable on conversion of each share of the applicable series of USBTC preferred stock shall be decreased in proportion to such decrease in the aggregate number of shares of USBTC common stock outstanding. Any such adjustment shall become effective at the close of business on the date the subdivision or combination becomes effective.
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Appraisal Rights
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Under the DGCL, a stockholder may dissent from, and receive payments in cash for, the fair value of his or her shares as appraised by the Court of Chancery of the State of Delaware in the event of certain mergers and consolidations. However, stockholders do not have appraisal rights if the shares of stock they hold, at the record date for determination of stockholders entitled to vote at the meeting of stockholders to act upon the merger or consolidation, or on the record date with respect to action by written consent, are either (i) listed on a national securities exchange or (ii) held of record by more than 2,000 holders. Further, no appraisal rights are available to stockholders of the surviving corporation if the merger did not require the vote of the stockholders of the surviving corporation. Notwithstanding the foregoing, appraisal rights are available if stockholders are required by the terms of the merger agreement to accept for their shares anything other than (i) shares of stock of the surviving corporation, (ii) shares of stock of another corporation that will
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Under Sections 92A.300 to 92A.500, inclusive, of the Nevada Revised Statutes, stockholders of a Nevada corporation may, subject to certain conditions, be entitled to dissent from a transaction and demand payment of the fair value of such stockholder’s shares in the event of certain corporate actions, including certain mergers.
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New Hut
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USBTC
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either be listed on a national securities exchange or held of record by more than 2,000 holders, (iii) cash instead of fractional shares or (iv) any combination of clauses (i) – (iii). Appraisal rights are also available under the DGCL in certain other circumstances, including in certain parent-subsidiary corporation mergers and in certain circumstances where the certificate of incorporation so provides.
Neither the New Hut certificate of incorporation nor bylaws provides for appraisal rights in any additional circumstance other than as required by applicable law.
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Inspection of Books and Records
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| N/A | | |
USBTC’s Articles provide that the books of USBTC may be kept outside the State of Nevada at such place or places as may be designated from time to time by the USBTC Board or in USBTC’s Bylaws.
USBTC’s Bylaws provide that any records maintained by USBTC in the regular course of its business, including its stock ledger, books of account and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.
Section 78.257 of the Nevada Revised Statutes provides that any person who has been a stockholder of record of any corporation and owns not less than 15 percent of all of the issued and outstanding shares of the stock of such corporation or has been authorized in writing by the holders of at least 15 percent of all its issued and outstanding shares, upon at least 5 days’ written demand, is entitled to inspect in person or by agent or attorney, during normal business hours, the books of account and all financial records of the corporation, to make copies of records, and to conduct an audit of such records. Holders of voting trust certificates representing 15 percent of the issued and outstanding shares of the corporation are regarded as stockholders. The right of stockholders to inspect the corporate records may not be limited in the articles or bylaws of any corporation.
The aforementioned rights may be denied to any stockholder upon the stockholder’s refusal to furnish the corporation an affidavit that such inspection, copies or audit is not desired for any purpose not related to his or her interest in the corporation as a stockholder.
Except as otherwise provided in Section 78.257 of the Nevada Revised Statutes, the provisions of this section do not apply to any corporation that furnishes to its stockholders a detailed, annual financial
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New Hut
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USBTC
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statement or any corporation that has filed during the preceding 12 months all reports required to be filed pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934.
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Exclusive Forum
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Unless New Hut consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of New Hut, (ii) any action asserting a claim of breach of a duty (including any fiduciary duty) owed by any current or former director, officer, stockholder or other employee of New Hut to New Hut or New Hut stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, the Certificate of Incorporation or New Hut bylaws (iv) any action asserting a claim, including a claim in the right of New Hut, as to which the DGCL confers jurisdiction upon the Court of Chancery of the State of Delaware, or (v) any action asserting a claim governed by the internal affairs doctrine of the State of Delaware, shall in each case be the Court of Chancery of the State of Delaware or, if such court lacks jurisdiction, any state or federal court located within the State of Delaware.
The federal district courts of the United States of America shall, to the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act or the rules and regulations thereunder.
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The USBTC Articles do not provide for an exclusive forum with respect to any actions against USBTC or its directors and officers.
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Repurchases or Redemptions of Shares
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| |||
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New Hut’s certificate of incorporation and bylaws do not restrict New Hut from reacquiring its shares.
The DGCL generally provides that a corporation may redeem or repurchase its shares only if the redemption or repurchase would not impair the capital of the corporation.
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USBTC’s Articles provide that any shares of USBTC preferred stock that are redeemed, converted or otherwise acquired by USBTC or any of its subsidiaries shall be automatically and immediately cancelled and retired and shall not be reissued, sold or transferred. Neither USBTC nor any of its subsidiaries may exercise any voting or other rights granted to the holders of USBTC preferred stock following redemption, conversion or acquisition.
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Stock Transfer Restrictions Applicable to Stockholders
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New Hut’s bylaws provide that registration of transfers of shares shall be made only in the stock ledger of the Corporation upon request of the registered holder of such shares or their attorney authorized by a power of attorney duly executed and filed with the Secretary of New Hut.
If the shares were certificated, New Hut’s bylaws require surrender of the certificates evidencing such shares properly endorsed or accompanied by a stock power duly executed, together with proof of the authenticity of signatures as New Hut may reasonably require.
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Pursuant to USBTC’s Stockholders Agreement, subject to certain exceptions set forth therein, USBTC stockholders are restricted from transferring USBTC securities except with approval by the USBTC Board.
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Historical –
As at June 30, 2023 |
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Acquisition
Transaction Adjustments (Note 2) |
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Subtotal
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Joint Venture
Investment (Note 3) |
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New
Hut Pro Forma |
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New
Hut |
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USBTC
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Hut 8
(Note 4) |
| ||||||||||||||||||||||||||||||||||||
ASSETS | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |||||
Current assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |||||
Cash
|
| | | | — | | | | | | 10,379 | | | | | | 20,156 | | | | | | (15,176) | | | |
(c)
|
| | | | 15,359 | | | | | | | | | | | | 15,359 | | |
Accounts receivable, net
|
| | | | — | | | | | | 636 | | | | | | 1,598 | | | | | | | | | | | | | | | 2,234 | | | | | | | | | | | | 2,234 | | |
Cryptocurrency, net
|
| | | | — | | | | | | 851 | | | | | | 138,214 | | | | | | 115,505 | | | |
(a)
|
| | | | 254,570 | | | | | | | | | | | | 254,570 | | |
Cryptocurrency, pledged as collateral
|
| | | | — | | | | | | — | | | | | | 25,814 | | | | | | 92 | | | | | | | | | 25,906 | | | | | | | | | | | | 25,906 | | |
Prepaid expenses and other current assets
|
| | | | — | | | | | | 7,504 | | | | | | 4,193 | | | | | | | | | | | | | | | 11,697 | | | | | | | | | | | | 11,697 | | |
Total current assets
|
| | | | — | | | | | | 19,370 | | | | | | 189,975 | | | | | | 100,421 | | | | | | | | | 309,766 | | | | | | — | | | | | | 309,766 | | |
Non-current assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |||||
Property and equipment, net
|
| | | | — | | | | | | 70,719 | | | | | | 85,542 | | | | | | | | | | | | | | | 156,261 | | | | | | | | | | | | 156,261 | | |
Right-of-use assets
|
| | | | — | | | | | | 536 | | | | | | — | | | | | | | | | | | | | | | 536 | | | | | | | | | | | | 536 | | |
Other deposits
|
| | | | — | | | | | | 254 | | | | | | 19,798 | | | | | | | | | | | | | | | 20,052 | | | | | | | | | | | | 20,052 | | |
Investment in unconsolidated joint
venture |
| | | | — | | | | | | 93,583 | | | | | | — | | | | | | | | | | | | | | | 93,583 | | | | | | | | | | | | 93,583 | | |
Intangible assets, net
|
| | | | — | | | | | | 5,535 | | | | | | 11,164 | | | | | | 176,855 | | | |
(a)
|
| | | | 193,554 | | | | | | | | | | | | 193,554 | | |
Total non-current assets
|
| | | | — | | | | |
|
170,627
|
| | | |
|
116,504
|
| | | |
|
176,855
|
| | | | | | |
|
463,986
|
| | | |
|
—
|
| | | |
|
463,986
|
| |
Total assets
|
| | |
|
—
|
| | | |
|
189,997
|
| | | |
|
306,479
|
| | | |
|
277,276
|
| | | | | | |
|
773,752
|
| | | |
|
—
|
| | | |
|
773,752
|
| |
LIABILITIES | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |||||
Current liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |||||
Accounts payable
|
| | | | — | | | | | | 3,605 | | | | | | 6,145 | | | | | | (1,647) | | | |
(c)
|
| | | | 8,103 | | | | | | | | | | | | 8,103 | | |
Accrued expenses
|
| | | | — | | | | | | 3,415 | | | | | | 10,682 | | | | | | (9,438) | | | |
(c)
|
| | | | 4,659 | | | | | | | | | | | | 4,659 | | |
Other current liabilities
|
| | | | — | | | | | | 591 | | | | | | — | | | | | | | | | | | | | | | 591 | | | | | | | | | | | | 591 | | |
Deferred revenue
|
| | | | — | | | | | | 1,031 | | | | | | — | | | | | | | | | | | | | | | 1,031 | | | | | | | | | | | | 1,031 | | |
Loans payable
|
| | | | — | | | | | | — | | | | | | 23,937 | | | | | | | | | | | | | | | 23,937 | | | | | | | | | | | | 23,937 | | |
Lease liability, current
portion |
| | | | — | | | | | | 395 | | | | | | 3,029 | | | | | | | | | | | | | | | 3,424 | | | | | | | | | | | | 3,424 | | |
Notes payable, current
portion |
| | | | — | | | | | | 1,299 | | | | | | — | | | | | | | | | | | | | | | 1,299 | | | | | | | | | | | | 1,299 | | |
Total current liabilities
|
| | | | — | | | | | | 10,336 | | | | | | 43,793 | | | | | | (11,085) | | | | | | | | | 43,044 | | | | | | — | | | | | | 43,044 | | |
Non-current liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |||||
Notes payable, less current portion
|
| | | | — | | | | | | 149,891 | | | | | | — | | | | | | | | | | | | | | | 149,891 | | | | | | | | | | | | 149,891 | | |
Lease liability, less current portion
|
| | | | — | | | | | | 943 | | | | | | 15,871 | | | | | | | | | | | | | | | 16,814 | | | | | | | | | | | | 16,814 | | |
Deposit liability
|
| | | | — | | | | | | — | | | | | | — | | | | | | | | | | | | | | | — | | | | | | | | | | | | — | | |
Deferred tax liability
|
| | | | — | | | | | | 1,454 | | | | | | — | | | | | | | | | | | | | | | 1,454 | | | | | | | | | | | | 1,454 | | |
Long- term debt
|
| | | | — | | | | | | — | | | | | | 5,579 | | | | | | | | | | | | | | | 5,579 | | | | | | | | | | | | 5,579 | | |
Warrants liability
|
| | | | — | | | | | | — | | | | | | 11 | | | | | | (11) | | | |
(g)
|
| | | | — | | | | | | | | | | | | — | | |
Total non-current liabilities
|
| | | | — | | | | | | 152,288 | | | | | | 21,461 | | | | | | (11) | | | | | | | | | 173,738 | | | | | | — | | | | | | 173,738 | | |
Total Liabilities
|
| | | | — | | | | | | 162,624 | | | | | | 65,254 | | | | | | (11,096) | | | | | | | | | 216,782 | | | | | | — | | | | | | 216,782 | | |
| | |
Historical –
As at June 30, 2023 |
| |
Acquisition
Transaction Adjustments (Note 2) |
| | | | |
Subtotal
|
| |
Joint Venture
Investment (Note 3) |
| |
New
Hut Pro Forma |
| |||||||||||||||||||||||||||
| | |
New
Hut |
| |
USBTC
|
| |
Hut 8
(Note 4) |
| ||||||||||||||||||||||||||||||||||||
EQUITY | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |||||
Series A preferred stock, par value
$0.00001; 7,855,500 shares authorized; 7,824,000 shares issued and outstanding as of June 30, 2023 |
| | | | — | | | | | | 24,899 | | | | | | — | | | | | | (24,899) | | | |
(b)
|
| | | | — | | | | | | | | | | | | — | | |
Series B preferred stock, par value
$0.00001; 10,000,000 shares authorized; 10,000,000 shares issued and outstanding as of June 30, 2023 |
| | | | — | | | | | | 61,067 | | | | | | — | | | | | | (61,067) | | | |
(b)
|
| | | | — | | | | | | | | | | | | — | | |
Series B-1 preferred stock, par
value $0.00001; 3,750,000 shares authorized; 793,250 shares issued and outstanding as of June 30, 2023 |
| | | | — | | | | | | 12,537 | | | | | | — | | | | | | (12,537) | | | |
(b)
|
| | | | — | | | | | | | | | | | | — | | |
Common stock, par value $0.00001; 125,000,000 shares authorized; 45,696,749 shares issued and outstanding as of June 30, 2023 for USBTC
|
| | | | — | | | | | | — | | | | | | — | | | | | | | | | | | | | | | — | | | | | | | | | | | | — | | |
Common stock, par value $0.001;
87,515,623 issued and outstanding as of June 30, 2023 |
| | | | — | | | | | | — | | | | | | — | | | | | | 88 | | | |
(a)(b)
|
| | | | 88 | | | | | | | | | | | | 88 | | |
Share capital
|
| | | | — | | | | | | — | | | | | | 546,707 | | | | | | (584,280) | | | |
(a)
|
| | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | 37,573 | | | |
(g)
|
| | | | | | | | | | | | | | | | | | |
Warrants
|
| | | | — | | | | | | — | | | | | | — | | | | | | 60 | | | |
(g)
|
| | | | 60 | | | | | | | | | | | | 60 | | |
Additional paid- in capital
|
| | | | — | | | | | | 35,368 | | | | | | — | | | | | | (35,368) | | | |
(b)
|
| | | | 655,888 | | | | | | | | | | | | 655,888 | | |
| | | | | | | | | | | | | | | | | | | | | | | 655,888 | | | |
(a)(c)
|
| | | | | | | | | | | | | | | | | | |
Contributed surplus
|
| | | | — | | | | | | — | | | | | | 37,155 | | | | | | (37,155) | | | |
(a)
|
| | | | — | | | | | | | | | | | | — | | |
Accumulated deficit
|
| | | | — | | | | | | (106,498) | | | | | | (342,637) | | | | | | 7,481 | | | |
(c)
|
| | | | (99,066) | | | | | | — | | | | | | (99,066) | | |
| | | | | | | | | | | | | | | | | | | | | | | (49) | | | |
(g)
|
| | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | 342,637 | | | |
(a)
|
| | | | | | | | | | | | | | | | | | |
Total equity
|
| | |
|
—
|
| | | |
|
27,373
|
| | | |
|
241,225
|
| | | |
|
288,372
|
| | | | | | |
|
556,970
|
| | | |
|
—
|
| | | |
|
556,970
|
| |
Total liabilities and equity
|
| | |
|
—
|
| | | |
|
189,997
|
| | | |
|
306,479
|
| | | |
|
277,276
|
| | | | | | |
|
773,752
|
| | | |
|
—
|
| | | |
|
773,752
|
| |
|
| | |
Historical – For the year
ended June 30, 2023 |
| |
Acquisition
Transaction Adjustments (Note 2) |
| | | | | | | |
Subtotal
|
| |
Joint Venture
Investment (Note 3) |
| |
New Hut
Pro Forma |
| |||||||||||||||||||||||||||
| | |
New Hut
|
| |
USBTC
|
| |
Hut 8 (Note 4)
|
| |||||||||||||||||||||||||||||||||||||||
Revenue: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |||||
Cryptocurrency mining, net
|
| | | | — | | | | | | 49,247 | | | | | | 56,749 | | | | | | | | | | | | | | | | | | 105,996 | | | | | | | | | | | | 105,996 | | |
Mining equipment sales
|
| | | | — | | | | | | 3,635 | | | | | | — | | | | | | | | | | | | | | | | | | 3,635 | | | | | | | | | | | | 3,635 | | |
High performance computing
|
| | | | — | | | | | | — | | | | | | 13,456 | | | | | | | | | | | | | | | | | | 13,456 | | | | | | | | | | | | 13,456 | | |
Management fees
|
| | | | — | | | | | | 7,551 | | | | | | — | | | | | | | | | | | | | | | | | | 7,551 | | | | | | | | | | | | 7,551 | | |
Cost reimbursements
|
| | | | — | | | | | | 5,247 | | | | | | — | | | | | | | | | | | | | | | | | | 5,247 | | | | | | | | | | | | 5,247 | | |
Hosting services
|
| | | | — | | | | | | 16,480 | | | | | | — | | | | | | | | | | | | | | | | | | 16,480 | | | | | | | | | | | | 16,480 | | |
Total revenue
|
| | |
|
—
|
| | | |
|
82,160
|
| | | |
|
70,205
|
| | | |
|
—
|
| | | | | | | | | |
|
152,365
|
| | | |
|
—
|
| | | |
|
152,365
|
| |
Costs and expenses: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |||||
Cost of revenues (exclusive of depreciation and amortization shown below)
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Services
|
| | | | — | | | | | | 40,000 | | | | | | 49,900 | | | | | | | | | | | | | | | | | | 89,900 | | | | | | | | | | | | 89,900 | | |
Mining equipment
|
| | | | — | | | | | | 3,112 | | | | | | — | | | | | | | | | | | | | | | | | | 3,112 | | | | | | | | | | | | 3,112 | | |
Depreciation and amortization
|
| | | | — | | | | | | 18,779 | | | | | | 58,184 | | | | | | (30,913) | | | | |
|
(e)
|
| | | | | 46,050 | | | | | | | | | | | | 46,050 | | |
General and administrative
|
| | | | — | | | | | | 27,789 | | | | | | 48,147 | | | | | | 15,663 | | | | |
|
(d)
|
| | | | | 91,599 | | | | | | | | | | | | 91,599 | | |
Impairment of cryptocurrency
|
| | | | — | | | | | | 3,703 | | | | | | 18,173 | | | | | | | | | | | | | | | | | | 21,876 | | | | | | | | | | | | 21,876 | | |
Realized gain on sale of cryptocurrency
|
| | | | — | | | | | | (4,577) | | | | | | (19,014) | | | | | | | | | | | | | | | | | | (23,591) | | | | | | | | | | | | (23,591) | | |
Impairment of long-lived assets
|
| | | | — | | | | | | 63,574 | | | | | | 87,174 | | | | | | 31,111 | | | | |
|
(e)
|
| | | | | 181,859 | | | | | | | | | | | | 181,859 | | |
Legal settlement
|
| | | | — | | | | | | (1,531) | | | | | | | | | | | | | | | | | | | | | | | | (1,531) | | | | | | | | | | | | (1,531) | | |
Total costs and expenses
|
| | |
|
—
|
| | | |
|
150,849
|
| | | |
|
242,564
|
| | | |
|
15,861
|
| | | | | | | | | |
|
409,274
|
| | | | | — | | | | |
|
409,274
|
| |
Operating income (loss)
|
| | | | — | | | | | | (68,689) | | | | | | (172,359) | | | | | | (15,861) | | | | | | | | | | | | (256,909) | | | | | | — | | | | | | (256,909) | | |
Other income (expense): | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |||||
Foreign exchange loss
|
| | | | — | | | | | | — | | | | | | (230) | | | | | | | | | | | | | | | | | | (230) | | | | | | | | | | | | (230) | | |
Interest expense
|
| | | | — | | | | | | (27,935) | | | | | | (5,132) | | | | | | | | | | | | | | | | | | (33,067) | | | | | | | | | | | | (33,067) | | |
Fair value gain on warrant liabilities
|
| | | | — | | | | | | — | | | | | | (11) | | | | | | 1,241 | | | | |
|
(g)
|
| | | | | 1,230 | | | | | | | | | | | | 1,230 | | |
Equity in earnings of unconsolidated joint venture
|
| | | | — | | | | | | 6,132 | | | | | | — | | | | | | | | | | | | | | | | | | 6,132 | | | | | | 938 | | | | | | 7,070 | | |
Gain on debt extinguishment
|
| | | | — | | | | | | 23,683 | | | | | | — | | | | | | — | | | | | | | | | | | | 23,683 | | | | | | | | | | | | 23,683 | | |
Total other income (expense)
|
| | | | — | | | | | | 1,880 | | | | | | (5,373) | | | | | | 1,241 | | | | | | | | | | | | (2,252) | | | | | | 938 | | | | | | (1,314) | | |
Loss before income tax provision (benefit)
|
| | | | — | | | | | | (66,809) | | | | | | (177,732) | | | | | | (14,620) | | | | | | | | | | | | (259,161) | | | | | | 938 | | | | | | (258,223) | | |
Deferred income tax benefit (provision)
|
| | | | — | | | | | | | | | | | | 2,394 | | | | | | | | | | | | | | | | | | 2,394 | | | | | | | | | | | | 2,394 | | |
Income tax benefit (provision)
|
| | | | — | | | | | | 1,198 | | | | | | — | | | | | | 3,070 | | | | |
|
(f)
|
| | | | | 4,268 | | | | | | (197) | | | | | | 4,071 | | |
Net loss
|
| | | | — | | | | | | (65,611) | | | | | | (175,338) | | | | | | (11,550) | | | | | | | | | | | | (252,499) | | | | | | 741 | | | | | | (251,758) | | |
Loss per common share (note 7): | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted
|
| | | | | | | | | | (1.52) | | | | | | (0.83) | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
(3.54)
|
| |
Weighted average common shares outstanding:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted
|
| | | | | | | | | | 43,133,307 | | | | | | 211,007,243 | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
71,169,778
|
| |
| Assets | | | | | | | |
|
Cash
|
| | | | 20,156 | | |
|
Accounts receivable, net
|
| | | | 1,598 | | |
|
Cryptocurrency, net
|
| | | | 253,719 | | |
|
Cryptocurrency, pledged as collateral
|
| | | | 25,906 | | |
|
Prepaid expenses and other current assets
|
| | | | 4,193 | | |
|
Property and equipment, net
|
| | | | 85,542 | | |
|
Other deposits
|
| | | | 19,798 | | |
|
Intangible assets, net
|
| | | | 2,446 | | |
| | | | | | 413,358 | | |
| Liabilities | | | | | | | |
|
Accrued expenses
|
| | | | 10,682 | | |
|
Accounts payable
|
| | | | 6,145 | | |
|
Loans payable
|
| | | | 23,937 | | |
|
Lease liability, current portion
|
| | | | 3,029 | | |
|
Lease liability, less current portion
|
| | | | 15,871 | | |
|
Long- term debt
|
| | | | 5,579 | | |
|
Warrant liabilities
|
| | | | 11 | | |
| | | | | | 65,254 | | |
|
Net Assets Acquired
|
| | |
|
348,104
|
| |
| Estimated purchase consideration | | | | | | | |
|
Hut 8 Common Shares Outstanding at June 30, 2023
|
| | | | 221,611,708 | | |
|
Hut 8 USD Share Price at August 21, 2023
|
| | | | 2.39 | | |
|
Share consideration ($000’s)
|
| | | | 529,653 | | |
|
Estimated replacement cost of Stock options, RSUs and DSUs
|
| | | | 4,025 | | |
|
Purchase price ($000’s)
|
| | |
|
533,678
|
| |
|
Incremental Goodwill
|
| | |
|
185,574
|
| |
| | |
Hut 8 share
price ($) |
| |
Purchase Price
($000’s) |
| ||||||
As presented
|
| | | | 2.39 | | | | | | 533,678 | | |
20% increase
|
| | | | 2.87 | | | | | | 640,414 | | |
20% decrease
|
| | | | 1.91 | | | | | | 426,942 | | |
40% increase
|
| | | | 3.35 | | | | | | 747,149 | | |
40% decrease
|
| | | | 1.43 | | | | | | 320,207 | | |
New Hut Shares to be issued
|
| |
June 30 Shares
outstanding |
| |
Exchange
Ratio |
| |
New Hut
June 30 shares |
| |
Par Value
|
| |
APIC
|
| |
Total
|
| ||||||||||||||||||
Hut 8 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Common Shares outstanding – June 30, 2023
|
| | | | 221,611,708 | | | | | | 0.2 | | | | | | 44,322,342 | | | | | | 44 | | | | | | 533,634 | | | | | | 533,678 | | |
USBTC | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Series A preferred stock
|
| | | | 7,824,000 | | | | | | 0.6716 | | | | | | 5,254,598 | | | | | | | | | | | | | | | | | | | | |
Series B preferred stock
|
| | | | 10,000,000 | | | | | | 0.6716 | | | | | | 6,716,000 | | | | | | | | | | | | | | | | | | | | |
Series B-1 preferred stock
|
| | | | 793,250 | | | | | | 0.6716 | | | | | | 532,747 | | | | | | | | | | | | | | | | | | | | |
Common stock
|
| | | | 45,696,749 | | | | | | 0.6716 | | | | | | 30,689,937 | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | 43,193,282 | | | | | | 44 | | | | | | 122,254 | | | | | | 122,298 | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total – New Hut shares issued using
June 30 share figures |
| | | | | | | | | | | | | | | | 87,515,624 | | | | | | 88 | | | | | | 655,888 | | | | | | 655,976 | | |
Statement of Financial Position as at June 30, 2023
|
| |
Hut 8
(CAD) |
| |
Reclassifi-cation
(CAD) |
| |
GAAP
Adjustments (CAD) |
| |
Note
|
| |
Hut 8
(CAD & US GAAP) |
| |
Hut 8
(USD & US GAAP) |
| ||||||||||||||||||
Assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cash
|
| | | | 26,687 | | | | | | | | | | | | | | | | | | | | | | | | 26,687 | | | | | | 20,156 | | |
Accounts receivable and other
|
| | | | 2,116 | | | | | | (2,116) | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Accounts receivable, net
|
| | | | | | | | | | 2,116 | | | | | | | | | | | | | | | | | | 2,116 | | | | | | 1,598 | | |
Digital assets – held in custody
|
| | | | 334,764 | | | | | | (334,764) | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Digital assets – pledged as collateral
|
| | | | 34,178 | | | | | | (34,178) | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Cryptocurrency, net
|
| | | | | | | | | | 334,764 | | | | | | (151,769) | | | | |
|
(a)
|
| | | | | 182,995 | | | | | | 138,214 | | |
Cryptocurrency, pledged as collateral
|
| | | | | | | | | | 34,178 | | | | | | | | | | | | | | | | | | 34,178 | | | | | | 25,814 | | |
Deposits and prepaid expenses
|
| | | | 5,552 | | | | | | (5,552) | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Prepaid expenses and other current assets
|
| | | | | | | | | | 5,552 | | | | | | | | | | | | | | | | | | 5,552 | | | | | | 4,193 | | |
Total current assets
|
| | |
|
403,297
|
| | | |
|
—
|
| | | |
|
(151,769)
|
| | | | | | | | | |
|
251,528
|
| | | |
|
189,975
|
| |
Plant and equipment
|
| | | | 113,258 | | | | | | (113,258) | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Property and equipment, net
|
| | | | | | | | | | 113,258 | | | | | | | | | | | | | | | | | | 113,258 | | | | | | 85,542 | | |
Deposits and prepaid expenses
|
| | | | 26,213 | | | | | | (26,213) | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Deposits on miners
|
| | | | | | | | | | — | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Other deposits
|
| | | | | | | | | | 26,213 | | | | | | | | | | | | | | | | | | 26,213 | | | | | | 19,798 | | |
Intangible assets and goodwill
|
| | | | 14,781 | | | | | | (14,781) | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Intangible assets, net
|
| | | | | | | | | | 14,781 | | | | | | | | | | | | | | | | | | 14,781 | | | | | | 11,164 | | |
Total assets
|
| | |
|
557,549
|
| | | |
|
—
|
| | | |
|
(151,769)
|
| | | | | | | | | |
|
405,780
|
| | | |
|
306,479
|
| |
Liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Accounts payable and accrued liabilities
|
| | | | 22,281 | | | | | | (22,281) | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Accrued expenses
|
| | | | | | | | | | 14,144 | | | | | | | | | | | | | | | | | | 14,144 | | | | | | 10,682 | | |
Accounts payable
|
| | | | | | | | | | 8,137 | | | | | | | | | | | | | | | | | | 8,137 | | | | | | 6,145 | | |
Loans payable
|
| | | | 31,692 | | | | | | | | | | | | | | | | | | | | | | | | 31,692 | | | | | | 23,937 | | |
Lease liabilities
|
| | | | 4,010 | | | | | | (4,010) | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Lease liability, current portion
|
| | | | | | | | | | 4,010 | | | | | | | | | | | | | | | | | | 4,010 | | | | | | 3,029 | | |
Total current liabilities
|
| | |
|
57,983
|
| | | |
|
—
|
| | | |
|
—
|
| | | | | | | | | |
|
57,983
|
| | | |
|
43,793
|
| |
Lease liabilities
|
| | | | 21,013 | | | | | | (21,013) | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Lease liability, less current portion
|
| | | | | | | | | | 21,013 | | | | | | | | | | | | | | | | | | 21,013 | | | | | | 15,871 | | |
Loans payable
|
| | | | 7,387 | | | | | | (7,387) | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Long- term debt
|
| | | | | | | | | | 7,387 | | | | | | | | | | | | | | | | | | 7,387 | | | | | | 5,579 | | |
Warrants liability
|
| | | | | | | | | | | | | | | | 15 | | | | |
|
(c)
|
| | | | | 15 | | | | | | 11 | | |
Total liabilities
|
| | |
|
86,383
|
| | | |
|
—
|
| | | |
|
15
|
| | | | | | | | | |
|
86,398
|
| | | |
|
65,254
|
| |
Share capital
|
| | | | 773,587 | | | | | | | | | | | | (49,747) | | | | |
|
(c)
|
| | | | | 723,840 | | | | | | 546,707 | | |
Warrants
|
| | | | 79 | | | | | | | | | | | | (79) | | | | |
|
(c)
|
| | | | | — | | | | | | — | | |
Contributed surplus
|
| | | | 14,318 | | | | | | | | | | | | 34,876 | | | | | | | | | | | | 49,194 | | | | | | 37,155 | | |
Accumulated deficit
|
| | | | (339,283) | | | | | | | | | | | | (129,304) | | | | |
|
(a)
|
| | | | | (453,652) | | | | | | (342,637) | | |
| | | | | | | | | | | | | | | | | 14,935 | | | | |
|
(c)
|
| | | | | | | | | | | | | |
AOCI - Unrealised gain on digital asset revaluation
|
| | | | 22,465 | | | | | | — | | | | | | (22,465) | | | | |
|
(c)
|
| | | | | — | | | | | | — | | |
Total stockholders’ equity
|
| | |
|
471,166
|
| | | |
|
—
|
| | | |
|
(151,784)
|
| | | | | | | | | |
|
319,382
|
| | | |
|
241,225
|
| |
Total liabilities and stockholders’ equity
|
| | |
|
557,549
|
| | | |
|
—
|
| | | |
|
(151,769)
|
| | | | | | | | | |
|
405,780
|
| | | |
|
306,479
|
| |
Statement of Operations for the
nine months ended June 30, 2023 |
| |
Hut 8
(CAD) |
| |
Reclassifi-cation
(CAD) |
| |
GAAP
Adjustments (CAD) |
| |
Note
|
| |
Hut 8
(CAD & US GAAP) |
| |
Hut 8
(USD & US GAAP) |
| ||||||||||||||||||
Revenue | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Revenue
|
| | | | 91,708 | | | | | | (91,708) | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Cryptocurrency mining, net
|
| | | | — | | | | | | 74,131 | | | | | | | | | | |
|
(a)
|
| | | | | 74,131 | | | | | | 56,749 | | |
Mining equipment sales
|
| | | | — | | | | | | — | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
High performance computing
|
| | | | — | | | | | | 17,577 | | | | | | | | | | | | | | | | | | 17,577 | | | | | | 13,456 | | |
Hosting services
|
| | | | — | | | | | | — | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Total Revenue
|
| | |
|
91,708
|
| | | |
|
—
|
| | | |
|
—
|
| | | | | | | | | |
|
91,708
|
| | | |
|
70,205
|
| |
Costs and expenses | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cost of revenue
|
| | | | 140,147 | | | | | | (140,147) | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Cost of revenues (exclusive of depreciation and amortization shown below)
|
| | | | — | | | | | | 65,185 | | | | | | | | | | | | | | | | | | 65,185 | | | | | | 49,900 | | |
Depreciation and amortization
|
| | | | — | | | | | | 75,392 | | | | | | 614 | | | | |
|
(b)
|
| | | | | 76,006 | | | | | | 58,184 | | |
General and administrative
|
| | | | 62,894 | | | | | | | | | | | | | | | | | | | | | | | | 62,894 | | | | | | 48,147 | | |
Impairment of cryptocurrency
|
| | | | — | | | | | | | | | | | | 23,740 | | | | |
|
(a)
|
| | | | | 23,740 | | | | | | 18,173 | | |
Gain on disposition of digital assets
|
| | | | (4,390) | | | | | | 4,390 | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Realized (gain) loss on sale of cryptocurrency
|
| | | | — | | | | | | (4,390) | | | | | | (20,448) | | | | |
|
(a)
|
| | | | | (24,838) | | | | | | (19,014) | | |
Impairment of mining infrastructure and servers
|
| | | | 113,876 | | | | | | (113,876) | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Impairment of long-lived assets
|
| | | | — | | | | | | 113,876 | | | | | | | | | | | | | | | | | | 113,876 | | | | | | 87,174 | | |
Total costs and expenses
|
| | |
|
312,527
|
| | | |
|
430
|
| | | |
|
3,906
|
| | | | | | | | | |
|
316,863
|
| | | |
|
242,564
|
| |
Operating loss
|
| | | | (220,819) | | | | | | (430) | | | | | | (3,906) | | | | | | | | | | | | (225,155) | | | | | | (172,359) | | |
Other income (expense): | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Foreign exchange loss
|
| | | | (301) | | | | | | | | | | | | | | | | | | | | | | | | (301) | | | | | | (230) | | |
Finance expense
|
| | | | (6,754) | | | | | | 6,754 | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Finance income
|
| | | | 50 | | | | | | (50) | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Amortization
|
| | | | (430) | | | | | | 430 | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Gain (loss) on revaluation of digital assets
|
| | | | 104,862 | | | | | | | | | | | | (104,862) | | | | |
|
(a)
|
| | | | | — | | | | | | — | | |
Gain (loss) on revaluation of warrant
liability |
| | | | 1,601 | | | | | | | | | | | | (1,615) | | | | |
|
(c)
|
| | | | | (14) | | | | | | (11) | | |
Interest expense
|
| | | | — | | | | | | (6,704) | | | | | | | | | | | | | | | | | | (6,704) | | | | | | (5,132) | | |
Total other income (expense)
|
| | | | 99,028 | | | | | | 430 | | | | | | (106,477) | | | | | | | | | | | | (7,019) | | | | | | (5,373) | | |
Loss before income tax benefit
|
| | | | (121,791) | | | | | | — | | | | | | (110,383) | | | | | | | | | | | | (232,174) | | | | | | (177,732) | | |
Deferred income tax expense (recovery)
|
| | | | (3,127) | | | | | | 3,127 | | | | | | | | | | | | | | | | | | — | | | | | | — | | |
Deferred income tax benefit (provision)
|
| | | | | | | | | | 3,127 | | | | | | | | | | | | | | | | | | 3,127 | | | | | | 2,394 | | |
Income tax benefit (provision)
|
| | | | — | | | | | | — | | | | | | — | | | | |
|
(a)
|
| | | | | — | | | | | | — | | |
Net loss
|
| | | | (118,664) | | | | | | — | | | | | | (110,383) | | | | | | | | | | | | (229,047) | | | | | | (175,338) | | |
Other comprehensive (loss) income Items that will not be reclassified to net income
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Revaluation (loss) gain on digital assets net of
tax |
| | | | (103,540) | | | | | | | | | | | | 103,540 | | | | |
|
(a)
|
| | | | | — | | | | | | — | | |
Total comprehensive (loss) income
|
| | | | (222,204) | | | | | | — | | | | | | (6,843) | | | | | | | | | | | | (229,047) | | | | | | (175,338) | | |
IFRS Statement of Operations for Hut 8 Mining Corp. (in
CAD, thousands) |
| |
For the
six months ended June 30, 2023 (a) |
| |
For the
year ended December 31, 2022 (b) |
| |
For the
six months ended June 30, 2022 (c) |
| |
For the
12 months ended June 30, 2023 (a) + (b) – (c) |
| ||||||||||||
Revenue
|
| | | | 38,204 | | | | | | 150,682 | | | | | | 97,178 | | | | | | 91,708 | | |
Cost of revenues
|
| | | | 49,062 | | | | | | 175,649 | | | | | | 84,564 | | | | | | 140,147 | | |
Gross profit
|
| | | | (10,858) | | | | | | (24,967) | | | | | | 12,614 | | | | | | (48,439) | | |
Cost of operations | | | | | | | | | | | | | | | | | | | | | | | | | |
General and administrative
|
| | | | 36,885 | | | | | | 49,821 | | | | | | 23,812 | | | | | | 62,894 | | |
Gain on disposition of digital assets
|
| | | | (4,390) | | | | | | — | | | | | | — | | | | | | (4,390) | | |
Impairment of mining infrastructure and servers
|
| | | | — | | | | | | 113,876 | | | | | | — | | | | | | 113,876 | | |
Operating income (loss)
|
| | | | (43,353) | | | | | | (188,664) | | | | | | (11,198) | | | | | | (220,819) | | |
Foreign exchange loss
|
| | | | (291) | | | | | | 1,276 | | | | | | 684 | | | | | | 301 | | |
Finance expense
|
| | | | 2,869 | | | | | | 7,592 | | | | | | 3,707 | | | | | | 6,754 | | |
Finance income
|
| | | | — | | | | | | (922) | | | | | | (872) | | | | | | (50) | | |
Amortization
|
| | | | 354 | | | | | | 648 | | | | | | 572 | | | | | | 430 | | |
Loss (gain) on revaluation of digital assets
|
| | | | (134,736) | | | | | | 134,772 | | | | | | 104,898 | | | | | | (104,862) | | |
Loss (gain) on revaluation of warrant liability
|
| | | | (212) | | | | | | (98,810) | | | | | | (97,421) | | | | | | (1,601) | | |
Loss before income tax
|
| | | | (88,663) | | | | | | (233,220) | | | | | | (22,766) | | | | | | (121,791) | | |
Deferred income tax expense (recovery)
|
| | | | (3,127) | | | | | | 9,593 | | | | | | 9,593 | | | | | | (3,127) | | |
Net loss
|
| | | | 91,790 | | | | | | (242,813) | | | | | | (32,359) | | | | | | (118,664) | | |
Other comprehensive income | | | | | | | | | | | | | | | | | | | | | | | | | |
Revaluation gain (loss) on digital assets, net of
taxes |
| | | | — | | | | | | (103,540) | | | | | | — | | | | | | (103,540) | | |
Total comprehensive income ( loss)
|
| | | | 91,790 | | | | | | (346,353) | | | | | | (32,359) | | | | | | (222,204) | | |
(thousands) except share data
|
| |
For the year ended
June 30, 2023 |
| |||
Numerator | | | | | | | |
Net income (loss)
|
| | | $ | (251,758) | | |
Denominator | | | | | | | |
Weighted average common shares outstanding – basic and diluted
|
| | | | 71,169,778 | | |
Earnings per common share – basic and diluted
|
| | | $ | (3.54) | | |
| | |
Amount and Nature of
Beneficial Ownership |
| |||||||||
Directors and Executive Officers:
|
| |
Number of
Shares Beneficially Owned |
| |
Approximate
Percentage of Shares Beneficially Owned |
| ||||||
Rick Rickertsen(1)
|
| | | | 55,402 | | | | | | * | | |
Bill Tai(2)
|
| | | | 811,566 | | | | | | * | | |
Alexia Hefti(3)
|
| | | | 68,515 | | | | | | * | | |
Joseph Flinn(4)
|
| | | | 245,088 | | | | | | * | | |
Jaime Leverton
|
| | | | 766,628 | | | | | | * | | |
Shenif Visram
|
| | | | — | | | | | | * | | |
Erin Dermer(5)
|
| | | | 42,507 | | | | | | * | | |
James Beer
|
| | | | 30,064 | | | | | | * | | |
Suzanne Ennis
|
| | | | 105,365 | | | | | | * | | |
Joshua Rayner
|
| | | | 10,004 | | | | | | * | | |
Aniss Amdiss
|
| | | | 36,819 | | | | | | * | | |
5% of Greater Shareholders (other than directors and executive officers): | | | | | | | | | | | | | |
N/A
|
| | | | N/A | | | | | | N/A | | |
| | |
Amount and Nature of
Beneficial Ownership |
| |||||||||
Directors and Executive Officers:
|
| |
Number of
Shares Beneficially Owned |
| |
Approximate
Percentage of Total Voting Power |
| ||||||
Michael Ho(1)
|
| | | | 8,371,000 | | | | | | 13.0% | | |
Asher Genoot(2)
|
| | | | 4,926,818 | | | | | | 7.7% | | |
Joel Block(3)
|
| | | | 175,750 | | | | | | * | | |
Matthew Prusak(4)
|
| | | | 186,243 | | | | | | * | | |
Stanley O’Neal(5)
|
| | | | 78,791 | | | | | | * | | |
Mayo A. Shattuck III(6)
|
| | | | 137,666 | | | | | | * | | |
Jonathan Koch(7)
|
| | | | 58,458 | | | | | | * | | |
Amy Wilkinson(8)
|
| | | | 35,583 | | | | | | * | | |
All Directors and Executive Officers as a Group (8 persons)
|
| | | | 13,970,309 | | | | | | 21.5% | | |
5% of Greater Shareholders (other than directors and executive officers): | | | | | | | | | | | | | |
Mario Germano Giuliani(9)
|
| | | | 5,863,843 | | | | | | 9.1% | | |
Anna Kudrjasova(10)
|
| | | | 5,498,250 | | | | | | 8.5% | | |
Jordan Levy(11)
|
| | | | 6,071,196 | | | | | | 9.4% | | |
| | |
Page
|
| |||
Audited Consolidated Financial Statements
|
| | | | | | |
| | | | F-2 | | | |
| | | | F-3 | | | |
| | | | F-4 | | | |
| | | | F-5 | | | |
| | | | F-6 | | | |
| | | | F-7 | | |
| Unaudited Interim Consolidated Financial Statements | | | | | | | |
| | | | | F-34 | | | |
| | | | | F-35 | | | |
| | | | | F-36 | | | |
| | | | | F-37 | | | |
| | | | | F-38 | | | |
| Audited Consolidated Financial Statements | | | | | | | |
| | | | | F-52 | | | |
| | | | | F-54 | | | |
| | | | | F-55 | | | |
| | | | | F-56 | | | |
| | | | | F-57 | | | |
| | | | | F-58 | | |
| | |
June 30, 2023
|
| |
June 30, 2022
|
| ||||||
ASSETS | | | | | | | | | | | | | |
Current assets | | | | | | | | | | | | | |
Cash
|
| | | $ | 10,379 | | | | | $ | 21,067 | | |
Accounts receivable, net
|
| | | | 636 | | | | | | 1,168 | | |
Prepaid expenses and other current assets
|
| | | | 7,504 | | | | | | 13,998 | | |
Cryptocurrency, net
|
| | | | 851 | | | | | | 847 | | |
Total current assets
|
| | | | 19,370 | | | | | | 37,080 | | |
Long-term assets
|
| | | | | | | | | | | | |
Deposits on miners
|
| | | | — | | | | | | 82,042 | | |
Property and equipment, net
|
| | | | 70,719 | | | | | | 117,258 | | |
Investment in unconsolidated joint venture
|
| | | | 93,583 | | | | | | — | | |
Intangible assets, net
|
| | | | 5,535 | | | | | | — | | |
Right-of-use assets
|
| | | | 536 | | | | | | 2,350 | | |
Other deposits
|
| | | | 254 | | | | | | 6,295 | | |
Total long-term assets
|
| | | | 170,627 | | | | | | 207,945 | | |
Total assets
|
| | | $ | 189,997 | | | | | $ | 245,025 | | |
LIABILITIES AND STOCKHOLDERS’ EQUITY | | | | | | | | | | | | | |
Current liabilities | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | 3,605 | | | | | $ | 6,274 | | |
Accrued expenses
|
| | | | 3,415 | | | | | | 858 | | |
Other current liabilities
|
| | | | 591 | | | | | | 478 | | |
Deferred revenue
|
| | | | 1,031 | | | | | | 14,839 | | |
Notes payable, current portion
|
| | | | 1,299 | | | | | | 77,215 | | |
Lease liability, current portion
|
| | | | 395 | | | | | | 496 | | |
Total current liabilities
|
| | | | 10,336 | | | | | | 100,160 | | |
Long-term liabilities | | | | | | | | | | | | | |
Notes payable, less current portion
|
| | | | 149,891 | | | | | | 51,061 | | |
Lease liability, less current portion
|
| | | | 943 | | | | | | 1,907 | | |
Deposit liability
|
| | | | — | | | | | | 1,322 | | |
Deferred tax liability
|
| | | | 1,454 | | | | | | 2,972 | | |
Total long-term liabilities
|
| | | | 152,288 | | | | | | 57,262 | | |
Total liabilities
|
| | | | 162,624 | | | | | | 157,422 | | |
Commitments and contingencies (Note 16) | | | | | | | | | | | | | |
Stockholders’ equity | | | | | | | | | | | | | |
Series A preferred stock, par value $0.00001; 7,855,500 shares authorized; 7,824,000
shares issued and outstanding as of June 30, 2023 and June 30, 2022, respectively; liquidation preference over common stock, equal to carrying value |
| | | | 24,899 | | | | | | 24,899 | | |
Series B preferred stock, par value $0.00001; 10,000,000 shares authorized; 10,000,000 shares issued and outstanding as of June 30, 2023 and June 30, 2022, respectively; liquidation preference over common stock, equal to carrying value
|
| | | | 61,067 | | | | | | 61,067 | | |
Series B-1 preferred stock, par value $0.00001; 3,750,000 shares authorized; 793,250
shares issued and outstanding as of June 30, 2023 and June 30, 2022, respectively; liquidation preference over common stock, equal to carrying value |
| | | | 12,537 | | | | | | 12,537 | | |
Common stock, $0.00001 par value; 125,000,000 shares authorized; 45,696,749 and 43,122,500 shares issued and outstanding as of June 30, 2023 and June 30, 2022, respectively
|
| | | | — | | | | | | — | | |
Additional paid-in capital
|
| | | | 35,368 | | | | | | 29,987 | | |
Accumulated deficit
|
| | | | (106,498) | | | | | | (40,887) | | |
Total stockholders’ equity
|
| | | | 27,373 | | | | | | 87,603 | | |
Total liabilities and stockholders’ equity
|
| | | $ | 189,997 | | | | | $ | 245,025 | | |
| | |
Fiscal Year Ended
|
| |||||||||
| | |
June 30, 2023
|
| |
June 30, 2022
|
| ||||||
Revenue: | | | | | | | | | | | | | |
Cryptocurrency mining, net
|
| | | $ | 49,247 | | | | | $ | 68,164 | | |
Mining equipment sales
|
| | | | 3,635 | | | | | | — | | |
Management fees
|
| | | | 7,551 | | | | | | — | | |
Cost reimbursements
|
| | | | 5,247 | | | | | | — | | |
Hosting services
|
| | | | 16,480 | | | | | | 5,566 | | |
Total revenue
|
| | | | 82,160 | | | | | | 73,730 | | |
Costs and expenses: | | | | | | | | | | | | | |
Cost of revenues (exclusive of depreciation and amortization shown below)
|
| | | | | | | | | | | | |
Services
|
| | | | 40,000 | | | | | | 25,783 | | |
Mining equipment
|
| | | | 3,112 | | | | | | — | | |
Depreciation and amortization
|
| | | | 18,779 | | | | | | 11,591 | | |
General and administrative
|
| | | | 27,789 | | | | | | 31,325 | | |
Impairment of cryptocurrency
|
| | | | 3,703 | | | | | | 30,301 | | |
Realized gain on sale of cryptocurrency
|
| | | | (4,577) | | | | | | (5,455) | | |
Impairment of long-lived assets
|
| | | | 63,574 | | | | | | — | | |
Legal settlement
|
| | | | (1,531) | | | | | | — | | |
Total costs and expenses
|
| | | | 150,849 | | | | | | 93,545 | | |
Operating loss
|
| | | | (68,689) | | | | | | (19,815) | | |
Other income (expense): | | | | | | | | | | | | | |
Interest expense
|
| | | | (27,935) | | | | | | (6,919) | | |
Equity in earnings of unconsolidated joint venture
|
| | | | 6,132 | | | | | | — | | |
Gain on debt extinguishment
|
