8-K
BlockchAIn Digital Infrastructure, Inc. (AIB)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The SecuritiesExchange Act of 1934
Date of Report (Date of earliest event reported):
March 12, 2026
| BLOCKCHAIN DIGITAL INFRASTRUCTURE, INC. | ||
|---|---|---|
| (Exact name of registrant as specified in its charter) | ||
| Delaware | 001-43194 | 39-2631241 |
| --- | --- | --- |
| (State or other jurisdiction<br><br>of incorporation) | (Commission File Number) | (IRS Employer <br><br>Identification No.) |
| 1540 Broadway, Ste 1010, New York, New York | 10036 | |
| --- | --- | |
| (Address of principal executive offices) | (Zip Code) | |
| (917) 558-3563 | ||
| --- | ||
| (Registrant’s telephone number, including area code) | ||
| (Former name or former address, if changed since last report) | ||
| --- |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant<br>to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ☐ | Soliciting material pursuant<br>to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| --- | --- |
| ☐ | Pre-commencement communications<br>pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| --- | --- |
| ☐ | Pre-commencement communications<br>pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| --- | --- |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
|---|---|---|
| Common Stock, $0.0001 par value per share | AIB | NYSE American LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.
Emerging Growth Company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Introductory Note
Unless the context otherwise requires, “we,” “us,” “our,” “PubCo,” “BlockchAIn” and the “Company” refer to BlockchAIn Digital Infrastructure, Inc., a Delaware corporation and its consolidated subsidiaries following the Closing (as defined below). Unless the context otherwise requires, references to “Signing Day Sports” refer to Signing Day Sports, Inc., a Delaware corporation, prior to the Closing and a wholly-owned subsidiary of BlockchAIn following Closing. All references herein to the “Board” refer to the board of directors of the Company.
Terms used in this Current Report on Form 8-K (this “Report”) but not defined herein, or for which definitions are not otherwise incorporated by reference herein, shall have the meaning given to such terms in the proxy statement/prospectus filed by the Company on February 17, 2026, and such definitions are incorporated herein by reference.
Closing of Business Combination
On March 16, 2026 (the “Closing Date”), the business combination by and among BlockchAIn, Signing Day Sports, One Blockchain LLC, a Delaware limited liability company (“One Blockchain”), BCDI Merger Sub I Inc., a Delaware corporation and a wholly owned subsidiary of Holdings (“Merger Sub I”), and BCDI Merger Sub II LLC, a Delaware limited liability company and a wholly owned subsidiary of Holdings (“Merger Sub II”) closed. Pursuant to the Business Combination Agreement dated May 27, 2025, as amended, Merger Sub I merged with and into Signing Day Sports, with Signing Day Sports surviving as a wholly-owned subsidiary of the Company (the “Signing Day Sports Merger”) and Merger Sub II merged with and into One Blockchain, with One Blockchain surviving as a wholly-owned subsidiary of the Company (the “One Blockchain Merger”). The Signing Day Sports Merger and the One Blockchain Merger are referred to collectively herein as, the “Business Combination”.
Completion of the Mergers
As previously reported on the Current Report on Form 8-K filed by Signing Day Sports with the SEC on March 13, 2026, Signing Day Sports held a special meeting of stockholders on March 13, 2026 (the “Special Meeting”), at which Signing Day Sports stockholders considered and adopted, among other matters, a proposal to approve the Business Combination, including (a) adopting the Business Combination Agreement and (b) approving the other transactions contemplated by the Business Combination Agreement and related agreements described in the proxy statement/prospectus.
On the Closing Date, (i) Signing Day Sports effected the Signing Day Sports Merger by filing a certificate of merger with the Secretary of State of the State of Delaware in accordance with the applicable provisions of the General Corporation Law of the State of Delaware (the “DGCL”), and (ii) One Blockchain effected the One Blockchain Merger by filing a certificate of merger with the Secretary of State of the State of Delaware in accordance with the applicable provisions of the Delaware Limited Liability Company Act (the “DLLC Act”), with each of the mergers being consummated and effective simultaneously as of March 16, 2026. The certificates of merger are filed herewith as Exhibits 2.4 and 2.5.