| | | | 23,683 | | | | | | — | | |
Total other income (expense)
|
| | | | 1,880 | | | | | | (6,919) | | |
Loss before income tax benefit (provision)
|
| | | | (66,809) | | | | | | (26,734) | | |
Income tax benefit (provision)
|
| | | | 1,198 | | | | | | (5,069) | | |
Net loss
|
| | | $ | (65,611) | | | | | $ | (31,803) | | |
Basic and diluted net loss per share
|
| | | $ | (1.52) | | | | | $ | (0.91) | | |
Basic and diluted weighted average number of shares outstanding
|
| | | | 43,133,307 | | | | | | 34,863,338 | | |
| | |
Fiscal Year Ended June 30, 2023
|
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | |
Series A
Preferred Stock |
| |
Series B
Preferred Stock |
| |
Series B-1
Preferred Stock |
| |
Common Stock
|
| |
Additional
Paid-in Capital |
| |
Accumulated
Deficit |
| |
Total
Stockholders’ Equity |
| |||||||||||||||||||||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||||||||||||||
Balance as of July 1, 2022
|
| | | | 7,824,000 | | | | | $ | 24,899 | | | | | | 10,000,000 | | | | | $ | 61,067 | | | | | | 793,250 | | | | | $ | 12,537 | | | | | | 43,122,500 | | | | | $ | — | | | | | $ | 29,987 | | | | | $ | (40,887) | | | | | $ | 87,603 | | |
Issuance of common stock
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 2,960,000 | | | | | | — | | | | | | 770 | | | | | | — | | | | | | 770 | | |
Cancellation of restricted stock awards
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (1,441,913) | | | | | | — | | | | | | 641 | | | | | | — | | | | | | 641 | | |
Stock-based compensation
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 1,056,162 | | | | | | — | | | | | | 3,970 | | | | | | — | | | | | | 3,970 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (65,611) | | | | | | (65,611) | | |
Balance as of June 30, 2023
|
| | | | 7,824,000 | | | | | $ | 24,899 | | | | | | 10,000,000 | | | | | $ | 61,067 | | | | | | 793,250 | | | | | $ | 12,537 | | | | | | 45,696,749 | | | | | $ | — | | | | | $ | 35,368 | | | | | $ | (106,498) | | | | | $ | 27,373 | | |
| | |
Fiscal Year Ended June 30, 2022
|
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | |
Series A
Preferred Stock |
| |
Series B
Preferred Stock |
| |
Series B-1
Preferred Stock |
| |
Common Stock
|
| |
Additional
Paid-in Capital |
| |
Accumulated
Deficit |
| |
Total
Stockholders’ Equity |
| |||||||||||||||||||||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||||||||||||||
Balance as of July 1, 2021
|
| | | | 7,745,250 | | | | | $ | 24,648 | | | | | | — | | | | | $ | — | | | | | | — | | | | | $ | — | | | | | | 39,376,750 | | | | | $ | — | | | | | $ | 20,307 | | | | | $ | (9,084) | | | | | $ | 35,871 | | |
Rescission of preferred stock
|
| | | | (31,500) | | | | | | (100) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (100) | | |
Issuance of preferred stock, net of offering costs
|
| | | | — | | | | | | — | | | | | | 10,000,000 | | | | | | 61,067 | | | | | | 793,250 | | | | | | 12,537 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 73,604 | | |
Transfer of shares subject to registration to permanent equity
|
| | | | 110,250 | | | | | | 351 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 656,250 | | | | | | — | | | | | | 504 | | | | | | — | | | | | | 855 | | |
Cancellation of restricted stock award
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (250,000) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Stock-based compensation
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 3,339,500 | | | | | | — | | | | | | 9,176 | | | | | | — | | | | | | 9,176 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (31,803) | | | | | | (31,803) | | |
Balance as of June 30, 2022
|
| | | | 7,824,000 | | | | | $ | 24,899 | | | | | | 10,000,000 | | | | | $ | 61,067 | | | | | | 793,250 | | | | | $ | 12,537 | | | | | | 43,122,500 | | | | | $ | — | | | | | $ | 29,987 | | | | | $ | (40,887) | | | | | $ | 87,603 | | |
| | |
Fiscal Year Ended
|
| |||||||||
| | |
June 30, 2023
|
| |
June 30, 2022
|
| ||||||
Cash flows from operating activities | | | | | | | | | | | | | |
Net loss
|
| | | $ | (65,611) | | | | | $ | (31,803) | | |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | | | | | | | |
Depreciation and amortization
|
| | | | 18,779 | | | | | | 11,591 | | |
Impairment of long-lived assets
|
| | | | 63,574 | | | | | | — | | |
Amortization of right-of-use assets
|
| | | | 296 | | | | | | 402 | | |
Stock-based compensation
|
| | | | 4,611 | | | | | | 9,176 | | |
Equity in earnings of unconsolidated joint venture
|
| | | | (6,132) | | | | | | — | | |
Distributions of earnings from unconsolidated joint venture
|
| | | | 11,750 | | | | | | — | | |
Revenue, net – cryptocurrency mining
|
| | | | (49,247) | | | | | | (68,164) | | |
Impairment of cryptocurrency
|
| | | | 3,703 | | | | | | 30,301 | | |
Realized gain on sale of cryptocurrencies
|
| | | | (4,577) | | | | | | (5,455) | | |
Deferred tax assets and liabilities
|
| | | | (1,518) | | | | | | 5,069 | | |
Gain on debt extinguishment
|
| | | | (23,683) | | | | | | — | | |
Amortization of debt discount
|
| | | | 3,551 | | | | | | 574 | | |
Paid-in-kind interest expense
|
| | | | 19,761 | | | | | | — | | |
Changes in assets and liabilities: | | | | | | | | | | | | | |
Accounts receivable, net
|
| | | | 532 | | | | | | (155) | | |
Prepaid expenses and other current assets
|
| | | | 4,904 | | | | | | (8,152) | | |
Other deposits
|
| | | | 3,541 | | | | | | (2,515) | | |
Accounts payable
|
| | | | (308) | | | | | | (538) | | |
Accrued expenses
|
| | | | 2,171 | | | | | | 480 | | |
Other liabilities
|
| | | | (1,209) | | | | | | 1,800 | | |
Deferred revenue
|
| | | | (13,808) | | | | | | 14,839 | | |
Lease liability
|
| | | | (417) | | | | | | (365) | | |
Net cash used in operating activities
|
| | | | (29,337) | | | | | | (42,915) | | |
Cash flows from investing activities | | | | | | | | | | | | | |
Proceeds from sale of cryptocurrency
|
| | | | 50,030 | | | | | | 44,351 | | |
Deposits on miners
|
| | | | (11,900) | | | | | | (141,445) | | |
Purchases of property and equipment
|
| | | | (3,139) | | | | | | (37,271) | | |
Proceeds from sale of property and equipment
|
| | | | 257 | | | | | | — | | |
Investment in unconsolidated joint venture
|
| | | | (10,000) | | | | | | — | | |
Net cash provided by (used in) investing activities
|
| | | | 25,248 | | | | | | (134,365) | | |
Cash flows from financing activities | | | | | | | | | | | | | |
Proceeds from notes payable
|
| | | | 14,240 | | | | | | 130,708 | | |
Repayments of notes payable
|
| | | | (19,606) | | | | | | (9,275) | | |
Repayments of notes payable – related parties
|
| | | | — | | | | | | (1,250) | | |
Debt issuance costs paid
|
| | | | (1,233) | | | | | | (2,058) | | |
Proceeds from the issuance of preferred stock
|
| | | | — | | | | | | 73,787 | | |
Preferred stock offering costs paid
|
| | | | — | | | | | | (183) | | |
Payment for preferred stock rescission
|
| | | | — | | | | | | (100) | | |
Net cash provided by (used in) financing activities
|
| | | | (6,599) | | | | | | 191,629 | | |
Net (decrease) increase in cash
|
| | | | (10,688) | | | | | | 14,349 | | |
Cash at beginning of period
|
| | | | 21,067 | | | | | | 6,718 | | |
Cash at end of period
|
| | | $ | 10,379 | | | | | $ | 21,067 | | |
SUPPLEMENTAL CASH FLOW INFORMATION: | | | | | | | | | | | | | |
Cash paid for interest
|
| | | $ | 5,542 | | | | | $ | 6,837 | | |
Cash paid for income taxes
|
| | | $ | — | | | | | $ | — | | |
SUPPLEMENTAL DISCLOSURE OF NON-CASH INVESTING AND FINANCING ACTIVITIES: | | | | | | | | | | | | | |
Reclassification of deposits on miners to property and equipment
|
| | | $ | 73,189 | | | | | $ | 79,491 | | |
Note payable assumed in investment in unconsolidated joint venture, at fair value
|
| | | $ | 95,101 | | | | | $ | — | | |
Intangible assets assumed in investment in unconsolidated joint venture, at fair value
|
| | | $ | 5,900 | | | | | $ | — | | |
Debt proceeds not yet received included in other current assets
|
| | | $ | — | | | | | $ | 5,485 | | |
Right-of-use assets obtained in exchange for operating lease liabilities
|
| | | $ | — | | | | | $ | 2,262 | | |
Reclassification of property and equipment to other current assets
|
| | | $ | — | | | | | $ | 189 | | |
Proceeds from sale of cryptocurrency in accounts receivable
|
| | | $ | — | | | | | $ | 1,013 | | |
Cancellation of lease
|
| | | $ | 648 | | | | | $ | — | | |
Mining revenue in prepaids and other current assets
|
| | | $ | 212 | | | | | $ | 125 | | |
Property and equipment in accrued expenses
|
| | | $ | 386 | | | | | $ | — | | |
Property and equipment in accounts payable
|
| | | $ | — | | | | | $ | 5,350 | | |
Non-cash transfer of shares from temporary equity
|
| | | $ | — | | | | | $ | 855 | | |
Common stock issued as part of debt restructuring
|
| | | $ | 770 | | | | | $ | — | | |
| | |
Fair value measured at June 30, 2023
|
| |||||||||||||||||||||
(in thousands)
|
| |
Total carrying
value at June 30, 2023 |
| |
Quoted prices in
active markets (Level 1) |
| |
Significant other
observable inputs (Level 2) |
| |
Significant
unobservable inputs (Level 3) |
| ||||||||||||
Cryptocurrency, net
|
| | | $ | 851 | | | | | $ | 851 | | | | | $ | — | | | | | $ | — | | |
| | |
June 30, 2023
|
| |
June 30, 2022
|
| ||||||
Series A preferred stock
|
| | | | 7,824,000 | | | | | | 7,824,000 | | |
Series B preferred stock
|
| | | | 10,000,000 | | | | | | 10,000,000 | | |
Series B-1 preferred stock
|
| | | | 793,250 | | | | | | 793,250 | | |
Unvested restricted stock awards
|
| | | | — | | | | | | 6,848,000 | | |
Stock options
|
| | | | 6,752,963 | | | | | | 2,555,500 | | |
Total
|
| | | | 25,370,213 | | | | | | 28,020,750 | | |
| | |
June 30, 2023
|
| |
June 30, 2022
|
| ||||||
Beginning balance
|
| | | $ | 847 | | | | | $ | 3,018 | | |
Revenue recognized from cryptocurrency mined, net
|
| | | | 49,247 | | | | | | 68,164 | | |
Mining revenue earned in prior period received in current period
|
| | | | 125 | | | | | | — | | |
Carrying value of cryptocurrency sold
|
| | | | (45,453) | | | | | | (39,909) | | |
Impairment of cryptocurrency
|
| | | | (3,703) | | | | | | (30,301) | | |
Mining revenue not received
|
| | | | (212) | | | | | | (125) | | |
Ending balance
|
| | | $ | 851 | | | | | $ | 847 | | |
| | |
June 30, 2023
|
| |
June 30, 2022
|
| ||||||
Miners and mining equipment
|
| | | $ | 74,246 | | | | | $ | 95,024 | | |
Machinery and facility equipment
|
| | | | 34 | | | | | | 38 | | |
Vehicles
|
| | | | 146 | | | | | | 171 | | |
Leasehold improvements
|
| | | | 59 | | | | | | 59 | | |
Land and land improvements
|
| | | | — | | | | | | 1,739 | | |
Construction in progress
|
| | | | 10,929 | | | | | | 32,175 | | |
Total cost of property and equipment
|
| | | | 85,414 | | | | | | 129,206 | | |
Less accumulated depreciation and amortization
|
| | | | (14,695) | | | | | | (11,948) | | |
Property and equipment, net
|
| | | $ | 70,719 | | | | | $ | 117,258 | | |
| | |
June 30, 2023
|
| |
June 30, 2022
|
| ||||||
Balance, beginning of period
|
| | | $ | 82,042 | | | | | $ | 20,088 | | |
Deposits made to suppliers for miners, net of refunds
|
| | | | 11,900 | | | | | | 141,445 | | |
Miners received from suppliers
|
| | | | (73,189) | | | | | | (79,491) | | |
Deposits on miners transferred in debt extinguishment
|
| | | | (20,753) | | | | | | — | | |
Balance, end of period
|
| | | $ | — | | | | | $ | 82,042 | | |
| | |
June 30, 2023
|
| |
June 30, 2022
|
| ||||||
Fahrenheit bid deposit held in escrow (see Note 1)
|
| | | $ | 3,300 | | | | | $ | — | | |
Prepayments made to energy suppliers
|
| | | | 3,156 | | | | | | 6,867 | | |
Debt proceeds not yet received
|
| | | | — | | | | | | 5,485 | | |
Prepaid insurance and other prepaid expenses
|
| | | | 1,048 | | | | | | 1,646 | | |
Prepaid expenses and other current assets
|
| | | $ | 7,504 | | | | | $ | 13,998 | | |
| | |
June 30, 2023
|
| |
June 30, 2022
|
| ||||||
Beginning balance
|
| | | $ | 14,839 | | | | | $ | — | | |
Advances received from customers
|
| | | | 3,407 | | | | | | 20,405 | | |
Revenue earned
|
| | | | (17,215) | | | | | | (5,566) | | |
Ending balance
|
| | | $ | 1,031 | | | | | $ | 14,839 | | |
Condensed Consolidated Income Statement
|
| ||||||
| | |
Six Months Ended
June 30, 2023 |
| |||
Revenues, net
|
| | | $ | 65,468 | | |
Gross profit
|
| | | $ | 36,774 | | |
Net income
|
| | | $ | 5,150 | | |
Net income attributable to investee
|
| | | $ | 2,575 | | |
Condensed Consolidated Balance Sheet
|
| ||||||
| | |
As of
June 30, 2023 |
| |||
Cash
|
| | | $ | 42,567 | | |
Current assets
|
| | | $ | 46,702 | | |
Noncurrent assets
|
| | | $ | 224,570 | | |
Current liabilities
|
| | | $ | 29,991 | | |
Noncurrent liabilities
|
| | | $ | 17,486 | | |
Members’ equity
|
| | | $ | 223,795 | | |
Issuance Date
|
| |
Maturity Date
|
| |
Interest Rate
|
| |
Principal*
|
| |
Current Portion
|
| |||||||||
Anchorage Loan | | | | | | | | | | | | | | | | | | | | | | |
February 3, 2023
|
| |
February 2, 2028
|
| | | | 14.00% | | | | | $ | 47,288 | | | | | $ | 1,299 | | |
TZRC Secured Promissory Note | | | | | | | | | | | | | | | | | | | | | | |
December 6, 2022
|
| | April 8, 2027 | | | | | 15.25% | | | | | | 92,102 | | | | | | — | | |
Third Party Note | | | | | | | | | | | | | | | | | | | | | | |
December 6, 2022
|
| |
December 5, 2027
|
| | | | 18.0% | | | | | | 10,501 | | | | | | — | | |
| | | Totals | | | | | | | | | | $ | 149,891 | | | | | $ | 1,299 | | |
Issuance Date
|
| |
Maturity Date
|
| |
Interest Rate
|
| |
Principal*
|
| |
Current Portion
|
| |
Accrued Interest
|
| ||||||||||||
Amended MEFA | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
July 17, 2021
|
| | July 25, 2023 | | | | | 14.00% | | | | | $ | 6,694 | | | | | $ | 6,138 | | | | | $ | 13 | | |
July 17, 2021
|
| | January 25, 2024 | | | | | 14.00% | | | | | | 6,946 | | | | | | 4,190 | | | | | | 14 | | |
December 27, 2021
|
| | June 25, 2023 | | | | | 12.00% | | | | | | 23,602 | | | | | | 23,602 | | | | | | 41 | | |
December 27, 2021
|
| |
December 25, 2023
|
| | | | 12.00% | | | | | | 41,034 | | | | | | 19,674 | | | | | | 69 | | |
| | | | | | | | | | | | | | 78,276 | | | | | | 53,604 | | | | | | 137 | | |
ELSAs | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
March 31, 2022
|
| | April 1, 2024 | | | | | 12.00% | | | | | | 25,000 | | | | | | 12,500 | | | | | | — | | |
April 26, 2022
|
| | May 1, 2024 | | | | | 12.00% | | | | | | 25,000 | | | | | | 11,111 | | | | | | — | | |
| | | | | | | | | | | | | | 50,000 | | | | | | 23,611 | | | | | | — | | |
| | | Totals | | | | | | | | | | $ | 128,276 | | | | | $ | 77,215 | | | | | $ | 137 | | |
| | |
Fiscal Year Ended
June 30, 2023 |
| |
Fiscal Year Ended
June 30, 2022 |
| ||||||
Operating leases | | | | | | | | | | | | | |
Operating lease cost
|
| | | $ | 443 | | | | | $ | 554 | | |
Variable lease cost
|
| | | | 86 | | | | | | 107 | | |
Operating lease expense
|
| | | | 529 | | | | | | 661 | | |
Short-term lease expense
|
| | | | 297 | | | | | | 169 | | |
Total lease expense
|
| | | $ | 826 | | | | | $ | 830 | | |
| | |
Fiscal Year Ended
June 30, 2023 |
| |
Fiscal Year Ended
June 30, 2022 |
| ||||||
Operating cash flows – operating leases
|
| | | $ | 499 | | | | | $ | 519 | | |
Right-of-use assets obtained in exchange for operating lease liabilities
|
| | | $ | — | | | | | $ | 2,262 | | |
Weighted-average remaining lease term – operating leases
|
| | | | 3.1 | | | | | | 4.2 | | |
Weighted-average discount rate* – operating leases
|
| | | | 7.0% | | | | | | 7.0% | | |
| | |
Operating
Leases |
| |||
Year ended June 30, 2024
|
| | | $ | 476 | | |
Year ended June 30, 2025
|
| | | | 484 | | |
Year ended June 30, 2026
|
| | | | 491 | | |
Year ended June 30, 2027
|
| | | | 41 | | |
Total
|
| | | | 1,492 | | |
Less present value discount
|
| | | | (154) | | |
Operating lease liabilities
|
| | | $ | 1,338 | | |
| | |
Fiscal Year Ended
June 30, |
| |||||||||
| | |
2023
|
| |
2022
|
| ||||||
Restricted stock awards
|
| | | $ | 3,123 | | | | | $ | 7,910 | | |
Stock options
|
| | | | 1,488 | | | | | | 1,266 | | |
Total stock-based compensation
|
| | | $ | 4,611 | | | | | $ | 9,176 | | |
| | |
December 31, 2022
|
| |
June 30, 2022
|
| |
September 30, 2021
|
|
Expected price volatility
|
| |
120%
|
| |
120%
|
| |
100%
|
|
Risk-free interest rate
|
| |
4.41%
|
| |
2.86%
|
| |
0.28%
|
|
Expected term
|
| |
2.0 years
|
| |
1.5 years
|
| |
2.0 years
|
|
| | |
Number of Shares
|
| |
Weighted Average
Grant-Date Fair Value |
| ||||||
Unvested as of June 30, 2021
|
| | | | 3,419,500 | | | | | $ | 1.10 | | |
Granted
|
| | | | 589,500 | | | | | | 2.27 | | |
Vested
|
| | | | (977,000) | | | | | | 1.10 | | |
Unvested as of June 30, 2022
|
| | | | 3,032,000 | | | | | | 1.32 | | |
Granted
|
| | | | 1,056,162 | | | | | | 0.26 | | |
Vested
|
| | | | (2,646,249) | | | | | | 1.18 | | |
Cancelled
|
| | | | (1,441,913) | | | | | | 0.81 | | |
Unvested as of June 30, 2023
|
| | | | — | | | | | $ | — | | |
| | |
Number of Shares
|
| |
Weighted Average
Grant-Date Fair Value |
| ||||||
Unvested as of June 30, 2021
|
| | | | 2,441,000 | | | | | $ | 0.01 | | |
Granted
|
| | | | 2,750,000 | | | | | | 2.27 | | |
Vested
|
| | | | (1,375,000) | | | | | | 2.27 | | |
Unvested as of June 30, 2022
|
| | | | 3,816,000 | | | | | | 0.83 | | |
Vested
|
| | | | (3,816,000) | | | | | | 0.83 | | |
Unvested as of June 30, 2023
|
| | | | — | | | | | $ | — | | |
| | |
Fiscal Year Ended June 30,
|
| |||
| | |
2023
|
| |
2022
|
|
Dividend yield
|
| |
0%
|
| |
0%
|
|
Expected price volatility
|
| |
100%
|
| |
96.5% – 100%
|
|
Risk free interest rate
|
| |
2.86% – 3.90%
|
| |
0.65% – 2.44%
|
|
Expected term (in years)
|
| |
5.0 – 8.0
|
| |
5.0 – 8.2
|
|
| | |
Number of
Shares |
| |
Weighted Average
Exercise Price (per share) |
| |
Total
Intrinsic Value |
| |
Weighted Average
Remaining Contractual Life (in years) |
| ||||||||||||
Outstanding as of June 30, 2021
|
| | | | 122,000 | | | | | $ | 1.13 | | | | | $ | — | | | | | | 9.7 | | |
Granted
|
| | | | 3,026,750 | | | | | | 1.83 | | | | | | — | | | | | | — | | |
Forfeited or canceled
|
| | | | (593,250) | | | | | | 1.11 | | | | | | — | | | | | | — | | |
Outstanding as of June 30, 2022
|
| | | | 2,555,500 | | | | | | 1.97 | | | | | | — | | | | | | 9.3 | | |
Granted
|
| | | | 4,400,507 | | | | | | 0.51 | | | | | | — | | | | | | 9.4 | | |
Forfeited or canceled
|
| | | | (203,043) | | | | | | 0.97 | | | | | | — | | | | | | — | | |
Outstanding as of June 30, 2023
|
| | | | 6,752,964 | | | | | $ | 0.26 | | | | | $ | — | | | | | | 9.0 | | |
Vested and exercisable as of June 30, 2023
|
| | | | 846,744 | | | | | $ | 0.26 | | | | | $ | — | | | | | | 8.2 | | |
| | |
June 30, 2023
|
| |
June 30, 2022
|
| ||||||
Current | | | | | | | | | | | | | |
Federal
|
| | | $ | (174) | | | | | $ | — | | |
State
|
| | | | (146) | | | | | | — | | |
Total current
|
| | | | (320) | | | | | | — | | |
Deferred | | | | | | | | | | | | | |
Federal
|
| | | | 1,518 | | | | | | (4,619) | | |
State
|
| | | | — | | | | | | (450) | | |
Total deferred
|
| | | | 1,518 | | | | | | (5,069) | | |
Total income tax benefit (provision)
|
| | | $ | 1,198 | | | | | $ | (5,069) | | |
| | |
June 30, 2023
|
| |
June 30, 2022
|
| ||||||
Statutory federal income tax rate
|
| | | | 21.0% | | | | | | 21.0% | | |
State taxes, net of federal tax benefit
|
| | | | (0.2)% | | | | | | (1.0)% | | |
Permanent differences
|
| | | | (0.1)% | | | | | | (0.7)% | | |
Stock based compensation
|
| | | | (2.3)% | | | | | | 0.4% | | |
Return to provision adjustments
|
| | | | — | | | | | | (0.6)% | | |
Change in valuation allowance
|
| | | | (16.6)% | | | | | | (37.7)% | | |
Effective tax rate
|
| | | | 1.8% | | | | | | (18.6)% | | |
| | |
June 30, 2023
|
| |
June 30, 2022
|
| ||||||
Deferred tax assets: | | | | | | | | | | | | | |
Impairment loss
|
| | | $ | 1,857 | | | | | $ | 94 | | |
Stock-based compensation
|
| | | | 428 | | | | | | 1,136 | | |
ROU lease liability
|
| | | | 339 | | | | | | 590 | | |
Interest
|
| | | | 8,185 | | | | | | 1,835 | | |
Earnings from investment in joint venture
|
| | | | 779 | | | | | | — | | |
Capital loss carryforward
|
| | | | 5,465 | | | | | | — | | |
Net operating loss
|
| | | | 16,251 | | | | | | 23,283 | | |
Total deferred tax assets
|
| | | | 33,304 | | | | | | 26,938 | | |
Deferred tax liabilities: | | | | | | | | | | | | | |
Fixed assets and intangibles
|
| | | | (10,311) | | | | | | (17,800) | | |
ROU asset
|
| | | | (136) | | | | | | (577) | | |
Total deferred tax liabilities
|
| | | | (10,447) | | | | | | (18,377) | | |
Valuation allowance
|
| | | | (24,311) | | | | | | (11,533) | | |
Deferred tax liabilities, net
|
| | | $ | (1,454) | | | | | $ | (2,972) | | |
| | |
September 30, 2022
|
| |
December 31, 2021
|
| ||||||
| | |
Unaudited
|
| |
(a)
|
| ||||||
ASSETS | | | | | | | | | | | | | |
Current assets | | | | | | | | | | | | | |
Cash
|
| | | $ | 15,182 | | | | | $ | — | | |
Prepaid expenses
|
| | | | 38 | | | | | | — | | |
Total current assets
|
| | | | 15,220 | | | | | | — | | |
Deposits
|
| | | | 25,700 | | | | | | — | | |
Right-of-use assets
|
| | | | 650 | | | | | | — | | |
Property and equipment, net
|
| | | | 230,867 | | | | | | — | | |
Total assets
|
| | | $ | 272,437 | | | | | $ | — | | |
LIABILITIES AND MEMBERS’ EQUITY | | | | | | | | | | | | | |
Current liabilities: | | | | | | | | | | | | | |
Accounts payable and accrued expenses
|
| | | $ | 7,742 | | | | | $ | — | | |
Deferred revenue and customer deposits, short-term
|
| | | | 14,405 | | | | | | — | | |
Lease liability, short-term
|
| | | | 16 | | | | | | — | | |
Total current liabilities
|
| | | | 22,163 | | | | | | — | | |
Deferred revenue, long-term
|
| | | | 8,848 | | | | | | — | | |
Lease liability, long-term
|
| | | | 367 | | | | | | — | | |
Total liabilities
|
| | | | 31,378 | | | | | | — | | |
Commitments and contingencies (Note 11) | | | | | | | | | | | | | |
Members’ equity
|
| | | | 241,059 | | | | | | — | | |
Total liabilities and members’ equity
|
| | | $ | 272,437 | | | | | $ | — | | |
| | |
Nine Months Ended
September 30, 2022 |
| |
Three Months Ended
September 30, 2022 |
| ||||||
Revenues, net | | | | | | | | | | | | | |
Revenue – Crypto asset mining
|
| | | $ | 1,937 | | | | | $ | 1,937 | | |
Revenue – hosting
|
| | | | 6,859 | | | | | | 6,859 | | |
Total revenues, net
|
| | | | 8,796 | | | | | | 8,796 | | |
Costs and expenses (income): | | | | | | | | | | | | | |
Cost of revenues (exclusive of depreciation and amortization shown below)
|
| | | | 6,654 | | | | | | 6,153 | | |
General and administrative
|
| | | | 297 | | | | | | 109 | | |
Depreciation and amortization
|
| | | | 2,754 | | | | | | 2,734 | | |
Impairment of cryptocurrency
|
| | | | 38 | | | | | | 38 | | |
Realized gain on sale of crytpocurrency
|
| | | | (38) | | | | | | (38) | | |
Total costs and expenses
|
| | | | 9,705 | | | | | | 8,996 | | |
Total operating loss
|
| | | | (909) | | | | | | (200) | | |
Other income (expense) | | | | | | | | | | | | | |
Loss on sale of fixed assets
|
| | | | (33) | | | | | | (33) | | |
Total other expense
|
| | | | (33) | | | | | | (33) | | |
Net loss
|
| | | $ | (942) | | | | | $ | (233) | | |
| | |
Nine Months Ended
September 30, 2022 |
| |
Three Months Ended
September 30, 2022 |
| ||||||
Beginning balance
|
| | | $ | — | | | | | $ | 182,201 | | |
Issuance of Members’ Capital
|
| | | | 242,001 | | | | | | 59,091 | | |
Net loss
|
| | | | (942) | | | | | | (233) | | |
Ending balance
|
| | | $ | 241,059 | | | | | $ | 241,059 | | |
| | |
Nine Months Ended
September 30, 2022 |
| |
Three Months Ended
September 30, 2022 |
| ||||||
Operating Activities | | | | | | | | | | | | | |
Net loss
|
| | | $ | (942) | | | | | $ | (233) | | |
Adjustment to reconcile net loss to net cash provided by (used in) operating activities:
|
| | | | | | | | | | | | |
Depreciation and amortization
|
| | | | 2,754 | | | | | | 2,734 | | |
Loss on disposal of fixed assets
|
| | | | 33 | | | | | | 33 | | |
Crypto assets received from mining activities, net
|
| | | | (1,937) | | | | | | (1,937) | | |
Impairment of crypto assets
|
| | | | 38 | | | | | | 38 | | |
Realized gain on disposal of crypto assets
|
| | | | (38) | | | | | | (38) | | |
Proceeds from sale of crypto assets, net
|
| | | | 1,937 | | | | | | 1,937 | | |
Changes in operating assets and liabilities:
|
| | | | | | | | | | | | |
Prepaid expenses
|
| | | | (38) | | | | | | (1,088) | | |
Deposit
|
| | | | (25,700) | | | | | | (25,700) | | |
Accounts payable and accrued expenses
|
| | | | 7,742 | | | | | | 6,833 | | |
Deferred revenue
|
| | | | 23,253 | | | | | | 1,232 | | |
Lease liability
|
| | | | (268) | | | | | | — | | |
Net cash provided by (used in) operating activities
|
| | | | 6,834 | | | | | | (16,189) | | |
Investing Activities | | | | | | | | | | | | | |
Purchase of property and equipment
|
| | | | (212,380) | | | | | | (57,813) | | |
Proceeds from the sale of property and equipment
|
| | | | 58 | | | | | | 58 | | |
Net cash used in investing activities
|
| | | | (212,322) | | | | | | (57,755) | | |
Financing Activities | | | | | | | | | | | | | |
Capital contribution from the members
|
| | | | 220,670 | | | | | | 59,091 | | |
Net cash provided by financing activities
|
| | | | 220,670 | | | | | | 59,091 | | |
Net change in cash
|
| | | | 15,182 | | | | | | (14,853) | | |
Cash – beginning of period
|
| | | | — | | | | | | 30,035 | | |
Cash – end of period
|
| | | $ | 15,182 | | | | | $ | 15,182 | | |
SUPPLEMENTAL CASH FLOW INFORMATION: | | | | | | | | | | | | | |
Cash paid for interest
|
| | | $ | — | | | | | $ | — | | |
Cash paid for taxes
|
| | | $ | — | | | | | $ | — | | |
SUPPLEMENTAL DISCLOSURE OF NON-CASH INVESTING AND FINANCING ACTIVITIES:
|
| | | | | | | | | | | | |
Property and equipment in accounts payable
|
| | | $ | 1 | | | | | $ | 1 | | |
Non-cash capital contributions from the members
|
| | | $ | 21,331 | | | | | $ | — | | |
Right-of-use assets obtained in exchange for opertaing lease liabilities
|
| | | $ | 659 | | | | | $ | — | | |
| | |
Useful Life (Years)
|
|
Computer equipment
|
| |
3
|
|
Miners
|
| |
3
|
|
Containers
|
| |
5
|
|
Furniture and fixtures
|
| |
5
|
|
Machinery & equipment
|
| |
5
|
|
Leasehold improvements(1)
|
| |
Lease Term
|
|
Buildings
|
| |
30
|
|
Construction in progress
|
| |
N/A
|
|
| | |
September 30, 2022
|
| |
December 31, 2021
|
| ||||||
Miners
|
| | | $ | 62,210 | | | | | | — | | |
Containers
|
| | | | 50,326 | | | | | | — | | |
Furniture and fixtures
|
| | | | 11 | | | | | | — | | |
Machinery & equipment
|
| | | | 7,972 | | | | | | — | | |
Leasehold improvements(1)
|
| | | | 16,179 | | | | | | — | | |
Buildings
|
| | | | 1,850 | | | | | | — | | |
Construction in progress
|
| | | | 95,065 | | | | | | — | | |
Total cost of property and equipment
|
| | | | 233,613 | | | | | | — | | |
Less accumulated depreciation
|
| | | | (2,746) | | | | | | — | | |
Property and equipment, net
|
| | | $ | 230,867 | | | | | $ | — | | |
| | |
For the Nine Months
Ended September 30, 2022 |
| |||
Other information | | | | | | | |
Operating cash flows from operating leases
|
| | | $ | 337 | | |
Right-of-use assets obtained in exchange for operating lease liabilities
|
| | | $ | 659 | | |
Weighted-average remaining lease term – operating leases (years)
|
| | | | 9.1 | | |
Weighted-average discount rate – operating leases
|
| | | | 15.25% | | |
Lease cost | | | | | | | |
Operating lease cost
|
| | | $ | 70 | | |
Total lease expense
|
| | | $ | 70 | | |
| | |
Future Lease
Liability |
| |||
Twelve Months Ended September 30, 2024
|
| | | $ | 72 | | |
Twelve Months Ended September 30, 2025
|
| | | | 74 | | |
Twelve Months Ended September 30, 2026
|
| | | | 75 | | |
Twelve Months Ended September 30, 2027
|
| | | | 77 | | |
Twelve Months Ended September 30, 2028
|
| | | | 79 | | |
Remaining
|
| | | | 314 | | |
Total operating lease liabilities
|
| | | | 691 | | |
Less: present value discount
|
| | | | (308) | | |
Net operating lease liabilities, short-term and long-term
|
| | | $ | 383 | | |
| | |
December 31, 2021
|
| |||
ASSETS | | | | | | | |
Current assets
|
| | | $ | — | | |
Total current assets
|
| | | | — | | |
Total assets
|
| | | $ | — | | |
LIABILITIES AND MEMBERS’ EQUITY | | | | | | | |
Current liabilities:
|
| | | $ | — | | |
Total current liabilities
|
| | | | — | | |
Total liabilities
|
| | | | — | | |
Commitments and contingencies (Note 11) | | | | | | | |
Members’ equity
|
| | | | — | | |
Total liabilities and members’ equity
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| | | $ | — | | |
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Period from November 24,
2021 (inception) through December 31, 2021 |
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Total Revenues, Net
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| | | $ | — | | |
Costs and expenses: | | | | | | | |
Cost of revenues
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| | | | — | | |
General and administrative
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| | | | — | | |
Total costs and expenses
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| | | | — | | |
Total operating income
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| | | | — | | |
Net income
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| | | $ | — | | |
| | |
Period from November 24,
2021 (inception) through December 31, 2021 |
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Beginning balance
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| | | $ | — | | |
Issuance of Members’ Capital
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| | | | — | | |
Net income
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| | | | — | | |
Ending balance – December 31
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| | | $ | — | | |
| | |
Period from November 24,
2021 (inception) through December 31, 2021 |
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Operating Activities | | | | | | | |
Net income
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| | | $ | — | | |
Adjustment to reconcile net income to net cash used in operating activities:
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| | | | | | |
Changes in operating assets and liabilities:
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| | | | | | |
Net cash used in operating activities
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| | | | — | | |
Investing Activities | | | | | | | |
Net cash used in investing activities
|
| | | | — | | |
Financing Activities | | | | | | | |
Net cash provided by financing activities
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| | | | — | | |
Net change in cash
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| | | | — | | |
Cash – beginning of period
|
| | | | — | | |
Cash – end of period
|
| | | $ | — | | |
SUPPLEMENTAL CASH FLOW INFORMATION: | | | | | | | |
Cash paid for interest
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| | | $ | — | | |
Cash paid for taxes
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| | | $ | — | | |
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Exhibit No.
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Description
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| 2.1 | | | | |
| 3.1 | | | | |
| 3.2 | | | | |
| 5.1 | | |
Opinion of Greenberg Traurig, P.A. as to the validity of shares of common stock to be issued by New Hut.*
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|
| 10.1 | | | | |
| 10.2 | | | | |
| 10.3 | | | | |
| 10.4 | | | | |
| 10.5 | | | | |
| 10.6 | | | | |
| 10.7 | | | | |
| 10.8 | | | | |
| 10.9 | | | | |
| 10.10 | | | | |
| 10.11 | | | | |
| 10.12 | | | | |
| 10.13 | | | | |
| 10.14 | | | | |
| 10.15 | | | | |
| 10.16 | | | | |
| 10.17 | | | | |
| 10.18 | | | | |
| 10.19 | | | | |
| 10.20 | | | | |
| 21.1 | | | | |
| 23.1 | | | Consent of Greenberg Traurig, P.A. (included as part of Exhibit 5.1 hereto).* | |
| 23.2 | | | | |
| 23.3 | | | |
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Exhibit No.
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| |
Description
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| 23.4 | | | | |
| 24.1 | | | | |
| 99.1 | | | | |
| 99.2 | | | | |
| 99.3 | | | | |
| 99.4 | | | | |
| 99.5 | | | | |
| 99.6 | | | | |
| 99.7 | | | | |
| 99.8 | | | | |
| 99.9 | | | | |
| 99.10 | | | | |
| 99.11 | | | | |
| 99.12 | | | | |
| 99.13 | | | | |
| 107 | | | |
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Signature
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| |
Title
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|
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/s/ Asher Genoot
Asher Genoot
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| | President and Sole Director (Principal Executive Officer) | |
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/s/ Michael Ho
Michael Ho
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| | Vice President, Secretary and Treasurer (Principal Financial and Accounting Officers) | |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HUT 8 CORP.
Hut 8 Corp., a Delaware corporation, does hereby certify as follows:
1. The name of the corporation is Hut 8 Corp. (the “Corporation”) and the Corporation was originally incorporated pursuant to the General Corporation Law of the State of Delaware (as amended from time to time, the “DGCL”) on January 27, 2023.
2. This Amended and Restated Certificate of Incorporation has been duly adopted in accordance with Sections 228, 242 and 245 of the General Corporation Law.
3. This Amended and Restated Certificate of Incorporation hereby restates, integrates and further amends the certificate of incorporation of the Corporation in its entirety to read as follows:
FIRST. The name of the corporation is Hut 8 Corp.
SECOND. The address of the corporation’s registered office in the State of Delaware is 251 Little Falls Drive, County of New Castle, City of Wilmington, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.
THIRD. The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).
FOURTH.
1. Authorized Shares of Capital Stock. The total number of shares of stock which the corporation shall have authority to issue is 1,025,000,000 shares, which shall be divided into the following classes and numbers of shares thereof: 1,000,000,000 shares shall be Common Stock, par value $0.01 per share (the “Common Stock”), and 25,000,000 shares shall be Preferred Stock, par value $0.01 per share (the “Preferred Stock”). The number of authorized shares of any class or classes of stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of at least a majority of the voting power of the issued and outstanding shares of stock of the Corporation entitled to vote irrespective of Section 242(b)(2) of the DGCL.
2. Common Stock. The powers (including voting powers), if any, and the preferences and relative, participating, optional, special or other rights, if any, and the qualifications, limitations or restrictions, if any, of Common Stock are as follows:
a. Dividends. Subject to applicable law and the rights, if any, of the holders of any other class or series of capital stock of the Corporation as provided for or fixed by or pursuant to the provisions of the certificate of incorporation of the Corporation (including any certificate filed with the Secretary of State of the State of Delaware establishing a series of Preferred Stock) (as the same may be amended from time to time, the “Certificate of Incorporation”) and then outstanding, dividends may be declared and paid on Common Stock at such times and in such amounts as the Board of Directors in its discretion shall determine.
b. Voting. Except as otherwise provided by applicable law or by or pursuant to the provisions of the Certificate of Incorporation, each holder of one or more outstanding shares of Common Stock, as such, shall be entitled to one (1) vote for each outstanding share of Common Stock held of record by such holder on all matters on which stockholders are generally entitled to vote.
c. Liquidation, Dissolution or Winding Up. Subject to applicable law and the rights, if any, of the holders of any other class or series of capital stock of the Corporation as provided for or fixed by or pursuant to the provisions of the Certificate of Incorporation and then outstanding, in the event of any liquidation, dissolution or winding up of the Corporation, the holders of outstanding shares of Common Stock shall be entitled to receive the assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of outstanding shares of Common Stock held by them. None of a merger, consolidation, conversion, domestication, transfer, or continuance of the Corporation or a sale, lease, or exchange of all or substantially all of the Corporation’s property and assets which, in each case, shall not in fact result in the liquidation, dissolution, or winding up of the Corporation and the distribution of its assets, shall be deemed to be a liquidation, dissolution, or winding up of the Corporation within the meaning of this Section 2(c).
3. Preferred Stock. The Board of Directors of the Corporation (the “Board of Directors”) is hereby expressly authorized, by resolution or resolutions thereof, to provide, out of the unissued shares of Preferred Stock, for series of Preferred Stock and, with respect to each such series, to fix the number of shares constituting such series and the designation of such series, powers (including voting powers) of the shares of such series, and the preferences and relative, participating, optional or other special rights, if any, and any qualifications, limitations or restrictions thereof, of the shares of such series. The powers, preferences and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding.
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4. Stockholder Action. Except as otherwise provided by or pursuant to the provisions of the Certificate of Incorporation, any action that is required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation, and the ability of the stockholders to consent in writing to the taking of any action in lieu of a meeting of stockholders is hereby specifically denied.
FIFTH.
1. Management. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
2. Removal of Directors. Except for those directors, if any, elected solely and exclusively by the holders of any class or series of capital stock of the Corporation as provided for or fixed by or pursuant to the Certificate of Incorporation and then outstanding (collectively, the “Class/Series Directors” and each, a “Class/Series Director”), any director or the entire Board of Directors may be removed at any time, with or without cause, solely and exclusively by the affirmative vote of the holders of at least a majority in voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
3. Vacancies and Newly Created Directorships. Subject to applicable law and the rights, if any, of the holders of any class or series of capital stock of the Corporation as provided for or fixed by or pursuant to the provisions of the Certificate of Incorporation and then outstanding, newly created directorships resulting from an increase in the authorized number of directors or any vacancies on the Board of Directors resulting from the death, resignation, disqualification or removal of a director, shall be filled solely and exclusively by a majority vote of the directors then in office, although less than a quorum, or by the sole remaining director. Any director elected to fill a vacancy resulting from an increase in the authorized number of directors shall hold office until the next annual election and until his or her successor shall be elected and qualified, subject to such director’s earlier death, resignation, disqualification, or removal. Any director elected to fill a vacancy resulting from the death, resignation, disqualification or removal of a director shall hold office until the expiration of the term of office of the director whom he or she has replaced and until his or her successor shall be elected and qualified, subject to such director’s earlier death, resignation, disqualification, or removal. No decrease in the number of directors shall shorten the term of any incumbent director.
4. Automatic Increase/Decrease in Total Authorized Number of Directors. During any period when the holders of any class or series of capital stock of the Corporation as provided for or fixed by or pursuant to the provisions of the Certificate of Incorporation and then outstanding have the right to elect one or more Class/Series Directors, then upon commencement of, and for the duration of, the period during which such right continues: (a) the then otherwise total authorized number of directors of the Corporation shall automatically be increased by the number of such specified Class/Series Director or Class/Series Directors, and the holders of such class or series of capital stock shall be entitled to elect such Class/Series Director or Class/Series Directors; and (b) each such Class/Series Director shall serve until such Class/Series Director’s successor shall have been duly elected and qualified pursuant to the provisions of the Certificate of Incorporation, or until such Class/Series Director’s right to hold such office terminates by or pursuant to the provisions of the Certificate of Incorporation, whichever occurs earlier, subject to such Class/Series Director’s earlier death, resignation, disqualification or removal. Except as otherwise provided by or pursuant to the provisions of this Certificate of Incorporation, whenever the holders of any class or series of capital stock then outstanding having the right to elect one or more Class/Series Directors by or pursuant to the provisions of the Certificate of Incorporation are divested of such right by or pursuant to the provisions of this Certificate of Incorporation, the term of office of each such Class/Series Director elected by the holders of such class or series of capital stock, or elected to fill any vacancy resulting from the death, resignation, disqualification or removal of each such Class/Series Director, shall forthwith terminate and the total authorized number of directors of the Corporation shall automatically be decreased by such specified number of directors.
5. No Written Ballot. Unless and except to the extent that the bylaws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.
6. Amendment of Bylaws. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors is expressly authorized to adopt, amend, or repeal the bylaws of the Corporation. In addition to any affirmative vote required by or pursuant to the provisions of the Certificate of Incorporation, any bylaw that is to be adopted, amended, or repealed by the stockholders of the Corporation shall require the affirmative vote of the holders of at least a majority in voting power of all of the then outstanding shares of capital stock of the Corporation generally entitled to vote, voting together as a single class.
7. Special Meetings of Stockholders. Except as otherwise provided by or pursuant to the provisions of the Certificate of Incorporation, special meetings of stockholders for any purpose or purposes may be called at any time, but solely and exclusively by the Chairperson of the Board of Directors, the Chief Executive Officer or the directors entitled to cast a majority of the votes of the whole Board of Directors. Except as provided in the foregoing sentence, special meetings of stockholders may not be called by any other person or persons. Any special meeting of stockholders may be postponed by action of the Board of Directors or by the person calling such meeting (if other than the Board of Directors) at any time in advance of such meeting. Business transacted at any special meeting of stockholders shall be limited to the purpose or purposes stated in the notice of meeting.
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SIXTH. To the fullest extent permitted by the DGCL as amended from time to time, a director or officer of the corporation shall not be liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, as applicable. If the DGCL is amended after the effective date of this Certificate of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of the corporation shall be eliminated or limited to the fullest extent permitted by the DGCL. An amendment, repeal or elimination of this Article shall not affect its application with respect to an act or omission by a director or officer occurring before such amendment, repeal or elimination.
SEVENTH. The Corporation reserves the right at any time, and from time to time, to amend, alter, change, or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, powers, and preferences, of whatsoever nature conferred upon stockholders, directors, or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.
EIGHTH. Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a duty (including any fiduciary duty) owed by any current or former director, officer, stockholder or other employee or agent of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising out of or relating to any provision of the DGCL, this Certificate of Incorporation or the bylaws, (iv) any action asserting a claim, including a claim in the right of the corporation, as to which the DGCL confers jurisdiction upon the Court of Chancery of the State of Delaware (the “Court of Chancery”), or (v) any action asserting a claim governed by the internal affairs doctrine of the State of Delaware, shall in each case be the Court of Chancery or, if such court lacks jurisdiction, any state or federal court located within the State of Delaware, in all cases subject to such court having personal jurisdiction over the indispensable parties named as defendants, except for, as to each of (i) through (v) above, any claim as to which such court determines that there is an indispensable party not subject to the jurisdiction of such court (and such indispensable party does not consent to the personal jurisdiction of such court within ten (10) days following such determination). Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall, to the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933 or the rules and regulations thereunder. Failure to enforce the foregoing provisions would cause the Corporation irreparable harm and the Corporation shall be entitled to equitable relief, including injunctive relief and specific performance, to enforce the foregoing provisions. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article. The existence of any prior written consent by the Corporation to the selection of an alternative forum shall not act as a waiver of the Corporation’s ongoing consent right as set forth above with respect to any current or future actions or claims.
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be signed by its authorized officer on , 2023.
HUT 8 CORP. | ||
By: | ||
Name: | ||
Title: |
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Exhibit 3.2
AMENDED & RESTATED
BYLAWS
OF
HUT 8 CORP.
a Delaware Corporation
ARTICLE 1. STOCKHOLDERS
Section 1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors (the “Board of Directors”) of Hut 8 Corp. (as such name may be changed in accordance with applicable law from time to time, the “Corporation”) from time to time. The Board of Directors may, in its sole discretion, determine that an annual meeting of the stockholders shall not be held at any place, but may instead be held solely by means of remote communication in the manner authorized by Section 211 of the General Corporation Law of the State of Delaware (the “DGCL”) Any other proper business may be transacted at the annual meeting of stockholders.
Section 1.2 Special Meetings. Except as otherwise provided by or pursuant to the provisions of the Corporation’s certificate of incorporation (including any certificate filed with the Secretary of State of the State of Delaware establishing a series of preferred stock of the Corporation) (as the same may be amended from time to time, the “Certificate of Incorporation”), special meetings of stockholders for any purpose or purposes may be called at any time, but solely and exclusively by the Chairperson of the Board of Directors, the Chief Executive Officer or by the directors entitled to cast a majority of the votes of the whole Board of Directors. Except as provided in the foregoing sentence, special meetings of stockholders may not be called by any other person or persons. Any special meeting of stockholders may be postponed by action of the Board of Directors or by the person calling such meeting (if other than the Board of Directors) at any time in advance of such meeting. The Board of Directors may, in its sole discretion, determine that a special meeting of the stockholders shall not be held at any place, but may instead be held solely by means of remote communication in the manner authorized by Section 211 of the DGCL. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.
Section 1.3 Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise required by applicable law, the Certificate of Incorporation or these Amended and Restated Bylaws (as the same may be amended or amended from time to time, these “Bylaws”), the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting, as of the record date for determining the stockholders entitled to notice of the meeting.
Section 1.4 Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time and reconvene at the same or some other place, if any, and notice need not be given of any such adjourned meeting to the fullest extent permitted by applicable law. At the adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting, the Board of Directors shall fix a new record date for notice of such adjourned meeting in accordance with Section 1.8 of these Bylaws, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting.
Section 1.5 Quorum. Except as otherwise required by applicable law, the Certificate of Incorporation or these Bylaws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock of the Corporation entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the chairman of the meeting, or the holders of a majority of the voting power of shares entitled to vote and present at such meeting (whether present in person or represented by proxy), may adjourn the meeting from time to time in accordance with Section 1.4 of these Bylaws until a quorum is present or represented. Shares of the Corporation’s stock shall neither be entitled to vote nor be counted for quorum purposes if such shares belong to(a) the Corporation, (b) another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation or (c) any other entity, if a majority of the voting power of such other entity is held, directly or indirectly, by the Corporation or if such other entity is otherwise controlled, directly or indirectly by the Corporation. Nothing in the foregoing sentence shall be construed as limiting the right of the Corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.
Section 1.6 Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Chief Executive Officer, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing individuals by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.
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Section 1.7 Voting; Proxies. Except as otherwise required by or pursuant to the provisions of the Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one (1) vote for each share of stock of the Corporation held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors (other than any Class/Series Directors) (as defined below)) at which a quorum is present, a majority of the votes cast shall be sufficient to elect; provided, however, that any meeting of stockholders for the election of directors (other than any Class/Series Directors) at which a quorum is present, and one or more stockholders have (a) nominated one or more individuals for election to the Board of Directors in compliance with Section 1.12 of these Bylaws, such that the number of nominees for election to the Board of Directors exceeds the number of open seats, and (b) not withdrawn such Nomination or Nominations (as each is defined below) on or prior to the tenth (10th) day preceding the date the Corporation first gives notice of such meeting to stockholders, a plurality of the votes cast shall be sufficient to elect. All other elections, questions, and business presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the Certificate of Incorporation, these Bylaws, the rules or regulations of any stock exchange applicable to the Corporation, or applicable law or pursuant to any regulation applicable to the Corporation or its securities, be decided by the affirmative vote of the holders of a majority of votes cast with respect to any such election, question, or business. For purposes of this Section 1.7, a “majority of votes cast” means that the number of votes cast “for” a nominee, question or business exceeds the number of votes cast “against” such nominee, question or business.
Section 1.8 Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (a) in the case of a determination of stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, shall, unless otherwise required by applicable law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting and, unless the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for determining the stockholders entitled to vote at such meeting, the record date for determining the stockholders entitled to notice of such meeting shall also be the record date for determining the stockholders entitled to vote at such meeting; and (b) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (i) the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; and (ii) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for the stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for the determination of stockholders entitled to vote in accordance with the foregoing provisions of this Section 1.8 at the adjourned meeting.
Section 1.9 List of Stockholders Entitled to Vote. The Corporation shall prepare a complete list of the stockholders entitled to vote at a meeting, and such list shall be open to examination, all to the extent required by and in accordance with applicable law. Except as otherwise provided by applicable law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders or to vote in person or by proxy at any meeting of stockholders.
Section 1.10 Inspectors of Election. The Corporation may, and shall if required by applicable law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the Corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the individual presiding over the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (a) ascertain the number of shares of stock of the Corporation outstanding and the voting power of each such share, (b) determine the shares of stock of the Corporation represented at the meeting and the validity of proxies and ballots, (c) count all votes and ballots, (d) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors and (e) certify their determination of the number of shares of stock of the Corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by applicable law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the Corporation, the inspectors may consider such information as is permitted by applicable law. No individual who is a candidate for an office at an election may serve as an inspector at such election.
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Section 1.11 Conduct of Meetings. The date and time of the opening and the closing of the polls for each election, question, or business upon which the stockholders will vote at a meeting shall be announced at the meeting by the individual presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the individual presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting whether or not a quorum is present, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding individual, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the individual presiding over the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present; (c) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other individuals as the individual presiding over the meeting of stockholders shall determine; (d) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (e) limitations on the time allotted to questions or comments by participants. The Board of Directors or the individual presiding over any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, in each case, shall have the power and duty to determine whether any election, question, or business was or was not properly made, proposed or brought before the meeting of stockholders and therefore shall be disregarded and not be considered or transacted at the meeting, and, if the Board of Directors or the individual presiding over the meeting, as the case may be, determines that such election, question, or business was not properly made, proposed or brought before the meeting of stockholders and shall be disregarded and not be considered or transacted at the meeting, the individual presiding over the meeting shall declare to the meeting that such election, question or business was not properly made, proposed or brought before the meeting and shall be disregarded and not be considered or transacted at the meeting, and any such election, question or business shall not be considered or transacted at the meeting. Unless and to the extent determined by the Board of Directors or the individual presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. The Board of Directors may cancel, postpone, or reschedule any previously scheduled meeting of stockholders at any time, before or after the notice for such meeting has been given to the stockholders.
Section 1.12 Notice of Stockholder Business and Nominations.
(a) | Annual Meetings of Stockholders. |
(i) Nominations of one or more individuals for election to the Board of Directors by the stockholders generally entitled to vote (which, for the avoidance of doubt, shall exclude nominations of one or more individuals for election as Class/Series Directors (as defined below)) (each, a “Nomination,” and more than one, “Nominations”) and the proposal of any question or business other than a Nomination or Nominations to be considered by the stockholders generally entitled to vote (which, for the avoidance of doubt, shall exclude any question or business other than a Nomination or Nominations required by or pursuant to the provisions of the Certificate of Incorporation to be voted on solely and exclusively by the holders of any class (voting separately as a class) or series (voting separately as a series) of stock of the Corporation then outstanding) (collectively, “Business”) may be made at an annual meeting of stockholders only (A) pursuant to the Corporation’s notice of meeting (or any supplement thereto); provided, however, that reference in the Corporation’s notice of meeting to the election of directors or the election of members of the Board of Directors shall not include or be deemed to include a Nomination or Nominations, (B) by or at the direction of the Board of Directors or (C) by any stockholder of the Corporation (x) who was a stockholder of record of the Corporation at the time the notice provided for in this Section 1.12 is delivered to the Secretary, (y) who is entitled to vote at the meeting and (z) who complies with the procedures set forth in this Section 1.12, and, in connection with a Nomination or Nominations, the requirements of Rule 14a-19 promulgated under the Securities Exchange Act of 1934, as amended from time to time (the “Exchange Act”).
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(ii) For Nominations or Business to be properly brought before an annual meeting of stockholders by a stockholder pursuant to Section 1.12(a)(i)(C) of these Bylaws, the stockholder must have given timely notice thereof in writing to the Secretary and any proposed Business must constitute a proper matter for stockholder action. To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the ninetieth (90th) day nor earlier than the close of business on the one hundred twentieth (120th) day prior to the first anniversary of the preceding year’s annual meeting of stockholders; provided, however, that in the event that the date of the annual meeting is more than thirty (30) days before or more than seventy (70) days after such anniversary date, notice by the stockholder must be so delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the Corporation. In no event shall the public announcement of an adjournment or postponement of an annual meeting of stockholders commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. Such stockholder’s notice shall set forth: (A) as to each Nomination to be made by such stockholder, (1) all information relating to the individual subject to such Nomination that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to and in accordance with Regulation 14A under the Exchange Act, without regard to the application of the Exchange Act to either the Nomination or the Corporation, (2) such individual’s written consent to being named in any proxy statement as a nominee and to serving as director if elected, (3) a description of any direct or indirect compensation or benefit (including, without limitation, indemnification and/or advancement rights) to which the individual subject to such Nomination may be entitled under any agreement, arrangement or understanding with any person other than the Corporation (including, without limitation, the amount of any such monetary compensation) in connection with such individual’s nomination or service as a director of the Corporation and (4) a description of any other material relationship or relationships between or among the individual subject to such Nomination and/or such individual’s affiliates and associates, on the one hand, and the stockholder giving the notice and the beneficial owner, if any, on whose behalf the Nomination or Nominations is/are made and/or such stockholder’s or beneficial owner’s respective affiliates and associates, or others acting in concert with such stockholder or beneficial owner or their respective affiliates and associates, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 under Regulation S-K if such stockholder, beneficial owner, affiliate, associate or other person were the “registrant” for purposes of such rule and the individual subject to such Nomination was a director or officer of such registrant; (B) as to the Business proposed by such stockholder, a brief description of the Business, the text of the proposed Business (including the text of any resolution or resolutions proposed for consideration and in the event that such Business includes a proposal to amend these Bylaws, the text of the proposed amendment), the reason or reasons for conducting such Business at the meeting and any material interest or interests in such Business of such stockholder and of the beneficial owner, if any, on whose behalf the Business is proposed; (C) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the Nomination, Nominations or Business is/are made (1) the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner, if any, and any of their respective affiliates or associates or others acting in concert with them, (2) the class, series and number of shares of stock of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner, if any, (3) a representation that the stockholder is a holder of record of shares of stock of the Corporation entitled to vote at such meeting and such stockholder (or a qualified representative of such stockholder) intends to appear in person or by proxy at the meeting to propose such Nomination, Nominations or Business and (4) a representation as to whether the stockholder or the beneficial owner, if any, intends or is part of a group which intends (x) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding stock required to approve or adopt the Business or, in the case of a Nomination or Nominations, to holders of at least sixty-seven percent (67%) of the voting power of the shares of capital stock of the Corporation entitled to vote in the election of directors and/or (y) to otherwise solicit proxies from such stockholders of the Corporation in support of such Nomination, Nominations or Business; and (D) in connection with a Nomination or Nominations, all other information required by Rule 14a-19 under the Exchange Act; provided, however, that if the Business is otherwise subject to Rule 14a-8 (or any successor thereto) promulgated under the Exchange Act (“Rule 14a-8”), the foregoing notice requirements shall be deemed satisfied by a stockholder if the stockholder has notified the Corporation of his, her or its intention to present such Business at an annual meeting of stockholders in compliance with Rule 14a-8, and such Business has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for such annual meeting of stockholders. The Corporation may require (1) any individual subject to such Nomination to furnish such other information as the Corporation may reasonably require to determine the eligibility of such individual subject to such Nomination to serve as a director of the Corporation if elected and (2) the stockholder giving notice to furnish such other information as the Corporation may reasonably require to demonstrate that any Business is a proper matter for stockholder action at an annual meeting of stockholders.
(iii) Notwithstanding anything in the second sentence of Section 1.12(a)(ii) of these Bylaws to the contrary, in the event that the number of directors to be elected to the Board of Directors by the stockholders generally entitled to vote (which, for the avoidance of doubt, shall exclude any Class/Series Directors) at an annual meeting of stockholders is increased and there is no public announcement by the Corporation naming the nominees for election to the additional directorships at least one hundred (100) days prior to the first (1st) anniversary of the preceding year’s annual meeting of stockholders, a stockholder’s notice required by this Section 1.12 shall also be considered timely, but only with respect to nominees for election to such additional directorships, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such Business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting (or any supplement thereto); provided, however, that reference therein to the election of directors or the election of members of the Board of Directors shall not include or be deemed to include Nominations. Nominations may be made at a special meeting of stockholders at which one or more directors are to be elected by the stockholders generally entitled to vote (which, for the avoidance of doubt, shall exclude any Class/Series Directors) pursuant to the Corporation’s notice of meeting (or any supplement thereto) as aforesaid (provided that the Board of Directors has determined that directors shall be elected at such meeting) (i) by or at the direction of the Board of Directors or (ii) by any stockholder of the Corporation who is a stockholder of record at the time the notice provided for in this Section 1.12 is delivered to the Secretary, who is entitled to vote at the meeting and upon such election and who complies with the notice procedures set forth in this Section 1.12 and the requirements of Rule 14a-19 under the Exchange Act. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors by the stockholders generally entitled to vote (which, for the avoidance of doubt, shall exclude any Class/Series Directors), any such stockholder entitled to vote in such election may make a Nomination or Nominations of one or more individuals (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting pursuant to Section 1.12(b)(iii) of these Bylaws, if the stockholder’s notice required by Section 1.12(a)(ii) of these Bylaws shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth (120th) day prior to such special meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such special meeting or the tenth (10th) day following the day on which public announcement is first made of the date of such special meeting and of the nominee(s) proposed by the Board of Directors to be elected at such special meeting. In no event shall the public announcement of an adjournment or postponement of a special meeting of stockholders commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
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(c) | General. |
(i) Only individuals subject to a Nomination made in compliance with the procedures set forth in this Section 1.12 and Rule 14a-19 under the Exchange Act shall be eligible for election at an annual or special meeting of stockholders, and only such Business shall be conducted at an annual or special meeting of stockholders as shall have been brought before such meeting in accordance with the procedures set forth in this Section 1.12. Except as otherwise provided by applicable law, the Board of Directors or the individual presiding over an annual or special meeting of stockholders shall have the power and duty to determine whether (A) a Nomination or any Business proposed to be brought before the meeting was or was not made, proposed or brought, as the case may be, in accordance with the procedures set forth in this Section 1.12 and Rule 14a-19 under the Exchange Act and (B) any proposed Nomination, Nominations or Business shall be disregarded or that such Nomination, Nominations or Business shall not be considered or transacted at the meeting, including due to any failure to conduct a solicitation in support of a Nomination or Nominations in compliance with Rule 14a-19 under the Exchange Act. Notwithstanding the foregoing provisions of this Section 1.12, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders to present a Nomination, Nominations or Business, such Nomination, Nominations or Business shall be disregarded and such Nomination, Nominations or Business shall not be considered or transacted at the meeting, notwithstanding that proxies in respect of such vote may have been received by the Corporation.
(ii) A stockholder providing notice of a Nomination, Nominations or any Business proposed to be brought before an annual or special meeting of stockholders shall further update and supplement such notice, (i) if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 1.12 shall be true and correct as of the record date for determining the stockholders entitled to receive notice of the annual or special meeting of stockholders and such update and supplement shall be delivered to or be mailed and received by the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for determining the stockholders entitled to receive notice of the annual or special meeting of stockholders and (ii) in connection with a Nomination or Nominations, to provide evidence that the stockholder providing notice of a proposed Nomination or Nominations has solicited proxies from holders representing at least sixty-seven percent (67%) of the voting power of the shares of capital stock of the Corporation entitled to vote in the election of directors, and such update and supplement shall be delivered to or be mailed and received by the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the stockholder files a definitive proxy statement in connection with such annual or special meeting of stockholders.
(iii) For purposes of this Section 1.12, “public announcement” shall include disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with or publicly furnished by the Corporation to the Securities and Exchange Commission pursuant to Section 13, 14 and 15(d) (or any successor thereto) of the Exchange Act.
(iv) Nothing in this Section 1.12 shall be deemed to affect any (A) rights or obligations, if any, of stockholders with respect to inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 (to the extent the Corporation or such proposals are subject to Rule 14a-8), (B) rights or obligations, if any, of stockholders with respect to the inclusion of a nominee in a universal proxy card pursuant to Rule 14a-19 (or any successor thereto) promulgated under the Exchange Act or (C) rights, if any, of the holders of any class or series of stock of the Corporation as provided for or filed by or pursuant to the Certificate of Incorporation and then outstanding to, solely and exclusively, elect one or more directors outstanding (collectively, the “Class/Series Directors” and each, a “Class/Series Director”).
ARTICLE 2. BOARD OF DIRECTORS
Section 2.1 Number; Qualifications. Except for any Class/Series Directors, the Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.
Section 2.2 Resignation; Vacancies. Any director may resign at any time upon notice to the Corporation. Subject to the rights, if any, of the holders of any class or series of stock of the Corporation as provided for or fixed by or pursuant to the provisions of the Certificate of Incorporation and then outstanding, newly created directorships resulting from an increase in the authorized number of directors or any vacancies on the Board of Directors resulting from the death, resignation, disqualification or removal of a director, shall be filled solely and exclusively by a majority vote of the directors then in office, although less than a quorum, or by the sole remaining director. Any director elected to fill a vacancy resulting from an increase in the authorized number of directors shall hold office until the next annual election and until his or her successor shall be elected and qualified, subject to such director’s earlier death, resignation, disqualification, or removal. Any director elected to fill a vacancy resulting from the death, resignation, disqualification or removal of a director shall hold office until the expiration of the term of office of the director whom he or she has replaced and until his or her successor shall be elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. No decrease in the number of directors shall shorten the term of any incumbent director.
Section 2.3 Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.
Section 2.4 Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the Chief Executive Officer, President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by or at the direction of the person or persons calling the meeting, (a) if delivered personally by hand, courier or telephone or given by electronic transmission, at least twenty-four (24) hours before the special meeting and (b) if sent by United States mail, deposited in the United States mail at least ninety six (96) hours before the special meeting.
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Section 2.5 Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.
Section 2.6 Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the directors then in office, which in no case shall be less than one third (1/3) of the votes of the total authorized directors, shall constitute a quorum for the transaction of business. Except in cases in which the Certificate of Incorporation, these Bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. If the Certificate of Incorporation provides that one (1) or more directors shall have more or less than 1 vote per director on any matter, every reference in the Certificate of Incorporation or these Bylaws to a majority or other proportion of the directors of the Corporation shall refer to a majority or other proportion of the votes of the directors, including for (a) a quorum of the Board of Directors, any committee thereof and any subcommittee of such a committee and (b) actions of the directors, any committee of the Board of Directors or any subcommittee thereof.
Section 2.7 Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the Chief Executive Officer, or in his or her absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.
Section 2.8 Action by Unanimous Consent of Directors. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, (a) any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and (b) a consent may be documented, signed, and delivered in any manner permitted by Section 116 of the DGCL. After action is taken, the consent or consents relating thereto shall be filed with the minutes of the proceedings of the Board of Directors, or the committee thereof, in the same paper or electronic form as the minutes are maintained.
ARTICLE 3. COMMITTEES
Section 3.1 Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Each member of a committee must meet the requirements for membership, if any, imposed by applicable law and the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading. Subject to such rules and regulations, in the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by applicable law and to the extent provided in the resolution of the Board of Directors establishing such committee or these Bylaws, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it.
Section 3.2 Meetings and Actions of Committees. A majority of the votes of the directors then serving on a committee of the Board of Directors or on a subcommittee of a committee shall constitute a quorum for the transaction of business by the committee or subcommittee, unless the Certificate of Incorporation, these Bylaws, a resolution of the Board of Directors or a resolution of a committee that created the subcommittee requires a greater or lesser number, provided that in no case shall a quorum be less than one third (1/3) of the votes of the directors then serving on the committee or subcommittee. The vote of the majority of the votes of the members of a committee or subcommittee present at a meeting at which a quorum is present shall be the act of the committee or subcommittee, unless the Certificate of Incorporation, these Bylaws, a resolution of the Board of Directors or a resolution of a committee that created the subcommittee requires a greater number. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such provision by the Board of Directors or rules made by the committee, each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article 2 of these Bylaws.
ARTICLE 4. OFFICERS
Section 4.1 Executive Officers; Election; Qualifications; Term of Office, Resignation; Removal; Vacancies. The Board of Directors shall elect a Chief Executive Officer, Chief Financial Officer, and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose a President, one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer, one or more Assistant Treasurers, and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office for such term as shall be determined by the Board of Directors and until his or her successor is elected and qualified or until his or her earlier death, resignation or removal. Any officer may resign at any time upon written notice to the Corporation. Except as otherwise provided by or pursuant to the Certificate of Incorporation, the Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting of the Board of Directors.
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Section 4.2 Powers and Duties of Executive Officers. The officers of the Corporation shall have such powers and duties in the management of the Corporation as may be prescribed in these Bylaws or a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.
Section 4.3 Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the Corporation, for, in the name and on behalf of the Corporation, to cast the votes which the Corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent, in the name of the Corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed for, in the name and on behalf of the Corporation and under its corporate seal or otherwise, all such proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or any Vice President.
ARTICLE 5. STOCK
Section 5.1 Stock Certificates. The shares of capital stock of the Corporation shall be represented by a certificate, unless and until the Board of Directors adopts a resolution permitting shares to be uncertificated. Every holder of stock of the Corporation represented by certificates shall be entitled to have a certificate signed by, or in the name of, the Corporation by any two (2) authorized officers of the Corporation representing the number of shares registered in certificate form. Each of the Chief Executive Officer, the Chief Financial Officer and the General Counsel, in addition to any other officers of the Corporation authorized by the Board of Directors or these Bylaws, is hereby authorized to sign certificates by, or in the name of, the Corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. The Corporation shall not have the power to issue a certificate in bearer form.
Section 5.2 Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates or Uncertificated Shares. The Corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate to be lost, stolen or destroyed. The Corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.
Section 5.3 Transfers. Stock of the Corporation shall be transferable in the manner prescribed by applicable law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation, and in the case of certificated shares of stock, only by the person named in the certificate or by such person’s attorney lawfully constituted in writing and upon the surrender of the certificate therefor, properly endorsed for transfer and payment of all necessary transfer taxes; or, in the case of uncertificated shares of stock, upon receipt of proper transfer instructions from the registered holder of the shares or by such person’s attorney lawfully constituted in writing, and upon payment of all necessary transfer taxes and compliance with appropriate procedures for transferring shares in uncertificated form; provided, however, that such surrender and endorsement, compliance or payment of taxes shall not be required in any case in which the officers of the Corporation shall determine to waive such requirement. With respect to certificated shares of stock, every certificate exchanged, returned or surrendered to the Corporation shall be marked “Cancelled,” with the date of cancellation, by the Secretary or Assistant Secretary of the Corporation or the transfer agent thereof. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing from and to whom transferred.
Section 5.4 Restrictions. If the Corporation issues any shares that are not registered under the Securities Act of 1933, as amended from time to time (the “Securities Act”), and registered or qualified under the applicable state securities laws, such shares may not be transferred without the consent of the Corporation and the certificates evidencing such shares or the notice required by Delaware law, as the case may be, shall contain substantially the following legend (or such other legend adopted by resolution or resolutions of the Board of Directors):
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY SET FORTH IN THE CORPORATION’S AMENDED AND RESTATED BYLAWS (AS THE SAME MAY BE AMENDED FROM TIME TO TIME) AND MAY NOT BE TRANSFERRED EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933, AS AMENDED FROM TIME TO TIME, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM, WITHOUT THE CONSENT OF THE CORPORATION.
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ARTICLE 6. INDEMNIFICATION
Section 6.1 Right to Indemnification. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law, any individual (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or an individual for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, its participants or beneficiaries, against all judgments, fines, amounts paid in settlement, liability and loss suffered and expenses (including attorneys’ fees) actually and reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3 of these Bylaws, the Corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors.
Section 6.2 Advanced Payment of Expenses. The Corporation shall to the fullest extent permitted by applicable law, pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending or otherwise participating in any proceeding in advance of its final disposition, provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.
Section 6.3 Claims. If (a) a claim for indemnification (following the final disposition of such proceeding) under this Article VI is not paid in full within sixty (60) days after a written claim therefor by the Covered Person has been received by the Corporation or (b) a claim for advancement of expenses under this Article VI is not paid in full within twenty (20) days after a written claim therefor by the Covered Person has been received by the Corporation, as applicable, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense (including attorneys’ fees) of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law. In any such action to enforce a claim for indemnification under this Article VI, neither the failure of the Corporation to have made a determination prior to the commencement of such action that indemnification of the Covered Person is proper in the circumstances because the Covered Person has met the applicable standard of conduct set forth in the General Corporation Law, nor an actual determination by the Corporation that the Covered Person has not met such applicable standard of conduct, shall create a presumption that the Covered Person has not met such applicable standard of conduct.
Section 6.4 Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Section 6.5 Other Sources. The Corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit entity.
Section 6.6 Amendment, Repeal, Modification or Elimination. Any amendment, repeal, modification or elimination of this Article VI shall not eliminate or impair any right to indemnification or to advancement of expenses hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such amendment, repeal, modification or elimination.
Section 6.7 Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the Corporation, to the extent and in the manner permitted by applicable law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.
Section 6.8 Certain Definitions. For purposes of this Article VI, (a) references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article 6 with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued; (b) references to “other enterprises” shall include employee benefit plans; (c) references to “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan; and (d) references to “serving at the request of the Corporation” shall include any service as a director, officer, employee, or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries.
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ARTICLE 7. MISCELLANEOUS
Section 7.1 Fiscal Year. The fiscal year of the Corporation shall be determined by resolution of the Board of Directors.
Section 7.2 Seal. The corporate seal of the Corporation shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.
Section 7.3 Manner of Notice. Except as otherwise provided in these Bylaws or permitted by applicable law, notices to directors or stockholders may be given in writing or by electronic transmission to the fullest extent permitted by applicable law.
Section 7.4 Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice or any waiver by electronic transmission.
Section 7.5 Form of Records. Any records administered by or on behalf of the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device, method, or one or more electronic networks or databases (including one or more distributed electronic networks or databases); provided, that the records so kept can be converted into clearly legible paper form within a reasonable time, and, with respect to the stock ledger, that the records so kept comply with applicable law.
Section 7.6 Amendment of Bylaws. These Bylaws may be altered, amended or repealed, and other Bylaws adopted, by the Board of Directors, but the stockholders may adopt other Bylaws and may alter, amend and repeal any Bylaws whether adopted by them or otherwise. In addition to any affirmative vote required by or pursuant to the provisions of the Certificate of Incorporation, any bylaw that is to be made, altered, amended or repealed by the stockholders of the Corporation shall require the affirmative vote of the holders of at least a majority in voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote, voting together as a single class.
ARTICLE 8. FORUM SELECTION
Section 8.1 Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a duty (including any fiduciary duty) owed by any current or former director, officer, stockholder or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, the Certificate of Incorporation or these Bylaws (iv) any action asserting a claim, including a claim in the right of the Corporation, as to which the DGCL confers jurisdiction upon the Court of Chancery of the State of Delaware (the “Court of Chancery”), or (v) any action asserting a claim governed by the internal affairs doctrine of the State of Delaware, shall in each case be the Court of Chancery or, if such court lacks jurisdiction, any state or federal court located within the State of Delaware, in all cases subject to such court having personal jurisdiction over the indispensable parties named as defendants, except for, as to each of (i) through (v) above, any claim as to which such court determines that there is an indispensable party not subject to the jurisdiction of such court (and such indispensable party does not consent to the personal jurisdiction of such court within ten (10) days following such determination). Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall, to the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act or the rules and regulations thereunder. Failure to enforce the foregoing provisions would cause the corporation irreparable harm and the Corporation shall be entitled to equitable relief, including injunctive relief and specific performance, to enforce the foregoing provisions. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article. The existence of any prior written consent by the Corporation to the selection of an alternative forum shall not act as a waiver of the Corporation’s ongoing consent right as set forth above with respect to any current or future actions or claims.
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Exhibit 10.1
HUT 8 CORP.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (“Agreement”) is made as of [________ __, 2023] by and between Hut 8 Corp., a Delaware corporation (the “Company”), and [______________], a member of the Board of Directors] [and] [an officer of the Company] (“Indemnitee”). Capitalized terms used but not otherwise defined herein shall have the meanings set forth in Section 2 hereof.
RECITALS
WHEREAS, in light of the litigation costs and risks to directors and officers resulting from their service to companies, and the desire of the Company to attract and retain qualified individuals to serve as directors, managers and officers for the Company, the Board of Directors of the Company (the “Board”) believes it is reasonable, prudent and necessary for the Company to indemnify and advance expenses on behalf of the Company directors and officers to the extent permitted by Applicable Law (as defined below) so that they will serve or continue to serve the Company free from undue concern regarding such risks;
WHEREAS, the Company has requested that Indemnitee serve or continue to serve as a director and/or officer of the Company;
WHEREAS, Indemnitee has agreed to serve as a director and/or officer of the Company on the condition that Indemnitee be so indemnified; and
WHEREAS, this Agreement is a supplement to and in furtherance of the amended and restated bylaws of the Company (as may be amended from time to time, the “Bylaws”), the amended and restated certification of incorporation of the Company (as may be amended from time to time, the “Certificate of Incorporation”), any resolutions adopted pursuant thereto and any indemnification Indemnitee may also be entitled to pursuant to the General Corporation Law of the State of Delaware (the “DGCL”), and is not a substitute therefor, nor diminishes or abrogates any rights of Indemnitee thereunder.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:
Section 1. Services to the Company. Indemnitee agrees to serve as a [director][officer][director and officer] of the Company. This Agreement does not create any obligation on the Company to continue Indemnitee in such position(s) or on the Indemnitee to continue in such position(s), and is not an employment contract between the Company (or any of its subsidiaries or any Enterprise) and Indemnitee.
Section 2. Definitions. As used in this Agreement:
(a) “Agent” means any person who is authorized by the Company or an Enterprise to act for or represent the interests of the Company or an Enterprise, respectively.
(b) “Applicable Law” means the laws of the State of Delaware, without regard to its conflict of laws rules, including as it presently exists or may hereafter be amended.
(c) A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events:
i. Acquisition of Stock by Third Party. Any Person (as defined below) becomes the Beneficial Owner (as defined below) of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities, unless (1) the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of Company securities entitled to vote generally in the election of directors, or (2) the transaction giving rise to such change in beneficial ownership was approved in advance by the Continuing Directors (as defined below) and such transaction would not constitute a Change in Control under part (iii) of this definition;
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ii. Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period were members of the Board, and any new directors (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 2(c)(i), 2(c)(iii) or 2(c)(iv)) whose appointment by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose appointment by the Board or nomination for election was previously so approved (collectively, the “Continuing Directors”), cease for any reason to constitute at least a majority of the members of the Board;
iii. Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity (including any reorganization or similar transaction to which the Company is a party or a sale or other disposition of all or substantially all of the assets of the Company), other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity;
iv. Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and
v. Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement.
vi. For purposes of this Section 2(c), the following terms have the following meanings:
1 | “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. |
2 | “Person” has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company. |
3 | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity. |
(d) “Corporate Status” describes the status of a person who is or was acting as a director, officer, employee, fiduciary, or Agent of the Company or is or was serving at the request of the Company as a director, officer, employee, or Agent of an Enterprise.
(e) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(f) “Enterprise” means any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other entity for which Indemnitee is or was serving at the request of the Company as a director, officer, employee, or Agent.
(g) “Expenses” includes all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts and other professionals, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, ERISA excise taxes and penalties, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses also include (i) Expenses incurred in connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, and (ii) for purposes of Section 14(d) only, Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement, by litigation or otherwise. Expenses, however, do not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
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(h) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past three years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” does not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.
(i) The term “Proceeding” includes any threatened, pending or completed action, suit, claim, counterclaim, cross claim, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative, legislative, or investigative (formal or informal) nature, including any appeal therefrom, in which Indemnitee was, is or will be involved as a party, potential party, non-party witness or otherwise, by reason of Indemnitee’s Corporate Status or by reason of any action taken by Indemnitee (or a failure to take action by Indemnitee) or of any action (or failure to act) on Indemnitee’s part, in each case while acting pursuant to Indemnitee’s Corporate Status, and in each case whether or not serving in such capacity at the time any Expense is incurred for which indemnification, reimbursement, or advancement of Expenses can be provided under this Agreement.
Section 3. Indemnity in Third-Party Proceedings. The Company will indemnify Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3, the Company will indemnify Indemnitee to the fullest extent permitted by Applicable Law against all Expenses, judgments, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal Proceeding, had no reasonable cause to believe that Indemnitee’s conduct was unlawful.
Section 4. Indemnity in Proceedings by or in the Right of the Company. The Company will indemnify Indemnitee in accordance with the provisions of this Section 4 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4, the Company will indemnify Indemnitee to the fullest extent permitted by Applicable Law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company. The Company will not indemnify Indemnitee for Expenses under this Section 4 related to any claim, issue or matter in a Proceeding for which Indemnitee has been finally adjudged by a court to be liable to the Company, unless, and only to the extent that, the Delaware Court of Chancery or any court in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification.
Section 5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. To the fullest extent permitted by Applicable Law, the Company will indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with any Proceeding to the extent that Indemnitee is successful on the merits or otherwise. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company will indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with or related to each successfully resolved claim, issue or matter to the fullest extent permitted by Applicable Law. For purposes of this Section 5 and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, will be deemed to be a successful result as to such claim, issue or matter.
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Section 6. Indemnification For Expenses of a Witness. To the fullest extent permitted by Applicable Law, the Company will indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with any Proceeding to which Indemnitee is not a party but in which Indemnitee is a witness, deponent, interviewee, or otherwise asked to participate.
Section 7. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses for which Indemnitee seeks indemnification, but not, however, for the total amount thereof, the Company will indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
Section 8. Additional Indemnification. Notwithstanding any limitation in Sections 3, 4, or 5, the Company will indemnify Indemnitee to the fullest extent permitted by Applicable Law if Indemnitee is a party to or threatened to be made a party to any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor).
Section 9. Exclusions. Notwithstanding any other provision in this Agreement, the Company is not obligated under this Agreement to make any indemnification payment to Indemnitee in connection with any Proceeding:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except to the extent provided in Section 15(b) and except with respect to any excess beyond the amount actually paid to or on behalf of Indemnitee under any insurance policy or other indemnity provision in connection with such Proceeding; or
(b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 2(c) hereof) or similar provisions of state statutory law or common law, (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act) or (iii) any reimbursement of the Company by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board or the compensation committee of the Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D and Rule 10D-1 of the Exchange Act; or
(c) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to indemnification or advancement, of Expenses, including a Proceeding (or any part of any Proceeding) initiated pursuant to Section 14 of this Agreement, (ii) the Board authorized the part of the Proceeding initiated by Indemnitee prior to its initiation or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under Applicable Law.
Section 10. Advances of Expenses.
(a) The Company will advance, to the extent not prohibited by Applicable Law, the reasonable Expenses incurred by Indemnitee in connection with (i) any Proceeding (or any part of any Proceeding) that is not initiated by Indemnitee or (ii) any Proceeding (or any part of any Proceeding) initiated by Indemnitee if (a) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to obtain indemnification or advancement of Expenses from the Company or Enterprise, including a proceeding initiated pursuant to Section 14 or (b) the Board authorized the Proceeding, or the part of the Proceeding initiated by Indemnitee, prior to its initiation. The Company will advance such reasonable Expenses within thirty (30) days after the receipt by the Company of a statement or statements requesting such advances from time to time, which statement or statements must include an itemized listing of the nature and amount of all Expenses for which advancement is requested (including, in the event that such expenses comprise or include attorneys’ fees, a listing of all time entries for which advancement is requested and, for each, the applicable hourly rate and a description of the work performed), whether prior to or after final disposition of any Proceeding.
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(b) Advances will be unsecured and interest free. Indemnitee undertakes to repay the amounts advanced (without interest) to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company. No other form of undertaking is required other than the execution of this Agreement. The Company will make advances without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement.
Section 11. Procedure for Notification of Claim for Indemnification or Advancement.
(a) Indemnitee will notify the Company in writing of any Proceeding with respect to which Indemnitee may seek indemnification or advancement of Expenses hereunder as soon as reasonably practicable following the receipt by Indemnitee of notice thereof. Indemnitee will include in such written notification to the Company a description of the nature of the Proceeding and the facts underlying the Proceeding, and will provide such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee may be entitled to indemnification following the final disposition of such Proceeding. Indemnitee’s failure to so notify the Company will not relieve the Company from any obligation it may have to Indemnitee under this Agreement, and any delay in so notifying the Company will not constitute a waiver by Indemnitee of any rights under this Agreement.
Section 12. Procedure Upon Application for Indemnification.
(a) If and to the extent that Indemnitee determines to seek indemnification of Expenses hereunder, Indemnitee shall deliver in writing a statement requesting such indemnification no later than thirty (30) days after the Proceeding to which such request for indemnification relates is resolved pursuant to a final, non-appealable order of the court, tribunal or other forum in which the Proceeding was resolved. Such statement must include an itemized listing of the nature and amount of all Expenses for which indemnification is requested (including, in the event that such Expenses comprise or include attorneys’ fees, a listing of all time entries for which indemnification is requested and, for each, the applicable hourly rate and a description of the work performed).
(b) Unless a Change in Control has occurred, the determination of Indemnitee’s entitlement to indemnification will be made:
i. by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;
ii. by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;
iii. if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by written opinion provided by Independent Counsel selected by the Board; or
iv. if so directed by the Board, by the stockholders of the Company.
(c) If a Change in Control has occurred, the determination of Indemnitee’s entitlement to indemnification will be made by written opinion provided by Independent Counsel selected by Indemnitee and acceptable to the Company, (unless Indemnitee requests such selection be made by the Disinterested Directors of the Board).
(d) The party selecting Independent Counsel pursuant to subsection (a)(iii) or (b) of this Section 12 will provide written notice of the selection to the other party. The notified party may, within ten (10) days after receiving written notice of the selection of Independent Counsel, deliver to the selecting party a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 of this Agreement, and the objection will set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected will act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or the Delaware Court has determined that such objection is without merit. If, within thirty (30) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 12(a) hereof and the final disposition of the Proceeding, Independent Counsel has not been selected or, if selected, any objection to has not been resolved, either the Company or Indemnitee may petition the Delaware Court for the appointment as Independent Counsel of a person selected by such court or by such other person as such court designates. Upon the due commencement of any judicial proceeding or arbitration seeking indemnification pursuant to Section 14(a) of this Agreement, Independent Counsel will be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
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(e) Indemnitee will cooperate with the person, persons or entity making the determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. The Company will advance any Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making the indemnification determination irrespective of the determination as to Indemnitee’s entitlement to indemnification and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing of any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied and providing a copy of any written opinion provided to the Board by Independent Counsel.
(f) If it is determined that Indemnitee is entitled to indemnification, the Company will make payment to Indemnitee within thirty (30) days after such determination.
Section 13. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination will, to the fullest extent not prohibited by law, presume Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 11(a) of this Agreement, and the Company will, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption.
(b) If the determination of the Indemnitee’s entitlement to indemnification has not been made pursuant to Section 12 within sixty (60) days after the later of (i) receipt by the Company of Indemnitee’s request for indemnification pursuant to Section 12(a) and (ii) the final disposition of the Proceeding for which Indemnitee requested Indemnification (the “Determination Period”), the requisite determination of entitlement to indemnification will, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee will be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under Applicable Law. The Determination Period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, the Determination Period may be extended an additional fifteen (15) days if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 12(a)(iv) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, will not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful.
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(d) For purposes of any determination of good faith, Indemnitee will be deemed to have acted in good faith if Indemnitee acted based on the records or books of account of the Company, its subsidiaries, or an Enterprise, including financial statements, or on information supplied to Indemnitee by the directors or officers of the Company, its subsidiaries, or an Enterprise in the course of their duties, or on the advice of legal counsel for the Company, its subsidiaries, or an Enterprise or on information or records given or reports made to the Company or an Enterprise by an independent certified public accountant or by an appraiser, financial advisor or other expert selected with reasonable care by or on behalf of the Company, its subsidiaries, or an Enterprise. Further, Indemnitee will be deemed to have acted in a manner “not opposed to the best interests of the Company,” as referred to in this Agreement if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan. The provisions of this Section 13(d) are not exclusive and do not limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
(e) The knowledge and/or actions, or failure to act, of any director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise, other than the Indemnitee, may not be imputed to Indemnitee for purposes of determining Indemnitee’s right to indemnification under this Agreement.
Section 14. Remedies of Indemnitee.
(a) Indemnitee may commence litigation against the Company in the Delaware Court of Chancery to obtain indemnification or advancement of Expenses provided by this Agreement in the event that (i) a determination is made pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) the Company does not advance Expenses pursuant to Section 10 of this Agreement, (iii) the determination of entitlement to indemnification is not made pursuant to Section 12 of this Agreement within the Determination Period, (iv) the Company does not indemnify Indemnitee pursuant to Section 5 or 6 or the second to last sentence of Section 12(d) of this Agreement within thirty (30) days after receipt by the Company of a written request therefor, (v) the Company does not indemnify Indemnitee pursuant to Section 3, 4, 7, or 8 of this Agreement within thirty (30) days after a determination has been made that Indemnitee is entitled to indemnification, or (vi) in the event that the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or Proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided to the Indemnitee hereunder. Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee must commence such Proceeding seeking an adjudication or an award in arbitration within one hundred and eighty (180) days following the date on which Indemnitee first has the right to commence such Proceeding pursuant to this Section 14(a); provided, however, that the foregoing clause does not apply in respect of a Proceeding brought by Indemnitee to enforce Indemnitee’s rights under Section 5 of this Agreement.
(b) If a determination is made pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 14 will be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee may not be prejudiced by reason of that adverse determination.
(c) If a determination is made pursuant to Section 12 of this Agreement that Indemnitee is entitled to indemnification, the Company will be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 14, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under Applicable Law.
(d) The Company is, to the fullest extent not prohibited by law, precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 14 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and will stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement.
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(e) It is the intent of the Company that, to the fullest extent permitted by law, the Indemnitee not be required to incur legal fees or other Expenses associated with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement by litigation or otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Indemnitee hereunder. The Company, to the fullest extent permitted by law, will (within thirty (30) days after receipt by the Company of a written request therefor) advance to Indemnitee such Expenses which are incurred by Indemnitee in connection with any action to interpret, enforce or defend Indemnitee’s rights under this Agreement, and will indemnify Indemnitee against any and all such Expenses If and to the extent that Indemnitee is successful on the merits or otherwise in such action.
Section 15. Non-exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The indemnification and advancement of Expenses provided by this Agreement are not exclusive of any other rights to which Indemnitee may at any time be entitled under Applicable Law, the Certificate of Incorporation, the Bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. The indemnification and advancement of Expenses provided by this Agreement may not be limited or restricted by any amendment, alteration or repeal of this Agreement in any way with respect to any action taken or omitted by Indemnitee in Indemnitee’s Corporate Status occurring prior to the amendment, alteration or repeal of this Agreement. To the extent that a change in Applicable Law, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Bylaws, Certificate of Incorporation, or this Agreement, it is the intent of the parties hereto that Indemnitee enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy is cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, will not prevent the concurrent assertion or employment of any other right or remedy.
(b) The Company hereby acknowledges that Indemnitee may have certain rights to indemnification, advancement of Expenses and/or insurance provided by one or more other Persons with whom or which Indemnitee may be associated. The relationship between the Company and such other Persons, other than an Enterprise, with respect to the Indemnitee’s rights to indemnification, advancement of Expenses, and insurance is described by this subsection, subject to the provisions of subsection (d) of this Section 16 with respect to a Proceeding concerning Indemnitee’s Corporate Status with an Enterprise.
i. The Company hereby acknowledges and agrees:
1) the Company is the indemnitor of first resort with respect to any request for indemnification or advancement of Expenses made pursuant to this Agreement concerning any Proceeding;
2) the Company is primarily liable for all indemnification and indemnification or advancement of Expenses obligations for any Proceeding, whether created by law, organizational or constituent documents, contract (including this Agreement) or otherwise;
3) any obligation of any other Persons with whom or which Indemnitee may be associated to indemnify Indemnitee and/or advance Expenses to Indemnitee in respect of any Proceeding are secondary to the obligations of the Company’s obligations;
4) the Company will indemnify Indemnitee and advance Expenses to Indemnitee hereunder to the fullest extent provided herein without regard to any rights Indemnitee may have against any other Person with whom or which Indemnitee may be associated or insurer of any such Person; and
ii. In the event any other Person with whom or which Indemnitee may be associated or their insurers advances or extinguishes any liability or loss for Indemnitee, the payor has a right of subrogation against the Company or its insurers for all amounts so paid which would otherwise be payable by the Company or its insurers under this Agreement. In no event will payment by any other Person with whom or which Indemnitee may be associated or their insurers affect the obligations of the Company hereunder or shift primary liability for the Company’s obligation to indemnify or advance Expenses to any other Person with whom or which Indemnitee may be associated.
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iii. Any indemnification or advancement of Expenses provided by any other Person with whom or which Indemnitee may be associated is specifically in excess over the Company’s obligation to indemnify and advance Expenses or any valid and collectible insurance (including but not limited to any malpractice insurance or professional errors and omissions insurance) provided by the Company.
(c) To the extent the Company maintains an insurance policy or policies providing directors’ and officers’ liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer, as applicable. If, at the time of the receipt of a notice of a claim pursuant to this Agreement, the Company has director and officer liability insurance in effect, the Company will give prompt notice of such claim or of the commencement of a Proceeding, as the case may be, to the insurers in accordance with the procedures set forth in the respective policies. The Company will thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. Indemnitee agrees to assist the Company efforts to cause the insurers to pay such amounts and will comply with the terms of such policies, including selection of approved panel counsel, if required.