In connection with the Business Combination, the Company filed an amended and restated certificate of incorporation (the “A&R Certificate of Incorporation of Blockchain”). The A&R Certificate of Incorporation of Blockchain is filed herewith as Exhibit 3.1.
On the Closing Date, the Business Combination, among other transactions contemplated by the Business Combination Agreement, was completed (the “Closing”).
Effect of the Business Combinationon Existing Signing Day Sports Equity
As a result of the Signing Day Sports Merger, each outstanding share of Signing Day Sports common stock, par value $0.0001 per share (the “Signing Day Sports common stock”), was exchanged for the right to receive 0.09334 of one (1) registered common share, $0.0001 par value per share, of BlockchAIn (“BlockchAIn common shares” or “BlockchAIn common stock”), except that if the exchange would otherwise result in a fractional BlockchAIn common share being issuable to a Signing Day Sports stockholder, the number of BlockchAIn common shares issuable to such stockholder was rounded up to the nearest whole share with respect to that BlockchAIn common share (the “Exchange Ratio”). In addition, each outstanding option to purchase Signing Day Sports common stock or outstanding warrant to purchase Signing Day Sports common stock that had not previously been exercised prior to the Closing was converted into an option or warrant, as applicable, to purchase a number of BlockchAIn common shares equal to the number of shares of Signing Day Sports common stock subject to such option or warrant immediately prior to the Closing multiplied by the Exchange Ratio, with the per share exercise price divided by the Exchange Ratio, and each option immediately became fully vested.
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Merger Consideration
As a result of the One Blockchain Merger, the membership interests of One Blockchain (“One Blockchain membership interests”) outstanding prior to the One Blockchain Merger were automatically cancelled, in exchange for the right of the holders thereof to receive the number of BlockchAIn common shares equal to (a) the product of (i) the number of fully-diluted shares of Signing Day Sports common stock outstanding immediately prior to the effective time of the Business Combination, not including certain out-of-the-money derivative securities (“SGN Outstanding Shares”), multiplied by (ii) 1/0.085, and multiplied by (iii) the Exchange Ratio, minus (b) the product of (i) the SGN Outstanding Shares multiplied by (ii) the Exchange Ratio (the “One Blockchain Merger Consideration”).
In connection with the Business Combination, Signing Day Sports Stockholders received 3,198,511 BlockchAIn common shares (subject to further rounding adjustments) and the securityholders of One Blockchain received 33,225,888 BlockchAIn common shares.
Earnout Shares
The Business Combination Agreement provides for the issuance of earnout shares (the “Earnout Shares”) to the members, as of immediately prior to the Closing, of One Blockchain (collectively, the “One Blockchain Securityholders”), consisting of BlockchAIn common shares, if the 2026 EBITDA equals or exceeds $25 million. The Earnout Shares will equal 11.628% of the One Blockchain Merger Consideration. One Blockchain Securityholders may receive up to 3,863,460 additional BlockchAIn common shares, respectively, if the Earnout Shares are issued. If the conditions for the issuance of the Earnout Shares are met, the Earnout Shares will be issued within ten calendar days following the date on which BlockchAIn files its annual report for its 2026 fiscal year with the SEC.