(d) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee for any Proceeding concerning Indemnitee’s Corporate Status with an Enterprise will be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Enterprise. The Company and Indemnitee intend that any such Enterprise (and its insurers) be the indemnitor of first resort with respect to indemnification and advancement of Expenses for any Proceeding related to or arising from Indemnitee’s Corporate Status with such Enterprise. The Company’s obligation to indemnify and advance Expenses to Indemnitee is secondary to the obligations the Enterprise or its insurers owe to Indemnitee. Indemnitee agrees to take all reasonably necessary and desirable action to obtain from an Enterprise indemnification and advancement of Expenses for any Proceeding related to or arising from Indemnitee’s Corporate Status with such Enterprise.
(e) In the event of any payment made by the Company under this Agreement, the Company will be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee from any Enterprise or insurance carrier. Indemnitee will execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
Section 16. Duration of Agreement. This Agreement continues until and terminates upon the later of: (a) ten (10) years after the date that Indemnitee ceases to have a Corporate Status or (b) one (1) year after the final termination of any Proceeding then pending in respect of which Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any Proceeding commenced by Indemnitee pursuant to Section 14 of this Agreement relating thereto. The indemnification and advancement of Expenses rights provided by or granted pursuant to this Agreement are binding upon and enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of the Company or of any other Enterprise, and inure to the benefit of Indemnitee and Indemnitee’s spouse, assigns, heirs, devisees, executors and administrators and other legal representatives.
Section 17. Severability. If any provision or provisions of this Agreement is or are, as applicable, held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) will not in any way be affected or impaired thereby and remain enforceable to the fullest extent permitted by law; (b) such provision or provisions will be deemed reformed to the extent necessary to conform to Applicable Law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) will be construed so as to give effect to the intent manifested thereby.
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Section 18. Interpretation. Except as expressly set forth herein, the Company and Indemnitee intend that this Agreement provide to the fullest extent permitted by law for indemnification and advancement in excess of that expressly provided, without limitation, by the Certificate of Incorporation, the Bylaws, vote of the Company stockholders or disinterested directors, or Applicable Law.
Section 19. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving or continuing to serve as a director or officer of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof; provided, however, that this Agreement is a supplement to and in furtherance of the Certificate of Incorporation, the Bylaws and Applicable Law, and is not a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
Section 20. Modification and Waiver. No supplement, modification or amendment of this Agreement is binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement will be deemed or constitutes a waiver of any other provisions of this Agreement nor will any waiver constitute a continuing waiver.
Section 21. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company does not relieve the Company of any obligation which it may have to the Indemnitee under this Agreement or otherwise.
Section 22. Notices. All notices, requests, demands and other communications under this Agreement will be in writing and will be deemed to have been duly given if (a) delivered by hand to the other party, (b) sent by reputable overnight courier to the other party or (c) sent by facsimile transmission or electronic mail, with receipt of oral confirmation that such communication has been received:
(a) If to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee provides to the Company.
(b) If to the Company to:
Hut 8 Corp.
[address]
Attention: [ ]
Email: [ ]
or to any other address as may have been furnished to Indemnitee by the Company; and with a copy to:
[address]
Attention: [ ]
Email: [ ]
Section 23. Contribution. To the fullest extent permissible under Applicable Law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, will contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable by the Company in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
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Section 24. Applicable Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties are governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by the Indemnitee pursuant to Section 14(a) of this Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or Proceeding arising out of or in connection with this Agreement may be brought only in the Delaware Court of Chancery and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or Proceeding arising out of or in connection with this Agreement, (iii) waive any objection to the laying of venue of any such action or Proceeding in the Delaware Court, and (iv) waive, and agree not to plead or to make, any claim that any such action or Proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.
Section 25. Identical Counterparts. This Agreement may be executed in one or more counterparts, each of which will for all purposes be deemed to be an original but all of which together constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.
Section 26. Headings. The headings of this Agreement are inserted for convenience only and do not constitute part of this Agreement or affect the construction thereof.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year first above written.
HUT 8 CORP. | ||
By: | ||
Name: | ||
Title: | ||
INDEMNITEE | ||
By: | ||
Name: |
Address: | ||
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Exhibit 10.2
HUT 8 CORP.
2023 OMNIBUS INCENTIVE PLAN
1. | Purpose of Plan. |
The name of the Plan is the Hut 8 Corp. 2023 Omnibus Incentive Plan. The purposes of the Plan are to provide an additional incentive to selected officers, employees, non-employee directors, independent contractors and consultants of the Company or its Affiliates whose contributions are essential to the growth and success of the business of the Company and its Affiliates, in order to strengthen the commitment of such persons to the Company and its Affiliates, motivate such persons to faithfully and diligently perform their responsibilities and attract and retain competent and dedicated persons whose efforts will result in the long-term growth and profitability of the Company and its Affiliates. To accomplish such purposes, the Plan provides that the Company may grant Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Deferred Stock Units, Performance Stock Units, Stock Bonuses, Other Stock-Based Awards, Cash Awards or any combination of the foregoing.
2. | Definitions. |
For purposes of the Plan, the following terms shall be defined as set forth below:
(a) | “Administrator” means the Board, or, if and to the extent the Board does not administer the Plan, the Committee in accordance with and subject to Section 3 hereof. |
(b) | “Affiliate” means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified (for purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”) as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of such Person through the ownership of voting securities, by agreement or otherwise). |
(c) | “Annual Board Retainer” means the annual retainer paid by the Company to a director in a calendar year for service on the Board, including Board committee fees, attendance fees and additional fees and retainers to committee chairs; provided that, for greater clarity, “Annual Board Retainer” shall not include any amounts paid as a reimbursement or allowance for expenses. |
(d) | “Award” means any Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit, Performance Stock Unit, Deferred Stock Unit, Stock Bonus, Other Stock-Based Award or Cash Award granted under the Plan. |
(e) | “Award Agreement” means any written or electronic agreement, contract or other instrument or document evidencing an Award, including through electronic medium, which shall contain such terms and conditions with respect to an Award as the Administrator shall determine, consistent with the Plan. Each Participant who is granted an Award shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion. Award Agreements shall also include notices from the Company and a corresponding credit by means of a bookkeeping entry on the books of the Company. |
(f) | “Base Price” has the meaning set forth in Section 8(b) hereof. |
(g) | “Beneficial Owner” (or any variant thereof) has the meaning defined in Rule 13d-3 under the Exchange Act. |
(h) | “Black-Out Period” means a period of time when pursuant to any policies of the Company, any securities of the Company may not be traded by certain Persons designated by the Company. |
(i) | “Board” means the Board of Directors of the Company. |
(j) | “Cash Award” means an Award granted pursuant to Section 13 hereof. |
(k) | “Canadian Participant” means a Participant who is a resident of Canada for purposes of the Tax Act or who is granted an Award in respect of, or by virtue of, employment services rendered in Canada; provided that, for greater certainty, a Participant may be both a Canadian Participant and a U.S. Participant. |
(l) | “Cause” has the meaning assigned to such term in the Award Agreement or in any individual employment, service or offer letter agreement (“Individual Agreement”) in effect with the Participant or, if there is no such agreement or such Award Agreement or Individual Agreement does not define “Cause,” Cause means, as determined by the Administrator (and subject to applicable law), (i) the commission of an act of fraud or dishonesty by the Participant in the course of the Participant’s employment or service; (ii) the indictment of, or conviction of, or entering of a plea of guilty or nolo contendere by, the Participant for a crime constituting a felony or in respect of any act of fraud or dishonesty; (iii) the commission of an act by the Participant which would make the Participant or the Company (including any of its Subsidiaries or Affiliates) subject to being enjoined, suspended, barred or otherwise disciplined for violation of federal or state securities laws, rules or regulations, including a statutory disqualification; (iv) gross negligence or willful misconduct in connection with the Participant’s performance of the Participant’s duties with the Company (including any Subsidiary or Affiliate for whom the Participant may be employed by at the time) or the Participant’s failure to comply with any of the restrictive covenants to which the Participant is subject; (v) the Participant’s willful failure to comply with any material policies or procedures of the Company as in effect from time to time, provided that the Participant received a copy of such policies or notice that they have been posted on a Company website prior to such compliance failure; or (vi) the Participant’s failure to perform the material duties in connection with the Participant’s position, unless the Participant remedies the failure referenced in this clause (vi) no later than ten (10) days following delivery to the Participant of a written notice from the Company (including any of its Subsidiaries or Affiliates) describing such failure in reasonable detail (provided that the Participant shall not be given more than one opportunity in the aggregate to remedy failures described in this clause (vi)). |
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(m) | “Change in Capitalization” means any (i) merger, consolidation, conversion, domestication, transfer, continuance, reclassification, recapitalization, spin-off, spin-out, repurchase or other reorganization or corporate transaction or event, (ii) special or extraordinary dividend or other extraordinary distribution (whether in the form of cash, Common Stock, or other property), stock split, reverse stock split, subdivision or consolidation, (iii) combination or exchange of shares, or (iv) other change in corporate structure, which, in any such case, the Administrator determines, in its sole discretion, affects the Common Stock such that an adjustment pursuant to Section 5 hereof is appropriate. |
(n) | “Change in Control” means an event set forth in any one of the following paragraphs shall have occurred: |
(i) | any Person (or any group of Persons acting together which would constitute a “group” for purposes of Section 13(d) of the Exchange Act), is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities Beneficially Owned by such Person any securities acquired directly from the Company or its Affiliates) representing fifty percent (50%) or more of the combined voting power of the Company’s then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a transaction described in clause (I) of paragraph (iii) below; |
(ii) | the following individuals cease for any reason to constitute a majority of the number of directors then serving on the Board: individuals who, on the Effective Date, constitute the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including, but not limited to, a consent solicitation, relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company’s stockholders was approved or recommended by a vote of at least a majority of the directors then still in office who either were directors on the Effective Date or whose appointment, election or nomination for election was previously so approved or recommended; |
(iii) | there is consummated a merger, consolidation, conversion, domestication, transfer or continuance of the Company or any direct or indirect Subsidiary, other than (I) a merger, consolidation, conversion, domestication, transfer or continuance (A) which results in the voting securities of the Company outstanding immediately prior to such merger, consolidation, conversion, domestication, transfer or continuance continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving, resulting, converted or domesticated entity or any parent thereof), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary, more than fifty percent (50%) of the combined voting power of the securities of the Company or such surviving, resulting, converted or domesticated entity or any parent thereof outstanding immediately after such merger, consolidation, conversion, domestication, transfer or continuance and (B) immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors or governing body of the Company, the entity surviving, resulting, converted or domesticated in such merger, consolidation, conversion, domestication, transfer or continuance or, if the Company or the entity surviving, resulting, converted or domesticated in such merger, consolidation, conversion, domestication, transfer or continuance is then a subsidiary, the ultimate parent thereof, or (II) a merger, consolidation, conversion, domestication, transfer or continuance effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities Beneficially Owned by such Person any securities acquired directly from the Company or its Affiliates) representing fifty percent (50%) or more of the combined voting power of the Company’s then outstanding securities; or |
(iv) | the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than (A) a sale or disposition by the Company of all or substantially all of the Company’s assets to an entity, at least fifty percent (50%) of the combined voting power of the voting securities of which are owned by stockholders of the Company following the completion of such transaction in substantially the same proportions as their ownership of the Company immediately prior to such sale or (B) a sale or disposition of all or substantially all of the Company’s assets immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of the entity to which such assets are sold or disposed or, if such entity is a subsidiary, the ultimate parent thereof. |
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Notwithstanding the foregoing, for each Award that constitutes deferred compensation under Section 409A of the Code, and to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, a Change in Control shall be deemed to have occurred under the Plan with respect to such Award only if a change in the ownership or effective control of the Company or a change in ownership of a substantial portion of the assets of the Company shall also be deemed to have occurred under Section 409A of the Code.
(o) | “Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor thereto. |
(p) | “Committee” means any committee or subcommittee the Board may appoint to administer the Plan. Subject to the discretion of the Board, the Committee shall be composed entirely of individuals who meet the qualifications of (i) a “non-employee director” within the meaning of Rule 16b-3 and (ii) any other qualifications required by the applicable stock exchange on which the Common Stock is traded. If at any time or to any extent the Board shall not administer the Plan, then the functions of the Administrator specified in the Plan shall be exercised by the Committee. |
(q) | “Common Stock” means the common shares in the capital of the Company. |
(r) | “Company” means Hut 8 Corp., a Delaware corporation (or any successor company, except for purposes of the definition of Change in Control). |
(s) | “Deferred Stock Unit” means a right, granted pursuant to Section 10 hereof, to receive an amount in cash or Shares (or any combination thereof) equal to the Fair Market Value of a Share, provided that Deferred Stock Units shall only vest, and a Participant is only entitled to settlement or redemption of a Deferred Stock Unit, when the Participant ceases to be any of a director, officer or employee of the Company or any Affiliate of the Company for any reason, including termination, retirement or death. |
(t) | “Disability” has the meaning assigned to such term in the Award Agreement or in any Individual Agreement with the Participant or, if any such Award Agreement or Individual Agreement does not define “Disability,” Disability means, with respect to any Participant, that such Participant, as determined by the Administrator in its sole discretion, is (i) unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months or (ii) by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Company or an Affiliate thereof. |
(u) | “Effective Date” has the meaning set forth in Section 21 hereof. |
(v) | “Eligible Recipient” means an officer, employee, non-employee director, independent contractor or consultant of the Company or any Affiliate of the Company who has been selected as an eligible participant by the Administrator; provided, however, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, an Eligible Recipient of an Option or a Stock Appreciation Right means any such Person with respect to whom the Company is an “eligible issuer of service recipient stock” within the meaning of Section 409A of the Code. |
(w) | “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. |
(x) | “Exercise Price” means, with respect to any Option, the per share price at which a holder of such Option may purchase the Shares issuable upon the exercise of such Option. |
(y) | “Fair Market Value” of Common Stock or another security as of a particular date shall mean the fair market value as determined by the Administrator in its sole discretion; provided, however, that except as otherwise determined by the Administrator, (i) if the Common Stock or other security is admitted to trading on a national securities exchange, the fair market value on any date shall be the closing sale price reported on such date, or if no shares were traded on such date, on the last preceding date for which there was a sale of share of Common Stock or other security on such exchange (or, in the event the Common Stock or other security admitted to trading on more than one national securities exchange, the principal securities exchange on which the majority of the trading in the Common Stock or other security occurs), or (ii) if the Common Stock or other security is then traded in an over-the-counter market, the fair market value on any date shall be the average of the closing bid and asked prices for such share of Common Stock or other security in such over-the-counter market for the last preceding date on which there was a sale of such share of Common Stock or other security in such market. |
(z) | “Free Standing Right” has the meaning set forth in Section 8(a) hereof. |
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(aa) | “Good Reason” has the meaning assigned to such term in the Award Agreement or in any Individual Agreement in effect with the Participant or, if there is no such agreement or such Award Agreement or Individual Agreement does not define “Good Reason,” Good Reason means the occurrence of any of the following events without the Participant’s consent (each a “Good Reason Condition”): (i) a material reduction in the Participant’s base salary, except pursuant to an across-the-board reduction similarly affecting substantially all similarly situated employees of the Company or (ii) a requirement that (other than for business-related travel normally required as part of the Participant’s duties) the Participant work primarily from an office or geographic location that is beyond a fifty (50) mile radius from the office or geographic location at which the Participant primarily works as of the Grant Date (provided that such requirement results in an increase in the Participant’s commute); provided that Good Reason shall be deemed not to have occurred unless (A) the Participant notifies the Company in writing of the first occurrence of the Good Reason Condition within ninety (90) days of the first occurrence of such condition and the Participant’s notice sets forth the facts and circumstances of the alleged Good Reason Condition, (B) the Participant cooperates in good faith with the Company’s efforts, for a period of not less than thirty (30) days following such notice (the “Cure Period”), to remedy the Good Reason Condition, (C) notwithstanding such efforts, the Good Reason Condition continues to exist after the end of the Cure Period and (D) the Participant terminates employment within thirty (30) days after the end of the Cure Period. If the Company cures the Good Reason Condition during the Cure Period, Good Reason shall be deemed not to have occurred. |
(bb) | “Incentive Stock Option” means an option to purchase shares of Common Stock granted pursuant to Section 7 hereof that is designated, in the applicable Award Agreement, as an “incentive stock option” within the meaning of Section 422 of the Code and otherwise meets the requirements to be an “incentive stock option” set forth in Section 422 of the Code. |
(cc) | “Insider” means a “reporting insider” of the Company as defined in National Instrument 55-104 — Insider Reporting Requirements and Exemptions and includes associates and affiliates (as such terms are defined in Part 1 of the Toronto Stock Exchange Company Manual) of such “reporting insider”; |
(dd) | “Nonqualified Option” means an option to purchase shares of Common Stock granted pursuant to Section 7 hereof that is not an Incentive Stock Option. |
(ee) | “Option” means either an Incentive Stock Option or a Nonqualified Option. |
(ff) | “Other Stock-Based Award” means an Award granted pursuant to Section 10 hereof. |
(gg) | “Participant” means any Eligible Recipient selected by the Administrator, pursuant to the Administrator’s authority provided for in Section 3 hereof, to receive grants of Awards, and, upon such Eligible Recipient’s death, such Eligible Recipient’s successors, heirs, executors and administrators, as the case may be. |
(hh) | “Performance Stock Unit” means a right, granted pursuant to Section 9 hereof, to receive an amount in cash or Shares (or any combination thereof) equal to the Fair Market Value of a Share, which right is made subject to vesting conditions that lapse upon the attainment of a performance goal or goals (and which may require continued service for a specified period or periods. |
(ii) | “Person” has the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof. | |
(jj) | “Plan” means this Hut 8 Corp. 2023 Omnibus Incentive Plan, as may be amended and/or restated from time to time. |
(kk) | “Plan of Arrangement” means the plan of arrangement implementing the arrangement of Hut 8 Mining Corp. under Division 5 of Part 9 of the Business Corporations Act (British Columbia) pursuant to a business combination agreement dated as of February 5, 2023 by and among the Company, Hut 8 Mining Corp. and U.S. Data Mining Group, Inc.. |
(ll) | “Related Right” has the meaning set forth in Section 8(a) hereof. |
(mm) | “Replacement Hut Options” has the meaning ascribed to the term “Replacement Options” in the Plan of Arrangement. |
(nn) | “Restricted Stock” means Shares granted pursuant to Section 9 hereof subject to certain restrictions that lapse at the end of a specified period or periods. |
(oo) | “Restricted Stock Unit” means a right, granted pursuant to Section 9 hereof, to receive an amount in cash or Shares (or any combination thereof) equal to the Fair Market Value of a Share subject to certain restrictions that lapse at the end of a specified period or periods. |
(pp) | “Rule 16b-3” has the meaning set forth in Section 3(a) hereof. | |
(qq) | “Securities Act” means the Securities Act of 1933, as amended. |
(rr) | “Shares” means shares of Common Stock reserved for issuance under the Plan, as adjusted pursuant to the Plan, and any successor security (e.g., pursuant to a merger, consolidation or other reorganization). |
(ss) | “Stock Appreciation Right” means the right to receive, upon exercise of the right, the applicable amounts as described in Section 8 hereof. |
(tt) | “Stock Bonus” means a bonus payable in fully vested Shares granted pursuant to Section 12 hereof. |
(uu) | “Subsidiary” means, with respect to any Person, as of any date of determination, any other Person as to which such first Person owns or otherwise controls, directly or indirectly, more than 50% of the voting shares or other similar interests or a sole general partner interest or managing member or similar interest of such other Person. |
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(vv) | “Tax Act” means the Income Tax Act (Canada) and the regulations thereunder, each as amended from time to time. |
(ww) | “Termination Date” means (i) in the event of a Participant’s resignation, the date on which such Participant ceases to be a director, executive officer, employee or consultant of the Company or an Affiliate, (ii) in the event of the termination of the Participant’s employment, or position as director, executive or officer of the Company or an Affiliate, or for a consultant, the effective date of the termination as specified in the notice of termination provided to the Participant by the Company or the Affiliate, as the case may be, and (iii) in the event of a Participant’s death, on the date of death; provided that, in all cases, in applying the provisions of the Plan to Deferred Stock Units granted to a Canadian Participant, the “Termination Date” shall be the date on which the Participant is neither a director, employee, executive or officer of the Company or of any affiliate of the Company (as determined for the purposes of paragraph 6801(d) of the regulations under the Tax Act), subject to the Participant’s minimum statutory entitlements, if any, prescribed by applicable employment or labor standards legislation. For the avoidance of doubt, and except as required by applicable employment standards legislation, no period of notice or pay in lieu of notice that is given or that ought to have been given under applicable law in respect of the termination of a Participant’s employment, or position as director, executive or officer of the Company or an Affiliate, or consultant, that follows or is in respect of a period after the Participant’s last day of actual and active service or retention shall be considered as extending the Participant’s period of service or retention for the purposes of determining their entitlement under the Plan. |
(xx) | “Transfer” has the meaning set forth in Section 19 hereof. |
(yy) | “U.S. Participant” means a Participant who is subject to taxation in the United States in respect of Awards under the Plan; provided that, for greater certainty, a Participant may be both a Canadian Participant and a U.S. Participant. |
3. | Administration. |
(a) | The Plan shall be administered by the Administrator and shall be administered in accordance with the requirements of Rule 16b-3 under the Exchange Act (“Rule 16b-3”), to the extent applicable. |
(b) | Pursuant to the terms of the Plan, the Administrator, subject, in the case of any Committee, to any restrictions on the authority delegated to it by the Board, shall have the power and authority, without limitation: |
(i) | to select those Eligible Recipients who shall be Participants; |
(ii) | to determine whether and to what extent Awards are to be granted hereunder to Participants; |
(iii) | to determine the number of Shares to be covered by each Award granted hereunder; |
(iv) | to determine the terms and conditions, not inconsistent with the terms of the Plan, of each Award granted hereunder (including, but not limited to, (i) the restrictions applicable to Restricted Stock or Restricted Stock Units and the conditions under which restrictions applicable to such Restricted Stock or Restricted Stock Units shall lapse, (ii) the performance criteria and periods applicable to Awards, (iii) the Exercise Price of each Option and the Base Price of each Stock Appreciation Right, (iv) the vesting schedule applicable to each Award, (v) the number of Shares or amount of cash or other property subject to each Award and (vi) subject to the requirements of Section 409A of the Code (to the extent applicable), any amendments to the terms and conditions of outstanding Awards, including, but not limited to, extending the exercise period of such Awards and accelerating or waiving the vesting schedule or other conditions of such Awards); |
(v) | to determine the terms and conditions, not inconsistent with the terms of the Plan, which shall govern all written instruments evidencing Awards; |
(vi) | to determine the Fair Market Value in accordance with the terms of the Plan; |
(vii) | to determine the duration and purpose of leaves of absence which may be granted to a Participant without constituting termination of the Participant’s employment or service for purposes of Awards granted under the Plan; |
(viii) | to adopt, alter and repeal such administrative rules, guidelines and practices governing the Plan as it shall from time to time deem advisable; |
(ix) | to prescribe, amend and rescind rules and regulations relating to sub-plans or addendums established for the purpose of satisfying applicable foreign laws or qualifying for favorable tax treatment under applicable foreign laws, which rules and regulations may be set forth in an appendix or appendices to the Plan or the applicable Award Agreement; and |
(x) | to construe and interpret the terms and provisions of the Plan and any Award issued under the Plan (and any Award Agreement relating thereto), and to otherwise supervise the administration of the Plan and to exercise all powers and authorities either specifically granted under the Plan or necessary and advisable in the administration of the Plan. |
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(c) | Notwithstanding Section 3(b), other than for adjustments made pursuant to Section 5 hereof, the Company may not, without first obtaining the approval of the Company’s stockholders, (i) amend the terms of outstanding Options or Stock Appreciation Rights to reduce the Exercise Price or Base Price, as applicable, of such Options or Stock Appreciation Rights, (ii) cancel outstanding Options or Stock Appreciation Rights in exchange for Options or Stock Appreciation Rights with an Exercise Price or Base Price, as applicable, that is less than the Exercise Price or Base Price of the original Options or Stock Appreciation Rights or (iii) cancel outstanding Options or Stock Appreciation Rights with an Exercise Price or Base Price, as applicable, that is above the current per share stock price, in exchange for cash, property or other securities. |
(d) | The Administrator’s determinations under the Plan (including without limitation, the selection of Participants, the form, amount and timing of Awards, the terms and provisions of Awards and the applicable Award Agreements, the modification or amendment of any award and the applicable Award Agreement, and the construction and interpretation of the terms and provisions of the Plan and any Award) need not be uniform and may be made by the Administrator selectively among Eligible Recipients or Participants whether or not such persons are similarly situated. |
(e) | All decisions made by the Administrator pursuant to the provisions of the Plan shall be final, conclusive and binding on all Persons, including the Company and the Participants. No member of the Board or the Committee, nor any officer or employee of the Company or any Subsidiary thereof acting on behalf of the Board or the Committee, shall be personally liable for any action, omission, determination, or interpretation taken or made in good faith with respect to the Plan, and all members of the Board or the Committee and each and any officer or employee of the Company and of any Subsidiary thereof acting on their behalf shall, to the maximum extent permitted by law, be fully indemnified and protected by the Company in respect of any such action, omission, determination or interpretation. |
(f) | The Administrator may, in its sole discretion, delegate its authority, in whole or in part, under the Plan (including, but not limited to, its authority to grant Awards under the Plan, other than its authority to grant Awards under the Plan to any Participant who is subject to reporting under Section 16 of the Exchange Act) to one or more officers of the Company, subject to the requirements of applicable law or any stock exchange on which the Shares are traded. |
(g) | The Administrator may, in its sole discretion, retain a service provider, at a reasonable expense, to provide administrative agent, registrar, settlement, or similar functions in respect of outstanding Awards and may also delegate such ministerial duties to Company personnel. |
4. | Shares Reserved for Issuance; Certain Limitations; Director Compensation Limitation. |
(a) | The maximum number of shares of Common Stock reserved and available for issuance under the Plan shall not exceed 6.85% of the number of issued and outstanding shares of Common Stock, from time to time, calculated on a non-diluted basis and subject to adjustment pursuant to Section 5. |
(b) | Shares issued under the Plan may, in whole or in part, be authorized but unissued Shares or Shares that shall have been or may be reacquired by the Company in the open market, in private transactions or otherwise. If any Shares subject to an Award are forfeited, cancelled, exchanged or surrendered or if an Award otherwise terminates or expires without a distribution of Shares to the Participant, the Shares with respect to such Award shall, to the extent of any such forfeiture, cancellation, exchange, surrender, termination or expiration, again be available for Awards under the Plan. Shares that are exchanged by a Participant or withheld by the Company as full or partial payment in connection with the exercise of any Option or Stock Appreciation Right or the payment of any purchase price with respect to any other Award under the Plan, as well as any Shares exchanged by a Participant or withheld by the Company or any Subsidiary to satisfy the tax withholding obligations related to any Award under the Plan, shall not be available for subsequent Awards under the Plan. In addition, (i) to the extent an Award is denominated in Shares, but paid or settled in cash, the number of Shares with respect to which such payment or settlement is made shall again be available for grants of Awards pursuant to the Plan and (ii) Shares underlying Awards that can only be settled in cash shall not be counted against the aggregate number of Shares available for Awards under the Plan. |
(c) | No Participant who is a non-employee director of the Company shall be granted Awards during any calendar year that, when aggregated with such non-employee director’s cash fees with respect to such calendar year, exceed $750,000 in total value (calculating the value of any such Awards based on the grant date fair value of such Awards for the Company’s financial reporting purposes). The Administrator may make exceptions to increase such limit to $1,000,000 for an individual non-employee director in extraordinary circumstances, such as where a non-employee director serves as the non-executive chairman of the Board or lead independent director, or as a member of a special litigation or transactions committee of the Board, as the Administrator may determine in its sole discretion, provided that the non-employee director receiving such additional compensation may not participate in the decision to award such compensation involving such non-employee director. |
(d) | With respect to non-employee directors: (i) the Plan will not result at any time in the number of Shares issuable to all non-employee directors exceeding 1% of the issued and outstanding Common Shares at such time; and (ii) the number of Shares issuable to any one non-employee director will be subject to an annual grant limit of C$150,000 worth of Awards (other than Awards granted in lieu of cash fees payable for serving as a non-employee director) and Options, in aggregate, per such non-employee director, of which no more than C$100,000 may be issued in the form of Options. |
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Compliance with the foregoing limits shall be measured based on the grant date fair value of such awards, as computed in the manner utilized for the Company’s financial statements.
(e) | For so long as the Shares are listed on the Toronto Stock Exchange, the Plan (and any other proposed or established security based compensation arrangements of the Company) will not result in (i) a number of Shares issuable to Eligible Recipients who are Insiders, at any time, exceeding 10% of the issued and outstanding Common Shares at such time, and (ii) a number of Shares issued to Eligible Recipients who are Insiders, within any one-year period, exceeding 10% of the issued and outstanding Common Shares at such time. |
5. | Equitable Adjustments. |
(a) | In the event of any Change in Capitalization or a Change in Control, an equitable substitution or proportionate adjustment shall be made, in each case, in the manner determined by the Administrator, in its sole discretion, in (i) the aggregate number of Shares reserved for issuance under the Plan pursuant to Section 4(a) hereof, (ii) the kind and number of securities subject to, and the Exercise Price or Base Price of, any outstanding Options and Stock Appreciation Rights granted under the Plan, (iii) the kind, number and purchase price of Shares, or the amount of cash or amount or type of other property, subject to outstanding Restricted Stock, Restricted Stock Units, Stock Bonuses and Other Stock-Based Awards granted under the Plan or (iv) the performance criteria and performance periods applicable to any Awards granted under the Plan; provided, however, that any fractional shares resulting from the adjustment shall be eliminated. Such other equitable substitutions or adjustments shall be made as may be determined by the Administrator, in its sole discretion. |
(b) | Without limiting the generality of the foregoing, in connection with a Change in Capitalization or a Change in Control, the Administrator may provide, in its sole discretion, but subject in all events to the requirements of Section 409A of the Code, for the cancellation of any outstanding Award in exchange for payment in cash or other property having an aggregate Fair Market Value equal to the Fair Market Value of the Shares, cash or other property covered by such Award, reduced by the aggregate Exercise Price or Base Price thereof, if any; provided, however, that (i) if the Exercise Price or Base Price of any outstanding Award is equal to or greater than the Fair Market Value of the Shares, cash or other property covered by such Award, the Administrator may cancel such Award without the payment of any consideration to the Participant; and (ii) in the case of any Options or other Awards granted to a Canadian Participant that are subject to section 7 of the Tax Act, the consent of such Participant shall be required to settle such Awards in cash or any property other than Shares. |
(c) | The determinations made by the Administrator pursuant to this Section 5 shall be final, binding and conclusive. |
6. | Eligibility. |
The Participants under the Plan (other than, for the avoidance of doubt, Participants that are granted Replacement Hut Options under the Plan of Arrangement) shall be selected from time to time by the Administrator, in its sole discretion, from those individuals that qualify as Eligible Recipients.
7. | Options. |
(a) | General. Each Participant who is granted an Option shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, which Award Agreement shall set forth, among other things, the Exercise Price of the Option, the term of the Option and provisions regarding exercisability of the Option, vesting provisions of the Option, and whether the Option is intended to be an Incentive Stock Option or a Nonqualified Option (and in the event the Award Agreement has no such designation, the Option shall be a Nonqualified Option). More than one Option may be granted to the same Participant and be outstanding concurrently hereunder. Options granted under the Plan shall be subject to the terms and conditions set forth in this Section 7 and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable and set forth in the applicable Award Agreement. Notwithstanding anything to the contrary in this Section 7, Replacement Hut Options shall have the terms specified in the Plan of Arrangement. |
(b) | Exercise Price. The Exercise Price of Shares purchasable under an Option shall be determined by the Administrator in its sole discretion at the time of grant, but in no event shall the exercise price of an Option be less than one hundred percent (100%) of the Fair Market Value of the related Shares on the date of grant. Notwithstanding the foregoing, the Exercise Price of Share issuable under any Replacement Hut Option shall be the exercise price determined in accordance with the Plan of Arrangement for such Replacement Hut Option. |
(c) | Option Term. |
(i) | The maximum term of each Option shall be fixed by the Administrator, but no Option shall be exercisable more than ten (10) years after the date such Option is granted. Each Option’s term is subject to earlier expiration pursuant to the applicable provisions in the Plan and the Award Agreement. |
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(ii) | Should the expiration date for an Option fall within a Black-Out Period or within nine (9) Business Days following the expiration of a Black-Out Period, such expiration date shall be automatically extended without any further act or formality to that date which is the 10th Business Day after the end of the Black-Out Period, such 10th Business Day to be considered the expiration date for such Option for all purposes under the Plan. The 10-Business Day period referred to herein may not be extended by the Administrator. Notwithstanding anything in the Plan to the contrary, (i) Incentive Stock Options shall not be extended as provided in this Section and (ii) Non-Qualified Stock Options shall be extended as provided in this Section only if the exercise of the Non-Qualified Stock Options during the Black-Out Period would violate an applicable federal, state, local or foreign law. |
(d) | Exercisability. Each Option shall be exercisable, subject to applicable Black-Out Periods, at such time or times and subject to such terms and conditions, including the attainment of performance criteria, as shall be determined by the Administrator in the applicable Award Agreement. The Administrator may also provide that any Option shall be exercisable only in installments, and the Administrator may waive such installment exercise provisions at any time, in whole or in part, based on such factors as the Administrator may determine in its sole discretion. An Option may not be exercised for a fraction of a share. |
(e) | Method of Exercise. Options may be exercised in whole or in part by giving written notice of exercise to the Company specifying the number of whole Shares to be purchased, accompanied by payment in full of the aggregate Exercise Price of the Shares so purchased in cash or its equivalent, as determined by the Administrator. As determined by the Administrator, in its sole discretion, with respect to any Option or category of Options, payment in whole or in part may also be made (i) by means of consideration received under any cashless exercise procedure approved by the Administrator (including the withholding of Shares otherwise issuable upon exercise or a broker-assisted cashless exercise program), (ii) in the form of unrestricted Shares already owned by the Participant which have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which such Option shall be exercised, (iii) any other form of consideration approved by the Administrator and permitted by applicable law or (iv) any combination of the foregoing. |
(f) | Incentive Stock Options. The terms and conditions of Incentive Stock Options granted hereunder shall be subject to the provisions of Section 422 of the Code and the terms, conditions, limitations and administrative procedures established by the Administrator from time to time in accordance with the Plan. At the discretion of the Administrator, Incentive Stock Options may be granted only to an employee of the Company, its “parent corporation” (as such term is defined in Section 424(e) of the Code) or “subsidiary corporation” (as such term is defined in Section 424(f) of the Code). All of the Shares reserved for issuance under the Plan pursuant to Section 4(a) hereof (subject to adjustment as provided in Section 5 hereof) may be granted as Incentive Stock Options. |
(i) | Incentive Stock Option Grants to 10% Stockholders. Notwithstanding anything to the contrary in the Plan, if an Incentive Stock Option is granted to a Participant who owns shares representing more than ten percent (10%) of the voting power of all classes of shares of the Company, its “parent corporation” (as such term is defined in Section 424(e) of the Code) or “subsidiary corporation” (as such term is defined in Section 424(f) of the Code), the term of the Incentive Stock Option shall not exceed five (5) years from the time of grant of such Incentive Stock Option and the Exercise Price shall be at least one hundred and ten percent (110%) of the Fair Market Value of the Shares on the date of grant. |
(ii) | $100,000 Per Year Limitation For Incentive Stock Options. To the extent the aggregate Fair Market Value (determined on the date of grant) of the Shares for which Incentive Stock Options are exercisable for the first time by any Participant during any calendar year (under all plans of the Company and its Affiliates) exceeds $100,000, such excess Incentive Stock Options shall constitute Nonqualified Options. |
(iii) | Disqualifying Dispositions. Each Participant awarded an Incentive Stock Option under the Plan shall notify the Company in writing immediately after the date the Participant makes a “disqualifying disposition” of any Share acquired pursuant to the exercise of such Incentive Stock Option. A “disqualifying disposition” is any disposition (including any sale) of such Shares before the later of (i) two years after the date of grant of the Incentive Stock Option and (ii) one year after the date the Participant acquired the Shares by exercising the Incentive Stock Option. The Company may, if determined by the Administrator and in accordance with procedures established by it, retain possession of any Shares acquired pursuant to the exercise of an Incentive Stock Option as agent for the applicable Participant until the end of the period described in the preceding sentence, subject to complying with any instructions from such Participant as to the sale of such Shares. |
(g) | No Liability. Neither the Company nor the Administrator will be liable to a Participant, or to any other party, if an Incentive Stock Option fails or ceases to qualify as an “incentive stock option” under Section 422 of the Code. |
(h) | Rights as Stockholder. Except as provided in the applicable Award Agreement or pursuant to an adjustment pursuant to Section 5, a Participant shall have no rights to dividends, dividend equivalents or distributions or any other rights of a stockholder with respect to the Shares subject to an Option until Shares have been issued with respect to the exercise of the Option. |
(i) | Termination of Employment or Service. In the event of the termination of employment or service by the Company (for any reason other than for Cause) with the Company and all Affiliates thereof of a Participant who has been granted one or more Options, unless otherwise set forth in the Award Agreement granting such Options, the Options held by the Participant shall continue to vest and may be exercised in accordance with its terms at any time, subject to compliance with applicable Black-Out Periods, during the period that terminates on the earlier of: |
(i) | the 30th day after the termination of Participant’s Termination Date; and |
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(ii) | the expiration of the term of the Option as set forth in the Award Agreement; provided that, if the termination of employment or service with the Company and all Affiliates is by the Company for Cause, all outstanding Options (whether or not vested) shall immediately terminate and cease to be exercisable. |
For the avoidance of doubt, notwithstanding the foregoing the expiry date of any Replacement Hut Option, including in connection with the termination of employment or service of the relevant Participant, shall be as specified in the Plan of Arrangement.
(j) | Extension of Termination Date. An Award Agreement may also provide that if the exercise of the Option following the Participant’s Termination Date for any reason would be prohibited at any time because the issuance of shares of Common Stock would violate the registration requirements under the Securities Act or any other state, federal, or provincial securities law or the rules of any stock exchange or interdealer quotation system, then the Option shall terminate on the earlier of (a) the expiration of the term of the Option as set forth in the Award Agreement; or (b) the expiration of a period that is 30 days after the end of the period during which the exercise of the Option would be in violation of such registration or other securities law requirements. |
(k) | Other Change in Employment or Service Status. An Option shall be affected, both with regard to vesting schedule and termination, by leaves of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment, partial Disability or other changes in the employment status or service status of a Participant, in the discretion of the Administrator, subject to applicable law. |
8. | Stock Appreciation Rights. |
(a) | General. Stock Appreciation Rights may be granted either alone (“Free Standing Rights”) or in conjunction with all or part of any Option granted under the Plan (“Related Rights”). Related Rights may be granted either at or after the time of the grant of such Option. The Administrator shall determine the Eligible Recipients to whom, and the time or times at which, grants of Stock Appreciation Rights shall be made, the number of Shares to be awarded, the Base Price, and all other conditions of Stock Appreciation Rights. Notwithstanding the foregoing, no Related Right may be granted for more Shares than are subject to the Option to which it relates. Stock Appreciation Rights granted under the Plan shall be subject to the following terms and conditions set forth in this Section 8 and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable, as set forth in the applicable Award Agreement. |
(b) | Base Price. Each Stock Appreciation Right shall be granted with a base price (above which the Participant is eligible for payment in Shares or cash, subject to the terms of the Plan and the Award Agreement for such Stock Appreciation Right (such amount, the “Base Price”)) that is not less than one hundred percent (100%) of the Fair Market Value of the related Shares on the date of grant. |
(c) | Rights as Stockholder. Except as provided in the applicable Award Agreement or pursuant to adjustment under Section 5, a Participant shall have no rights to dividends, dividend equivalents or distributions or any other rights of a stockholder with respect to the Shares, if any, subject to a Stock Appreciation Right until Shares have been issued in respect of the Stock Appreciation Right. |
(d) | Exercisability. |
(i) | Stock Appreciation Rights that are Free Standing Rights shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Administrator in the applicable Award Agreement. |
(ii) | Stock Appreciation Rights that are Related Rights shall be exercisable only at such time or times and to the extent that the Options to which they relate shall be exercisable in accordance with the provisions of Section 7 hereof and this Section 8. |
(e) | Consideration Upon Exercise. |
(i) | Upon the exercise of a Free Standing Right, the Participant shall be entitled to receive up to, but not more than, that number of whole Shares equal in value to (i) the excess of the Fair Market Value of a share of Common Stock as of the date of exercise over the Base Price per share specified in the Free Standing Right, multiplied by (ii) the number of Shares in respect of which the Free Standing Right is being exercised (rounded down to the nearest whole Share). |
(ii) | A Related Right may be exercised by a Participant by surrendering the applicable portion of the related Option. Upon such exercise and surrender, the Participant shall be entitled to receive up to, but not more than, that number of Shares equal in value to (i) the excess of the Fair Market Value of a share of Common Stock as of the date of exercise over the Exercise Price specified in the related Option, multiplied by (ii) the number of Shares in respect of which the Related Right is being exercised. Options which have been so surrendered, in whole or in part, shall no longer be exercisable to the extent the Related Rights have been so exercised. |
(iii) | Notwithstanding the foregoing, except as provided in the applicable Award Agreement the Administrator may determine to settle the exercise of a Stock Appreciation Right in cash (or in any combination of whole Shares and cash). |
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(f) | Termination of Employment or Service. |
(i) | In the event of the termination of employment or service by the Company (for any reason other than for Cause) with the Company and all Affiliates thereof of a Participant who has been granted one or more Free Standing Rights, unless otherwise set forth in the Award Agreement granting such Free Standing Rights, the Free Standing Rights held by the Participant may be exercised in accordance with its terms at any time, subject to compliance with applicable Black-Out Periods, during the period that terminates on the earlier of: |
(A) | 30th day after the termination of the Participant’s Termination Date; and |
(B) | the expiration of the term of the Free Standing Rights as set forth in the Award Agreement; provided that, if the termination of employment or service with the Company and all Affiliates is by the Company for Cause, all outstanding Free Standing Rights (whether or not vested) shall immediately terminate and cease to be exercisable. |
(ii) | In the event of the termination of employment or service with the Company and all Affiliates thereof of a Participant who has been granted one or more Related Rights, such rights shall be exercisable at such time or times and subject to such terms and conditions as set forth in the related Options. |
(g) | Term. |
(i) | The term of each Free Standing Right shall be fixed by the Administrator, but no Free Standing Right shall be exercisable more than ten (10) years after the date such right is granted. |
(ii) | The term of each Related Right shall be the term of the Option to which it relates, but no Related Right shall be exercisable more than ten (10) years after the date such right is granted (or such shorter period as is applicable to the related Option). |
(h) | Other Change in Employment or Service Status. Stock Appreciation Rights shall be affected, both with regard to vesting schedule and termination, by leaves of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment, partial Disability or other changes in the employment status or service status of a Participant, in the discretion of the Administrator. |
9. | Restricted Stock, Restricted Stock Units, and Performance Stock Units. |
(a) | General. Restricted Stock, Restricted Stock Units and Performance Stock Units may be issued under the Plan. The Administrator shall determine the Eligible Recipients to whom, and the time or times at which, Restricted Stock, Restricted Stock Units and Performance Stock Units shall be made; the number of Shares to be awarded; the price, if any, to be paid by the Participant for the acquisition of Restricted Stock, Restricted Stock Units or Performance Stock Units; the period of time prior to which Restricted Stock or Restricted Stock Units become vested and free of restrictions on Transfer and/or the performance goals applicable to Performance Share Units (the “Restricted Period”); the applicable performance criteria for Performance Stock Units (if any); and all other conditions of the Restricted Stock, Restricted Stock Units and Performance Stock Units. If the restrictions, performance criteria and/or conditions established by the Administrator are not attained, a Participant shall forfeit the Participant’s Restricted Stock, Restricted Stock Units or Performance Stock Units, as the case may be, in accordance with the terms of the grant, unless otherwise determined by the Administrator. Notwithstanding the foregoing: |
(i) | the date on which a particular Restricted Stock Unit awarded to a Canadian Participant may vest (including if such date is an indeterminate date on which any performance criteria are satisfied) shall in all cases be required to be no later than December 15th of the calendar year which is three (3) years after the calendar year in which the Restricted Stock Unit is granted, and Shares (either in certificated or uncertificated form) or cash, as applicable, shall promptly be issued or paid to the Participant before the end of such calendar year; and |
(ii) | Restricted Stock may not be issued to Canadian Participants unless specifically determined by the Administrator and consented to by the Participant. |
(b) | Awards and Certificates. |
(i) | Except as otherwise provided in Section 9(b)(iii) hereof, (i) each Participant who is granted an Award of Restricted Stock may, in the Company’s sole discretion, be issued a stock certificate in respect of such Restricted Stock; and (ii) any such certificate so issued shall be registered in the name of the Participant, and shall bear an appropriate legend referring to the terms, conditions, and restrictions applicable to any such Award. The Company may require that the stock certificates, if any, evidencing Restricted Stock granted hereunder be held in the custody of the Company until the restrictions thereon shall have lapsed, and that, as a condition of any award of Restricted Stock, the Participant shall have delivered a stock transfer form, endorsed in blank, relating to the Shares covered by such award. Certificates for shares of unrestricted Common Stock may, in the Company’s sole discretion, be delivered to the Participant only after the Restricted Period has expired without forfeiture in respect of such Restricted Stock. |
(ii) | With respect to an Award of Restricted Stock Units or Performance Stock Units to be settled in Shares, at the expiration of the Restricted Period, stock certificates in respect of the Shares underlying such Restricted Stock Units or Performance Stock Units will be delivered to the Participant, or the Participant’s legal representative, in a number equal to the number of Shares underlying the Award of Restricted Stock Units or Performance Stock Units. |
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(iii) | Notwithstanding anything in the Plan to the contrary, any Restricted Stock or Restricted Stock Units or Performance Stock Units to be settled in Shares (at the expiration of the Restricted Period) may, in the Company’s sole discretion, be issued in uncertificated form. |
(iv) | Further, notwithstanding anything in the Plan to the contrary, with respect to Restricted Stock Units or Performance Stock Units, at the expiration of the Restricted Period, Shares (either in certificated or uncertificated form) or cash, as applicable, shall promptly be issued to the Participant, unless otherwise deferred in accordance with procedures established by the Company in accordance with Section 409A of the Code, and such issuance or payment shall in any event be made no later than March 15th of the calendar year following the year of vesting or within such other period as is required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code. |
(c) | Restrictions and Conditions. The Restricted Stock and Restricted Stock Units or Performance Stock Units granted pursuant to this Section 9 shall be subject to the following restrictions and conditions and any additional restrictions or conditions as determined by the Administrator at the time of grant or, subject to Section 409A of the Code where applicable, thereafter: |
(i) | The Award Agreement may provide for the lapse of restrictions in installments and may accelerate or waive such restrictions in whole or in part based on such factors and such circumstances as set forth in the Award Agreement, including, but not limited to, the attainment of certain performance related goals in the case of Performance Stock Units, the Participant’s termination of employment or service with the Company or any Affiliate thereof, or the Participant’s death or Disability. Upon a Change in Control, the outstanding Awards shall be subject to Section 14 hereof. |
(ii) | Except as provided in the applicable Award Agreement and subject to the rules and policies of the Toronto Stock Exchange, the Participant shall generally have the rights of a stockholder of the Company with respect to shares of Restricted Stock during the Restricted Period, including the right to vote such shares and to receive any dividends declared with respect to such shares. Except as provided in the applicable Award Agreement, the Participant shall not have the rights of a stockholder with respect to shares of Common Stock subject to Restricted Stock Units or Performance Stock Units during the Restricted Period; provided, however, that, subject to Section 409A of the Code, an amount equal to any dividends declared during the Restricted Period with respect to the number of Shares covered by Restricted Stock Units or Performance Stock Units may, to the extent set forth in an Award Agreement, be provided to the Participant. Notwithstanding the foregoing, any dividend or dividend equivalent awarded with respect to Restricted Stock, Restricted Stock Units or Performance Stock Units shall, unless otherwise set forth in an applicable Award Agreement, be subject to the same restrictions, conditions and risks of forfeiture as the underlying Restricted Stock, Restricted Stock Units or Performance Stock Units. |
(d) | Termination of Employment or Service. The rights of Participants granted Restricted Stock, Restricted Stock Units or Performance Stock Units upon termination of employment or service with the Company and all Affiliates thereof for any reason during the Restricted Period, unless otherwise set forth in the Award Agreement granting such Restricted Stock or Restricted Stock Units, shall terminate on the Participant’s Termination Date. |
(e) | Form of Settlement. |
(i) | The Administrator reserves the right in its sole discretion to provide (either at or after the grant thereof) that any Restricted Stock Unit or Performance Stock Unit represents the right to receive the amount of cash per unit that is determined by the Administrator in connection with the Award. |
(ii) | Except as otherwise provided in the related Award Agreement, each Restricted Stock Unit or Performance Stock Units shall automatically, irrespective of Black-Out Periods and without requiring any further action by the Corporation or the holder thereof, be settled (A) in the case of Restricted Stock Units or Performance Stock Units settled in cash, on the date on which all applicable vesting conditions and, if applicable, all performance criteria (if any) are satisfied, and (B) in the case of Restricted Stock Units or Performance Stock Units settled in Shares, on the first Business Day following the date on which all applicable vesting conditions and, if applicable, all performance criteria (if any) are satisfied. |
(iii) | Where the settlement of a Restricted Stock Unit or Performance Stock Unit is made by way of Shares, and tax withholdings and other source deductions are satisfied by withholding and selling a portion of such Shares (the “Withheld Shares”) pursuant to Section 18(c), for Canadian income tax reporting purposes the value of the Shares received by the Participant in settlement of such Restricted Stock Units or Performance Stock Units shall be determined with reference to the average gross proceeds per Share received from the sale of the Withheld Shares pursuant to Section 18(c), and not with reference to the Fair Market Value. |
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10. | Deferred Stock Units |
(a) | General. Deferred Stock Units may be issued under the Plan. The Administrator shall, subject to the requirements of paragraph 6801(d) of the regulations to the Tax Act, determine the Eligible Recipients to whom, and the time or times at which, Deferred Stock Units shall be made; the number of Shares to be awarded; the relevant conditions and vesting provisions for such Deferred Stock Units; and all other conditions of the Deferred Stock Units that are not inconsistent with the terms of the Plan. A Deferred Stock Unit is an Award attributable to a Participant’s duties of an office, directorship or employment and that, upon settlement, entitles the recipient Participant to receive one (1) Share, the Cash Equivalent of one (1) Share, or a combination thereof, as determined by the Company in its sole discretion, which entitlement shall be expressly set out in the applicable Award Agreement. |
For greater certainty, the aggregate of all amounts, each of which may be received by or in respect of a Participant in respect of a Deferred Stock Unit, shall depend, at all times, on the Fair Market Value of Shares at a time within the period that commences one year before such Participant’s Termination Date and ends at the time the amount is received.