Advisory Shares
BlockchAIn issued to Maxim Group LLC (“Maxim Group”), as the financial advisor to One Blockchain (as the agreed consideration for advisory services provided to One Blockchain) and the designee of Maxim Partners LLC (“Maxim Partners”), at the Closing 1,204,669 BlockchAIn common shares equal to 3.5% of the total transaction enterprise value, in accordance with the obligations of One Blockchain under the Advisory Agreement. At such time the Earnout Shares, if any, are issued, a number of BlockchAIn common shares equal to 3.5% of the Earnout Shares will be issued at such time. Maxim Group may receive up to 140,126 additional BlockchAIn common shares if the Earnout Shares are issued. The number of BlockchAIn common shares issued to Maxim Group at the Closing, and if applicable, in connection with the Earnout Shares, will reduce only the equity ownership otherwise allocable to the holders of One Blockchain membership interests
Item 1.01 Entry into a Material Definitive Agreement.
The disclosure set forth in the “Introductory Note” above is incorporated into this Item 1.01 by reference.
Lock-Up/Leakout Agreements
In connection with the consummation of the Business Combination, certain stockholders of Signing Day Sports and certain equity holders of One Blockchain (collectively, the “Lock-Up Parties”) entered into Lock-Up/Leakout Agreements (the “Lock-Up Agreements”) with the Company.
Pursuant to the Lock-Up agreements, subject to certain exceptions, the Lock-Up Parties, owning approximately 70.1% of the BlockchAIn common shares after the Closing, agreed not to sell, transfer, pledge or otherwise dispose BlockchAIn common shares received in connection with the Business Combination for a period of 6 months following the Closing Date. Despite the transfer restrictions, a holder may transfer up to 25% of their restricted securities without restriction if, after the Closing Date, the BlockchAIn common shares on NYSE American trade at or above $9.375 per share (subject to adjustment for stock splits and similar events) for at least 20 out of any 30 consecutive trading days.
The foregoing description of the Lock-Up Agreement does not purport to be complete and is qualified in its entirety by reference to the form of Lock-Up Agreement, which is attached hereto as Exhibit 10.1 and incorporated herein by reference.
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Executive Consulting Agreements
In connection with the Business Combination, BlockchAIn entered into executive consulting agreements (the “Executive Consulting Agreements”) dated March 12, 2026 with certain former executive officers of Signing Day Sports (the “Consultants”).
Each Executive Consulting Agreement provides for engagement of the following former Signing Day Sports officers as an independent contractor to assist with certain transition and advisory work in connection with the Business Combination Agreement. The term of each Executive Consulting Agreement will begin on the Closing Date.
The Executive Consulting Agreement with Daniel Nelson provides for a term of 36 months and a total fee of $887,000 as compensation for the services. Of this amount, Mr. Nelson was paid $837,000 and $50,000 was reserved to be placed in an interest-bearing escrow account to pay any Outstanding Liabilities (as defined in the Executive Consulting Agreement) of Signing Day Sports, with any remaining portion to be paid back to Mr. Nelson within 90 days, subject to any clawback or repayment obligation as set forth in the Executive Consulting Agreement.
The Executive Consulting Agreement with Craig Smith provides for a term of 36 months and a total fee of $438,000 as compensation for the services. Of this amount, Mr. Smith was paid $413,000 and $25,000 was reserved to be placed in an interest-bearing escrow account to pay any Outstanding Liabilities (as defined in the Executive Consulting Agreement) of Signing Day Sports, with any remaining portion to be paid back to Mr. Smith within 90 days, subject to any clawback or repayment obligation as set forth in the Executive Consulting Agreement.
The Executive Consulting Agreement with Jeffry Hecklinski provides for a term of 30 months and a total fee of $438,000 as compensation for the services. Of this amount, Mr. Hecklinski was paid $413,000 and $25,000 was reserved to be placed in an interest-bearing escrow account to pay any Outstanding Liabilities (as defined in the Executive Consulting Agreement) of Signing Day Sports, with any remaining portion to be paid back to Mr. Hecklinski within 90 days, subject to any clawback or repayment obligation as set forth in the Executive Consulting Agreement.