For greater certainty, no Participant or any Person with whom such Participant does not deal at arm’s length, as determined for the purposes of the Tax Act, shall be entitled, either immediately or in the future, either absolutely or contingently, to receive or obtain any amount or benefit granted or to be granted for the purpose of reducing the impact, in whole or in part, of any reduction in the Fair Market Value of Shares. No Deferred Stock Units shall be granted hereunder for such purpose.
(b) | Board Retainer Deferred Stock Units. |
(i) | An Eligible Recipient who is a director of the Company may elect (subject to the approval of the Administrator no later than December 31st of the calendar year immediately preceding the calendar year to which such election is to apply), irrevocably and in advance, by filing an election notice (the “Election Notice”), to have an amount (the “Elected Amount”) up to 100% of the value of his or her Annual Board Retainer be satisfied in the form of Deferred Stock Units (“Board Retainer Deferred Stock Units”). In the case of an existing director, the election must be completed, signed and delivered to the Company no later than December 15th of the calendar year immediately preceding the calendar year to which such election is to apply. In the case of a new director, the election must be completed, signed and delivered to the Company as soon as possible, and, in any event, no later than 30 days, after the director’s appointment (subject to the approval of the Administrator within such 30-day period), with such election to be effective for amounts of Annual Board Retainer to be paid after the date of the election for services to be performed subsequent to the date of such Election Notice. For the first year of this Section 10(b) becoming part of the Plan, directors must make such election as soon as possible, and, in any event, no later than 30 days, after adoption of the Plan containing this Section 10(b) and the election shall be effective for amounts of Annual Board Retainer to be paid after the date of the election for services to be performed subsequent to the date of such Election Notice. If no election is validly made or exists in respect of a particular calendar year, the new or existing director will be paid in cash in accordance with the Company’s regular practices of paying such cash compensation. |
(ii) | Notwithstanding Section 10(b)(i), if the Board authorizes a resolution that the Eligible Recipients shall be credited with Board Retainer Deferred Stock Units in lieu of all or a minimum amount of the Annual Board Retainer, then the Eligible Recipients shall be obliged to accept such Board Retainer Deferred Stock Units as payment of such amounts otherwise payable to an Eligible Recipient. |
(iii) | The Election Notice shall, subject to any minimum amount that may be required by the Board, from time to time (and in any case no later than December 15th of the calendar year immediately preceding the calendar year to which the election relates), designate the Elected Amount as a percentage of the Annual Board Retainer for the applicable calendar year that is to be satisfied in the form of Board Retainer Deferred Stock Units, with the remaining percentage to be paid in cash in accordance with the Company’s regular practices of paying such cash compensation. |
(iv) | In the event that an Elected Amount would result in the granting of a fractional number of Board Retainer Deferred Stock Units, the number of Board Retainer Deferred Stock Units that are to be granted in respect of such Elected Amount shall automatically, and without requiring any action on the part of the applicable Eligible Recipient, be rounded up to the nearest whole number of Board Retainer Deferred Stock Units. |
(v) | Any Election Notice shall, once delivered to the Company, be irrevocable in respect of the calendar year in which it was made. |
(vi) | Each director that has filed a valid Election Notice or who is entitled to receive Deferred Stock Units in accordance with Section 10(b)(ii) shall be credited with a number of Board Retainer Deferred Stock Units equal to the portion of the Annual Board Retainer corresponding to the Elected Amount divided by the Fair Market Value as of the corresponding Deferred Stock Unit Grant Date. Board Retainer Deferred Stock Units for any calendar year will be credited to each electing director in equal portions on the last Business Day of each fiscal quarter during the calendar year to which the applicable director’s Elected Amount relates (each such date being a “Deferred Stock Unit Grant Date”) without requiring any further action on the part of the applicable director; provided that if the division of such Board Retainer Deferred Stock Units into equal amounts of Board Retainer Deferred Stock Units would result in a fractional number of Board Retainer Deferred Stock Units being credited to a director on any Deferred Stock Unit Grant Date, the number of Board Retainer Deferred Stock Units that are to be credited to the applicable director on such Deferred Stock Unit Grant Date shall automatically, and without requiring any action on the part of the applicable Eligible Recipient, be rounded up to the nearest whole number of Board Retainer Deferred Stock Units and the number of Board Retainer Deferred Stock Units that are to be credited to the applicable director on the immediately succeeding Deferred Stock Unit Grant Date shall automatically, and without requiring any action on the part of the applicable Eligible Recipient, be reduced on a corresponding basis. |
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(vii) | In the absence of an Eligible Recipient delivering to the Company a new Election Notice, within the time specified in Section 10(b)(i), in respect of the following calendar year, the Eligible Recipient’s Election Notice shall remain in effect for subsequent calendar years until terminated or changed by the Eligible Recipient. No Eligible Recipient shall be entitled to file more than one Election Notice for any calendar year unless specifically authorized by resolution of the Board. |
(viii) | Any Board Retainer Deferred Stock Units granted to an Eligible Recipient to satisfy an Elected Amount pursuant to this Section 10(b) or in accordance with a resolution of the Board as set forth in Section 10(b)(ii) shall vest in full upon being credited to the applicable Eligible Recipient but will not become payable until the applicable date specified in the Deferred Stock Unit Redemption Notice delivered, or deemed to have been delivered, by the holder thereof to the Company in accordance with the Plan. |
(c) | Redemption of Deferred Stock Units. |
(i) | Each Participant that holds Deferred Stock Units shall be entitled to redeem his or her Deferred Stock Units on up to two specified dates during the period commencing on the Business Day immediately following his or her Termination Date and ending on December 15th of the first calendar year following such Termination Date, or any shorter redemption period set out in the relevant Award Agreement, by (subject to the appointment of a third party administrator and the implementation of the required procedures of such third party administrator) delivering to the Company a written notice of election (the “Deferred Stock Unit Redemption Notice”), in advance of the applicable Participant’s Termination Date and on a date that is not during a Black-Out Period, indicating (a) the Participant’s election to have their Deferred Stock Units redeemed on one or more particular dates, (b) the desired date(s) of settlement, and (c) the number of Deferred Stock Units desired to be settled on such date(s); provided that such desired date(s) of settlement shall not be permitted to be during a Black-Out Period unless the desired date that is during a Black-Out Period is no less than 30 days following the date of the Deferred Stock Unit Redemption Notice delivered by the Participant in question. |
(ii) | Each Deferred Stock Unit shall be settled in the manner set out in the applicable Award Agreement, which manner of settlement shall be: (i) by way of payment of the cash equivalent of the Fair Market Value of one Share as of the date of settlement; (ii) by way of the issuance of one Share issued from treasury; or (iii) by way of payment and issuance, as applicable, of a combination of cash and Shares. |
(iii) | Subject to Section 10(c)(iv), settlement of Deferred Stock Units shall take place as soon as commercially and reasonably possible following the date(s) specified or deemed to be specified in the Deferred Stock Unit Redemption Notice, and in all events prior to December 20th of the calendar year following the calendar year that includes the Participant’s Termination Date. |
(iv) | If in the opinion of the Board, a Participant is in possession of material undisclosed information regarding either or both of the Company and the Shares on the date specified or deemed to be specified in the Deferred Stock Unit Redemption Notice, the settlement of such Participant’s Deferred Stock Units shall be postponed until the earliest of the date on which (i) the Board is satisfied the Participant is no longer in possession of any such material undisclosed information, or (ii) December 20th of the year following the year of the Participant’s Termination Date. Notwithstanding the foregoing, in the event that a Participant receives Shares in satisfaction of an Award during a Black-Out Period, the Company shall advise such Participant of the same in writing and such Participant shall not be entitled to sell or otherwise dispose of such Shares until such Black-Out Period has expired. |
(v) | Notwithstanding any other provision of the Plan: |
(A) | no payment shall be made in respect of a Deferred Stock Unit until after the Participant’s Termination Date; and |
(B) | all amounts payable to, or in respect of, a Participant hereunder shall be paid on or before December 31st of the calendar year commencing immediately after the Participant’s Termination Date. |
(C) | the following provisions apply to U.S. Participants: (i) if a U.S. Participant is to be given an ability to elect the time of settlement of his Deferred Stock Units, such election may only allow the U.S. Participant to choose a time of settlement that complies with Section 409A of the Code, (ii) for purposes of any payments to be made on a U.S. Participant’s Termination Date, such Termination Date must be the date of the U.S. Participant’s “separation from service” within the meaning of Section 409A of the Code (“Separation from Service”) and such payments must be made within 60 days of such U.S. Participant’s Termination Date, such date during such period determined by the Company in its sole discretion, and (iii) the provisions of Section 10(c)(i) and 10(c)(iv) shall not apply. |
(D) | if the Deferred Stock Units of a U.S. Participant are subject to tax under both the income tax laws of Canada and the income tax laws of the United States, the following special rules regarding forfeiture will apply. For greater clarity, these forfeiture provisions are intended to avoid adverse tax consequences under Code Section 409A and/or under paragraph 6801(d) of the regulations under the Tax Act, that may result because of the different requirements as the time of redemption of Deferred Stock Units (and thus the time of taxation) with respect to a U.S. Participant’s Separation from Service and the U.S. Participant’s Termination Date under Canadian tax law. The intended consequence of this Section 10(c)(v)(D) is that payments to such U.S. Participant in respect of Deferred Stock Units will only occur if such U.S. Participant’s cessation of services to the Company or an Affiliate constitutes both a Separation from Service and a Termination Date. If such a U.S. Participant does not experience both a Separation from Service and a Termination Date such Deferred Stock Units shall be immediately and irrevocably forfeited. |
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(d) | Deemed Deferred Stock Unit Redemption Notice and Settlement of Deferred Stock Unit Awards. |
(i) | If a Deferred Stock Unit Redemption Notice is not received by the Company on or before a Participant’s Termination Date or the Deferred Stock Unit Redemption Notice does not specify a date or dates within the time period noted in Section 10(c)(i), the Participant shall be deemed to have delivered a Deferred Stock Unit Redemption Notice specifying the Business Day immediately following his or her Termination Date as the desired date of settlement for all Deferred Stock Units held thereby. For Deferred Stock Units subject to Section 409A of the Code, in the event a Participant has not timely delivered a valid Election Notice, the Participant shall be deemed to have delivered a Deferred Stock Unit Redemption Notice specifying the Business Day immediately following the date of his or her Separation From Service as of the desired date of settlement for all Deferred Stock Units held thereby. |
(ii) | Each Deferred Stock Unit shall automatically, and without requiring any further action on the part of the holder thereof, be settled on the applicable date specified in the Deferred Stock Unit Redemption Notice delivered, or deemed to have been delivered, by the holder thereof to the Company. |
(iii) | Where the settlement of a Deferred Stock Unit is made by way of cash, the calculation of the amount to which the holder thereof is entitled shall be made as of the date specified or deemed to be specified in the Deferred Stock Unit Redemption Notice. All amounts payable, whether in cash or Shares, shall be net of any applicable withholding taxes or other source deductions. |
(e) | Deferred Stock Unit Award Agreements. Award Agreements in respect of Deferred Stock Units shall contain such terms that may be considered necessary in order that the Deferred Stock Unit will comply with any provisions respecting deferred share units in the Tax Act (including such terms and conditions so as to ensure that the Deferred Stock Units granted to Canadian Participants do not constitute a “salary deferral arrangement” as defined in subsection 248(1) of the Tax Act by reason of the exemption in paragraph 6801(d) of the regulations to the Tax Act) or other laws in force in any country or jurisdiction of which the Participant may from time to time be a resident or citizen or the rules of any regulatory body having jurisdiction over the Company. |
(f) | Award of Dividend Equivalents. Dividend equivalents may, as determined by the Board in its sole discretion, be awarded in respect of Deferred Stock Units on the same basis as cash dividends declared and paid on Shares as if the Participant was a shareholder of record of Shares on the relevant record date. Dividend equivalents, if any, will be credited to the Participant in additional Deferred Stock Units, the number of which shall be equal to a fraction where the numerator is the product of (i) the number of Deferred Stock Units of such Participant on the date that dividends are paid multiplied by (ii) the dividend paid per Share and the denominator of which is the Fair Market Value of one Share calculated on the date that dividends are paid. Any additional Deferred Stock Units credited to a Participant as a dividend equivalent pursuant to this Section 10(f) shall be subject to the same terms and conditions, including vesting conditions, and time of payment, as the underlying Deferred Stock Unit Award. |
11. | Other Stock-Based Awards. |
Subject to the rules and policies of the Toronto Stock Exchange, other forms of Awards valued in whole or in part by reference to, or otherwise based on, Common Stock, including but not limited to dividend equivalents, may be granted either alone or in addition to other Awards (other than in connection with Options or Stock Appreciation Rights) under the Plan. Any dividend or dividend equivalent awarded hereunder shall be subject to the same restrictions, conditions and risks of forfeiture as the underlying Award. Subject to the provisions of the Plan, the Administrator shall have sole and complete authority to determine the individuals to whom and the time or times at which such Other Stock-Based Awards shall be granted, the number of Shares to be granted pursuant to such Other Stock-Based Awards, or the manner in which such Other Stock-Based Awards shall be settled (e.g., in Shares, cash or other property), or the conditions to the vesting and/or payment or settlement of such Other Stock-Based Awards (which may include, but not be limited to, achievement of performance criteria) and all other terms and conditions of such Other Stock-Based Awards.
12. | Stock Bonuses. |
In the event that the Administrator grants a Stock Bonus, the Shares constituting such Stock Bonus shall, as determined by the Administrator, be evidenced in uncertificated form or by a book entry record or a certificate issued in the name of the Participant to whom such grant was made and delivered to such Participant as soon as practicable after the date on which such Stock Bonus is payable.
13. | Cash Awards. |
The Administrator may grant Awards that are payable solely in cash, as deemed by the Administrator to be consistent with the purposes of the Plan, and such Cash Awards shall be subject to the terms, conditions, restrictions and limitations determined by the Administrator, in its sole discretion, from time to time. Cash Awards may be granted with value and payment contingent upon the achievement of performance criteria.
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14. | Change in Control Provisions. |
Except as provided in the applicable Award Agreement, in the event that (a) a Change in Control occurs and (b) either (x) an outstanding Award is not assumed or substituted in connection therewith or (y) an outstanding Award is assumed or substituted in connection therewith and the Participant’s employment or service is terminated by the Company, its successor or an Affiliate thereof without Cause on or after the effective date of the Change in Control but prior to twelve (12) months following the Change in Control, then:
(a) | any unvested or unexercisable portion of any Award carrying a right to exercise shall become fully vested and exercisable with respect to any purely time-based conditions; |
(b) | the restrictions, deferral limitations, payment conditions and forfeiture conditions applicable to an Award granted under the Plan shall lapse with respect to any purely time-based conditions and such Awards shall be deemed fully vested with respect to any purely time-based conditions; and |
(c) | any performance conditions imposed with respect to any Award shall be deemed to be achieved at the greater of target and actual performance levels (as determined by the Administrator in its discretion) and any Awards (or portion thereof) that remain unvested or unexercisable shall be forfeited. |
For purposes of this Section 14, an outstanding Award shall be considered to be assumed or substituted for if, following the Change in Control, the Award remains subject to substantially the same terms and conditions that were applicable to the Award immediately prior to the Change in Control except that, if the Award related to Shares, the Award instead confers the right to receive common equity of the acquiring entity or its direct or indirect parent (or cash or such other security as may be determined by the Administrator, in its discretion). The provisions of this Section 14 shall also apply in the event of the termination of a Participant’s employment for Good Reason on or after the effective date of the Change in Control but prior to twelve (12) months following the Change in Control, but only to the extent specifically provided in the applicable Award Agreement.
15. | Voting Proxy. |
The Company reserves the right to require the Participant, to the fullest extent permitted by applicable law, to appoint such Person as shall be determined by the Administrator in its sole discretion as the Participant’s proxy with respect to all applicable unvested Awards of Restricted Stock which the Participant may be the record holder of from time to time to (A) attend all meetings of the holders of the shares of Common Stock, with full power to vote and act for the Participant with respect to such Awards in the same manner and extent that the Participant might were the Participant personally present at such meetings, and (B) execute and deliver, on behalf of the Participant, any written consent in lieu of a meeting of the holders of the shares of Common Stock in the same manner and extent that the Participant might but for the proxy granted pursuant to this sentence.
16. | Amendment and Termination. |
(a) | The Administrator may amend, alter or terminate the Plan, but no amendment, alteration, or termination shall be made that would impair the rights of a Participant under any outstanding Award without such Participant’s consent. Unless the Board determines otherwise, the Board shall obtain approval of the Company’s stockholders for any amendment to the Plan that would require such approval in order to satisfy the requirements of any rules of the stock exchange on which the Common Stock is traded or other applicable law. The Administrator may amend the terms of any outstanding Award, prospectively or retroactively, but, subject to Section 5 hereof, no such amendment shall impair the rights of any Participant without the Participant’s consent; provided that the Administrator may amend the terms of any such Award to take effect retroactively or otherwise, as deemed necessary or advisable for the purpose of conforming the Award to any applicable law, government regulation or stock exchange listing requirement relating to such Award (including, but not limited to, Section 409A of the Code), and by accepting an Award under this Plan, the Participant thereby agrees to any amendment made pursuant to this Section 16 to such Award (as determined by the Administrator) without further consideration or action. |
(b) | Notwithstanding Section 16(a), other than for adjustments made pursuant to Section 5 hereof, the Administrator shall be required to obtain stockholder approval to make the following amendments: |
(i) | Any amendment to increase the maximum number of shares of Common Stock reserved for issuance under the Plan; |
(ii) | Any amendment to the terms of outstanding Options, Stock Appreciation Rights, or other entitlements to reduce the Exercise Price or Base Price, as applicable, of such Options, Stock Appreciation Rights, or other entitlements; |
(iii) | Any cancellation of outstanding Options, Stock Appreciation Rights, or other entitlements in exchange for Options, Stock Appreciation Rights, or other entitlements with an Exercise Price or Base Price, as applicable, that is less than the Exercise Price or Base Price of the original Options, Stock Appreciation Rights, or other entitlements; |
(iv) | Any cancellation of outstanding Options, Stock Appreciation Rights, or other entitlements with an Exercise Price that is less than one hundred percent (100%) of the Fair Market Value of the related Shares in exchange for cash or Cash Awards; |
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(v) | Any amendment that extends the term of outstanding Options or Stock Appreciation Rights or any other Awards beyond the original expiry; |
(vi) | Any amendments to eligible Participants that may permit the introduction or reintroduction of non-employee directors on a discretionary basis or amendments that increase limits previously imposed on non-employee director participation; |
(vii) | Any amendment which would permit Options and Awards granted under the Plan to be transferable or assignable other than for normal estate settlement purposes; and |
(viii) | Amendments to the plan amendment provisions. |
17. | Unfunded Status of Plan. |
The Plan is intended to constitute an “unfunded” plan for incentive compensation. With respect to any payments not yet made to a Participant by the Company, nothing contained herein shall give any such Participant any rights that are greater than those of a general creditor of the Company.
18. | Withholding Taxes. |
(a) | Notwithstanding any other provision of the Plan, all distributions, issuances or delivery of Shares or payments to a Participant (or to the liquidator, executor or administrator, as the case may be, of the estate of the Participant) under the Plan shall be made net of applicable tax withholdings and other source deductions. Each Participant shall, no later than the date as of which the value of an Award first becomes includible in the gross income of such Participant for purposes of applicable taxes, pay to the Company, or make arrangements satisfactory to the Company regarding payment of, an amount in respect of such taxes up to the maximum statutory rates in the Participant’s applicable jurisdiction with respect to the Award, as determined by the Company. The obligations of the Company under the Plan shall be conditional on the making of such payments or arrangements, and the Company shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to such Participant. Without limiting the foregoing: |
(i) | Whenever cash is to be paid pursuant to an Award, the Company shall have the right to deduct therefrom an amount sufficient to satisfy any applicable withholding tax requirements related thereto as determined by the Company. |
(ii) | Unless otherwise determined by the Administrator, subject to compliance with relevant Black-Out Periods and applicable law, if the event giving rise to the withholding obligation involves an issuance or delivery of Shares, then the withholding obligation shall be satisfied by the sale by the Company, the Company’s transfer agent and registrar or any administrative agent or trustee appointed by the Company, on behalf of and as agent for the Participant as soon as permissible and practicable, of such number of Shares as would be required for the proceeds of such sale to amount to no less than the sum of the values of the applicable tax required to be withheld and the other source deductions required to be made by the Company, which proceeds shall be delivered to the Company for remittance of the applicable amounts to the appropriate governmental authorities. |
(iii) | The Company may also use any other method of obtaining the necessary payment or proceeds, as permitted by law, to satisfy its withholding obligation with respect to any Award as determined by the Company. Without limiting the foregoing, in the Company may implement special administrative procedures to withhold additional shares of Common Stock in respect of a Participant’s withholding obligations in instances where the Administrator determines that a “sell-to-cover” arrangement has not yielded sufficient proceeds to satisfy the applicable withholding obligation. Such procedures shall be implemented in a manner intended to constitute exempt dispositions for purposes of any Participant who is subject to reporting under Section 16 of the Exchange Act. Any delivery obligations of the Company hereunder may be made subject to such administrative procedures, in the discretion of Administrator and notwithstanding anything herein to the contrary (but subject to Section 29 hereof). |
19. | Transfer of Awards. |
Until such time as the Awards are fully vested and/or exercisable in accordance with the Plan or an Award Agreement, no purported sale, assignment, mortgage, hypothecation, transfer, charge, pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or creation of a security interest in or lien on, any Award or any agreement or commitment to do any of the foregoing, directly or indirectly, by operation of law or otherwise (each, a “Transfer”) will be valid. Any purported Transfer of an Award or any economic benefit or interest therein in violation of the Plan or an Award Agreement shall be null and void ab initio, and shall not create any obligation or liability of the Company, and any Person purportedly acquiring any Award or any economic benefit or interest therein transferred in violation of the Plan or an Award Agreement shall not be entitled to be recognized as a holder of any Shares or other property underlying such Award. An Option or Stock Appreciation Right may be exercised, during the lifetime of the Participant, only by the Participant or, during any period during which the Participant is under a legal disability, by the Participant’s guardian or legal representative.
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20. | Continued Employment or Service. |
Neither the adoption of the Plan nor the grant of an Award hereunder shall confer upon any Eligible Recipient any right to continued employment or service with the Company or any Affiliate thereof, as the case may be, nor shall it interfere in any way with the right of the Company or any Affiliate thereof to terminate the employment or service of any of its Eligible Recipients at any time. References in this Plan to “employment”, “employees” or similar/related terms or concepts shall be construed to include “partnerships,” “partners” or similar/related terms or concepts where an individual’s relationship with the Company or its Affiliates is based on their status being that of a partner of a partnership rather than as an employee. Any wording amendments necessary to give effect to such intent shall be implied into this Plan but shall not serve to imply an employment relationship between (i) the Company or its Affiliates; and (ii) an individual, where such an employment relationship did not exist previously.
21. | Effective Date. |
The Plan was adopted by the Board on [ • ] [ • ], 2023, and shall become effective without further action as of the date that it is approved by the Company’s stockholders (the “Effective Date”).
22. | Term of Plan. |
No Award shall be granted pursuant to the Plan on or after the tenth anniversary of the Effective Date, but Awards theretofore granted may extend beyond that date.
23. | Securities Matters and Regulations. |
(a) | Notwithstanding anything herein to the contrary, the obligation of the Company to sell or deliver Common Stock with respect to any Award granted under the Plan shall be subject to all applicable laws, rules and regulations, including all applicable federal and state securities laws, and the obtaining of all such approvals by governmental agencies as may be deemed necessary or appropriate by the Administrator. The Administrator may require, as a condition of the issuance and delivery of certificates evidencing shares of Common Stock pursuant to the terms hereof, that the recipient of such shares make such agreements and representations, and that such certificates bear such legends, as the Administrator, in its sole discretion, deems necessary or advisable. |
(b) | Each Award is subject to the requirement that, if at any time the Administrator determines that the listing, registration or qualification of Common Stock issuable pursuant to the Plan is required by any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with, the grant of an Award or the issuance of Common Stock, no such Award shall be granted or payment made or Common Stock issued, in whole or in part, unless such listing, registration, qualification, consent or approval has been effected or obtained free of any conditions not acceptable to the Administrator. |
(c) | In the event that the disposition of Common Stock acquired pursuant to the Plan is not covered by a then current registration statement under the Securities Act and is not otherwise exempt from such registration, such Common Stock shall be restricted against Transfer to the extent required by the Securities Act or regulations thereunder, and the Administrator may require a Participant receiving Common Stock pursuant to the Plan, as a condition precedent to receipt of such Common Stock, to represent to the Company in writing that the Common Stock acquired by such Participant is acquired for investment only and not with a view to distribution. |
24. | No Fractional Shares. |
No fractional Shares shall be issued or delivered pursuant to the Plan. The Administrator shall determine whether cash, other Awards, or other property shall be issued or paid in lieu of such fractional Shares or whether such fractional Shares or any rights thereto shall be forfeited or otherwise eliminated.
25. | Beneficiary. |
A Participant may file with the Administrator a written designation of a beneficiary on such form as may be prescribed by the Administrator and may, from time to time, amend or revoke such designation. If no designated beneficiary survives the Participant, the executor or administrator of the Participant’s estate shall be deemed to be the Participant’s beneficiary.
26. | Paperless Administration. |
In the event that the Company establishes, for itself or using the services of a third party, an automated system for the documentation, granting or exercise of Awards, such as a system using an internet website or interactive voice response, then the paperless documentation, granting or exercise of Awards by a Participant may be permitted through the use of such an automated system.
27. | Severability. |
If any provision of the Plan is held to be invalid or unenforceable, the other provisions of the Plan shall not be affected but shall be applied as if the invalid or unenforceable provision had not been included in the Plan.
28. | Clawback. |
Notwithstanding any other provisions in this Plan, any Award which is subject to recovery under any law, government regulation or stock exchange listing requirement, will be subject to such deductions and clawback as may be required to be made pursuant to such law, government regulation or stock exchange listing requirement (or any policy adopted by the Company pursuant to any such law, government regulation or stock exchange listing requirement). A Participant receiving an Award under the Plan shall be deemed to have acknowledged and agreed to the application of any such policy or policies.
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29. | Section 409A of the Code. |
The Plan as well as payments and benefits under the Plan are intended to be exempt from, or to the extent subject thereto, to comply with Section 409A of the Code, and, accordingly, to the maximum extent permitted, the Plan shall be interpreted and operated in accordance therewith. Any deferral elections made hereunder by U.S. Participants shall be required to be made in a manner which complies with the requirements of Section 409A, notwithstanding anything herein to the contrary. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the Participant shall not be considered to have terminated employment or service with the Company for purposes of the Plan and no payment shall be due to the Participant under the Plan or any Award until the Participant would be considered to have incurred a “separation from service” from the Company and its Affiliates within the meaning of Section 409A of the Code. Any payments described in the Plan that are due within the “short term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless applicable law requires otherwise. Notwithstanding anything to the contrary in the Plan, to the extent that any Awards (or any other amounts payable under any plan, program or arrangement of the Company or any of its Affiliates) are payable upon a separation from service and such payment would result in the imposition of any individual tax and penalty interest charges imposed under Section 409A of the Code, the settlement and payment of such awards (or other amounts) shall instead be made on the first business day after the date that is six (6) months following such separation from service (or upon the Participant’s death, if earlier). Each amount to be paid or benefit to be provided under this Plan shall be construed as a separate identified payment for purposes of Section 409A of the Code. The Administrator shall have the sole authority to make any accelerated distributions permissible under Treas. Reg. Section 1.409A-3(j)(4) to Participants with respect to any deferred amounts, provided that such distributions meets the requirements of Treas. Reg. Section 1.409A-3(j)(4). The Company makes no representation that any or all of the payments or benefits described in this Plan will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. The Participant shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A of the Code.
30. | Governing Law. |
The Plan, and all claims, causes of action, actions, suits, and proceedings (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Plan, or the negotiation, execution or performance of this Plan (including any claim, cause of action, action, suit, or proceeding based upon, arising out of, or related to any transaction contemplated by this Plan, any representation or warranty made in or in connection with this Plan, or as an inducement to enter into this Plan or accept an Award), shall be governed by, enforced in accordance with, and construed in accordance with the laws of the State of Delaware, including its statutes of limitations, without giving effect to the principles of conflicts of law of such state that would result in the application of the statute of limitations of any other jurisdiction.
31. | Titles and Headings. |
The titles and headings of the sections in the Plan are for convenience of reference only and, in the event of any conflict, the text of the Plan, rather than such titles or headings, shall control.
32. | Successors. |
The obligations of the Company under the Plan shall be binding upon any successor corporation or organization resulting from the merger, consolidation, conversion, domestication, transfer, continuance or other reorganization of the Company.
33. | Relationship to Other Benefits. |
No payment pursuant to the Plan shall be taken into account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare, or other benefit plan of the Company or any Affiliate except to the extent otherwise expressly provided in writing in such other plan or an agreement thereunder.
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Exhibit 10.20
EXECUTION VERSION
Up to USD 50,000,000
CREDIT AGREEMENT
Dated as of June 26, 2023
Between
HUT 8 HOLDINGS INC.
as Borrower
and
COINBASE CREDIT, INC.
as Lender, Collateral Agent and Administrative Agent
Table of Contents
Page
Article I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. | Certain Defined Terms. | 1 |
Section 1.02. | Computation of Time Periods | 17 |
Section 1.03. | Terms Generally | 17 |
Section 1.04. | Defaults and Blocking Events | 18 |
Article II
AMOUNTS AND TERMS OF THE ADVANCE
Section 2.01. | The Loan. | 18 |
Section 2.02. | Making the Loan | 18 |
Section 2.03. | Repayment and Prepayment | 19 |
Section 2.04. | Interest | 20 |
Section 2.05. | Default Interest | 22 |
Section 2.06. | Collateral Adjustments | 22 |
Section 2.07. | Illegality | 23 |
Section 2.08. | Payments and Computations | 24 |
Section 2.09. | Taxes | 24 |
Section 2.10. | Evidence of Debt | 25 |
Section 2.11. | Proceeds of the Loan | 26 |
Section 2.12. | Increased Costs and Increased Capital | 26 |
Article III
CONDITIONS TO EFFECTIVENESS AND LENDING
Section 3.01. | Conditions Precedent to Effectiveness of Section 2.01 | 27 |
Section 3.02. | Conditions Precedent to each Borrowing | 29 |
Article IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. | Representations and Warranties of the Borrower | 30 |
Article V
COVENANTS OF THE BORROWER
Section 5.01. | Affirmative Covenants | 35 |
Section 5.02. | Negative Covenants | 38 |
Article VI
EVENTS OF DEFAULT
Section 6.01. | Events of Default | 40 |
Article VII
MISCELLANEOUS
Section 7.01. | Amendments, Etc. | 42 |
Section 7.02. | Notices, Etc. | 42 |
Section 7.03. | No Waiver; Remedies | 43 |
Section 7.04. | Costs and Expenses | 44 |
Section 7.05. | Binding Effect | 45 |
Section 7.06. | Assignments and Participations | 45 |
Section 7.07. | Governing Law | 47 |
Section 7.08. | Execution in Counterparts | 47 |
Section 7.09. | Jurisdiction; Waiver of Immunities | 47 |
Section 7.10. | Confidentiality | 48 |
Section 7.11. | Regulatory Notice | 49 |
Section 7.12. | Waiver of Jury Trial | 49 |
Section 7.13. | Severability | 49 |
Exhibits
Exhibit A - Form of Promissory Note |
Exhibit B - Form of Notice of Borrowing |
Exhibit C - Form of Assignment and Acceptance |
Exhibit D - Form of Pledge and Collateral Account Control Agreement |
Exhibit E - Form of Compliance Certificate |
Schedule 1 - Authorized Borrower Contacts for Notices |
Exhibit F - Form of LTV Breach Notice |
Exhibit G - Form of Margin Funding Notice |
Exhibit H - Form of Guaranty |
CREDIT AGREEMENT
Dated as of June 26, 2023.
Hut 8 Holdings Inc., a corporation organized and existing under the laws of the Province of British Columbia, Canada (including Hut 8 Mining Corp., its successor by amalgamation pursuant to the terms of the Hut Amalgamation, the "Borrower") and Coinbase Credit, Inc. ("Coinbase Credit") a corporation organized and existing under the laws of the State of Delaware, as Lender, Collateral Agent and Administrative Agent, agree as follows:
Article I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
"Actual LTV Ratio" means, at any time, the ratio (expressed as a percentage) of (a) the aggregate principal amount of the Loan outstanding at such time, to (b) the Prevailing Market Value of the Collateral at such time.
"Additional Collateral" has the meaning given to it in Section 2.06(a)(i).
"Administrative Agent" means Coinbase Credit.
"Adverse Proceeding" means, with respect to any Person, any action, suit, proceeding, notice, demand, hearing (in each case, whether administrative, judicial or otherwise), investigation, inquiry or arbitration (whether or not purportedly on behalf of such Person or any of its Affiliates) at law or in equity, or before, by, or relating to any Governmental Authority, domestic or foreign, whether pending or, to the knowledge of such Person or any of its Affiliates, threatened against or affecting such Person or any of its Affiliates or any property of such Person or any of its Affiliates.
"Affiliate" means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person. For purposes of this definition, the term "control" (including the terms "controlling", "controlled by" and "under common control with") of a Person means the possession, direct or indirect, of the power to vote 30% or more of the Voting Stock of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock, by contract or otherwise.
"Agent" means each of the Administrative Agent and the Collateral Agent.
"Anti-Corruption Laws" means all laws, rules, regulations and requirements of any jurisdiction (including the U.S.), in each case, as amended from time to time, concerning or relating to bribery, money laundering or corruption, including, without limitation, the FCPA, Corruption of Foreign Public Officials Act (Canada) and all other applicable anti-bribery and corruption laws.
"Anti-Money Laundering Laws" means any Laws concerning or relating to money laundering, terrorist financing, or financial recordkeeping and reporting, including the Money Laundering Control Act of 1986 and the PATRIOT Act and applicable Canadian AML Legislation.
Europe/2023608797.19
"Applicable Accounting Rules" means, (a) prior to the Hut Amalgamation, International Financial Reporting Standards and (b) thereafter, United States Generally Accepted Accounting Principles.
"Applicable Law" means, with respect to any Person, collectively, all international, foreign, federal, state, provincial, territorial and local laws, statutes, treaties, rules, guidelines, regulations, orders, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case applicable to such Person.
"Applicable Margin" means 5.0% per annum.
"Assignment and Acceptance" means an assignment and acceptance entered into by the Lender and an assignee of the Lender in substantially the form of Exhibit C hereto.
"Availability Period" means:
(a) in relation to Loan A, the period from (and including) the Effective Date to and including the date falling 15 Business Days after the Effective Date;
(b) in relation to Loan B, the period from (and including) the date falling 30 calendar days after the Effective Date to and including the date falling 15 Business Days thereafter; and
(c) in relation to Loan C, the period from (but excluding) the Business Combination Date to and including the date falling 15 Business Days after the Business Combination Date.
"Blocking Event" means:
(a) a Default has occurred and is continuing;
(b) the Loan has become due and payable pursuant to Section 2.03, or any event or circumstance which would (with the expiry of a grace period, the giving of notice, the making of any determination under a Loan Document or any combination of the foregoing) require repayment or prepayment of the Loan under Section 2.03, has occurred;
(c) the Lender has notified the Borrower that an event referred to in Section 2.07 has occurred;
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(d) the Actual LTV Ratio is equal to or in excess of the Top Up LTV; or
(e) a Margin Funding Notice has been delivered pursuant to Section 2.06 but the required Additional Collateral has not been delivered.
"Borrower Change of Control" means that the Administrative Agent determines, acting reasonably, that the Guarantor ceases to control the Borrower. For the purposes of this definition, "control" of the Borrower means that each of the below are satisfied:
(a) the Guarantor (whether directly or indirectly through any person beneficially) has the power to direct the management and policies of the Borrower;
(b) the Guarantor holds, whether directly or indirectly through any person beneficially, 100% of the voting share capital and issued share capital of the Borrower; and
(c) the Guarantor has the power to appoint or remove all of the managers, the directors or other equivalent officers of the Borrower.
"Borrowing" means the borrowing consisting of a Loan made by the Lender.
"BTC Financing" means any margin loan, derivative, synthetic derivative, exchangeable or convertible debt, stock loan, repo or other similar digital asset-related financing, hedging, preference share, monetisation transaction or borrowing transaction (or any equivalent or combination of such transactions) entered into by the Guarantor or any of its Affiliates that is collateralised by or secured over or otherwise entered into in respect of or relating to or by reference to Bitcoin (BTC).
"Business Combination" has the meaning specified in the definition of "Business Combination Date".
"Business Combination Agreement" means the Business Combination Agreement, dated February 6, 2023, by and among Hut 8 Mining Corp., U.S. Data Mining Group, Inc. and Hut 8 Corp., as amended, restated, supplemented or modified from time to time.
"Business Combination Date" means the date on which the business combination between the Guarantor and U.S. Data Mining Group, Inc. d/b/a "US BITCOIN" pursuant to the terms of the Business Combination Agreement (being the "Business Combination"), is consummated.
"Business Day" means a day of the year (other than a Saturday or Sunday) on which banks are not required or authorized by law to close in New York City.
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"Canadian AML Legislation" means any applicable Canadian law regarding anti-money laundering, antiterrorist financing, government sanctions and related matters, including the Criminal Code, (Canada), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and the United Nations Act (Canada), together with all rules, regulations and interpretations thereunder or related thereto, including the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism and the United Nations Al-Qaida and Taliban Regulations promulgated under the United Nations Act.
"Canadian Defined Benefit Plan" means any Canadian Pension Plan which contains or has ever contained a "defined benefit provision" as defined in subsection 147.1(1) of the ITA, other than a Multi-Employer Plan where the sole financial obligation of the employer is to make fixed contributions set by agreement.
"Canadian Multi-Employer Plan" means a "multi-employer pension plan", as such term is defined in the Pension Benefits Act (British Columbia) or an equivalent plan under pension standards legislation in another applicable jurisdiction in Canada.
"Canadian Pension Plan" means each pension plan or plan subject to, or required to be registered under, any Canadian federal, provincial or territorial law, that is maintained or contributed to by any Loan Party or any Subsidiary thereof for its employees or former employees or in respect of which any Loan Party or any Subsidiary thereof has any obligation, but does not include the Canada Pension Plan or the Quebec Pension Plan as maintained by the Government of Canada or the Province of Quebec, respectively.
"Canadian Sanctions List" means the list of names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada), the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism and/or the United Nations Al-Qaida and Taliban Regulations, and the Special Economic Measures Act (Canada), all as published by the Office of the Superintendent of Financial Institutions Canada.
"Cash" means U.S. Dollars.
"Change in Law" means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority.
"Code" means the Internal Revenue Code of 1986 of the United States of America.
"Coinbase Exchange" means Coinbase's digital currency exchange platform .
"Collateral" has the meaning given to it in the Pledge and Collateral Account Control Agreement.
"Collateral Account" means an account with account number f768ad37-3feb-442b-b61d-e0bdae635c52 opened in the name of the Borrower with the Custodian in New York pursuant to the Custody Agreement.
"Collateral Agent" means Coinbase Credit.
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"Collateral Documents" means the Pledge and Collateral Account Control Agreement, the Custody Agreement and any other agreement or document that creates or purports to create a Lien on property of the Borrower in favor of the Collateral Agent.
"Commitment" means, in aggregate, the Loan A Commitment, the Loan B Commitment and the Loan C Commitment, in each case to the extent not cancelled, reduced or transferred by the Lender under this Agreement.
"Confidential Information" means information relating to the Guarantor or the Borrower or any of their respective businesses that the Guarantor or the Borrower furnishes to the Lender, other than any such information that is or becomes generally available to the public or that is or becomes available to the Lender, the Administrative Agent or the Collateral Agent on a non-confidential basis prior to disclosure by the Guarantor or any Affiliate of the Guarantor.
"Connection Income Taxes" means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
"Consolidated" refers to the consolidation of accounts in accordance with Applicable Accounting Rules.
"Constituent Documents" means (a) with respect to any Person, (i) if such other Person is a corporation, its articles of incorporation, amalgamation, arrangement or continuance and the bylaws (or equivalent or comparable constitutive documents with respect to such Person's jurisdiction of organization), (ii) if such other Person is a limited liability company, the certificate of formation or articles of formation or organization and operating agreement, and (iii) if such other Person is a partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such Person.
"Contractual Obligation" means, as applied to any Person, any provision of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
"Control" (including, with correlative meanings, the terms "controlling", "controlled by" and "under common control with"), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise.
"Custodian" means Coinbase Custody Trust Company, LLC.
"Custody Agreement" means the Coinbase prime broker custody agreement dated May 26, 2023 between the Borrower and the Custodian.
5
"Day Count Fraction" means, in respect of any early repayment or prepayment date, a number equal to the higher of (a) the quotient of (i) the number of calendar days during the period commencing on such early repayment date and ending on the date which is six (6) months from the Drawdown Date in respect of Loan A divided by (ii) 365, and (b) zero.
"Debt" of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables not overdue by more than 60 days incurred in the ordinary course of such Person's business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations of such Person as lessee under leases that have been or should be, in accordance with Applicable Accounting Rules, recorded as capital leases, (f) all obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit, (g) all obligations of such Person in respect of hedge agreements or repurchase agreements, (h) all Debt of others referred to in clauses (a) through (g) above or clause (i) below and other payment obligations (collectively, "Guaranteed Debt") guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person, and (i) all Debt referred to in clauses (a) through (h) above (including Guaranteed Debt) secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Debt.
"Default" means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
"Deleveraging Trigger Period" means any period after the Effective Date beginning on any day on which the Administrative Agent determines that the Prevailing Market Value is less than 60% of the Prevailing Market Value as of 9 a.m. (New York City Time) on the Effective Date and ending on the first day thereafter when the Administrative Agent determines that the Prevailing Market Value is equal to or greater than the Prevailing Market Value as of 9 a.m. (New York City Time) on the Effective Date.
"Drawdown Date" means the date on which a Loan is disbursed to the Borrower pursuant to Section 2.02(a).
"Early Termination Fee" means as of any determination date, an amount in USD calculated by the Administrative Agent equal to the product of (i) the principal amount of the Loan being repaid or prepaid, multiplied by (ii) 5.0%, multiplied by (iii) the applicable Day Count Fraction.
"Early Repayment" has the meaning given to it in Section 2.03(b).
"Effective Date" has the meaning specified in Section 3.01.
"ERISA" means the Employee Retirement Income Security Act of 1974.
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"ERISA Affiliate" means, as applied to any Person, (i) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Code of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Code of which that Person is a member; and (iii) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Code of which that Person, any corporation described in clause (i) above or any trade or business described in clause (ii) above is a member. Any former ERISA Affiliate of the Borrower shall continue to be considered an ERISA Affiliate of the Borrower within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of the Borrower and with respect to liabilities arising after such period for which Borrower could be liable under the Code or ERISA.
"ERISA Event" means (i) a "reportable event" within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet the minimum funding standard of Section 412 of the Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Code) or the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by the Borrower or any of its ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to the Borrower or any of its Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which might constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on the Borrower or any of its ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of the Borrower or any of its ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by the Borrower or any of its ERISA Affiliates of notice from any Multiemployer Plan that it is in insolvency pursuant to Section 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A of ERISA; (viii) the occurrence of an act or omission which could give rise to the imposition on the Borrower or any of its ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Pension Plan; (ix) the assertion of a material claim (other than routine claims for benefits) against any Pension Plan or the assets thereof, or against the Borrower or any of its ERISA Affiliates in connection with any Pension Plan; (x) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code; or (xi) with respect to any Pension Plan, the imposition of a Lien on the Borrower or any of its ERISA Affiliates pursuant to Section 430(k) of the Code or ERISA or a violation of Section 436 of the Code.
"Event of Default" has the meaning specified in Section 6.01.
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"Exchange Act" means the Securities Exchange Act of 1934.