Each Executive Consulting Agreement may be terminated by BlockchAIn only for Cause, which is defined to mean (a) the consultant’s willful misconduct or gross negligence in the performance of his duties; (b) material breach of any provision of the Executive Consulting Agreement; (c) conviction of, or plea of guilty or no contest to, a felony or crime involving moral turpitude; (d) dishonesty, fraud, or misappropriation of BlockchAIn’s property; or (e) repeated failure to perform the Services after written notice and a reasonable opportunity to cure. Each respective Signing Day Sports executive officer may terminate the respective Executive Consulting Agreement for Good Reasons, which is defined to mean (a) a material reduction in the consultant’s compensatory fees or a material delay in the payment of such fees; (b) a request for the consultant to materially deviate from the services to be rendered by the consultant; (c) a material breach by BlockchAIn of any provision of the respective Executive Consulting Agreement; or (d) any other action or inaction by BlockchAIn that materially and adversely affects the consultant’s ability to perform services under the Executive Consulting Agreement, provided that each consultant gives written notice to the Company of the event constituting Good Reasons and BlockchAIn fails to cure such event within ten days of receiving such notice.
Each Executive Consulting Agreement contains confidentiality requirements, indemnification provisions, representations and warranties, and other customary provisions.
The foregoing description of the Executive Consulting Agreements does not purport to be complete and is qualified in its entirety by the full text of the Executive Consulting Agreements, which are filed herewith as Exhibits 10.2, 10.3 and 10.4 and incorporated herein by reference.
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Item 2.01 Completion of Acquisition or Disposition of Assets.
The disclosure set forth in the “Introductory Note” above is incorporated into this Item 2.01 by reference.
On March 17, 2026, Signing Day Sports’s common stock ceased trading on the NYSE American, and Common Stock of the Company began trading on NYSE American on March 17, 2026, under the symbol “AIB.”
Item 3.03. MaterialModification to Rights of Security Holders.
At the Special Meeting held on March 13, 2026, Signing Day Sports stockholders approved, on a non-binding advisory basis, certain governance provisions relating to material differences between Signing Day Sports’ Second Amended and Restated Certificate of Incorporation, as amended, and the A&R Certificate of Incorporation of BlockchAIn, which include increasing the number of authorized BlockchAIn common shares to 1,000,000,000, providing for 100,000,000 shares of preferred stock with such designation, rights and preferences as may be determined from time to time by the BlockchAIn Board, requiring that stockholders only act at meetings of BlockchAIn and not by written consent, providing for the BlockchAIn Board to be classified, providing that the BlockchAIn Board or any director of BlockchAIn may be removed for cause only by at least a majority of the voting power of all of the then outstanding shares of voting stock of BlockchAIn entitled to vote at an election of directors; providing that the Court of Chancery of the State of Delaware will be the exclusive forum for certain actions and claims, and allowing the directors of the Combined Company to approve a reverse stock split of the BlockchAIn common shares based on an amendment to the PubCo Charter.
The terms of the A&R Certificate of Incorporation of Blockchain are described in greater detail in the section titled “Proposal 2 - Governance Proposal” beginning on page 122 of the proxy statement/prospectus and is incorporated herein by reference. The A&R Certificate of Incorporation of Blockchain, which became effective upon filing with the Secretary of State of the State of Delaware on the Closing Date, includes the amendments proposed by the Governance Proposal. On the Closing Date, Blockchain also adopted the Bylaws, in the form attached as Annex I to the proxy statement/prospectus.
The description of the PubCo Charter and the general effect of the PubCo Charter and the Bylaws upon the rights of holders of the Company’s capital stock are included in the proxy statement/prospectus under the sections titled (i) “Proposal 2 - Governance Proposal” beginning on page 122 of the proxy statement/prospectus, (ii) “Comparison of Corporate Governance and Stockholder Rights” beginning on page 240 of the proxy statement/prospectus, and (iii) “Description of Securities of BlockchAIn” beginning on page 254 of the proxy statement/prospectus, which are incorporated herein by reference.
Copies of the PubCo Charter and the Bylaws are attached as Exhibit 3.1 and Exhibit 3.2, respectively, to this Report and are incorporated herein by reference.
Item 4.01 Changesin Registrant’s Certifying Accountant.
(a) Disclosuresregarding the new independent auditor.
Upon the consummation of the Business Combination, the Company appointed Carr, Riggs & Ingram, LLC (“CRI”) as the Company’s independent registered public accounting firm to audit the Company’s consolidated financial statements as of and for the year ending December 31, 2025. CRI served as the independent registered public accounting firm of One Blockchain prior to the Business Combination.
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Item 5.02 Departure of Directors or CertainOfficers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Directors and ExecutiveOfficers
Upon the consummation of the Business Combination, Jerry Tang, Daniel Nelson, Hongfei Zhang, Mohammad Hasham and George Chuang were appointed to the Company’s Board of Directors.
Further, upon the consummation of the Business Combination, Jerry Tang was appointed as Chief Executive Officer and President of the Company, Jolienne Halisky was appointed as Chief Financial Officer, and Eyal Rozen was appointed as Chief Operating Officer.
Jerry Tang. Mr. Tang has been the Chief Executive Officer of One Blockchain since October 2021 and the President of One Blockchain since January 2026. Since November 2021, Mr. Tang has also served as the Chief Executive Officer of TigerDC, an AI data center development company. Since December 2023, Mr. Tang has also been the Executive Chairman of Gentle Scan, a provider of breast cancer detection services. Since January 2024, Mr. Tang has also been the Chief Executive Officer of Atlas Cloud, an AI cloud infrastructure provider. Since March 2021, Mr. Tang also been Founding Partner of VCV Digital, a venture capital company specializing in technology, digital assets, blockchain, and AI. From January 2007 to March 2021, Mr. Tang was a managing director at Natixis, an investment bank. Mr. Tang received a MS in Engineering from Columbia University and a BS in Engineering from Huazhong University of Science & Technology. We believe that Mr. Tang is qualified to serve as a director of BlockchAIn given his deep knowledge of One Blockchain and his extensive executive and board experience with industry leading knowledge in artificial intelligence and digital infrastructure.
Jolienne Halisky, CPA,CMA. Ms. Halisky has been the Chief Financial Officer of One Blockchain since August 2025. Ms. Halisky has more than 25 years of financial leadership experience across manufacturing, technology, energy, real estate, and professional services. She previously served as a Fractional CFO with The Finance Group Global from 2023 to August 2025, a consultancy firm, providing fractional CFO services and leading cross-border M&A, tax, and succession planning initiatives. Her prior roles include Business Advisor & Consultant with Boese & Co LLP from 2021 to 2023, Director of Finance & Corporate Services with CAREERS from 2020 to 2021, and Director of Finance with Parkland County from 2019 to 2020. Ms. Halisky holds the Chartered Professional Accountant designation and received her accreditation in 1997.
Eyal Rozen. Mr. Rozen has been the Chief Operating Officer of One Blockchain since January 2026, where he leads operational and business development activities. Mr. Rozen has 25 years of experience spanning AI, Cloud, and Cybersecurity. Prior to joining One Blockchain, Mr. Rozen served as Chief Revenue Officer at Atlas Cloud, a Company affiliated with VCV Digital, from March 2025 to January 2026, where he drove global sales, marketing, and enterprise growth strategies. Before Atlas Cloud, he was the Chief Revenue Officer and a Managing Director of Nebius Israel from March 2022 to November 2024, overseeing all aspects of the company’s regional operations. From May 2020 to March 2022, Mr. Rozen was Head of Sales at Sygnia, responsible for global sales. Earlier in his career, Mr. Rozen held leadership positions at Morphisec and Verint, managing large teams across sales, marketing, and support, and building a strong track record in scaling high-performing commercial organizations. Mr. Rozen holds a Bachelor’s degree in Sociology from the University of Haifa, Israel.