"Excluded Taxes" means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, capital taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of the Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes; (b) withholding Taxes imposed on amounts payable to or for the account of the Recipient with respect to an applicable interest on a loan or commitment hereunder pursuant to a law in effect on the date on which the Recipient acquires an interest in such loan or commitment pursuant to an assignment or changes its lending office, except in each case to the extent that amounts with respect to such Taxes were payable either to the Recipient's assignor immediately before the Recipient became a party to this Agreement or to the Recipient immediately before it changed its lending office; (c) any Canadian withholding Taxes that would not have been imposed but for: (A) a Recipient (i) not dealing at arm's length (within the meaning of the Income Tax Act (Canada)) with the Borrower or (ii) being a "specified shareholder"(as that term is defined in subsection 18(5) of the Income Tax Act (Canada)) of the Borrower or a person not dealing at arm's length with such a "specified shareholder" or (B) a payment being the deduction component of a "hybrid mismatch arrangement" under which the payment arises within the meaning of proposed paragraph 18.4(3)(b) of the Income Tax Act (Canada) contained in proposals to amend the Income Tax Act (Canada) released on April 29, 2022 (except where such Recipient does not deal at arm's length with the Borrower, is a "specified shareholder" of the Borrower or a person not dealing at arm's length with such a "specified shareholder" or where the Borrower is a "specified entity" in respect of such Recipient (in each case for purposes of the Income Tax Act (Canada)), solely in connection with or as a result of such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced rights under any Loan Document); (d) Taxes attributable to such Recipient's failure to comply with Section 2.09(f); and (e) any withholding Taxes imposed under FATCA.
"FATCA" means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code, the Intergovernmental Agreement between Canada and the United States for the enhanced exchange of Tax information under the Canada-U.S. Tax Convention and Part XVIII and Part XIX of the Income Tax Act (Canada), and any guidance issued in connection therewith.
"FCPA" means the U.S. Foreign Corrupt Practices Act of 1977, as amended from time to time.
"Federal Funds Rate" means, in respect of any day, "Federal Funds Target Rate – Upper Bound", as published on Bloomberg page <FDTR Index> at 7:30 a.m. (New York City time) (or on any successor screen or page) or, if such rate is not available in respect of any day, such alternative rate as the Administrative Agent may determine is an appropriate replacement interest rate, acting in good faith and in a commercially reasonable manner.
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"Final Maturity Date" means the date that is 364 days from the first Drawdown Date in respect of Loan A.
"Financial Statements" means, as of any relevant date and for any relevant period, as applicable, the Guarantor's balance sheet, income statement, cash flow statement, statement of sources and uses of fund and statement showing changes in equity and any exhibits and notes thereto, which shall be prepared (a) prior to the Hut Amalgamation, in Canadian Dollars and (b) thereafter, in U.S. Dollars, in each case, all in accordance with Applicable Accounting Rules.
"First Priority" means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Collateral is subject to no Liens other than Permitted Liens.
"Galaxy Financing" means the financing provided under that certain Revolving Credit Agreement, dated as of February 22, 2022, by and between Hut 8 Holdings Inc. and Galaxy Digital LLC.
"Governmental Authority" means any nation or government, any state, province, city, municipal entity or other political subdivision thereof, and any governmental, executive, legislative, judicial, administrative or regulatory agency, department, authority, instrumentality, commission, board, bureau, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, whether federal, state, provincial, territorial, local or foreign, including any supra-national bodies, any public international organizations, such as the World Bank and the IMF, and any other entity (private or public) charged with the regulation of the financial markets (including central banks).
"Guarantor" means Hut 8 Mining Corp., and including Hut 8 Corp., its successor in interest pursuant to the terms of the Business Combination Agreement.
"Guarantor Change of Control" means, at any time, any person or group of persons acting in concert:
(a) obtains the power to direct the management and policies of the Guarantor through the ownership or holding of voting share capital, by contract or otherwise;
(a) acquires, or enters into an agreement with any shareholder of the Guarantor to acquire, whether directly or indirectly, more than 50% of the voting share capital of the Guarantor;
(b) acquires or holds more than 50% of the voting share capital or issued shares capital of the Guarantor;
(c) has the power to appoint or remove all or a majority of the directors or other equivalent officers of the Guarantor;
(d) has the power to manage or give directions with respect to the operating and/or financial policies of the Guarantor with which the directors or other equivalent officers of the Guarantor are obliged to comply, through ownership of share capital, by contract or otherwise; or
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(e) acquires or holds a sufficiently large holding of the voting or other share capital (or any class thereof) of the Guarantor to trigger any "change of control" (or equivalent acceleration, repayment or prepayment rights) in respect of any of the Guarantor's financial indebtedness,
in each case, as determined by the Administrative Agent, acting reasonably, where "acting in concert" means a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate to obtain or consolidate control of the Guarantor, provided that the Business Combination shall not comprise a Guarantor Change of Control.
"Guaranty" means the guaranty dated as of the date hereof, substantially in the form of Exhibit H, by the Guarantor in favor of the Lender, pursuant to which the Guarantor guaranties the Obligations.
"Hedging Costs" means any cost, loss or expense incurred by the Lender, following an Event of Default, as a result of establishing, terminating, liquidating, obtaining or re-establishing any hedge or related trading position in respect of its risks arising out of the Loan Documents in circumstances where the Collateral Agent is unable to liquidate, dispose of or otherwise realize Collateral in a timely manner.
"Hut Amalgamation" means the Amalgamation (as defined in the Business Combination Agreement) and implemented pursuant to the Plan of Arrangement contemplated thereunder.
"Improper Payment" has the meaning given to it in Section 4.01(p)(iii).
"Indemnified Taxes" means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
"Initial LTV" means:
(a) subject to paragraph (b) below, 60%; and
(b) during any Deleveraging Trigger Period, 55%.
"Insolvency Event" means, with respect to any Person, such Person shall (i) generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally; or (ii) make a general assignment for the benefit of creditors; or any proceeding shall be initiated or instituted by or against such Person seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors (including pursuant to the Canada Companies' Creditors Arrangement Act, the Bankruptcy and Insolvency Act (Canada), the Winding-up and Restructuring Act (Canada), proceedings under the United States Bankruptcy Code and provisions of corporate statutes (including the Canada Business Corporations Act and any provincial corporate statutes) that provide for a stay of proceedings), or seeking the entry of an order for relief or stay, or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding initiated or instituted against it (but not initiated or instituted by it), either such proceeding shall remain undismissed or unstayed for a period of sixty (60) or more days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or (iii) take any corporate action to authorize any of the foregoing.
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"Interest Period" means the period commencing on the Drawdown Date to and excluding the first day of the calendar month falling immediately after the Drawdown Date and, thereafter, each subsequent one (1) month period commencing on the first day of each calendar month; provided, however, that:
(a) if the Maturity Date would otherwise occur during an Interest Period, such Interest Period shall end on such date with respect to the outstanding principal amount of the Loan;
(b) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided, however, that, if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the immediately preceding Business Day; and
(c) whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month.
"Laws" means, collectively, all international, foreign, Federal, state, provincial, territorial and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority, self-regulatory organization, market, exchange, or clearing facility charged with the enforcement, interpretation or administration thereof, and all applicable Orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, self-regulatory organization, market, exchange, or clearing facility, in each case whether or not having the force of law.
"Lender" means Coinbase Credit, Inc. or any Person that shall become a party hereto pursuant to Section 7.06.
"Lending Office" means the office of the initial Lender specified as its "Lending Office" opposite its name on the signature pages below, and with respect to any other Lender, the office of such Lender specified as its "Lending Office" in the Assignment and Acceptance pursuant to which such Lender became a Lender, or such other office of the Lender as the Lender may from time to time specify to the Administrative Agent.
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"Lien" means any lien, mortgage, pledge, charge or other security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, including, without limitation, the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.
"Liquidation LTV" means:
(a) subject to paragraph (b) below, 80%; and
(b) during any Deleveraging Trigger Period, 75%.
"Loan" means:
(a) Loan A, Loan B or Loan C;
(b) following the drawing of Loan B, shall mean the consolidated loan of Loan A and Loan B; and
(c) following the drawing of Loan C, shall mean the consolidated loan of Loan A, Loan B and Loan C.
"Loan A" means the term loan facility made available under this Agreement and described in Section 2.01(a) below.
"Loan A Commitment" means USD 15,000,000.
"Loan B" means the term loan facility made available under this Agreement and described in Section 2.01(a) below.
"Loan B Commitment" means USD 20,000,000.
"Loan C" means the term loan facility made available under this Agreement and described in Section 2.01(a) below.
"Loan C Commitment" means USD 15,000,000.
"Loan Document" means any of (a) this Agreement, (b) the Promissory Note, (c) the Collateral Documents, (d) the Guaranty and (e) all other documents, certificates, instruments or agreements executed and delivered by or on behalf of the Borrower or the Guarantor for the benefit of any Agent or the Lender in connection herewith on or after the date hereof.
"Loan Party" means together or individually, as applicable, the Borrower and the Guarantor.
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"LTV Breach Notice" means a notice delivered upon the Actual LTV Ratio being equal to or in excess of the Liquidation LTV pursuant to Section 2.03(g), substantially in the form of Exhibit F.
"Margin Funding Deadline" means, with respect to any Margin Funding Notice delivered pursuant to Section 2.06(a)(i) hereof or any Subsequent Margin Funding Notice delivered pursuant to Section 2.06(a)(ii), in each case, no later than twenty-four (24) hours after receipt by the Borrower of such Margin Funding Notice or Subsequent Margin Funding Notice.
"Margin Funding Notice" means a notice delivered by the Administrative Agent pursuant to Section 2.06(a)(i), substantially in the form of Exhibit G.
"Material Adverse Change" means any material adverse change in the financial condition, operations or properties of the Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the financial condition, operations, or properties of the Borrower and its Subsidiaries taken as a whole, (b) the rights and remedies of the Administrative Agent, the Collateral Agent or the Lender under any Loan Document, (c) the ability of the Borrower to perform its obligations under any Loan Document to which it is a party, (d) the legality, validity or enforceability of any of the Loan Documents or the rights or remedies of the Lender, the Administrative Agent or the Collateral Agent thereunder, or (e) the priority or perfection of any Lien granted or purported to be granted under any Collateral Document.
"Maturity Date" means the earliest of: (i) the Final Maturity Date, (ii) the date on which an Early Repayment occurs pursuant to Section 2.03(b) after which the outstanding principal amount of the Loan has been reduced to zero, and (iii) the date on which the Loan becomes due and payable following the occurrence of a Default or an Event of Default or pursuant to Section 2.03(c), Section 2.03(d) or Section 2.03(f) or Section 2.07 or Section 2.12 or otherwise pursuant to this Agreement.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section 3(37) of ERISA that is contributed to or required to be contributed to by the Borrower or any of its ERISA Affiliates.
"Notice of Borrowing" has the meaning specified in Section 2.02(b).
"Obligations" means all obligations of every nature of the Borrower, including obligations from time to time owed to Agents (including former Agents), Lenders or any of them, under any Loan Document, whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to the Borrower, would have accrued on any Obligation, whether or not a claim is allowed against the Borrower for such interest in the related bankruptcy proceeding), fees, expenses, indemnification or otherwise.
"OFAC" means the Office of Foreign Assets Control of the U.S. Department of the Treasury.
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"Ontario Litigation" means Hut 8 Mining Corp. v. Bay Power Corp. et al, filed with the Ontario Superior Court of Justice.
"Order" means any order, writ, judgment, injunction, decision, decree, edict, stipulation, ruling, subpoena, verdict, determination or award, whether preliminary or final, made, entered, rendered or otherwise put into effect by or under the authority of any Governmental Authority.
"Original Financial Statements" means the Financial Statements of the Guarantor which comprise the unaudited condensed consolidated interim statements of financial position as at March 31, 2023 and December 31, 2022, and the unaudited condensed consolidated interim statements of income and comprehensive income, the unaudited condensed consolidated interim statements of cash flows and the unaudited condensed consolidated statements of changes in shareholders' equity for the three months ended March 31, 2023 and 2022.
"Other Connection Taxes" means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in the Loan or any Loan Document).
"Other Taxes" means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
"PATRIOT Act" means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26, 2001, as amended from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor thereto.
"Pension Plan" means an "employee pension benefit plan" as defined in Section 3(2) of ERISA that is sponsored, maintained or contributed to, or required to be contributed to, by the Borrower or any of its ERISA Affiliates (other than a Multiemployer Plan) and is subject to Section 412 of the Code or Section 302 of ERISA.
"Permitted Liens" means the Liens permitted under this Agreement pursuant to Section 5.02(a)(i) through (iv).
"Person" means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, limited liability company or other entity, or a government or any political subdivision or agency thereof, or any other entity.
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"Pledge and Collateral Account Control Agreement" means the agreement dated on or about the date hereof between the Borrower, the Custodian and the Collateral Agent in respect of and creating, inter alia, a Lien over, the Collateral Account.
"Prevailing Market Value" means the price of Bitcoin (BTC) as determined by the Administrative Agent by reference to executed transactions on the Coinbase Exchange.
"Promissory Note" means the promissory note of the Borrower payable to the Lender, in the form of Exhibit A hereto, evidencing the aggregate indebtedness of the Borrower to the Lender resulting from the Loan made by the Lender.
"Recipient" means the Administrative Agent or the Lender.
"Release LTV" means:
(a) subject to paragraph (b) below, 50%; and
(b) during any Deleveraging Trigger Period, 45%.
"Release Request Notice" has the meaning given to it in Section 2.06(b)(i).
"Relevant Jurisdiction" means, in respect of any person:
(a) its jurisdiction of incorporation or, if not incorporated, the jurisdiction under whose laws it is established;
(b) any jurisdiction where any asset subject to or intended to be subject to the Lien to be created by the Collateral Documents is situated or any jurisdiction the laws of which are the governing law of such asset;
(c) in the case of the Guarantor or the Borrower, any jurisdiction where such Guarantor or Borrower, as applicable, conducts its business; and
(d) each jurisdiction whose laws govern a Loan Document to which it is party or the creation or granting of any Collateral Documents entered into by it or the perfection of any Lien.
"Restricted Party" means any Person that is, or any Person directly or indirectly owned or controlled by, or acting on behalf of any Person that is: (i) listed on any Sanctions List; (ii) resident, operating, located, or organized under the laws of any Sanctioned Jurisdiction; (iii) a government of any Sanctioned Jurisdiction; or (iv) otherwise a target of Sanctions ("target of Sanctions" signifying a person with whom a person subject to the jurisdiction of a Sanctions Authority would be prohibited or restricted by that Sanctions Authority from engaging in trade, business, or other activities).
"Risk Transfer" means the entry into one or more hedging, risk participation, derivative or similar transactions (howsoever described or documented).
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"Sanctioned Jurisdiction" means, at any time, a country, a territory or region that is, or whose government is, the subject or target of any Sanctions.
"Sanctions" means economic, trade or financial sanctions, requirements, or embargoes imposed, administered, or enforced from time to time by any Sanctions Authority.
"Sanctions Authority" means the United States (including, without limitation, OFAC and the U.S. Department of State), Canada, the United Kingdom (including, without limitation, His Majesty's Treasury), the European Union and any EU member state, the United Nations Security Council, and any other relevant sanctions authority.
"Sanctions List" means any list maintained by, or public announcement of Sanctions designation made by, any Sanctions Authorities, including but not limited to the List of Specially Designated Nationals and Blocked Persons and the Sectoral Sanctions Identifications Lists maintained by OFAC, the Consolidated United Nations Security Council Sanctions List, the Consolidated List of Financial Sanctions Targets maintained by His Majesty's Treasury, and the European Union's lists of restrictive measures against persons and entities issued pursuant to Council Regulation (EC) No. 881/2002 of 27 May 2002, Council Regulation (EC) No. 2580/2001 of 27 December 2001 and Council Common Position 2005/725/CFSP of 17 October 2005, each as amended, supplemented or substituted from time to time and, for certainty, including the Canadian Sanctions List.
"Secured Parties" has the meaning assigned to that term in the Pledge and Collateral Account Control Agreement.
"Solvent" means, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person's property would constitute an unreasonably small capital and (e) such Person is not otherwise an "insolvent person" as defined in the Bankruptcy and Insolvency Act (Canada). The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
"Subsequent Margin Funding Notice" has the meaning given in Section 2.06(a)(ii).
"Subsidiary" means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided, in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a "qualifying share" of the former Person shall be deemed to be outstanding.
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"Taxes" means all present or future taxes, levies, imposts, duties, deductions, withholdings (including, without limitation, backup withholding and value-added tax), assessments, fees or other charges imposed by any Governmental Authority, irrespective of the manner in which they are collected or assessed, including any interest, additions to tax or penalties applicable thereto.
"Top Up LTV" means:
(a) subject to paragraph (b) below, 70%; and
(b) during any Deleveraging Trigger Period, 65%.
"UCC" means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect from time to time in any applicable jurisdiction.
"Unenforceability Event" has the meaning given in Section 2.03(d).
"United States" or "U.S." means the United States of America.
"Unsecured Account" means an account with account number 641ef568-20dc-464e-9036-70f05f1d9902 opened in the name of the Borrower with the Custodian, pursuant to the Custody Agreement.
"U.S. Dollars", "U.S.$", "Dollars", "USD" and "$" means the lawful currency of the United States.
"Voting Stock" means capital stock issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.
Section 1.02. Computation of Time Periods. In this Agreement, in the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including," and the words "to" and "until" each mean "to but excluding."
Section 1.03. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation." The word "will" shall be construed to have the same meaning and effect as the word "shall." Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person's successors and assigns, (c) the words "herein," "hereof" and "hereunder," and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (f) the words "asset" and "property" shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
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Section 1.04. Defaults and Blocking Events. A Default (other than an Event of Default) is "continuing" if it has not been remedied or waived. An Event of Default is "continuing" if it has not been waived in writing by the Lender or the Lender and Borrower have not agreed in writing that such event is no longer continuing. A Blocking Event is "continuing" if any event or circumstance set out in any paragraph of the definition thereof has occurred and the circumstances set out therein continue to apply.
Article II
AMOUNTS AND TERMS OF THE ADVANCE
Section 2.01. The Loan.
(a) The Lender agrees on the terms and conditions hereinafter set forth herein, to make available to the Borrower:
(i) a term loan facility in USD in an aggregate principal amount equal to the Loan A Commitment and which shall be available for drawing during the applicable Availability Period;
(ii) a term loan facility in USD in an aggregate principal amount equal to the Loan B Commitment and which shall be available for drawing during the applicable Availability Period; and
(iii) a term loan facility in USD in an aggregate principal amount equal to the Loan C Commitment and which shall be available for drawing during the applicable Availability Period.
Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed.
(b) The Lender's Commitment shall automatically and permanently expire at the close of business (New York City time) on the Final Maturity Date.
Section 2.02. Making the Loan.
(a) The Borrowing of Loan A shall be made in a single disbursement of Loan A. The Borrowing of Loan B shall be made in a single disbursement of Loan B. Subject to the occurrence of and following the Business Combination Date, the Borrowing of Loan C shall be made in a single disbursement of Loan C.
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(b) Each disbursement shall be made on notice given not later than 11:00 a.m. (New York City time) one (1) Business Day prior to the date of the proposed Borrowing, by the Borrower to the Lender. Each notice of Borrowing (a "Notice of Borrowing") shall be in writing, by e-mail, in substantially the form of Exhibit B hereto, specifying therein the requested date of the Borrowing. Upon fulfillment of the applicable conditions set forth in Article III, the Lender will make the funds available to the Borrower in an account designated by the Borrower in the Notice of Borrowing.
(c) A Notice of Borrowing shall be irrevocable and binding on the Borrower.
(d) With effect on and from the first date of the Interest Period commencing immediately following the occurrence of the Drawdown Date in respect of Loan B, Loan B will be consolidated into Loan A and treated as a single Loan. With effect on and from the first date of the Interest Period commencing immediately following the occurrence of the Drawdown Date in respect of Loan C, Loan C will be consolidated into Loan A and Loan B and treated as a single Loan.
Section 2.03. Repayment and Prepayment.
(a) Unless a prepayment in full under this Section 2.03 or Section 2.07, has occurred, the Borrower shall repay to the Lender the entire outstanding amount of the Loan on the Final Maturity Date.
(b) At any time and from time to time the Borrower may voluntarily prepay any outstanding Loan in whole or in part, but if in part, subject to a minimum prepayment amount of $5,000,000, by sending a notice to the Administrative Agent at least two (2) Business Days prior to the day of such prepayment (an "Early Repayment"), which notice shall state the proposed date and aggregate principal amount of such prepayment.
(c) If a Borrower Change of Control or Guarantor Change of Control has occurred and is continuing, the Lender shall give notice thereof to the Borrower, and the Borrower shall within one (1) Business Day prepay in full the then outstanding and unpaid principal amount of the Loan plus any other amounts owing to the Lender under the Loan Documents.
(d) If the Liens in the Collateral created under the Collateral Documents cease to be enforceable first priority Liens in favor of the Lender (except to the extent expressly permitted thereunder) ("Unenforceability Event"), the Lender shall give notice thereof to the Borrower, and the Borrower shall on the date of receipt of such notice prepay in full the then outstanding and unpaid principal amount of the Loan plus any other amounts owing to the Lender under the Loan Documents.
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(e) The Borrower may voluntarily prepay the outstanding Loans in whole at any time without prior notice within thirty (30) days after the occurrence of (i) the Administrative Agent, the Collateral Agent, the Lender or the Custodian failing to maintain its registration in good standing with the New York Department of Financial Services, (ii) the Administrative Agent, the Collateral Agent, the Lender or the Custodian ceasing, or announcing its intention to cease, conducting business in the State of New York or (iii) an Insolvency Event occurs with respect to the Administrative Agent, the Collateral Agent, the Lender or the Custodian.
(f) If at any time (whether or not it is a Business Day or within normal business hours) the Actual LTV Ratio is equal to or in excess of the Liquidation LTV, the Administrative Agent may deliver a LTV Breach Notice to the Borrower (which may be by e-mail), with a copy to each party hereto, and, if the Borrower does not deposit sufficient additional Collateral in the Collateral Account within 24 hours after the receipt of such LTV Breach Notice to cause the Actual LTV Ratio, after taking into account such additional Collateral, to be less than or equal to the Initial LTV, the outstanding Loan shall become immediately due and payable in full (whether or not it is a Business Day or within normal business hours) and the Borrower shall immediately prepay the outstanding Loan together with any other amounts owed to the Lender under the Loan Documents.
(g) On the first Drawdown Date, the Borrower shall pay to the Lender by way of upfront fee, an amount equal to 0.8% of the Commitment (being US$400,000). Such amount may be netted against and deducted from Loan A and the Lender shall only be obliged to advance the resulting net amount of US$14,600,000 in respect of Loan A.
(h) If the Loan is to be repaid or prepaid by the Borrower at any time prior to the Final Maturity Date, any such repayment or prepayment shall be accompanied by payment of accrued interest to the date of such repayment or prepayment on the principal amount repaid or prepaid together with, if applicable pursuant to Section 2.03(i) below, the Early Termination Fee. The parties agree that any Early Termination Fee payable hereunder is intended to compensate the Lender for lost anticipated profits as a result of such early repayment or prepayment and shall not be considered as a penalty.
(i) If the Loan is repaid or prepaid by the Borrower at any time prior to the Final Maturity Date other than pursuant to Section 2.03(e), Section 2.03(f) and Section 2.12(d) (including without limitation pursuant to Section 2.03(b), Section 2.03(c), Section 2.03(d) or Section 2.07), the prepayment shall be accompanied by an amount equal to the Early Termination Fee, save where the Borrower gives notice to prepay the Loan in full within 24 hours after the commencement of a Deleveraging Trigger Period in which case no Early Termination Fee shall be payable.
(j) If the Loan is prepaid pursuant to Section 2.03(f), no Early Termination Fee shall be payable.
Section 2.04. Interest.
(a) The Borrower shall pay interest on the unpaid outstanding principal amount of the Loan owing to the Lender from the first Drawdown Date until such principal amount shall be paid in full, at a rate per annum equal to the sum of (x) the greater of (i) Federal Funds Rate for such date and (ii) 3.25% and (y) the Applicable Margin, payable in arrears on the day falling 5 Business Days after the last day of each Interest Period and on the date on which the Loan or any portion thereof shall be paid in full.
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(b) All interest hereunder shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Federal Funds Rate for any day shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
(c) For the purposes of the Interest Act (Canada), as amended, (i) if at any time or for any purpose a rate of interest or fee rate hereunder is calculated on the basis of a year (the "deemed year") that contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest or fee rate shall be expressed as a yearly rate by multiplying such rate of interest or fee rate by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year, (ii) the principle of deemed reinvestment of interest shall not apply to any interest calculation hereunder and (iii) the rates of interest stipulated herein are intended to be nominal rates and not effective rates or yields. THE BORROWER HEREBY IRREVOCABLY AGREES NOT TO PLEAD OR ASSERT, WHETHER BY WAY OF DEFENCE OR OTHERWISE, IN ANY PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, THAT THE INTEREST PAYABLE HEREUNDER OR THEREUNDER AND THE CALCULATION THEREOF HAS NOT BEEN ADEQUATELY DISCLOSED TO IT, WHETHER PURSUANT TO SECTION 4 OF THE INTEREST ACT (CANADA) OR ANY OTHER APPLICABLE LAW OR LEGAL PRINCIPLE.
(d) Notwithstanding anything herein or in any of the other Loan Documents to the contrary, in the event that any provision of this Agreement or any other Loan Documents would oblige the Borrower or the Guarantor to make any payment of interest or other amount payable to a Lender in an amount or calculated at a rate which would result in a receipt by the Administrative Agent or any Lender of "interest" at a "criminal rate" (as such terms are construed under the Criminal Code (Canada)), then notwithstanding such provision, such amount or rate shall be deemed to have been adjusted to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law or so result in a receipt by such Lender of interest at a criminal rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. Any amount or rate of interest referred to in this clause (d) shall be determined in accordance with generally accepted actuarial practices and principles over the maximum term of this Agreement (or over such shorter term as may be required by Section 347 of the Criminal Code (Canada)) and, in the event of a dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Administrative Agent shall be conclusive for the purposes of such determination, absent manifest error.
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Section 2.05. Default Interest.
(a) (i) If the Borrower fails to pay any principal of, or any interest on, the Loan, or make any other payment of other amounts under this Agreement or any Loan Document, in each case, when the same becomes due and payable or (ii) upon the occurrence and during the continuance of any Event of Default, the Lender may require the Borrower to pay interest ("Default Interest") on (x) the unpaid principal amount of the Loan owing to the Lender and (y) to the fullest extent permitted by law, the amount of any interest, fee or other amount payable hereunder, in each case, that is not paid when due, from the date such amount shall be due until such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 5% per annum above the rate per annum required to be paid on the outstanding amount of the Loan pursuant to Section 2.04 above; provided, however, that following acceleration of the Loan pursuant to Section 6.01, Default Interest shall accrue and be payable hereunder whether or not previously required by the Lender.
Section 2.06. Collateral Adjustments.
(a) Margin Demands.
(i) If the Actual LTV Ratio is at any time (whether or not it is a Business Day or within normal business hours) equal to or in excess of the Top Up LTV (a "Margin Call Event"), the Administrative Agent may, at any time following the Margin Call Event, deliver a Margin Funding Notice to the Borrower (which may be by e-mail), and the Borrower shall, by the Margin Funding Deadline (which shall be set forth in such Margin Funding Notice) (whether or not it is a Business Day or within normal business hours), satisfy such Margin Funding Notice by depositing additional Collateral ("Additional Collateral") to the Collateral Account in the amount set forth in such Margin Funding Notice. The amount of Additional Collateral set forth in the Margin Funding Notice shall be determined by the Administrative Agent such that, after taking into account the required Additional Collateral, the Actual LTV Ratio as of the Margin Funding Deadline is less than or equal to the Initial LTV.
(ii) No more than one Margin Funding Notice shall be permitted on any calendar day for which a margin demand may be made pursuant to Section 2.06(a)(i) above, provided that if a subsequent Margin Funding Notice is issued on a calendar day in respect of Section 2.06(a)(i) (a "Subsequent Margin Funding Notice"), such Subsequent Margin Funding Notice shall supersede the previous Margin Funding Notice and the Borrower shall accordingly satisfy the Subsequent Margin Funding Notice by the Margin Funding Deadline set forth in such Subsequent Margin Funding Notice.
(b) Margin Release.
If (A) at any time the Actual LTV Ratio is equal to or less than the Release LTV for five consecutive calendar days, and (B) so long as immediately before and after giving effect thereto no Blocking Event shall have occurred and then be continuing, the Borrower may, by written notice to Collateral Agent (with a copy to each other party hereto) (such notice, a "Release Request Notice") (which notice shall be deemed to be a certification from the Borrower that the foregoing requirements are satisfied), request that the Collateral Agent direct the Custodian to release a portion of the Additional Collateral. Upon receipt of any Release Request Notice, the Administrative Agent shall provide to the Collateral Agent a real-time calculation of the Actual LTV Ratio and:
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(i) if the Actual LTV Ratio is no longer equal to or less than or equal to the Release LTV, Collateral Agent shall notify the Borrower with a copy to each other party hereto, that the Release Request Notice is denied at such time; and
(ii) if the Actual LTV Ratio is at such time equal to or less than the Release LTV, the Collateral Agent shall instruct the Custodian to transfer Collateral from the Collateral Account as directed by the Borrower in an amount such that after giving effect to such requested release the Actual LTV Ratio as determined by such real-time calculation shall not exceed the Initial LTV, which transfer shall be initiated, in the case of a Release Request Notice delivered prior to 2 p.m. (New York City time), no later than 5 p.m. (New York City time) on the same day as such Release Request Notice is received and otherwise, on the next calendar day. No more than one Release Request Notice shall be permitted on any calendar day.
(c) In connection with any release of Collateral pursuant to Section 2.06(b) hereof, following transfer of all such Collateral from the Collateral Account as directed by the Borrower, the Collateral Agent shall be deemed to release and transfer to the Borrower without recourse, representation or warranty all of the right, title and interest of the Collateral Agent for the benefit of the Secured Parties in, to and under such Collateral and such portion of Collateral so transferred shall be automatically released from all Liens granted to the Collateral Agent under the Pledge and Collateral Account Control Agreement without further action by any Person.
Section 2.07. Illegality. Notwithstanding any other provision of this Agreement, if the Lender determines that a Change in Law has made it unlawful, or any central bank or other Governmental Authority asserts that it is unlawful, for the Lender or its Lending Office to perform its obligations hereunder to make the Loan or to fund or maintain the Loan to be made by it hereunder, or any Governmental Authority has imposed material restrictions or there exists any condition that has the effect of making it illegal, impossible or impracticable for, or has the effect of prohibiting, restricting or materially delaying the ability of, the Lender to purchase, hold, receive, sell, freely transfer or remain the owner of any Collateral or any amount received in respect thereof, the Lender shall forthwith give notice thereof to the Borrower, whereupon (a) until the Lender notifies the Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lender to make the Loan shall be suspended and (b) if the Lender shall so request in such notice, the Borrower shall immediately prepay in full the then outstanding principal amount of the Loan, together with accrued interest thereon and all other amounts payable by the Borrower under this Agreement.
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Section 2.08. Payments and Computations.
(a) The Borrower shall make each payment hereunder and under the Promissory Note in U.S. Dollars, irrespective of any right of counterclaim or set-off, not later than 4:00 p.m. (New York City time) on the day when due in freely transferable lawful money of the United States of America to the Lender to such account as the Lender shall from time to time hereafter specify by written notice to the Borrower at least five (5) Business Days prior to a payment date hereunder.
(b) The Borrower hereby authorizes the Lender, if and to the extent payment owed to the Lender is not made when due hereunder or under the Promissory Note held by the Lender, to charge from time to time against any or all of the Borrower's accounts with the Lender any amount so due. The Lender shall promptly notify the Borrower following the occurrence of any such charge.
(c) Whenever any payment hereunder or under the Promissory Note shall be stated to be due on a day other than a Business Day (except where such payment is explicitly required to be made on any calendar day including non-Business Days), such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest; provided, however, that, if such extension would cause payment of interest on or principal of the Loan to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.
Section 2.09. Taxes.
(a) Defined Terms. For purposes of this Section 2.09, the term "applicable law" or "Applicable Law" includes FATCA.
(b) Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrower under any Loan Document shall be made free and clear of and without deduction or withholding for any Taxes (other than income taxes in the jurisdiction of Lender's Lending Office). If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding.
(c) Payment of Other Taxes by the Borrower. The Borrower shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Lender timely reimburse it for the payment of, any Other Taxes.
(d) Indemnification by the Borrower. The Borrower shall indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount and basis of such payment or liability delivered to the Borrower by the Lender shall be conclusive absent manifest error.
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(e) Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section 2.09, the Borrower shall deliver to the Lender, by email as provided in Section 7.02, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Lender.
(f) Status of Lender. If the Lender is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document, it shall upon written reasonable request of the Borrower (but only if the Lender is lawfully able to do so) use commercially reasonable efforts to provide within a reasonable time the Borrower, documents or other certifications, appropriately completed and executed, as will permit such payments to be made without withholding or at a reduced rate of withholding. Notwithstanding anything to the contrary in the preceding sentence, the completion, execution and submission of such documentation shall not be required if in the Lender's reasonable judgment such completion, execution or submission would subject the Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of the Lender.
(g) Tax Forms. The Borrower shall provide the Lender, the Collateral Agent and any other applicable withholding agent with a valid, complete IRS Form W-8BEN-E and any such other tax certifications or documentation reasonably requested by the Lender, the Collateral Agent or other applicable withholding agent (x) on or prior to the date this Agreement is entered into, (y) if any such forms, certifications or documentation previously provided by the Borrower becomes invalid or incorrect and (z) promptly upon request by the Lender, the Collateral Agent or other applicable withholding agent.
(h) Survival. Each party's obligations under this Section 2.09 shall survive any assignment of rights by, or the replacement of, a Lender or the Collateral Agent, the termination of the Commitment and the repayment, satisfaction or discharge of all obligations under any Loan Document.
Section 2.10. Evidence of Debt.
(a) The Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to the Lender resulting from the Loan owing to the Lender from time to time, including the amounts of principal and interest payable and paid to the Lender from time to time hereunder in respect of the Loan. The Borrower shall execute and deliver to the Lender a Promissory Note payable to the Lender in a principal amount up to the Commitment of the Lender as specified in Section 2.01.
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(b) Entries made in good faith by the Lender in its account or accounts pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to the Lender, under this Agreement, absent manifest error; provided, however, that the failure of the Lender to make an entry, or any finding that an entry is incorrect, in such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement.
Section 2.11. Proceeds of the Loan. The proceeds of the Loan shall be available (and the Borrower agrees that it shall use such proceeds) solely for general corporate purposes of the Guarantor and its Affiliates including without limitation, payment of costs incurred in connection with the Business Combination and repayment of callable debt in conjunction with the Business Combination.
Section 2.12. Increased Costs and Increased Capital.
(a) Increased Costs Generally. If any Change in Law shall:
(i) subject the Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clause (b) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(ii) impose on the Lender any other condition, cost or expense (other than Taxes) affecting this Agreement or the Loan made by the Lender or participation therein;
and the result of any of the foregoing shall be to increase the cost to the Lender of making, converting to, continuing or maintaining the Loan or of maintaining its obligation to make the Loan, or to reduce the amount of any sum received or receivable by the Lender hereunder (whether of principal, interest or any other amount) then, the Borrower will from time to time, upon reasonable request and reasonable prior notice by the Lender, pay to the Lender such additional amount or amounts as will compensate the Lender for such additional costs incurred or reduction suffered.
(b) Certificates for Reimbursement. A certificate of the Lender setting forth the amount or amounts necessary to compensate the Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section and delivered to the Borrower, shall be conclusive and binding for all purposes, absent manifest error. Unless the Borrower repays the Loan in full within such thirty (30) day period in accordance with Section 2.12(d), the Borrower shall pay the Lender the amount shown as due on any such certificate within thirty (30) days after receipt thereof.
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(c) Delay in Requests. Failure or delay on the part of the Lender to demand compensation pursuant to this Section shall not constitute a waiver of the Lender's right to demand such compensation; provided that the Borrower shall not be required to compensate the Lender pursuant to this Section for any increased costs incurred or reductions suffered more than six (6) months prior to the date that the Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of the Lender's intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof).
(d) Upon receipt of the certificate described in paragraph (b) above, the Borrower shall have thirty (30) days within which it may repay or prepay any outstanding Loan in whole or in part during which time the Early Termination Fee shall be waived.
(e) If the Borrower repays or prepays the Loan after the thirty (30) day period described in paragraph (d) above, the prepayment shall be accompanied by an amount equal to the Early Termination Fee.
Article III
CONDITIONS TO EFFECTIVENESS AND LENDING
Section 3.01. Conditions Precedent to Effectiveness of Section 2.01. Section 2.01 of this Agreement shall become effective on and as of the first date (the "Effective Date") on which the following conditions precedent have been satisfied:
(a) All governmental and third party consents and approvals necessary in connection with the transactions contemplated by the Loan Documents shall have been obtained and shall remain in effect (and evidence thereof in form and substance reasonably satisfactory to the Lender shall be delivered from any Governmental Authority), and no law or regulation shall be applicable in the reasonable judgment of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(b) On the Effective Date, the following statements shall be true and the Lender shall have received certificates signed by duly authorized officers of the Borrower, dated the Effective Date, stating that:
(i) the representations and warranties contained in Section 4.01 and in each other Loan Document are true and correct in all material respects on and as of the Effective Date, except to the extent such representations and warranties expressly relate to an earlier date in which case such representation and warranties shall have been true and correct in all material respects on such earlier date;
(ii) other than the Ontario Litigation, there shall exist no Adverse Proceeding that could be reasonably likely to have a Material Adverse Effect; and
(iii) no event has occurred and is continuing, or would result from any Borrowing or from the application of the proceeds therefrom, that constitutes or would constitute a Default.
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(c) The Lender shall have received on or before the Effective Date the following, each dated such day, in form and substance satisfactory to the Lender:
(i) a copy of the Loan Documents duly executed by the parties thereto and any other document relating to any asset which is the subject of the Pledge and Collateral Account Control Agreement as the Lender requires in writing;
(ii) the Constituent Documents of the Borrower and the Guarantor as in effect on the Effective Date;
(iii) all documents evidencing necessary corporate action (including certified copies of resolutions and delegations of signing authority) and governmental approvals, if any, with respect to this Agreement and the other Loan Documents to which the Borrower and the Guarantor is a party;
(iv) certificates of an authorized officer or attorney-in fact of the Borrower and the Guarantor certifying the names and true signatures of the officers of the Borrower and the Guarantor authorized to sign this Agreement and the other Loan Documents to which they are respectively a party and the other documents to be delivered hereunder;
(v) a letter from the Process Agent indicating its acceptance of the appointment by the Borrower and by the Guarantor under the Loan Documents to which they are a party;
(vi) Unless otherwise publicly available, a copy of the Financial Statements in respect of the year ended December 31, 2022; and
(vii) favorable opinions of Torys LLP, Canadian and special New York counsel for the Borrower and the Guarantor.
(d) The Borrower shall have notified the Lender in writing as to the proposed Effective Date.
(e) All documentation and other information required by the Lender under applicable "know your customer" and anti-money laundering rules, regulations and policies, requested (at least five (5) Business Days prior to the Effective Date) by the Lender shall have been received by the Lender.
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Section 3.02. Conditions Precedent to each Borrowing. The obligation of the Lender to make the Loan on the occasion of a Borrowing shall be subject to the conditions precedent that the Effective Date shall have occurred and on the date of the Borrowing:
(a) The following statements shall be true (and each of the giving of the Notice of Borrowing and the acceptance by the Borrower of the proceeds of the Borrowing shall constitute a representation and warranty by the Borrower that on the date of the Borrowing such statements are true):
(i) the representations and warranties contained in Section 4.01 and in each other Loan Document are true and correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date (except to the extent such representations and warranties expressly relate to an earlier date in which case such representations and warranties shall have been true and correct in all material respects on each earlier date);
(ii) other than the Ontario Litigation, there shall exist no Adverse Proceeding that could be reasonably likely to have a Material Adverse Effect; and
(iii) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, that constitutes a Default.
(b) The Collateral Agent (for the benefit of the Secured Parties) shall have obtained a valid and perfected first priority (other than Permitted Liens) lien on and security interest in the Collateral and the Borrower shall have executed or authorized the Collateral Agent to execute, as applicable, and delivered UCC financing statements, and any other financing statements or other registrations or filings under any personal property security legislation of any other jurisdiction as may be reasonably required by the Administrative Agent, to the Administrative Agent.
(c) The Borrower shall have notified the Lender in writing as to the proposed Drawdown Date and shall have delivered to the Lender a duly executed Notice of Borrowing.
(d) On or prior to the Drawdown Date, the Collateral Account shall have been opened and contain Collateral with a sufficient aggregate Prevailing Market Value to cause the Actual LTV Ratio after giving effect to the proposed Loan to be less than or equal to the Initial LTV.
(e) The Lender shall have received the Promissory Note made and duly executed by the Borrower payable to the Lender in the amount of the Loan.
(f) On or prior to the Drawdown Date, the Unsecured Account shall have been opened, and a sufficient amount of Bitcoin (BTC) at least equal to US$20,000,000 shall have been deposited in the Unsecured Account.
(g) The Borrower shall have paid all applicable and documented fees and expenses of the Lender and the Custodian for which invoices have been presented at least two Business Days prior to the applicable Drawdown Date or such later date to which the Borrower and the Lender may agree (including the fees, costs and expenses of legal counsel).
(h) In the case of Loan C, the occurrence of the Business Combination Date.
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(i) The Lender shall have received such other information, approvals, opinions or documents as the Lender may reasonably request.
(j) No Blocking Event shall be continuing or would result from the proposed Loan.
(k) The Lender shall have received the results of lien searches with respect to the Borrower, such results being satisfactory to the Lender.
Article IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Borrower. In order to induce the Agents and the Lender to enter into this Agreement, the Borrower represents and warrants to each Agent and the Lender, on the Effective Date and each other date provided under this Agreement or the other Loan Documents on which such representations and warranties are required to be (or deemed to be) made (unless such representation is only made as of a specific date set forth below), that:
(a) Organization; Requisite Power and Authority; Qualification. It (i) is duly organized, validly existing and in good standing under the laws of the Relevant Jurisdiction, (ii) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Loan Documents to which it is a party and to carry out the transactions contemplated thereby, and (iii) is qualified to do business and is in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations, except, in the case of paragraphs (ii) and (iii), where such failure could not reasonably be expected to result in a Material Adverse Effect.
(b) Due Authorization. The execution, delivery and performance of the Loan Documents to which it is a party have been duly authorized by all necessary action on the part of the Borrower.
(c) No Conflict. The execution, delivery and performance by it of the Loan Documents to which it is a party and the consummation of the transactions contemplated by the Loan Documents do not and will not (i) violate (A) any provision of any law or any governmental rule or regulation applicable to it, (B) any of its Constituent Documents or (C) any order, judgment or decree of any court or other agency of government binding on it; (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation; (iii) result in or require the creation or imposition of any Lien upon any portion of the Collateral (other than any Liens created under any of the Loan Documents in favor of Collateral Agent, for the benefit of the Secured Parties); or (iv) require any approval of its stockholders, members or partners or any approval or consent of any Person under any Contractual Obligation, except for such approvals or consents which will be obtained on or before the Effective Date and except, in each case (other than paragraph (i)(B)), where such violation, conflict or other failure would not reasonably be expected to result in a Material Adverse Effect.
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(d) Governmental Consents. The execution, delivery and performance by it of the Loan Documents to which it is a party and the consummation of the transactions contemplated by the Loan Documents do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority, except for filings and recordings with respect to the Collateral to be made, or otherwise delivered to Collateral Agent for filing and/or recordation, as of the Effective Date or such filings and recordings the failure of which to obtain could not reasonably be expected to result in a Material Adverse Effect.
(e) Binding Obligation. This Agreement has been, and the other Loan Documents (other than the Promissory Note) to which it is a party have been and the Promissory Note when delivered hereunder will have been, duly executed and delivered by it. This Agreement and other Loan Documents (other than the Promissory Note) are, and the Promissory Note when delivered hereunder will be, the legal, valid and binding obligation of it, enforceable against it in accordance with their respective terms, except as enforceability is limited by bankruptcy, insolvency, reorganization, receivership or moratorium laws.
(f) No Material Adverse Effect. Since December 31, 2022, no event, circumstance or change has occurred that has caused or evidences, or would reasonably be expected to result in, either individually or in the aggregate, a Material Adverse Effect.
(g) Adverse Proceedings, Etc. Other than the Ontario Litigation, there are no Adverse Proceedings with respect to it, individually or in the aggregate, that would reasonably be expected to have a Material Adverse Effect. It (i) is not in violation of any Applicable Laws and (ii) is not subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, provincial, territorial, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, except, in each case, where such violation or default could not reasonably be expected to result in a Material Adverse Effect.
(h) Payment of Taxes. All of its Tax returns and reports required to be filed by it have been timely filed, and all Taxes shown on such tax returns to be due and payable and all assessments, fees and other governmental charges upon it and upon its properties, assets, income, businesses and franchises which are due and payable have been paid when due and payable, except (i) Taxes that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with Applicable Accounting Rules or (ii) to the extent that failure to file such returns or make payments could not reasonably be expected to have a Material Adverse Effect.
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(i) No Liens, Etc. The Collateral and each part thereof is owned by the Borrower free and clear of any Lien or restrictions on transferability (other than Permitted Liens) and the Borrower has the full right, power and lawful authority to pledge and grant a first priority security interest, subject to Permitted Liens, in the Collateral in favor of the Collateral Agent for the benefit of the Secured Parties, and upon the execution and delivery of Collateral Documents on the Effective Date, Collateral Agent, for the benefit of the Secured Parties, will have acquired a perfected, First Priority Lien in such Collateral, free and clear of any Lien or restrictions on transferability (other than Permitted Liens). The Borrower has not pledged, assigned, sold, granted a security interest (other than Permitted Liens) in or otherwise conveyed any of the Collateral and no effective financing statement or other instrument similar in effect naming or purportedly naming Borrower or any of its Affiliates as debtor and covering all or any part of the Collateral is on file in any recording office, except such as may have been filed in favor of Collateral Agent as "Secured Party" pursuant to the Pledge and Collateral Account Control Agreement.
(j) No Defaults. It is not in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any of its Contractual Obligations, except where such default could not reasonably be expected to result in a Material Adverse Effect.
(k) Investment Company Act. It is not required to register as an "investment company" as such term is defined in the Investment Company Act of 1940.
(l) Federal Reserve Regulations; Exchange Act. No portion of the proceeds of any Loan shall be used in any manner, whether directly or indirectly, that causes or could reasonably be expected to cause, such Loan or the application of such proceeds to violate Regulation U or Regulation X of the Board of Governors.
(m) Eligible Contract Participant. It is an "eligible contract participant" within the meaning of the U.S. Commodity Exchange Act (as amended from time to time).
(n) Solvency. As of any Drawdown Date, it is Solvent and it will not become insolvent after giving effect to the transactions contemplated by the Loan Documents.
(o) Compliance with Statutes, Etc. It is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property, except where such non- compliance could not reasonably be expected to result in a Material Adverse Effect.
(p) Anti-Corruption Laws and Anti-Money Laundering Laws.
(i) The Loan Parties, their Subsidiaries and their respective directors and officers, and, to the knowledge of the Loan Parties, their employees, representatives, and agents are, and at all times have been, in compliance in all material respects with Anti-Money Laundering Laws.
(ii) The Loan Parties, their Subsidiaries and their respective directors and officers, and, to the knowledge of the Loan Parties, their employees, representatives, and agents are, and have at all times been, in compliance in all material respects with Anti-Corruption Laws.