Hongfei Zhang. Since 2012, Mr. Zhang has been the managing partner of Knightsbridge Investment Group, a private equity and venture capital firm investing in technology, biotech and consumer related business, and the managing partner and co-founder of HEY Capital, an investment company investing in commercial mortgage-backed securities. Mr. Zhang currently serves on the board of several technology companies and is the chairman of YoujiVest Technology. Mr. Zhang is also the Vice Chair of Tsinghua Entrepreneur and Executive Club. From 2002 to 2012, Mr. Zhang served as Managing Director and Chief Risk Officer of Dexia Group, a Franco-Belgian financial institution. From 2001 to 2002, Mr. Zhang worked for Deutsche Bank as Vice President. Before 2001, MR. Zhang was a Director of Nationwide Insurance Enterprise. Prior to his financial industry career, Mr. Zhang was a Professor at Ball State University and University of Texas at Austin. Mr. Zhang was also a research fellow at Argonne National Laboratory. Mr. Zhang is a Chartered Financial Analyst (CFA) and has a PhD in mathematics. We believe Mr. Zhang is qualified to serve as a director of BlockchAIn due to his capital markets experience, financial training, and advance mathematics background.
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Mohammad Hasham. Since February 2025, Mr. Hasham has been a Partner, West Region Leader, of CFO Advisory & Capital Markets, CohnReznick LLP. From March 2024 to February 2025, Mr. Hasham was Managing Director at CohnReznick LLP. Since September 2024, Mr. Hasham served as Board Advisor for Acclara AI. From October 2022 to March 2024, Mr. Hasham was Managing Director at Grant Thornton LLP (US). From December 2018 to October 2022, Mr. Hasham was a Director of Technical Accounting at BDO USA LLP. From April 2015 to December 2018, Mr. Hasham was Senior Manager, Technical Accounting at SOAProjects, Inc. Mr. Hasham has CPA, CA and CMA certifications in Canada and a CPA certification in the United States. Mr. Hasham received his Bachelor of Business Administration from Wilfrid Laurier University in Waterloo, Canada. We believe Mr. Hasham is qualified to serve a director of BlockchAIn because of his career auditing both publicly-traded and privately-held companies and capital markets and consulting experience.
George Chuang. Mr. Chuang has been the CEO of Lucy Labs, Inc., a proprietary trading firm focused on cryptocurrency, since 2017. He is recognized as a thought leader within the crypto finance industry, having served as an advisor to several crypto finance start-ups and spoken on multiple industry panels. Prior to founding Lucy Labs, Mr. Chuang held various operational and investment roles in private equity, venture capital, technology hardware, and equity sales and trading businesses in both Asia and the United States. He also previously served as a board member of Kaival Brands Innovations Group, Inc. (NASDAQ: KAVL). Mr. Chuang holds an MBA from the Yale School of Management and a BA in Economics from the University of Chicago. We believe Mr. Chuang is qualified to serve as a director of BlockchAIn because of his extensive leadership experience in cryptocurrency and financial markets, his strong background in investment and operations across multiple sectors and geographies, and his prior board and advisory roles in both public and private companies.
Daniel Nelson. Daniel Nelson has served as a member of the BlockchAIn Board since March 16, 2026. Mr. Nelson was a member of the Signing Day Sports Board from July 2022 to March 2026, was Signing Day Sports’ President from August 2022 to November 2022, was Signing Day Sports’ Chief Executive Officer from November 2022 to March 2026, and was Signing Day Sports’ Chairman from March 2023 to March 2026. Mr. Nelson began working in the financial services industry in 1986. In 1997, Mr. Nelson formed, and has since served as chief executive officer of, Daniel Nelson Financial Services Inc. (“Daniel Nelson Financial Services”), which focuses on the employee benefits market. For more than 30 years, Mr. Nelson has acquired extensive knowledge and experience in the financial services arena. Mr. Nelson also formed Daniel Nelson Financial Services to provide financial guidance for all individuals. We believe that Mr. Nelson is qualified to serve as a director of BlockchAIn due to his experience in finance, particularly with respect to the sports management division of Daniel Nelson Financial Services.