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(iii) No Loan Party, Subsidiary nor any of their respective directors and officers, or, to the knowledge of the Loan Parties, their employees, representatives, or agents have directly or indirectly: (i) used any corporate funds for any unlawful contributions, gifts, entertainment or other unlawful expenses relating to any political activity; or (ii) made, offered to make, promised to make or otherwise authorized the payment or giving of, directly or indirectly, any bribe, rebate, payoff, influence payment, kickback or other payment or gift of money or anything of value to any officer, employee or ceremonial office holder of any government or instrumentality thereof, any political party or supra-national organization or to any other Person in order to obtain, retain or direct business or obtain any improper advantage ((i)-(ii), an "Improper Payment").
(iv) No Loan Party, Subsidiary or any of their respective directors and officers, and, to the knowledge of the Loan Parties, employees is the subject of, or party to, any Adverse Proceeding relating to any Improper Payment or actual or alleged violation of Anti-Corruption Laws or Anti-Money Laundering Laws.
(q) Sanctions.
(i) No Loan Party, Subsidiary or any of their respective directors and officers, and, to the knowledge of the Loan Parties, their employees, representatives, and agents:
(A) is a Restricted Party;
(B) has violated or is in violation of any Sanctions, or has engaged or is engaging in any conduct which could result in any Person violating Sanctions or which could reasonably be expected to result in any Person becoming designated as a Restricted Party;
(C) is the subject of, or party to, or received notice of or is otherwise aware of any Adverse Proceeding relating to any actual or alleged violations of Sanctions or conduct which could reasonably be expected to result in any Person becoming designated as a Restricted Party; or
(D) is engaged or has been engaged in any transactions, dealings, or other activities, directly or indirectly, with, for, or on behalf of any Restricted Party.
(ii) The Loan Parties and their Subsidiaries shall at all times institute, maintain and comply in all material respects with internal procedures and controls reasonably designed to ensure compliance with Anti-Corruption Laws, Anti-Money Laundering Laws, and Sanctions, and shall rely on such internal procedures and controls to prevent the proceeds of the Loans from being used in any way that would cause Borrower, the Guarantor or the Lender to violate Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions.
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(r) Disclosure. No written factual information (other than any projections, other forward-looking or projected information, or pro forma information) in any documents, certificates or written statements furnished to any Agent or Lender by it for use in connection with the transactions contemplated hereby contains any untrue statement of a material fact or omits to state a material fact (known to it, in the case of any document not furnished by it) necessary in order to make the statements contained herein or therein, taken as a whole, not materially misleading in light of the circumstances in which the same were made. Any projections and pro forma financial information contained in such materials are based upon good faith estimates and assumptions believed by it to be reasonable at the time made.
(s) Financial Statements. Unless otherwise publicly available, the Financial Statements of the Guarantor most recently delivered to the Lender (which, at the date of this Agreement, are the Original Financial Statements):
(i) have been prepared in accordance with the Applicable Accounting Rules, consistently applied; and
(ii) fairly present, its financial condition and results of operations as at the date to which they were drawn up.
The representations in this Section 4.01(s) will be deemed to be repeated on the first day of each Interest Period.
(t) ERISA Matters. No ERISA Event has occurred on or prior to the date that this representation is made or deemed made that, whether alone or together with all other ERISA Events that have occurred, would reasonably be expected to have a Material Adverse Effect.
(u) BTC Financing. Neither the Guarantor nor any of its Affiliates has entered into and has outstanding any BTC Financing save for the transaction contemplated by this Agreement and the Galaxy Financing.
(v) Place of Business. The Borrower (i) maintains its respective books and records and its chief executive office and primary place of business in the Province of British Columbia, Canada, and (ii) does not have a "place of business" (as defined in the UCC) in the United States of America.
(w) Canadian Pension Plans. Neither the Borrower nor any of its Affiliates maintains, administers or contributes to, nor has it ever maintained, administered or contributed to, any Canadian Defined Benefit Plan or Canadian Multi-Employer Plan.
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Article V
COVENANTS OF THE BORROWER
Section 5.01. Affirmative Covenants. The Borrower covenants and agrees that, so long as any Commitment is in effect and until payment in full of all outstanding and unpaid principal amounts of the Loan, the Borrower shall perform all covenants in this Article 5.
(a) Notices and Other Reports. The Borrower will deliver to the Administrative Agent and the Lender:
(i) Notice of Default. Promptly (and in any event within two (2) Business Days) upon any officer obtaining knowledge of any condition or event that constitutes a Default or an Event of Default or that notice has been given to it with respect thereto;
(ii) Notice of Litigation. Promptly upon any officer obtaining knowledge of (A) any Adverse Proceeding with respect to the Borrower or any of their Affiliates not previously disclosed in writing by it to the Lender and the Administrative Agent or (B) any development in any Adverse Proceeding with respect to the Borrower that, in the case of either paragraph (A) or (B), if adversely determined could be reasonably expected to have a Material Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated hereby, written notice thereof and, following the reasonable request therefor by the Administrative Agent with such other information as may be reasonably available to it to enable the Lender and their counsel to evaluate such matters;
(iii) Know Your Customer Information. Promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent or the Lender for purposes of compliance with applicable "know your customer" and anti-money-laundering rules, regulations and policies;
(iv) Judgments. Promptly (and in any event within two (2) Business Days) upon any officer obtaining knowledge thereof), the rendering of any judgments or orders for the payment of money in excess of U.S. $20,000,000 (or its equivalent in other currencies) in the aggregate against either Loan Party if (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of thirty (30) or more consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
(v) Information Regarding Collateral. At least five (5) Business Days prior to the effective date thereof, the Borrower will furnish to the Collateral Agent and the Administrative Agent written notice of any change in (A) its corporate name, (B) its identity or corporate structure, (C) its jurisdiction of organization, (D) its Federal Taxpayer Identification Number or state organizational identification number or (E) the location of its chief executive office or of the establishment of any place of business in the United States of America. The Borrower agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the UCC or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral as contemplated in the Collateral Documents; and
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(vi) Additional Information. Promptly, such additional information regarding the business, financial (including Financial Statements) or corporate affairs of the Borrower, or compliance with the terms of the Loan Documents, as the Administrative Agent or the Lender may from time to time reasonably request, so long as such information is within the possession of Borrower or may be obtained with neither undue burden nor expense.
(b) Existence. Except as otherwise permitted under Section 5.02(d), each of the Loan Parties will at all times preserve and keep in full force and effect (i) its existence and (ii) all rights and franchises, licenses and permits material to its business, except, in this clause (ii) where such failure could not reasonably be expected to result in a Material Adverse Effect.
(c) Payment of Taxes and Claims. Each of the Loan Parties will pay all Taxes imposed upon it or any of its properties or assets or in respect of any of its income, businesses or franchises before any penalty or fine accrues thereon, and all claims for sums that have become due and payable and that by law have or may become a Lien upon any of its properties or assets, prior to the time when any penalty or fine shall be incurred with respect thereto; provided, no such Tax or claim need be paid if (x) the failure to pay such Tax or claim could not reasonably be expected to have a Material Adverse Effect or (y) it is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, so long as (a) adequate reserve or other appropriate provision, as shall be required in conformity with Applicable Accounting Rules, shall have been made therefor, and (b) in the case of a Tax or claim which has or may become a Lien against any of the Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the Collateral to satisfy such Tax or claim.
(d) Maintenance of Properties. The Borrower will maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear excepted, all material properties used or useful in its business and in each of its Affiliates businesses and from time to time will make or cause to be made all appropriate repairs, renewals and replacements thereof, except where such non-compliance would not reasonably be expected to result in a Material Adverse Effect.
(e) Security Interest. It will maintain a First Priority Lien in the Collateral for the benefit of the Secured Parties, their successors, transferees and assigns.
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(f) Books and Records; Inspections. The Borrower will keep proper books of record and accounts in conformity in all material respects with Applicable Accounting Rules shall be made of all dealings and transactions in relation to its business and activities. The Borrower will permit any authorized representatives designated by the Administrative Agent to visit and inspect any of the properties of it at which the principal financial records regarding the Collateral of it are located, to inspect, copy and take extracts from its financial and accounting records of the Collateral, and to discuss its affairs, finances and accounts as it relates to the Collateral with its officers (provided that the Borrower may, if it so chooses, have one or more employees or representatives be present at or participate in any such discussion), all upon reasonable notice and at such reasonable times during normal business hours; provided that (x) only the Administrative Agent on behalf of the Lender may exercise the rights of the Administrative Agent and the Lender under this Section 5.01(f), (y) the Administrative Agent shall not exercise such rights more often than one time during any calendar year and (z) only one such visit per calendar year shall be at the expense of the Borrower; provided, further that notwithstanding anything to the contrary herein, the Borrower shall not be required to disclose, permit the inspection, examination or making of copies of or taking abstracts from, or discuss any document, information or other matter (i) that constitutes non-financial trade secrets or non-financial proprietary information of the Borrower and/or any of its customers and/or suppliers, (ii) in respect of which disclosure to the Administrative Agent or the Lender (or any of their respective representatives or contractors) is prohibited by applicable law, (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product or (iv) in respect of which the Borrower owes confidentiality obligations to any third party (provided such confidentiality obligations were not entered into solely in contemplation of the requirements of this Section 5.01(f)).
(g) Compliance with Laws. Each of the Loan Parties and each of their Subsidiaries will comply with the requirements of all Applicable Laws, rules, regulations and orders of any Governmental Authority, except where such failure could not reasonably be expected to result in a Material Adverse Effect.
(h) Further Assurances. At any time or from time to time upon the request of the Administrative Agent or the Collateral Agent, the Borrower will, at its expense, promptly execute, acknowledge and deliver such further documents and do such other acts and things as the Administrative Agent or the Collateral Agent may reasonably request in order to ensure the perfection and priority of the Liens created or intended to be created under the Loan Documents.
(i) BTC Financing. If the Guarantor or any of its Affiliates wishes to enter into a BTC Financing after the date hereof, the Borrower shall provide notice of such proposed BTC Financing to the Lender giving reasonable details of the terms of the proposed BTC Financing no later than ten (10) Business Days prior to the closing of such new BTC Financing.
(j) Financial Statements. Unless otherwise publicly available, the Borrower must supply to the Lender:
(i) the audited annual Financial Statements of the Guarantor as soon as they are available, and in any event, within 120 days of the end of each financial year; and
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(ii) the unaudited quarterly Financial Statements of the Guarantor as soon as they are available, and in any event, within 60 days of the end of each financial quarter.
At such time as the Borrower is obliged to provide to the Lender quarterly Financial Statements, the Borrower shall provide the Lender with a Compliance Certificate in the form of Exhibit E in respect of the financial quarter to which such quarterly Financial Statements relate.
(k) Form of Financial Statements.
(i) Any unaudited Financial Statements supplied pursuant to Section 5.01(j) above must be accompanied by a certificate signed by the chief financial officer of the Guarantor certifying that the relevant Financial Statements fairly present the financial condition of the Guarantor as at the date to which those Financial Statements were drawn up.
(ii) The Borrower must notify the Lender of any change to the manner in which the Financial Statements of the Guarantor are prepared.
(iii) If requested by the Lender, the Borrower must supply to the Lender:
(A) a full description of any change notified under paragraph (ii) above; and
(B) sufficient information to enable the Lender to make a proper comparison between the financial position shown by the set of Financial Statements prepared on the changed basis and the most recent Financial Statements delivered to the Lender under this Agreement.
Section 5.02. Negative Covenants.
(a) Liens. The Borrower shall not, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to the Collateral, whether now owned or hereafter acquired, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to the Collateral under the UCC of any State or under any similar recording or notice statute, except:
(i) Liens in favor of the Collateral Agent for the benefit of Secured Parties granted pursuant to any Loan Document;
(ii) Liens for Taxes not yet due or that are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with Applicable Accounting Rules;
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(iii) Liens imposed by law (other than any such Lien imposed pursuant to Section 430(k) of the Code or ERISA or a violation of Section 436 of the Code), in each case incurred in the ordinary course of business (i) for amounts not yet overdue or (ii) for amounts that are overdue and that (in the case of any such amounts overdue for a period in excess of five (5) days) are being contested in good faith by appropriate proceedings, so long as such reserves or other appropriate provisions, if any, as shall be required by Applicable Accounting Rules shall have been made for any such contested amounts; and
(iv) Liens (whether contractual or arising as a matter of Law, including rights of set-off or netting) in favor of the Custodian in connection with the Collateral Account.
(b) No Further Negative Pledges. The Borrower shall not enter into any agreement prohibiting the creation or assumption of any Lien upon any of the Collateral, whether now owned or hereafter acquired, to secure the obligations under any Loan Document.
(c) Sale of Collateral. The Borrower shall not sell, assign, transfer, convey or otherwise dispose (including without limitation, any effective transfer or other disposition as a result of a division) of any Collateral.
(d) Mergers and Consolidations; Disposition of Assets. Other than the Business Combination (including the Hut Amalgamation), the Borrower shall not enter into any transaction of merger, amalgamation or consolidation unless the Borrower shall be the surviving person of such transaction, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), enter into any division or convey, sell, lease or license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of its assets (whether now owned or hereafter acquired).
(e) Anti-Corruption Laws; Anti-Money Laundering Laws; Sanctions. Neither the Loan Parties nor any of their Subsidiaries, nor any of their respective directors, officers, employees, representatives, or agents shall:
(i) directly or indirectly, deal in, or otherwise engage in any activity, transaction, or conduct with, relating to, for, or on behalf of, any Restricted Party;
(ii) contribute or otherwise make available all or any part of the Loan to, or for the benefit of, any person, individual or entity, director, officer, employee, representative, or agent, or any Person acting on behalf of the foregoing, for the purpose of financing the activities or business of, other transactions with, or investments in, any Restricted Party;
(iii) otherwise engage, or conspire to engage in any transaction that violates, attempts to violate or evade, or would cause any party to this Agreement to be in violation of, any Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions, or that could reasonably be expected to result in any party to this Agreement becoming a Restricted Party;
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(iv) repay any portion of the Loan, or make any other payment to Lender or any other Person, using funds or property derived from any direct or indirect conduct, activity, or transactions with any Restricted Party or otherwise derived, directly or indirectly, from any violation of Sanctions, or permit any Restricted Party to have any direct or indirect interest in Borrower; or
(v) use any part of the proceeds of any Loan, directly or indirectly, in connection with any Improper Payment.
The Loan Parties and their Subsidiaries shall at all times institute, maintain and comply with internal procedures and controls reasonably designed to ensure compliance with Anti-Corruption Laws, Anti-Money Laundering Laws, and Sanctions.
(f) Canadian Pension Plans. Neither the Borrower nor any of its Affiliates shall establish, maintain, administer or contribute to any Canadian Defined Benefit Plan or Canadian Multi-Employer Plan.
Article VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. If any of the following events (each an "Event of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan on the Business Day when the same becomes due and payable;
(b) The Borrower shall fail to pay any interest on the Loan, or make any other payment of fees or other amounts under this Agreement or any other Loan Document within three (3) Business Days after such payment is due;
(c) Any representation or warranty made by the Borrower or the Guarantor or in any Loan Document to which it is a party or by the Borrower or Guarantor (or any of their respective officers) in connection with any Loan Document shall prove to have been incorrect in any material respect when made;
(d)
(i) The Borrower shall fail to perform or observe any term, covenant or agreement contained in Section 2.06, Section 5.01(b) (with respect to its legal existence of the Borrower), or Section 5.02, or in any Collateral Document; or
(ii) the Borrower shall fail to perform or observe any other term, covenant or agreement contained in any Loan Document on its part to be performed or observed (other than the failure to satisfy any covenant or agreement specified in clause (d)(i) above or a default specified in paragraph (a) or (b) above) if such failure shall remain unremedied for twenty (20) or more days after the earlier of the date on which (A) any officer of the Borrower or the Guarantor becomes aware of such failure or (B) written notice thereof shall have been given to the Borrower by the Lender;
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(e) Either of the Loan Parties or any of the Borrower's Subsidiaries shall fail to pay any principal of or premium or interest on any Debt that is outstanding in a principal or notional amount of the lower of (x) US$15,000,000 and (y) an amount equal to 3% of the value of shareholders' equity, as determined by the Administrative Agent (or its equivalent in other currencies) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt or otherwise to cause, or to permit the holder thereof to cause such Debt to mature; or any such Debt shall be declared to be due and payable, or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof;
(f) An Insolvency Event occurs with respect to either of the Loan Parties or any of the Borrower's Subsidiaries;
(g) Any (i) monetary judgments or order for the payment of money in excess of U.S. $20,000,000 (or its equivalent in other currencies) in the aggregate shall be rendered against either of the Loan Parties or any of the Borrower's Subsidiaries, or (ii) non-monetary judgment or order shall be rendered against either of the Loan Parties or any of the Borrower's Subsidiaries that could be reasonably expected to have a Material Adverse Effect, and, in any case, either (x) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (y) there shall be any period of thirty (30) or more consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
(h) The obligations of the Borrower under this Agreement or any of the other Loan Documents to which it is a party shall fail to rank at least pari passu in priority of payment and in all other respects with all other unsecured and unsubordinated Debt of the Borrower, excluding liens permitted under the Loan Documents;
(i) Any provision of this Agreement or any of the other Loan Documents to which it is a party shall cease to be valid and binding on or enforceable against the Borrower or the Guarantor, or the Borrower or the Guarantor shall so assert or state in writing, or the obligations of the Borrower or the Guarantor, as appropriate, under this Agreement or any other Loan Document to which it is a party shall in any way become illegal;
(j) Any Collateral Document ceases for any reason to provide the Liens, rights, titles, interests, remedies, powers or privileges created thereby or any Lien once created in any portion of the Collateral shall cease to be effective or fail to have the first priority originally created under the Collateral Documents (except to the extent expressly permitted thereunder); or there occurs, in the judgment of the Lender, any adverse change in the Laws of the Relevant Jurisdiction relating to respecting security arrangements governed by foreign Laws with respect to the Collateral; or
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(k) Subject to the Loan Documents and any disposal permitted by the terms of this Agreement, the Borrower ceases to be the sole and absolute legal and beneficial owner of the Collateral Account or the Borrower or the Guarantor ceases to have good and marketable title (as sole and absolute beneficial owner) to any of the Collateral,
then, and in any such event, the Administrative Agent (i) may declare the obligation of each Lender to make the Loan to be terminated, whereupon the same shall forthwith terminate, (ii) may, by notice to the Borrower (a "Default Notice"), declare the Promissory Note, the outstanding principal amount of the Loan, all accrued and unpaid interest thereon and all other amounts payable under this Agreement (including any applicable Hedging Costs) to be forthwith due and payable, whereupon the Promissory Note, the outstanding principal amount of the Loan, all such accrued and unpaid interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower, and (iii) may foreclose upon the Collateral or exercise remedies in respect of the Collateral, and may, or may direct the Custodian to, take such actions as provided for under the Collateral Documents; provided, however, that in the case of an event described under paragraph (ii) of Section 6.01(f) above, (A) the obligation of the Lender to make the Loan shall automatically be terminated and (B) the Promissory Note, the outstanding principal amount of the Loan, all such accrued and unpaid interest and all such other amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind (including, without limitation, a Default Notice), all of which are hereby expressly waived by the Borrower.
Article VII
MISCELLANEOUS
Section 7.01. Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Documents, nor consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Lender and the Borrower, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
Section 7.02. Notices, Etc.
(a) Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications provided for hereunder shall be delivered by hand or overnight courier service (including international courier), mailed by certified or registered mail or sent by facsimile or electronic communications (such as e-mail):
(i) if to the Borrower, at its address: 24 Duncan Street, Suite 500, Toronto, Ontario M5V 2B8, attention: Aniss Amdiss and Shenif Visram or to email address: [Redacted: Personal Contact Information] or any of the other contacts listed in Schedule 1 hereto (which Schedule 1 may be amended from time to time by the Borrower and the Lender); or
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(ii) if to the Lender, the Collateral Agent or the Administrative Agent, at its Lending Office specified opposite its name on the signature pages below; if to any other Lender, at its Lending Office specified in the Assignment and Acceptance pursuant to which it became a Lender.
(b) Delivery by facsimile or other electronic communication of an executed counterpart of any amendment or waiver of any provision of this Agreement or the Promissory Note or of any Exhibit hereto to be executed and delivered hereunder shall be effective as delivery of a manually executed counterpart thereof. Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications, to the extent provided in paragraph (c) below, shall be effective as provided in said paragraph (c).
(c) Notices and other communications to the Lender hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Lender, provided that the foregoing shall not apply to notices to the Lender pursuant to Article II if the Lender has notified the Borrower that it is incapable of receiving notices under such Article by electronic communication. The Lender or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
Unless the Lender otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender's receipt of an acknowledgement from the intended recipient (such as by the "return receipt requested" function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its email address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefore; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.
(d) Change of Address, etc. Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto.
Section 7.03. No Waiver; Remedies. No failure on the part of the Lender to exercise, and no delay in exercising, any right hereunder or under the Promissory Note shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
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Section 7.04. Costs and Expenses.
(a) The Borrower agrees to pay on demand all costs and expenses of the Lender in connection with the preparation, execution, delivery, administration, modification, waiver or amendment of any Loan Documents or any other documents to be delivered hereunder or thereunder after the Effective Date (whether or not the transactions contemplated hereby or thereby shall be consummated) provided that, in the case of the initial preparation and execution of the Loan Documents only, the Borrower shall not be required to pay an amount in excess of US$100,000 in respect of such costs and expenses. The Borrower further agrees to pay on demand all costs and expenses of the Lender, if any (including, without limitation, counsel fees and expenses and, following an Event of Default, Hedging Costs), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement, the other Loan Documents and the other documents to be delivered hereunder, including, without limitation, reasonable fees and expenses of counsel for the Lender in connection with the enforcement of rights under this Section 7.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Lender and each of its Affiliates and their officers, directors, employees, agents and advisors (each, an "Indemnified Party") from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel (including attorneys who may be employees of the Lender) and settlement costs) incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) the Promissory Note, this Agreement, any of the other Loan Documents or any of the transactions contemplated herein or therein, the actual or proposed use of the proceeds of the Loan, except to the extent such claim, damage, loss, liability or expense (i) is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence, fraud or willful misconduct, (ii) results from a claim brought by the Borrower against an Indemnified Party for breach in bad faith of such Indemnified Party's obligations hereunder or under any other Loan Document, if the Borrower has obtained a final non-appealable judgment by a court of competent jurisdiction that such Indemnified Party has breached in bad faith such obligations or (iii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnified Party against another Indemnified Party that does not involve any act or omission of the Borrower. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 7.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, its directors, equity holders or creditors or an Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated. The Borrower also agrees not to assert any claim for special, indirect, consequential or punitive damages against the Lender, any of its Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability arising out of or otherwise relating to the Promissory Note, this Agreement, any other Loan Document or any of the transactions contemplated herein or therein or the actual or proposed use of the proceeds of the Loan.
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(c) Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in Section 2.09, Section 2.12, Section 7.04, Section 7.07 and Section 7.09 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the Promissory Note.
Section 7.05. Binding Effect. This Agreement shall become effective (other than Section 2.01, which shall only become effective upon satisfaction of the conditions precedent set forth in Section 3.01) when it shall have been executed by the Borrower and the Lender, and thereafter shall be binding upon and inure to the benefit of the Borrower and the Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lender.
Section 7.06. Assignments and Participations.
(a) The Lender may assign to one or more Persons all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loan owing to it and the Promissory Note held by it); provided, however, that (i) each such assignment shall be of a constant, and not a varying percentage of all rights and obligations under this Agreement and in principal amount not less than $10,000,000, (ii) the parties to each such assignment shall execute and deliver an Assignment and Acceptance, together with the Promissory Note subject to such assignment, and (iii) unless (A) the assignment is to an Affiliate or successor of the Lender, including without limitation Coinbase Asset Management, or (B) there exists at such time a Default or Event of Default, the prior written consent of the Borrower to such assignment is required (such consent not to be unreasonably withheld or delayed). Upon such execution and delivery, from and after the Effective Date of Assignment and Acceptance specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have such rights and obligations of the Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights (other than its rights under Section 2.09, Section 2.12 and Section 7.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of the Lender's rights and obligations under this Agreement, the Lender shall cease to be a party hereto). If the Lender transfers or assigns any portion or all of its rights under the Loan Documents to any other Person, any reference to the Lender in each Loan Document shall thereafter refer to the Lender and to such other Person to the extent of their respective interests, as if such other Person had been a party to this Agreement as of the date hereof up to and including the date of such transfer or assignment.
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(b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 5.01(j) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon such assigning Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; and (v) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as the Lender.
(c) Within five Business Days after its receipt of notice of an assignment hereunder and the Promissory Note(s) subject to such assignment, the Borrower at its own expense shall execute and deliver to the Lender assignee, in exchange for each surrendered Promissory Note, a new Promissory Note to such assignee in an amount equal to the outstanding amount of the Promissory Note assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a portion of the Loan, a new Promissory Note to the assigning Lender in an amount equal to its portion of the Loan. Such new Promissory Note or Promissory Notes shall be in an aggregate principal amount equal to the aggregate principal amount of the surrendered Promissory Note, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto.
(d) The Lender may sell participations at any time, without the consent of, or notice, to the Borrower, to one or more entities (other than the Guarantor or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loan owing to it and the Promissory Note or Promissory Notes held by it); provided, however, that (i) the Lender's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) the Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Lender shall remain the holder of any such Promissory Note for all purposes of this Agreement, (iv) the Borrower shall continue to deal solely and directly with the Lender in connection with the Lender's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement, the Collateral Documents or any Promissory Note, or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, such Promissory Note or any other amounts payable hereunder, in each case to the extent subject to such participation, or release a material portion of the Collateral, or postpone any date fixed for any payment of principal of, or interest on, such Promissory Note or any other amounts payable hereunder, in each case to the extent subject to such participation. The Borrower agrees that each participant shall be entitled to the benefits of Section 2.09, Section 2.12 and Section 7.04(c) (subject to the requirements and limitations therein, including the requirements under Section 2.09(f) (it being understood that the documentation required under Section 2.09(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such participant shall not be entitled to receive any greater payment under Section 2.09 and Section 2.12 than the applicable Lender would have been entitled to receive with respect to the participation sold to such participant, unless the sale of the participation to such participant is made with the Borrower's prior written consent or such entitlement to a greater payment results from a Change in Law after the sale of the participation takes place.
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(e) The Lender may, in connection with any assignment or participation or Risk Transfer or proposed assignment or participation or Risk Transfer pursuant to this Section 7.06, disclose to the assignee or participant or party to a Risk Transfer or proposed assignee or participant or party to a Risk Transfer, any information relating to the Borrower furnished to the Lender by or on behalf of the Borrower.
(f) Notwithstanding any other provision set forth in this Agreement, the Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loan owing to it and any Promissory Note held by it) including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central banking authority.
Section 7.07. Governing Law. This Agreement and the Promissory Note and other Loan Documents shall be governed by and construed in accordance with the laws of the State of New York, USA.
Section 7.08. Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or other electronic communication (i.e., ".pdf" or ".tif" formats) shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 7.09. Jurisdiction; Waiver of Immunities.
(a) The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or federal court of the United States sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the other Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the fullest extent permitted by applicable law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
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(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the other Loan Documents in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(c) Nothing in this Section 7.09 shall affect the right of the Lender to serve legal process in any other manner permitted by law or affect the right of the Lender to bring any action or proceeding against the Borrower or its property in the courts of other jurisdictions, including, without limitation, the courts sitting in the Relevant Jurisdiction.
(d) The Borrower hereby irrevocably appoints Corporation Service Company (the "Process Agent"), with an office on the date hereof at 19 West 44th Street, Suite 200, New York, NY 10036, as its agent to receive on its behalf and its property, service of copies of the summons and complaint and any other process which may be served in any such action or proceeding brought in the State of New York, and the Borrower agrees that the failure of the Process Agent to give any notice of any such service of process to the Borrower, shall not impair or affect the validity of such service or, to the extent permitted by applicable law, the enforcement of any judgment based thereon. Such service may be made by mailing or delivering a copy of such process to the Borrower in care of the Process Agent at the Process Agent's above address, and the Borrower hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. As an alternative method of service, the Borrower also irrevocably consents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to the Borrower at its address specified in Section 7.02.
Section 7.10. Confidentiality.
The Lender agrees to hold all Confidential Information obtained pursuant to the provisions of this Agreement in accordance with its customary procedure for handling such information of this nature; provided that nothing herein shall prevent the Lender from disclosing and/or transferring such Confidential Information (i) upon the order of any court or administrative agency or otherwise to the extent required by statute, rule, regulation, judicial process, subpoena or similar process of other Applicable Laws, (ii) upon the request or demand of any regulatory or self-regulatory agency or authority, (iii) which had been publicly disclosed other than as a result of a disclosure by the Lender prohibited by this Agreement, (iv) in connection with any litigation to which the Lender is a party, or in connection with the exercise of any remedy hereunder or under any other Loan Document, (v) to the Lender's legal counsel and independent auditors and accountants, (vi) to the Lender's branches, subsidiaries, representative offices, affiliates, agents and third parties selected by any of the foregoing entities, wherever situated, for confidential use (including in connection with the provision of any service and for data processing, statistical and risk analysis purposes), (vii) subject to provisions substantially similar to those contained in this Section 7.10, to any actual or prospective participant or assignee that agree to confidentiality on the same basis as the Lender, derivatives counterparties, or party to a Risk Transfer. The Borrower agrees to treat as confidential all information supplied by the Lender concerning the documentation and methods developed by the Lender to structure and arrange the transaction contemplated herein.
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Section 7.11. Regulatory Notice.
The Borrower hereby acknowledges that pursuant to applicable regulatory requirements, the Lender is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow the Lender to identify the Borrower. The Borrower shall, and shall cause each of its Affiliates to, provide such information and take such actions as are reasonably requested by the Lender in order to assist the Lender in maintaining compliance with such applicable requirements.
Section 7.12. Waiver of Jury Trial.
EACH OF THE BORROWER AND THE LENDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR THE ACTIONS OF THE LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF. EACH OF THE BORROWER, ADMINISTRATIVE AGENT AND LENDERS (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 7.13. Severability.
If any provision of this Agreement is found by a court to be invalid or unenforceable, to the fullest extent permitted by applicable law, each of the parties hereto agrees that such invalidity or unenforceability will not impair the validity or enforceability of any other provision hereof.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
HUT 8 HOLDINGS INC. | ||
By | /s/ Jaime Leverton | |
Name: Jaime Leverton | ||
Title: Chief Executive Officer |
[Signature page to Credit Agreement]
Lending Office | COINBASE CREDIT, INC., as Lender, Collateral Agent and as Administrative Agent | |
By | /s/ Matt Boyd | |
Title: Head of Prime Finance |
Coinbase Credit, Inc.
248 3rd Street, #434
Oakland CA 94607
United States
attn.: Matt Boyd, Zaid Khan
e-mail: [Redacted: Personal Contact Information]
[Signature page to Credit Agreement]
EXHIBIT A - FORM OF
PROMISSORY NOTE
U.S.$ [●]
Dated: [ ], 2023
FOR VALUE RECEIVED, the undersigned, Hut 8 Holdings Inc., a corporation organized and existing under the laws of the Province of British Columbia, Canada (including Hut 8 Mining Corp., its successor by amalgamation pursuant to the terms of the Hut Amalgamation, the "Borrower"), HEREBY PROMISES TO PAY to Coinbase Credit, Inc. (the "Lender") for the account of its Lending Office (as defined in the Credit Agreement referred to below) the principal amount of [●] (the "Loan", as defined in the Credit Agreement referred to below) owing to the Lender by the Borrower pursuant to the Credit Agreement dated as of [●], 2023 between the Borrower, the Lender and the Administrative Agent (as amended or modified from time to time, the "Credit Agreement"; the terms defined therein being used herein as therein defined) on the dates and in the amounts specified in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of the Loan from the date of such Loan until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United States to the Lender, at [●], United States of America, in same day funds. All payments made on account of principal thereof shall be recorded by the Lender and, prior to any transfer hereof, endorsed on the grid attached hereto which is part of this Promissory Note; provided that the failure of the Lender to make any such recordation or endorsement shall not affect the obligations of the Borrower under this Promissory Note.
This Promissory Note is the Promissory Note referred to in, and is entitled to the benefits of, the Credit Agreement. The Credit Agreement, among other things, (i) provides for the making of the Loan by the Lender to the Borrower in an aggregate amount not to exceed at any time outstanding the U.S. Dollar amount first above mentioned, the indebtedness of the Borrower resulting from such Loan being evidenced by this Promissory Note, and (ii) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and conditions therein specified.
This Promissory Note is governed by, and construed in accordance with, the laws of the State of New York, United States of America.
HUT 8 HOLDINGS INC. | ||
By | ||
Title: |
ADVANCE AND PAYMENTS OF PRINCIPAL
Date | Amount
of Principal Paid or Prepaid |
Unpaid
Principal Balance |
Notation Made By |
EXHIBIT B - FORM OF
NOTICE OF BORROWING
Coinbase
Credit, Inc.
as Lender under
the Credit Agreement
referred to below
[●] | [ ], 2023 |
Attention: [●]
Ladies and Gentlemen:
The undersigned, Hut 8 Holdings Inc., refers to the Credit Agreement, dated as of [●], 2023 (as amended or modified from time to time, the "Credit Agreement", the terms defined therein being used herein as therein defined), between the undersigned, the Lender and the Administrative Agent, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to the Borrowing (the "Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(A) The Business Day of the Proposed Borrowing is [●].
(B) The aggregate amount of the Proposed Borrowing is [●].
(C) Wiring instructions: (to include Bank Name, ABA [●], Acct # XXXX, Swift: XXXX)
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01 of the Credit Agreement and in each other Loan Document are true and correct in all material respects, before and after giving effect to the Proposed Borrowing and to the application of the proceeds therefrom, as though made on and as of such date (except to the extent such representations and warranties expressly relate to an earlier date in which case such representations and warranties shall have been true and correct in all material respects on each earlier date);
(B) other than the Ontario Litigation, there shall exist no Adverse Proceeding that could be reasonably likely to have a Material Adverse Effect; and
(C) no event has occurred and is continuing, or would result from such Proposed Borrowing or from the application of the proceeds therefrom, that constitutes a Default.
Very truly yours, HUT 8 HOLDINGS INC. | ||
By | ||
Title: |
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as [●], 2023 (as amended or modified from time to time, the "Credit Agreement") between Hut 8 Holdings Inc., a corporation organized and existing under the laws of the Province of British Columbia, Canada (including Hut 8 Mining Corp., its successor by amalgamation pursuant to the terms of the Hut Amalgamation, the "Borrower"), the Lender (as defined in the Credit Agreement) and the Administrative Agent (as defined in the Credit Agreement). Terms defined in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, [all of] the Assignor's rights and obligations under the Credit Agreement as of the date hereof. After giving effect to such sale and assignment, the Assignee's Commitment and the amount of the Loan owing to the Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or the Collateral or any other instrument or document furnished pursuant thereto; (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under the Credit Agreement or any other instrument or document furnished pursuant thereto; and (iv) attaches each Promissory Note held by the Assignor and requests that the Borrower exchange such Promissory Note for a new Promissory Note payable to the Assignee in an amount equal to the Commitment assumed by the Assignee pursuant hereto.
3. The Assignee (i) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements referred to in Section 5.01(j) thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance; (ii) agrees that it will, independently and without reliance upon the Assignor and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) confirms that it is a sophisticated investor which has the ability to evaluate the merits and risks of an investment in the Credit Agreement, including, without limitation, the financial and political conditions in the Relevant Jurisdiction as of the date hereof, and the ability to assume the economic risks involved in such an investment; and (iv) agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Credit Agreement are required to be performed by it as the Lender.
4. Following the execution of this Assignment and Acceptance, it will be delivered to the Borrower. The effective date for this Assignment and Acceptance (the "Effective Date of Assignment and Acceptance") shall be the date of delivery hereof to the Borrower, unless otherwise specified on Schedule 1 hereto.
5. Upon such delivery to the Borrower, as of the Effective Date of Assignment and Acceptance, (i) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of the Lender thereunder and (ii) the Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement.
6. Upon such delivery to the Borrower, from and after the Effective Date of Assignment and Acceptance, the Borrower shall make all payments under the Credit Agreement and the Promissory Note in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and facility fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments under the Credit Agreement and the Promissory Note for periods prior to the Effective Date of Assignment and Acceptance directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in accordance with, the laws of the State of New York, United States of America.
8. This Assignment and Acceptance may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of Schedule 1 to this Assignment and Acceptance by facsimile or other electronic communication shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to this Assignment and Acceptance to be executed by their officers thereunto duly authorized as of the date specified thereon.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: | 100% |
• | Assignee's Commitment: | • $_______________ |
• | Aggregate outstanding principal amount of Loan assigned: | • $_______________ |
• | Principal amount of Promissory Note payable to Assignee: | • $_______________ |
• | Effective Date of Assignment and Acceptance: _______________, 20__ |
[NAME OF ASSIGNOR], as Assignor | ||
By | ||
Title: | ||
Dated: _______________, 20__ | ||
[NAME OF ASSIGNEE], as Assignee | ||
By | ||
Title: | ||
Lending Office: [Address] |
Acknowledged this
___ day of ________, 20__
[HUT 8 HOLDINGS INC.][HUT 8 MINING CORP.] | |||
By | |||
Title: |
EXHIBIT D
- FORM OF
PLEDGE AND COLLATERAL ACCOUNT CONTROL AGREEMENT
PLEDGE AND COLLATERAL ACCOUNT CONTROL AGREEMENT
This PLEDGE AND COLLATERAL ACCOUNT CONTROL AGREEMENT, dated as of ______________________ (this "Agreement"), is entered into by and among HUT 8 HOLDINGS INC., a corporation organized and existing under the laws of the Province of British Columbia, Canada (including Hut 8 Mining Corp., its successor by amalgamation pursuant to the terms of the Hut Amalgamation, as pledgor, the "Pledgor"), COINBASE CREDIT, INC., as collateral agent for the Secured Parties that are party to the Credit Agreement described below (in that capacity, the "Collateral Agent") and as administrative agent for the Lender under the Credit Agreement described below (in that capacity, the "Administrative Agent"), and COINBASE CUSTODY TRUST COMPANY, LLC, a New York limited purpose trust company, as custodian (the "Custodian").
RECITALS:
WHEREAS, reference is made to that certain Credit Agreement, dated as of the date hereof (the "Credit Agreement"), by and among the Pledgor, as borrower, the Lender, the Administrative Agent and the Collateral Agent;
WHEREAS, the Pledgor is the Custodian's customer with respect to the Collateral Account;
WHEREAS, it is a condition precedent to the obligations of the Collateral Agent and the other Secured Parties under the Credit Agreement that the Collateral Account (as defined below) and the Unsecured Account be established with the Custodian, that the Collateral Agent be granted a first-priority security interest in the Collateral Account and all Collateral Account Property (as defined below) and that the Collateral Agent have control over the Collateral Account and all Collateral Account Property in accordance with the terms of this Agreement in order to perfect Secured Parties' security interest in the Collateral Account and the Collateral Account Property.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. DEFINITIONS AND INTERPRETATION.
1.1 Definitions. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Uniform Commercial Code as in effect in the State of New York (the "UCC"), and if defined in more than one article of the UCC shall have the meanings set forth in Articles 8 and 9 thereof. Capitalized terms used herein and not otherwise defined in this Agreement or the UCC have the meanings given to them in the Credit Agreement. The provisions of Sections 1.02 and 1.03 of the Credit Agreement are incorporated herein, mutatis mutandis. The following terms used herein shall have the following meanings:
"Airdrop" means a distribution of any digital assets including digital assets resulting from the ownership of an existing digital asset.
"Collateral" means the Collateral Account, the Collateral Account Property, all other property of any kind delivered to the Custodian (including, for the avoidance of doubt, any digital assets distributed in an Airdrop or resulting from a Hard Fork) to be held in or credited to the Collateral Account or otherwise in the possession or control of the Custodian under this Agreement or the Custody Agreement (whether or not held or credited to the Collateral Account), and all distributions, interest, gain, profits, income and proceeds thereof; provided, that the Unsecured Account and any property credited to the Unsecured Account shall not be part of the Collateral.
-1-
"Collateral Account" means the digital assets account established under Section 3.1.
"Collateral Account Property" means:
(a) all security entitlements with respect to financial assets (including but not limited to Bitcoin (BTC) and USDC) on deposit in or credited to the Collateral Account from time to time;
(b) all financial assets (including but not limited to Bitcoin (BTC) and USDC), instruments, funds, credit balances, and other property held in or credited to the Collateral Account from time to time;
(c) all property of any kind delivered to the Custodian to be held in or credited to the Collateral Account from time to time, and all rights of the Pledgor under the Custody Agreement in respect of the Collateral Account; and
(d) all distributions (including, for the avoidance of doubt, any digital assets distributed in an Airdrop or resulting from a Hard Fork), interest, gain, profits, income and proceeds received from time to time in respect of any of the foregoing.
"Control" means "control" within the meaning of § 8-106 and 9-106 of the UCC.
"Hard Fork" means a software update implemented to a blockchain protocol that is incompatible with the existing blockchain protocol, causing a permanent split into two separate blockchain protocols that run in parallel.
"Notice of Enforcement" means a written notice from the Collateral Agent to the Custodian substantially in the form set out in Exhibit C of this Agreement.
"Obligors" means the Pledgor and the Guarantor.
"Secured Obligations" means Obligations as defined in the Credit Agreement.
"Secured Parties" means, collectively, the Administrative Agent, the Collateral Agent and the Lender.
1.2 Interpretation, Etc. In this Agreement, the rules of interpretation contained in Section 1.04 of the Credit Agreement shall apply to the construction of this Agreement, or in any notice given under or in connection with this Agreement.
Section 2. APPOINTMENT.
The Pledgor and the Collateral Agent appoint the Custodian to act as custodian with respect to the Collateral Account and the Collateral Account Property. The Custodian accepts this appointment, and agrees to accept and hold, in its custody and in accordance with the terms of this Agreement, the Collateral Account and all Collateral Account Property.
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Section 3. COLLATERAL ACCOUNT; SECURITY INTEREST
3.1 Establishment
The Custodian has established pursuant to the Custody Agreement as a collateral account for the purposes of holding Cash, Bitcoin (BTC), USDC as well as all other property of the Pledgor transferred to or in the possession of the Custodian that is from time to time subject to any Lien in favor of the Secured Parties, and agrees to maintain as a digital assets account until the termination of this Agreement, the special, segregated custody account listed on Exhibit A (the "Collateral Account").
The Collateral Account is in the name of the Pledgor and has been established and will be maintained at the office of the Custodian located at Coinbase Custody Trust Company, LLC, 248 3rd St, #434 Oakland, CA 94607. The Pledgor and the Custodian hereby agree that each item of property (including Bitcoin (BTC), USDC and cash) held in or credited to the Collateral Account on or after the date of this Agreement shall be treated as a "financial asset" within the meaning of UCC §8-102(a)(9).
3.2 Grant of Security
As security for the prompt and complete payment and performance of the Secured Obligations when due (whether due because of demand, mandatory prepayment, or otherwise) and to induce the Lender to make the Loan, the Pledgor hereby pledges and grants to the Collateral Agent for the benefit of the Secured Parties a continuing first priority security interest in and lien on all of Pledgor's right, title and interest in, to and under the Collateral.
3.3 Continuing security interest
(a) This Agreement creates a continuing security interest in the Collateral and will remain in full force and effect until the irrevocable and indefeasible payment in full of the Secured Obligations, regardless of any intermediate payment or partial discharge.
(b) The Pledgor agrees that the obligations of the Pledgor hereunder are independent of any other guaranty of or pledge of collateral securing the Secured Obligations, and when making any demand hereunder or otherwise pursuing its rights and remedies hereunder against the Pledgor, the Administrative Agent and/or Collateral Agent may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have against the relevant Obligor or any other Person or against any collateral security or guaranty for the Secured Obligations or any right of offset with respect thereto, and any omission by the Administrative Agent to make any such demand, to pursue such other rights or remedies or to collect any payments from the relevant Obligor or any other Person or to realize upon any such collateral security or guaranty or to exercise any such right of offset, or any release of the relevant Obligor or any other Person or any such collateral, security, guaranty or right of offset, shall not relieve the Pledgor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against the Pledgor. For the purposes hereof "demand" shall include the commencement and continuance of any legal proceedings.
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(c) If, at any time for any reason (including the bankruptcy, insolvency, receivership, reorganization, dissolution or liquidation of the Pledgor or the appointment of any receiver, intervenor or conservator of, or agent or similar official for, the Pledgor or any of its properties), any payment received by the Collateral Agent, Administrative Agent or any other Secured Party in respect of the Secured Obligations is rescinded or avoided or must otherwise be restored or returned by the Collateral Agent, Administrative Agent or that other Secured Party, that payment shall not be considered to have been made for purposes of this Agreement, and this Agreement will continue to be effective or will be reinstated, if necessary, as if that payment had not been made.
3.4 Certain rights and remedies
Without limiting the rights granted to the Collateral Agent under this Agreement and the other Loan Documents, the parties agree that the Collateral Agent will have all the rights and remedies available to a purchaser and a secured party under articles 8 and 9, respectively, of the UCC in respect of the Collateral Account and the Collateral Account Property.
3.5 Filing of financing statements
(a) The Pledgor authorizes the Collateral Agent to prepare and file, at the Pledgor's expense:
(i) financing statements describing the Collateral;
(ii) continuation statements; and
(iii) any amendment in respect of those statements.
(b) Without limiting Section 3.5(a), the Pledgor shall, at the expense of the Pledgor and in such manner and form as the Collateral Agent may require, execute, deliver, provider, file and record any financing statement, registration, notice, instrument or document that may in the Collateral Agent's determination be necessary or desirable in order to create, preserve, perfect or validate the lien and security interest granted hereunder, to provide control with respect to any Collateral or to enable the Collateral Agent to exercise and enforce its rights hereunder with respect to such security interests.
Section 4. REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 Representations, warranties and covenants of Custodian
The Custodian represents and warrants to, and covenants with, the Collateral Agent as follows:
(a) The Custodian qualifies as a "securities intermediary" as defined in UCC §8-102 with respect to the Collateral Account and agrees that, for the purposes of this Agreement, its "jurisdiction" (as determined by the rules set forth in UCC §8-110(e)) shall be the State of New York.
(b) The Custodian maintains the Collateral Account solely in the Pledgor's name. The Collateral Account is a "securities account" as defined in UCC §8-501(a). The Pledgor is the Custodian's customer with respect to the Collateral Account.
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(c) As of the date of this Agreement, the Custodian does not know of any claim to, security interest in or lien upon the Collateral Account, except for claims and interests of the parties hereto.
(d) The Custodian has not entered into any currently effective agreement with any person under which the Custodian may be obligated to comply with an Order (as defined below) originated by a person other than the Pledgor or the Secured Party and will not enter into any such agreement during the effectiveness of this Agreement.
4.2 Representations, warranties and covenants of Pledgor
(a) The Pledgor represents and warrants to, and covenants with, the Collateral Agent as follows:
(i) it (i) is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
(ii) it has not granted and will not grant, or permit to exist, any security or other interest in or any right or claim (including any adverse claim) to the Collateral except those contemplated by this Agreement;
(iii) no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created in favor of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral and the first priority thereof against any Lien, in each case against all claims and demands of all persons at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
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(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably require.
Section 5. ENTITLEMENT ORDERS AND WITHDRAWALS
5.1 Control of Collateral Account by Secured Parties; the Pledgor's Rights in Collateral Account.
(a) At all times prior to delivery by the Collateral Agent of a Notice of Enforcement to the Custodian, the Custodian will only act in relation to the Collateral Account and the Collateral Account Property upon receipt of the written instructions and entitlement orders (as such term is defined in the UCC) ("Orders") from the Collateral Agent concerning the Collateral Account and the Collateral Account Property which have been countersigned or otherwise approved by the Pledgor. The Custodian shall comply with such Orders, without further consent from the Pledgor or any other Person and without regard to any inconsistent or conflicting Orders given to Custodian by the Pledgor or any other Person. The Custodian shall have a reasonable period of time not to exceed two (2) business days to comply with any Order.