Family Relationships
There are no family relationships among any of our officers or directors.
Independence of Directors
Upon the Closing, the size of the Board of Directors is five directors, three of whom qualify as independent within the meaning of the independent director guidelines of NYSE American and Rule 10A-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Each of Hongfei Zhang, Mohammad Hasham, and George Chuang qualify as independent directors.
Committees of the Board of Directors
Following the Closing, the standing committees of the Board consist of an Audit Committee, a Compensation Committee and a Corporate Governance and Nominating Committee.
Audit Committee
The Company’s audit committee consists of Hongfei Zhang, Mohammad Hasham, and George Chuang. Each member of the audit committee satisfies the independence requirements under the NYSE American’s rules and Rule 10A-3(b)(1) of the Exchange Act. The chairperson of the audit committee is Mr. Mohammad Hasham. The Board of Directors has determined that Mr. Mohammad Hasham qualifies as an “audit committee financial expert,” as defined under rules and regulations of the SEC. Each member of the Company’s audit committee can read and understand fundamental financial statements in accordance with applicable requirements.
The Audit Committee operates pursuant to a written charter for the Audit Committee which is available on PubCo’s website, a copy of which is also attached hereto as Exhibit 99.2 and incorporated herein by reference.
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Compensation Committee
The Company’s compensation committee consists of Hongfei Zhang, Mohammad Hasham, and George Chuang. The chair of the compensation committee is Hongfei Zhang. The Board of Directors has determined that each member of the compensation committee is independent under the NYSE American’s listing standards and a “non-employee director” as defined in Rule 16b-3 promulgated under the Exchange Act.
The Compensation Committee operates pursuant to a written charter for the Compensation Committee which is available on PubCo’s website, a copy of which is also attached hereto as Exhibit 99.3 and incorporated herein by reference.
Nominatingand Corporate Governance Committee
The Company’s nominating and corporate governance committee consists of Hongfei Zhang, Mohammad Hasham, and George Chuang. The chair of the nominating and corporate governance committee is George Chuang. The Board of Directors has determined that each member of the nominating and corporate governance committee is independent under the NYSE American’s listing standards.
The Compensation Committee operates pursuant to a written charter for the Compensation Committee which is available on PubCo’s website, a copy of which is also attached hereto as Exhibit 99.4 and incorporated herein by reference.
(e) Compensatory Arrangements of Certain Officers
BlockchAIn Digital Infrastructure, Inc. Equity Incentive Plan
In connection with the Business Combination, the Company adopted the BlockchAIn Digital Infrastructure, Inc. Equity Incentive Plan (the “2026 Plan”) described in the proxy statement/prospectus in the section entitled “Equity Incentive Plan of Combined Company” on page 128 and incorporated herein by reference. That summary of the 2026 Plan does not purport to be complete and is qualified in its entirety by reference to the text of the 2026 Plan, which is filed as Exhibit 10.5 hereto and is incorporated herein by reference. The 2026 Plan provides for the grant of stock options, SARs, performance share awards, performance unit awards, distribution equivalent right awards, restricted stock awards, restricted stock unit awards and unrestricted stock awards to non-employee directors, officers, employees and nonemployee consultants of BlockchAIn or its affiliates. The aggregate number of BlockchAIn common shares reserved and available for grant and issuance under the 2026 Plan is 7,526,299.
Decisions with respect to the compensation of the Company’s directors and executive officers will be made by the compensation committee of the Board.
Item 5.03 Amendments to Articles of Incorporationor Bylaws; Change in Fiscal Year.
The information set forth in Item 3.03 of this Report is incorporated by reference into this Item 5.03.
Item 5.05. Amendmentsto Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics.