(b) Following delivery by the Collateral Agent of a Notice of Enforcement to the Custodian, the Collateral Agent will have the exclusive right to issue Orders concerning the Collateral Account and the Collateral Account Property and the Custodian will act on the sole instructions of the Collateral Agent alone. The Custodian shall comply with such Orders, without further consent from the Pledgor or any other Person and without regard to any inconsistent or conflicting Orders given to Custodian by the Pledgor or any other Person. The Custodian shall have a reasonable period of time not to exceed two (2) business days to comply with any Order.
(c) The Custodian shall neither accept nor comply with any Order from the Pledgor regarding the Collateral Account or the Collateral Account Property.
(d) The Custodian shall not comply with any Orders or other instructions concerning the Collateral Account or the Collateral Account Property from any third party without the prior written consent of the Collateral Agent.
(e) Notwithstanding anything to the contrary contained herein, before the Collateral Agent or any other Secured Party gives the Custodian any Orders concerning the Collateral Account, the Collateral Agent shall deliver to the Custodian such documentation as the Custodian may from time to time reasonably request to evidence the authority of those partners, officers, employees or agents whom the Collateral Agent, the Administrative Agent or any other Secured Party may designate to give Orders, and the Custodian shall be entitled to assume without further inquiry that the person(s) so named shall have the authority to give Orders. The Collateral Agent shall also provide the Custodian with any information as the Custodian may require in order to make a transfer in compliance with an Order. The Pledgor and the Secured Parties understand that a transfer of financial assets by the Custodian may be delayed or not made if the transfer would cause the Custodian to violate any applicable law or regulation.
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5.2 Release of Collateral Account Property
(a) For the avoidance of doubt, the Pledgor acknowledges that, as contemplated by the Loan Documents, the Collateral Agent shall provide instructions to the Custodian in respect of any administrative matters relating to the Collateral Account and in respect of any instruction given prior to an Event of Default in accordance with the Collateral release provisions set forth in Section 2.06(b)(ii) of the Credit Agreement, to deliver the relevant Collateral Account Property to the Pledgor as described in the Credit Agreement.
(b) The Custodian will be entitled to rely on any written notice (including notice by e-mail) it receives from the Collateral Agent or the Administrative Agent stating that a release of Collateral pursuant to Section 2.06(b)(ii) of the Credit Agreement is permitted.
5.3 Taxes
Any income or other tax payable in respect of the Collateral Account or any Collateral Account Property or on account of any dividends, distributions, interest, gain, profits, income, proceeds or other property received or accrued in respect of any Collateral Account Property or other Collateral (including, for the avoidance of doubt, any digital assets distributed in an Airdrop or resulting from a Hard Fork) will be for the account of the Pledgor. If any applicable law (as determined in the good faith discretion of the Collateral Agent or other applicable withholding agent) requires the payment, deduction or withholding of any Tax from or in respect of the Collateral Account or any Collateral Account Property or any cash or other property distributed or received in respect of the Collateral, then the Collateral Agent or other applicable withholding agent shall be entitled to make such payment, deduction or withholding and pay the amount deducted or withheld to the relevant governmental authority in accordance with applicable law, and any taxes so paid, deducted or withheld shall be economically borne by the Borrower, which shall not receive any additional amounts in respect of any such taxes. The Borrower shall indemnify the Collateral Agent within ten (10) days after demand therefor, for the full amount of any taxes payable or paid by the Collateral Agent or any other applicable withholding agent in respect of the Collateral or required to be withheld or deducted from or otherwise paid with respect to any cash or property distributed or received in respect of the Collateral, as well as in each case any reasonable expenses arising therefrom or with respect thereto, and in each case whether or not such taxes were correctly or legally imposed or asserted by the relevant governmental authority. A certificate as to the amount and basis of such payment or liability delivered to the Borrower by the Collateral Agent shall be conclusive absent manifest error. The parties' obligations under this Section 5.3 shall survive any assignment of rights by, or the replacement of, a Lender or the Collateral Agent, the termination of the Credit Agreement or the Collateral Agreement and the repayment, satisfaction or discharge of all obligations under any Loan Document.
5.4 Remedies
(a) If an Event of Default under the Credit Agreement has occurred and is continuing, the Collateral Agent, on behalf of the Secured Parties, may exercise all of the rights, powers and remedies in respect of the Collateral, in addition to all other rights and remedies provided for herein or otherwise available to it at law or in equity, of a secured party on default under the UCC (whether or not the UCC applies to the affected Collateral) or other applicable law, and may also pursue any of the following (or any combination of the following) separately, successively or simultaneously:
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(i) exercise dominion and control over the Collateral and the Collateral Account, and apply any and all cash amounts standing to the credit of the Collateral Account or otherwise constituting Collateral to pay the Secured Obligations, whether or not the Administrative Agent shall have made any demand under the Credit Agreement or this Agreement, and without prior notice to the Pledgor;
(ii) without notice to the Pledgor, to transfer all or any portion of the Collateral to its name or account or the name or account of its nominee or agent; and
(iii) without prior notice (except as specified herein or otherwise in accordance with the requirements of the UCC), sell, assign or otherwise dispose of the Collateral or any part thereof in one or more transactions or lots at public or private sale, at any of the Collateral Agent's offices or elsewhere, for money, on credit or for future delivery, at such time or times and at such prices and upon such other terms as the Collateral Agent may deem commercially reasonable. Upon consummation of any such sale, the Collateral Agent will have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold, and each such purchaser will acquire the property sold absolutely, free from any claim or right on the part of the Pledgor.
(b) The Collateral Agent may be the purchaser of any or all of the Collateral at any public or private sale thereof, subject to the requirements of the UCC. The Pledgor hereby waives any notice of the time and place of any public sale or the time at which any private sale or other disposition of any of the Collateral may be made. To the extent such notice may not be waived under applicable law, any notice made will be deemed reasonable if sent to the Pledgor, addressed as set forth in the notice provisions of this Agreement, at least ten days prior to the date of any such public sale or the time after which any such private sale or other disposition may be made. The Pledgor acknowledges that any private sale may result in prices and other terms less favorable to the seller than if such sale were a private sale and notwithstanding such circumstances, agrees that any such private sale shall not be deemed to have been made in a commercially unreasonable manner solely by virtue of such sale being private. The Pledgor acknowledges that the Collateral is of a type customarily sold on a recognized market and is subject to widely distributed price quotations and may threaten to decline speedily in value within the meaning of the UCC.
(c) The Collateral Agent shall apply the proceeds of any such sales, assignments or dispositions of Collateral, or other proceeds of the Collateral, after deduction of any costs and expenses of the Collateral Agent in connection with such sales, assignments or dispositions, to the payment of the Secured Obligations to the Secured Parties. If the proceeds of any sale, assignment or other disposition of the Collateral are insufficient to pay the entire amount of the Secured Obligations, the Pledgor shall remain liable for the deficiency. If the proceeds of any sale, assignment or other disposition of the Collateral are more than sufficient to pay the entire amount of the Secured Obligations, the Collateral Agent shall transfer the surplus amount as directed by the Pledgor.
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Section 6. CUSTODIAN
6.1 Custodian's Responsibilities
(a) The Custodian shall not be liable to the Pledgor for complying with Orders originated by the Collateral Agent or any other Secured Party, even if the Pledgor notifies the Custodian that the Collateral Agent or relevant Secured Party is not legally entitled to issue Orders, unless the Custodian takes the action after being served with an injunction, restraining order, or other legal process enjoining it from doing so, issued by a court of competent jurisdiction, and has had a reasonable opportunity to act on the injunction, restraining order or other legal process.
(b) The Custodian shall be entitled to conclusively rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing in good faith believed by it to be genuine and to have been signed or sent by the proper person.
(c) The Custodian may obtain the advice of external legal counsel selected by it to advise on (i) the interpretation of any of the provisions of this Agreement or (ii) any action of the Custodian necessary to satisfy the Custodian's duties hereunder and shall be fully protected in relying in good faith on counsel's advice on such interpretation or action or in connection with any subsequent acts or omissions of the Custodian made in good faith in reliance upon and in conformity with such advice. Further, if at any time the Custodian determines that on account of non-contractual legal obligations wholly apart from its obligations under this Agreement, the Custodian is uncertain as to its duties to transfer the digital assets in the Collateral Account as instructed by the Collateral Agent or any other Secured Party, as applicable (including, without limitation, due to a determination by the Custodian that a transfer may be prohibited by applicable bankruptcy, reorganization, insolvency, moratorium or other similar laws affecting creditors' rights generally), then the Custodian shall promptly give the Secured Parties and the Pledgor written notice of its determination and may retain the digital assets in the Collateral Account until the Custodian determines that its non-contractual legal obligations to transfer digital assets in the Collateral Account as instructed by the Collateral Agent (or other Secured Party), as applicable, have been adequately clarified. The determination may be based upon the receipt of (i) an order from a court (or other forum) of competent jurisdiction that directs the Custodian to take action in respect of the digital assets in the Collateral Account, (ii) a copy of a declaratory or other judgment from a court (or other forum) of competent jurisdiction that clarifies its legal obligations to transfer digital assets in the Collateral Account as instructed by the Collateral Agent or any other Secured Party, as applicable, (iii) an opinion of external counsel acceptable in good faith to the Custodian stating that the Custodian is permitted by law to transfer the digital assets in the Collateral Account as instructed by the Collateral Agent or any other Secured Party, as applicable or (iv) other assurances satisfactory to Custodian.
(d) Notwithstanding anything in this Agreement to the contrary, the Custodian will have no responsibility or liability to the Secured Parties or the Pledgor or to any other person or entity for acting in accordance with (i) any judicial or arbitral process, injunction or other order, writ, judgment, decree or claim relating to the Collateral Account or the Collateral Account Property even if subsequently modified, vacated or otherwise determined to have been without legal force or effect, (ii) the rules, regulations or interpretations of any regulatory body of competent jurisdiction, or (iii) any instructions given or made to the Custodian by any regulatory body of competent jurisdiction acting in an official capacity.
(e) This Agreement does not create any obligation of the Custodian except for those expressly set forth in this Agreement. In particular, the Custodian will have no fiduciary duties under this Agreement to any other party, whether as trustee, agent, bailee or otherwise.
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(f) The Custodian shall have no duty to notify the Pledgor or make any inquiry into or investigate whether or not an event of default exists under any agreement between the Pledgor and the Secured Parties or the Secured Parties' right or authority to deliver any Orders or instructions.
(g) The Custodian shall have no obligation to monitor, ensure, or enforce the Pledgor's or the Secured Parties' compliance with any applicable law, rule, regulation, or order and shall not be deemed to have breached any provision of this Agreement or to have committed fraud, negligence, gross negligence, or willful misconduct for obeying an instruction authorized under this Agreement that violates or is alleged to violate any applicable law, rule, regulation or order.
(h) In no event will the Custodian have any liability to the Pledgor or the Secured Parties or any third party in connection herewith for any (i) consequential, special, punitive or indirect loss or damage whether or not any claim for such damages is based on tort or contract or whether the Custodian knew or should have known the likelihood of such damages in any circumstances, (ii) failure to comply with Orders or delay in complying with Orders if such failure or delay is due to strikes, lockouts or other labor disturbances, riots, fire, earthquake, floods, lightning, pandemics, epidemics, other acts of God, or circumstances beyond the Custodian's reasonable control, (iii) failure to act by the Pledgor or the Secured Parties or (iv) failure to act due to its determination that such action would result in the Custodian failing to comply with a statute, rule or regulation, binding upon the Custodian, except, with respect to (iv) above, to the extent such losses, liabilities and damages directly result from Custodian's gross negligence or willful misconduct.
(i) In the event that the Custodian is liable to the Pledgor or the Secured Parties under this Agreement, the Custodian's liability shall be limited to the lesser of (i) the actual direct and provable amount of money damages suffered by the claiming party or (ii) the amount maintained in the Collateral Account at the time the claim for such liability arose.
6.2 Priority of Secured Party's Security Interest; Rights Reserved by Custodian. All of the Custodian's present and future rights against the Collateral Account are subordinate to the security interest of the Secured Parties therein; provided, however, that the Secured Parties agree that nothing herein subordinates or waives, and that the Custodian expressly reserves, all of its present and future rights, including a security interest prior to that of the Collateral Agent's in the Collateral Account to the extent necessary to secure the Custodian for the payment of any usual and customary commissions or fees or expenses owing to the Custodian with respect to the Collateral Account.
6.3 Indemnity.
The Pledgor shall indemnify and hold harmless the Custodian, its affiliates, and their officers, directors, employees, and agents against all claims, demands, losses, liabilities, damages, costs and expenses (including reasonable attorney's fees and disbursements and the reasonable estimate of the allocated costs and expenses of the Custodian's in-house legal counsel and staff) in any way arising out of:
(a) the Custodian in complying with instructions or requests given by the Secured Parties hereunder;
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(b) the Collateral Account, any Collateral Account Property or any other Collateral;
(c) this Agreement or any default under or breach of this Agreement by the Pledgor;
(d) any action taken or omitted by the Custodian or the Collateral Agent under this Agreement or any exercise or enforcement of rights or remedies under this Agreement; or
(e) any sale or other disposition of or any realization on any Collateral Account Property or any other Collateral,
except to the extent the claims, liabilities, costs and expenses are caused by the Custodian's gross negligence, fraud or willful misconduct.
6.4 Reliance. The Custodian will be entitled to rely, without independent verification, upon representations of the Pledgor, the Collateral Agent or the Administrative Agent and any certificate, notice or other document of the Pledgor, the Collateral Agent or the Administrative Agent or other appropriate persons it believes to be genuine and correct and to have been signed or sent by or on behalf of the person or persons purporting to issue that certificate, notice or other document.
6.5 Statements; Notices of Adverse Claims. At the Secured Parties' expense and request, to the extent the Custodian has the operational ability to do so, the Custodian agrees to send copies of all statements with respect to the Collateral Account to the Collateral Agent and Administrative Agent. The Custodian is authorized to disclose to the Secured Parties such other information concerning the Collateral Account as each Secured Party may from time to time request; provided, however, that the Custodian shall have no duty or obligation to comply with any such request. Except as otherwise required by law, the Custodian will use reasonable efforts to promptly notify each of the Secured Parties and the Pledgor if the Custodian receives a notice that any other person claims that it has a security or property interest in or lien upon a Collateral Account. The Pledgor and the Administrative Agent shall have thirty (30) days after receipt of a statement of a Collateral Account to notify the Custodian of an error in such statement. The Custodian's liability for any such error is limited in accordance with Section 6 hereof.
6.6 Custody agreement
In the event of a conflict between this Agreement, the Custody Agreement and any other agreement between Custodian and Pledgor, the terms of this Agreement will prevail.
Section 7. GENERAL PROVISIONS
7.1 Amendments and waivers.
(a) This Agreement may be amended or modified only in writing signed by the Pledgor, the Collateral Agent, the Administrative Agent and the Custodian, and no waiver of any right under this Agreement will be binding unless it is in writing and signed by the party to be charged.
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(b) A waiver will be effective only in the specific instance and for the specific purpose for which it is given.
(c) The Pledgor shall not agree to any amendment, restatement, supplement or other modification to, or waiver of, the Custody Agreement without, in each case, obtaining the prior written consent of the Administrative Agent and the Lender to such amendment, restatement, supplement or other modification or waiver.
7.2 Waivers and remedies cumulative
(a) The rights of the Custodian and of the Collateral Agent and the other Secured Parties under this Agreement:
(i) may be exercised as often as necessary;
(ii) are cumulative and not exclusive of their rights under other agreements or law; and
(iii) may be waived only in writing and specifically.
(b) Delay in the exercise or the non-exercise of any right is not a waiver of that right.
(c) No notice to or demand upon the Pledgor will entitle the Pledgor to any further, subsequent or other notice or demand in similar or any other circumstances.
7.3 Successors and assigns
This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns, except that the Pledgor may not assign its obligations under this Agreement. Any purported assignment by the Pledgor in violation of this provision shall be void and of no effect.
7.4 Costs, expenses and taxes
The Pledgor agrees to pay to the Custodian, the Collateral Agent and the other Secured Parties on demand all reasonable and documented costs, expenses (including legal fees and expenses) and taxes incurred or arising in connection with the preparation, documentation, negotiation, execution, delivery, administration or enforcement of this Agreement, the administration or maintenance of the Collateral Account or the Collateral Account Property, or any amendment or restructuring of or waiver or consent under this Agreement.
7.5 Governing law
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The parties further agree that the law applicable to all the issues in Article 2(1) of The Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with a Custodian shall be the law of the State of New York.
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(b) The Custodian may not change the law governing the Collateral Account without each of the Secured Parties' express written consent, which consent shall not be unreasonably withheld.
7.6 Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by electronic transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
7.7 Electronic Execution. The words "signed, "writing," execution," "execute", "signature," and words of like imported in this Agreement are deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act or any similar state laws.
7.8 Complete agreement. This Agreement is the entire agreement between the Custodian, the Collateral Agent and the other Secured Parties and the Pledgor with respect to the matters to which it relates and supersedes any prior agreements and contemporaneous oral agreement of the parties concerning its subject matter.
7.9 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
7.10 Other Agreements. For so long as this Agreement remains in effect, transactions involving the Collateral Account shall be subject, except to the extent inconsistent herewith, to the provisions of such digital assets account agreements, disclosures, and fee schedules as are in effect from time to time with respect to the Collateral Account.
7.11 Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Pledgor may not assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of each the Secured Parties. If any of the Secured Parties assign their interests to an affiliate, such Secured Party must give the Pledgor and the Custodian ten (10) business days' advance notice in writing.
7.12 Notices.
(a) Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications provided for hereunder shall be delivered by hand or overnight courier service (including international courier), mailed by certified or registered mail or sent by facsimile or electronic communications (such as e-mail):
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(i) if to the Pledgor, at its address: 24 Duncan Street, Suite 500, Toronto, Ontario M5V 2B8, attention: Aniss Amdiss or to email addresses: [Redacted: Personal Contact Information] or any of the other contacts listed in Schedule 1 to the Credit Agreement (which Schedule 1 may be amended from time to time by the Borrower and the Lender);
(ii) if to the Lender, the Collateral Agent or the Administrative Agent, at its address: Coinbase Credit, Inc., 248 3rd Street, #434 Oakland CA 94607, United States or to email address: [Redacted: Personal Contact Information]; and
(iii) if to the Custodian, via email at: [Redacted: Personal Contact Information].
(b) Delivery by facsimile or other electronic communication of an executed counterpart of any amendment or waiver of any provision of this Agreement shall be effective as delivery of a manually executed counterpart thereof. Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications, to the extent provided in paragraph (c) below, shall be effective as provided in said paragraph (c)
(c) Notices and other communications to the Pledgor, the Custodian, the Collateral Agent and the Administrative Agent hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent. The Pledgor, the Custodian, the Collateral Agent or the Administrative Agent may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender's receipt of an acknowledgement from the intended recipient (such as by the "return receipt requested" function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its email address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefore; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.
(d) Any party hereto may change its address, email or facsimile number for notices and other communications hereunder by notice to the other parties hereto.
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7.13 Jurisdiction. SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY OF THE OBLIGATIONS HEREUNDER, SHALL BE BROUGHT IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, PLEDGOR, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (OTHER THAN WITH RESPECT TO ACTIONS BY ANY AGENT IN RESPECT OF RIGHTS UNDER ANY SECURITY AGREEMENT GOVERNED BY A LAWS OTHER THAN THE LAWS OF THE STATE OF NEW YORK OR WITH RESPECT TO ANY COLLATERAL SUBJECT THERETO); (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO PLEDGOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 7.12; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER PLEDGOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST PLEDGOR IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY SECURITY DOCUMENT OR THE ENFORCEMENT OF ANY JUDGMENT.
7.14 Waiver of jury trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
7.15 Termination.
(a) None of the Pledgor, the Custodian or the Secured Parties will close the Collateral Account prior to termination of this Agreement.
(b) The Pledgor may not unilaterally terminate this Agreement. The Secured Parties may terminate this Agreement by notice to the Custodian and the Pledgor in the form of Exhibit B attached hereto (a "Notice of Termination"), expressly stating that the Secured Parties are terminating this Agreement and no longer claim any security interest in the Collateral Account.
(c) The Custodian may terminate this Agreement upon thirty (30) days' notice to each of the Secured Parties and the Pledgor; provided, however, that this Agreement may be terminated immediately by notice from the Custodian to the Secured Parties and the Pledgor, should the any of the Secured Parties or Pledgor fail to make any payment when due to the Custodian.
(d) The termination of this Agreement will not affect any rights created or obligations incurred under this Agreement before termination. Section 6 and Section 7.4 will survive termination of this Agreement.
THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
HUT 8 HOLDINGS INC. | ||
as Pledgor | ||
By: | ||
Name: | ||
Title: | ||
[Signature page to Pledge and Collateral Account Control Agreement]
COINBASE CUSTODY TRUST COMPANY, LLC | ||
as Custodian | ||
By: | ||
Name: | ||
Title: | ||
Email: |
COINBASE CREDIT, INC. | ||
as Collateral Agent and Administrative Agent | ||
By: | ||
Name: | ||
Title: | ||
Email: |
[Signature page to Pledge and Collateral Account Control Agreement]
Exhibit A. Collateral Account
Collateral Account Name | Collateral Account Number |
Exhibit B. Form of Notice of Termination
Date: [date]
To: Coinbase Custody Trust Company LLC
Via email at [Redacted: Personal Contact Information]
Attention: Custody Product Legal
[NAME OF CLIENT]
[address]
Attn: [name]
Email: [email address]
Dear [____________________]
Re: Pledge and Collateral Account Control Agreement, dated as of [date] (the "Control Agreement"), by and among is made by and among HUT 8 HOLDINGS INC., a corporation organized and existing under the laws of the Province of British Columbia, Canada (including Hut 8 Mining Corp., its successor by amalgamation pursuant to the terms of the Hut Amalgamation, as pledgor, the "Pledgor"), COINBASE CREDIT, INC. as collateral agent (in that capacity, the "Collateral Agent"), as administrative agent (in that capacity, the "Administrative Agent") and as lender (in that capacity, the "Lender", and together with the Collateral Agent and the Administrative Agent, the "Secured Parties"), and Coinbase Custody Trust Company, LLC, a New York limited purpose trust company (the "Custodian").
We refer to the Control Agreement. Defined terms in the Control Agreement will, unless otherwise defined in this notice, have the same meaning given to them in the Control Agreement.
We hereby notify you that we are terminating the Control Agreement and no longer claim a security interest in the Collateral Account. This notice terminates any obligations you may have to the undersigned with respect to the Collateral Account.
Please acknowledge receipt of this notice by signing and returning the enclosed copy of this notice.
Yours truly,
COINBASE CREDIT, INC.
By: | ||
Name: | ||
Title: |
Acknowledgement:
We acknowledge receipt of a Notice of Termination from the Secured Parties, a copy of which is set out above.
COINBASE CUSTODY TRUST COMPANY, LLC
By: | ||
Name: | ||
Title: |
[HUT 8 HOLDINGS INC.][HUT 8 MINING CORP.]
By: | ||
Name: | ||
Title: |
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Exhibit C. Form Of Notice Of Enforcement
From: Coinbase Credit, Inc. (the "Collateral Agent")
To: Coinbase Custody Trust Company, LLC (the "Custodian")
Copy: HUT 8 HOLDINGS INC., a corporation organized and existing under the laws of the Province of British Columbia, Canada (including Hut 8 Mining Corp., its successor by amalgamation pursuant to the terms of the Hut Amalgamation) (the "Pledgor")
Re: NOTICE OF ENFORCEMENT
We refer to the Pledge and Collateral Account Control Agreement entered into between the Custodian, the Collateral Agent and the Pledgor dated [●], 2023 (the "Agreement"). Capitalized terms used herein shall have the meaning ascribed to them in the Agreement.
This notice constitutes a Notice of Enforcement for the purposes of the Agreement.
The Collateral Agent hereby notifies the Custodian that an Event of Default (as defined in the Credit Agreement) under the Credit Agreement has occurred and is continuing and that the Collateral Agent is enforcing the Collateral (as defined in the Agreement) pursuant to the Agreement.
The Collateral Agent hereby requires the Custodian to act upon its instructions with respect to the Accounts in accordance with Clause 5.1(b) (Control of Collateral Account by Secured Parties; the Pledgor's Rights in Collateral Account) of the Agreement.
Yours faithfully
COINBASE CREDIT, INC.
EXHIBIT E -
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date:____________,
To: ______________, as Lender
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as [●], 2023 (as amended or modified from time to time, the "Credit Agreement") between Hut 8 Holdings Inc., a corporation organized and existing under the laws of the Province of British Columbia, Canada (including Hut 8 Mining Corp., its successor by amalgamation pursuant to the terms of the Hut Amalgamation, the "Borrower"), the Lender (as defined in the Credit Agreement) and the Administrative Agent (as defined in the Credit Agreement). Terms defined in the Credit Agreement are used herein with the same meaning.
The undersigned officer hereby certifies as of the date hereof that he/she is the _______________________ of the Guarantor, and that, as such, he/she is authorized to execute and deliver this Certificate to the Lender on the behalf of the Guarantor, and that:
1. The Guarantor has delivered the unaudited financial statements required by Section 5.01(j)(ii) of the Credit Agreement for the fiscal quarter of the Guarantor ended as of the above date. Such financial statements fairly present the financial condition, results of operations and cash flows of the Guarantor in accordance with [International Financial Reporting Standards] [United States Generally Accepted Accounting Principles] as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Guarantor during the accounting period covered by such financial statements.
3. A review of the activities of the Guarantor during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Guarantor performed and observed all its Obligations under the Loan Documents, and
[select one:]
[to the best knowledge of the undersigned, during such fiscal period the Guarantor performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and is continuing.]
--or--
[to the best knowledge of the undersigned, during such fiscal period the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:]
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of __________________________, ___________.
[GUARANTOR] | ||
By: | ||
Name: [Type Signatory Name] | ||
Title: [Type Signatory Title] |
SCHEDULE 1
AUTHORIZED BORROWER CONTACTS FOR NOTICES
For all notices:
24 Duncan Street, Suite 500
Toronto, Ontario M5V 2B8
Attn: Aniss Amdiss
Email: [Redacted: Personal Contact Information]
For margin call notices:
24 Duncan Street, Suite 500
Toronto, Ontario M5V 2B8
Attn: Shenif Visram
Email: [Redacted: Personal Contact Information]
EXHIBIT F –
FORM OF LTV BREACH NOTICE
Ladies and Gentlemen:
We hereby refer to the credit agreement dated as of [●] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the "Credit Agreement"; all terms defined therein shall have the same meaning in this notice unless otherwise defined herein), by and among Hut 8 Holdings Inc., a corporation organized and existing under the laws of the Province of British Columbia, Canada (including Hut 8 Mining Corp., its successor by amalgamation pursuant to the terms of the Hut Amalgamation) (the "Borrower") and Coinbase Credit Inc. as lender ("Lender"), as Administrative Agent ("Administrative Agent") and as Collateral Agent ("Collateral Agent").
We hereby inform you that the Actual LTV Ratio (as defined in the Credit Agreement) is equal to or in excess of the [Liquidation LTV] (as defined in the Credit Agreement) as of the date indicated on Schedule 1 hereto. We hereby further inform you that pursuant to Section 2.03(f) of the Credit Agreement, the Borrower is required to provide Additional Collateral or prepay the Loans in accordance with the terms set forth therein.
This LTV Breach Notice and any non-contractual obligations arising out of or in connection with it are governed by New York law.
Very truly yours,
COINBASE CREDIT INC. as Collateral Agent and Administrative Agent | ||
By: | ||
Name: | ||
Title: |
Schedule 1 to LTV Breach Notice
LTV Breach Notice Time: [date][time]
Loan Amount (USD): [●]
Current Collateral (BTC): [●]
BTC Price: [●]
Cure Amount (BTC): [●]
Cure Deadline: [●]
Amount of Collateral (BTC) required to be sold to pay all outstanding and unpaid principal amount of the Loan plus the then accrued and unpaid interest thereon under the Credit Agreement: [●]
Actual LTV Ratio: [●]
Please reach out to your client service representative for further information.
EXHIBIT G – FORM OF MARGIN
FUNDING NOTICE
Ladies & Gentlemen:
We hereby refer to the credit agreement dated as of [●] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the "Credit Agreement"; all terms defined therein shall have the same meaning in this notice unless otherwise defined herein), by and among Hut 8 Holdings Inc., a corporation organized and existing under the laws of the Province of British Columbia, Canada (including Hut 8 Mining Corp., its successor by amalgamation pursuant to the terms of the Hut Amalgamation) (the "Borrower") and Coinbase Credit Inc. as lender ("Lender"), as Administrative Agent ("Administrative Agent") and as Collateral Agent ("Collateral Agent").
We hereby inform you that a Margin Call Event (as defined in the Credit Agreement) has occurred as of the date indicated on Schedule 1 hereto and set forth on Schedule 1 hereto are the Actual LTV Ratio calculations referring to such Margin Call Event. We hereby further inform you that pursuant to Section 2.06(a)(i)of the Loan Agreement, the Borrower is required to deposit Additional Collateral to the Collateral Account in the amount and within the Margin Funding Deadline set forth on Schedule 1 hereto.
This Margin Funding Notice and any non-contractual obligations arising out of or in connection with it are governed by New York law.
Very truly yours,
COINBASE CREDIT INC. as Collateral Agent and Administrative Agent | ||
By: | ||
Name: | ||
Title: |
Schedule 1 to Margin Funding Notice
Margin Call Issue Time: [date][time]
Loan Amount (USD): [●]
Current Collateral (BTC): [●]
BTC Price: [●]
[Actual LTV Ratio] 1: [●]
Cure Amount (BTC): [●]
Margin Funding Deadline: [●]
Margin Call Reference: [●]
Please reach out to your client service representative for further information.
1 To be used in case of a Margin Call Event pursuant to Section 2.06(a)(i) of the Credit Agreement.
EXHIBIT H – FORM OF GUARANTY
GUARANTY
This GUARANTY (this "Guaranty"), dated as of _______________________ is made by Hut 8 Mining Corp., a corporation organized and existing under the laws of the Province of British Columbia, Canada (including Hut 8 Corp., its successor in interest pursuant to the terms of the Hut Amalgamation, the "Guarantor"), in favor and for the benefit of Coinbase Credit, Inc., as Administrative Agent, Collateral Agent and Lender (in any such capacities herein called the "Beneficiary") under that certain Credit Agreement, dated as of the date hereof, by and among Hut 8 Holdings Inc., a corporation organized and existing under the laws of the Province of British Columbia, Canada (including Hut 8 Mining Corp., its successor by amalgamation pursuant to the terms of the Hut Amalgamation, the "Borrower") and the Beneficiary (said Credit Agreement, as it may hereafter be amended, amended and restated, supplemented or otherwise modified from time to time, being the "Credit Agreement"). Capitalized terms defined in the Credit Agreement and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
In consideration of the substantial direct and indirect benefits derived by the Guarantor from the transactions under the Credit Agreement, and in order to induce Beneficiary to enter into the Credit Agreement, the Guarantor, the parent company to the Borrower, hereby agrees as follows:
1. Guaranty. The Guarantor absolutely, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, the full and punctual payment and performance of the Obligations of the Borrower whether such Obligations are now existing or hereafter incurred under, arising out of or in connection with any Loan Document and whether at maturity, by acceleration or demand, after notice of prepayment or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the U.S. Bankruptcy Code of 1978, as amended, the Bankruptcy and Insolvency Act (Canada), as amended, the Companies' Creditors Arrangements Act (Canada), as amended or any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, receivership, insolvency, winding-up, restructuring, examinership or similar debtor relief laws of any applicable jurisdiction from time to time in effect and affecting the rights of creditors generally, including any arrangement provisions pursuant to any corporate statute (collectively, "Debtor Relief Laws"). The Guarantor hereby agrees to be bound by the provisions of Section 2.09 of the Credit Agreement and shall make all payments free and clear of Taxes as provided therein.
2. Guaranty Absolute and Unconditional. Other than in respect of the complete, irrevocable and indefeasible payment and satisfaction in full of the Obligations, the Guarantor agrees that its obligations hereunder are irrevocable, continuing, absolute and unconditional, shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety and shall not be discharged or impaired or otherwise affected by, and subject to the foregoing and to the fullest extent permitted by law the Guarantor hereby irrevocably waives any defenses to enforcement it may have (now or in the future) by reason of:
(a) Any change in the time, place or manner of payment or performance of, or in any other term of the Obligations (including any amendment, restatement, renewal, increase, decrease or other alteration thereof), or any rescission, waiver, release, discharge, settlement, assignment, amendment or other modification of the Credit Agreement or the other Loan Documents or the acceptance or refusal of any offer of performance with respect to, or substitutions for, the Obligations or any agreement relating thereto.
(b) Any taking, exchange, substitution, release, impairment, amendment, waiver, modification or non-perfection of any collateral or any other guaranty for the Obligations, or any manner of sale, disposition or application of proceeds of any collateral or other assets to all or part of the Obligations.
(c) Any default, failure or delay, willful or otherwise, in the performance of the Obligations.
(d) The failure of any other guarantor or third party to execute or deliver this Guaranty or any other guaranty or agreement, or the release or reduction of liability of the Guarantor or any other guarantor or surety with respect to the Obligations.
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(e) The failure to assert or enforce or agreement not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy with respect to the Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Obligations.
(f) Any defenses, set-offs or counterclaims which the Borrower may assert against Beneficiary in respect of the Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury.
(g) Any irregularity, defect, unenforceability or invalidity in respect of any indebtedness or other obligation of the Borrower or any other person under the Credit Agreement or any other document or instrument delivered in connection therewith.
(h) Any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of the Guarantor as an obligor in respect of the Obligations.
(i) The exercise of any rights available to the Beneficiary under the Loan Documents, at law or in equity.
3. | Certain Waivers; Acknowledgments. The Guarantor further acknowledges and agrees as follows: |
(a) The Guarantor hereby unconditionally and irrevocably waives, to the fullest extent permitted by law, any right to revoke this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all presently existing and future Obligations, until the complete, irrevocable and indefeasible payment and satisfaction in full of the Obligations.
(b) This Guaranty is a guaranty of payment and performance and not of collection.
(c) This Guaranty is a direct guaranty and independent of the obligations of the Borrower under the Credit Agreement. The Beneficiary may enforce this Guaranty upon the occurrence and during the continuance of an Event of Default under the Credit Agreement, without limitation of other rights to enforce this Guaranty under other circumstances as set forth herein. The Guarantor waives, to the fullest extent permitted by law, for the benefit of the Beneficiary: (i) any right to require the Beneficiary, as a condition of payment or performance by the Guarantor, to proceed against the Borrower, any other guarantor of the Obligations or any other Person, proceed against or exhaust any security held from the Borrower, any other guarantor of the Obligations or any other Person, proceed against or have resort to any balance of any deposit account or credit on the books of any Beneficiary in favor of the Borrower or any other Person, or pursue any other remedy in the power of any Beneficiary; (ii) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of the Borrower including, without limitation, any defense based on or arising out of the lack of validity or the unenforceability of the Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Borrower from any cause other than payment in full of the Obligations; (iii) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (iv) any defense based upon the Beneficiary's errors or omissions in the administration of the Obligations, except behavior that amounts to bad faith; (v) any principles or provisions of law, statutory or otherwise, that are or might be in conflict with the terms of this Guaranty and any legal or equitable discharge of Guarantor's obligations hereunder, the benefit of any statute of limitations affecting the Guarantor's liability hereunder or the enforcement hereof, any rights to set-offs, recoupments and counterclaims, and promptness, diligence and any requirement that the Beneficiary protect, secure, perfect or insure any Lien or any property subject thereto; (vi) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of this Guaranty, notices of default under the Credit Agreement, or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations or any agreement related thereto, notices of any extension of credit to the Borrower and notices of any of the matters referred to in this Section and any right to consent to any thereof; (vii) any requirements for appraisal, valuation, stay, extension, marshalling of assets or the benefit of redemption or exemption laws; and (viii) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of this Guaranty.
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(d) The Guarantor waives, to the fullest extent permitted by law, all rights by statute or otherwise to require the Beneficiary to institute suit against the Guarantor and/or to exercise due diligence in enforcing this Guaranty. Notwithstanding anything contained herein to the contrary, the Obligations of the Guarantor shall be limited to the maximum amount so as to not constitute a fraudulent transfer or conveyance for purposes of Debtor Relief Laws or any applicable state or provincial law or otherwise to the extent applicable to this Guaranty and the Obligations of the Guarantor hereunder.
(e) Any interest on any portion of the Obligations that accrues after the commencement of any proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of the Borrower (or, if interest on any portion of the Obligations ceases to accrue by operation of law by reason of the commencement of said proceeding, such interest as would have accrued on such portion of the Obligations if said proceeding had not been commenced) shall be included in the Obligations because it is the intention of the Guarantor and the Beneficiary that the Obligations should be determined without regard to any rule of law or order that may relieve the Borrower of any portion of such Obligations.
(f) The Guarantor agrees that its guaranty hereunder shall continue to be effective or be reinstated, as the case may be, if at any time all or part of any payment of any Obligation is voided, rescinded or recovered or must otherwise be returned by the Beneficiary upon the insolvency, bankruptcy or reorganization of the Borrower.
4. Subrogation. The Guarantor waives and shall not exercise any rights that it may acquire by way of subrogation, contribution, reimbursement or indemnification for payments made under this Guaranty until all Obligations shall have been indefeasibly paid and discharged in full.
5. Representations and Warranties. The Guarantor makes, for the benefit of the Beneficiary, each of the representations and warranties set forth in Section 4.01 of the Credit Agreement (other than Section 4.01(i) thereof) as if such representations and warranties were set forth in full in this Guaranty and, in the case of such representations and warranties, with each reference to the Borrower being deemed to be a reference to the Guarantor.
6. Notices.
(a) Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications provided for hereunder shall be delivered by hand or overnight courier service (including international courier), mailed by certified or registered mail or sent by facsimile or electronic communications (such as e-mail):
(i) | if to the Guarantor, at its address: 24 Duncan Street, Suite 500, Toronto, Ontario M5V 2B8, attention: Aniss Amdiss or to email address: [Redacted: Personal Contact Information]; or |
(ii) | if to the Beneficiary in any of its capacities, at its address: Coinbase Credit, Inc., 248 3rd Street, #434 Oakland CA 94607, United States or to email address: [Redacted: Personal Contact Information]. |
(b) Delivery by facsimile or other electronic communication of an executed counterpart of any amendment or waiver of any provision of this Agreement shall be effective as delivery of a manually executed counterpart thereof. Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications, to the extent provided in paragraph (c) below, shall be effective as provided in said paragraph (c).
(c) Notices and other communications to the Guarantor or the Beneficiary hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Beneficiary. The Guarantor or the Beneficiary may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
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Unless the Beneficiary otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender's receipt of an acknowledgement from the intended recipient (such as by the "return receipt requested" function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its email address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefore; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.
(d) Any party hereto may change its address, email or facsimile number for notices and other communications hereunder by notice to the other parties hereto.
7. Assignment. This Guaranty shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that the Guarantor may not, without the prior written consent of the Beneficiary, assign any of its rights, powers or obligations hereunder. Any attempted assignment in violation of this section shall be null and void.
8. Governing Law; Service of Process. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ANY CHOICE OF LAW DOCTRINE. EACH PARTY IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 6 HEREOF AND AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY MANNER PERMITTED BY APPLICABLE LAW. SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER LOAN DOCUMENTS, OR ANY OF THE OBLIGATIONS, SHALL BE BROUGHT IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING THIS GUARANTY, THE GUARANTOR, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE (SUBJECT TO CLAUSE (E) BELOW) JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE GUARANTOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 6 ABOVE; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE GUARANTOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE BENEFICIARIES RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST THE GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER THIS GUARANTY OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.
9. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OF THE OBLIGATIONS HEREUNDER.
10. Cumulative Rights. Each right, remedy and power hereby granted to the Beneficiary or allowed it by applicable law or other agreement shall be cumulative and not exclusive of any other, and may be exercised by the Beneficiary at any time or from time to time.
11. Severability. If any provision of this Guaranty is to any extent determined by final decision of a court of competent jurisdiction to be unenforceable, the remainder of this Guaranty shall not be affected thereby, and each provision of this Guaranty shall be valid and enforceable to the fullest extent permitted by law.
12. Entire Agreement; Amendments; Headings; Effectiveness. This Guaranty constitutes the sole and entire agreement of the Guarantor and the Beneficiary with respect to the subject matter hereof and supersedes all previous agreements or understandings, oral or written, with respect to such subject matter. No amendment or waiver of any provision of this Guaranty shall be valid and binding unless it is in writing and signed, in the case of an amendment, by both parties, or in the case of a waiver, by the party against which the waiver is to be effective. Section headings are for convenience of reference only and shall not define, modify, expand or limit any of the terms of this Guaranty. Delivery of this Guaranty by facsimile or in electronic (i.e., pdf or tif) format shall be effective as delivery of a manually executed original of this Guaranty.
[SIGNATURE PAGE FOLLOWS]
-4-
IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty to be duly executed and delivered by its duly authorized signatory as of the day and year first above written.
GUARANTOR | ||
HUT 8 MINING CORP. | ||
By: | ||
Name: | ||
Title: |
[Signature Page to Guaranty]
Accepted and agreed to: | ||
BENEFICIARY: | ||
COINBASE CREDIT, INC. | ||
By: | ||
Name: | ||
Title: | ||
Email: | ||
[Signature Page to Guaranty]
Exhibit 21.1
Subsidiaries of Hut 8 Corp.
Name of Subsidiary | State/Country of Organization | |
Foxtrot DC, LLC | Delaware | |
Hut 8 Asset Management Ltd. | Barbados | |
Hut 8 High Performance Computing Inc. | British Columbia | |
Hut 8 Holdings Inc.* | British Columbia | |
Hut 8 Mining Corp. | British Columbia | |
Hut 8 Power Inc. | Ontario | |
Pecos Data Technologies, LLC | Nevada | |
U.S. Data Energy Group, Inc. | Nevada | |
U.S. Data Falls, Inc. | Nevada | |
U.S. Data Group, Inc. | Nevada | |
U.S. Data Lone Star, Inc. | Nevada | |
U.S. Data Mining Group, Inc. DBA US BITCOIN CORP | Delaware | |
U.S. Data Technologies Group Ltd. | Delaware | |
US Compute AI Corp. | Delaware | |
US Data Guardian LLC | Nevada | |
US Data King Mountain LLC | Nevada | |
US Data Mining Energy Group Inc. | Nevada | |
US Data Ventures LLC | Delaware | |
US Mining Infrastructure Operations LLC | Delaware | |
USB4S, LLC | Nevada | |
USMIO Alpha LLC | Delaware | |
USMIO Charlie LLC | Delaware | |
USMIO Delta LLC | Delaware | |
USMIO Echo LLC | Delaware | |
USMIO Foxtrot LLC | Delaware |
* Hut 8 Holdings Inc. to amalgamate with Hut 8 Mining Corp. in connection with the Business Combination.
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm |
Raymond Chabot Grant Thornton LLP Suite 2000 National Bank Tower 600 De La Gauchetière Street West Montréal, Quebec H3B 4L8 T 514-878-2691 |
The undersigned hereby consents to the incorporation by reference into the Registration Statement on Form S-4 Amendment No. 4 of Hut 8 Corp. being filed with the United States Securities and Exchange Commission, of its report dated March 8, 2023, on the consolidated statements of financial position of Hut 8 Mining Corp. as at December 31, 2022 and 2021, and the consolidated statements of comprehensive income (loss), the consolidated statements of changes in equity and the consolidated statements of cash flows for the years then ended, and notes to the consolidated financial statements including a summary of significant accounting policies, prepared in accordance with International Financial Reporting Standards as issued by the International Accounting Standards Board.
The undersigned further consents to reference of the undersigned’s name under the heading “Experts” in the prospectus included in the registration statement.
Yours very truly,
/s/ RAYMOND CHABOT GRANT THORNTON
Chartered Professional Accountants
Montreal, Quebec, Canada
Date: August 24, 2023
Member of Grant Thornton International Ltd | rcgt.com |
Exhibit 23.3
Consent of Independent Auditor
We consent to the use in this Amendment No. 4 to the Registration Statement (No. 333-269738) on Form S-4 of Hut 8 Corp. of our report dated August 24, 2023 relating to the consolidated financial statements of U.S. Data Mining Group, Inc. and subsidiaries, included in the Prospectus, which is part of this Registration Statement.
We also consent to the reference to our firm under the heading “Experts” in such Prospectus.
/s/ RSM US LLP
Boston, Massachusetts
August 24, 2023
Exhibit 23.4
Consent of Independent Auditors
We consent to the reference to our firm under the caption “Experts” and to the inclusion in Amendment #4 to the Registration Statement on Form S-4 (file #333-269738) of Hut 8 Corp. of our report dated March 29, 2023, with respect to our audit of the consolidated financial statements of TZRC, LLC as of December 31, 2021 and for the period from inception on November 24, 2021 through December 31, 2021.
/s/ LJ Soldinger Associates, LLC
LJ Soldinger Associates, LLC
Deer Park, Illinois
United States of America
August 24, 2023
Exhibit 99.3
Consent of Stifel Nicolaus Canada Inc.
We hereby consent to (i) the inclusion of our opinion letter (the “Opinion”), dated February 6, 2023, to the Board of Directors of Hut 8 Mining Corp. (“Hut 8”), as Exhibit 99.1 to the prospectus that forms a part of the Registration Statement on Form S-4 of Hut 8 (the “Registration Statement”) relating to the proposed business combination of Hut 8, U.S. Data Mining Group, Inc. and Hut 8 Corp., and (ii) to the description of such Opinion and to the references in the Registration Statement to such Opinion and our firm under the headings “Summary—Fairness Opinion of Stifel GMP” and “The Business Combination—Fairness Opinion of Stifel GMP.” Notwithstanding the foregoing, it is understood that our consent is being delivered solely in connection with the filing of the Registration Statement and any other use of the Opinion remains subject to the terms and conditions included therein and those set forth in our engagement letter with Hut 8.
In giving such consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933, as amended, or the rules and regulations adopted by the U.S. Securities and Exchange Commission thereunder, nor do we admit that we are experts with respect to any part of the Registration Statement within the meaning of the term “experts” as used in the U.S. Securities Act of 1933, as amended, or the rules and regulations of the U.S. Securities and Exchange Commission thereunder.
STIFEL NICOLAUS CANADA INC.
August 24, 2023
Exhibit 99.4
CONSENT OF DUFF & PHELPS
Kroll, LLC, operating through its Duff & Phelps Opinions Practice (“Duff & Phelps”), hereby consents to (i) the inclusion of our fairness opinion, dated February 6, 2023, to the Board of Directors of Hut 8 Mining Corp. in the filing of the Registration Statement on Form S-4 Amendment No. 4 of Hut 8 Corp., filed on August 24, 2023 (the “Registration Statement”), and (ii) all references to the fairness opinion in the Registration Statement.
Notwithstanding the foregoing, it is understood that our consent is being delivered solely in connection with the filing of the above–mentioned version of the Registration Statement and that our opinion is not to be used, circulated, quoted or otherwise referred to in whole or in part in any registration statement (including any subsequent amendments to the above–mentioned Registration Statement), proxy statement/prospectus or any other document, except in accordance with our prior written consent. In giving such consent, we do not admit that we come within the category of persons whose consent is required under, and we do not admit that we are “experts” for purposes of, the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder.
/s/ Kroll, LLC |
Duff & Phelps Opinions Practice
Kroll, LLC
New York, New York
August 24, 2023
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