In connection with the Business Combination, on March 16, 2026, the Board approved and adopted a new Code of Ethics applicable to all employees, officers and directors of the Company, including the Company’s principal executive officer, principal financial officer and principal accounting officer or controller (or persons performing similar functions to the aforementioned officers). A copy of the Code of Ethics and Business Conduct is attached to this Report as Exhibit 14.1.
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Item 7.01 Regulation FD Disclosures.
On March 16, 2026, the Company and Signing Day Sports issued a press release announcing the consummation of the Business Combination. A copy of the press release is attached as Exhibit 99.1 hereto and incorporation herein by reference.
The information in this Item 7.01, including Exhibit 99.1, is furnished and shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to liabilities under that section, and shall not be deemed to be incorporated by reference into the filings of the Company under the Securities Act or the Exchange Act, regardless of any general incorporation language in such filings. This Report will not be deemed an admission as to the materiality of any information of the information contained in this Item 7.01, including Exhibit 99.1.
No Offer or Solicitation
This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval, nor shall there be any sale of any securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such other jurisdiction. No offering of securities in connection with the proposed business combination shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended (the “Securities Act”).
Forward-Looking Statements
This Report, including the exhibits to this Report, and the statements contained therein include “forward-looking” statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which statements involve substantial risks and uncertainties. Forward-looking statements generally relate to future events or the Company’s future financial or operating performance. In some cases, you can identify these statements because they contain words such as “may,” “will,” “believes,” “expects,” “anticipates,” “estimates,” “projects,” “intends,” “should,” “seeks,” “future,” “continue,” “plan,” “target,” “predict,” “potential,” or the negative of such terms, or other comparable terminology that concern the Company’s expectations, strategy, plans, or intentions. Forward-looking statements relating to expectations about future results or events are based upon information available to the Company as of today’s date and are not guarantees of the future performance of the Company, and actual results may vary materially from the results and expectations discussed. The Company’s expectations and beliefs regarding these matters may not materialize, and actual results in future periods are subject to risks, uncertainties and other factors that could cause actual results to differ materially from those projected, including, without limitation, the parties’ ability to integrate their respective businesses into a combined publicly listed company post-merger, the parties’ ability to obtain sufficient funding to maintain operations and develop additional services and offerings, market acceptance of the parties’ current products and services and planned offerings, competition from existing or new offerings that may emerge, impacts from strategic changes to the parties’ business on net sales, revenues, income from continuing operations, or other results of operations, the parties’ ability to attract new users and customers, the parties’ ability to retain or obtain intellectual property rights, the parties’ ability to adequately support future growth, the parties’ ability to comply with user data privacy laws and other current or anticipated legal requirements, and the parties’ ability to attract and retain key personnel to manage their business effectively. These risks, uncertainties and other factors are described more fully in the section titled “Risk Factors” of the Registration Statement and in the Proxy Statement/Prospectus (as defined below) that was publicly filed with the SEC relating to the recently completed business combination with Signing Day Sports, Inc. These risks, uncertainties and other factors are, in some cases, beyond the parties’ control and could materially affect results. If one or more of these risks, uncertainties or other factors become applicable, or if these underlying assumptions prove to be incorrect, actual events or results may vary significantly from those implied or projected by the forward-looking statements. No forward-looking statement is a guarantee of future performance. All subsequent written and oral forward-looking statements concerning BlockchAIn, or any of their affiliates, or other matters and attributable to BlockchAIn, any of their affiliates, or any person acting on their behalf are expressly qualified in their entirety by the cautionary statements above. Forward-looking statements contained in this announcement are made as of this date, and the Company undertakes no duty to update such information except as required under applicable law.
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Item 9.01 Financial Statements andExhibits.
(a) Financial Statements of Business Acquired
The financial statements required by Item 9.01(a) have not been included in this Report and will be filed by amendment not later than 71 calendar days after the date this Report is required to be filed.
(b) Pro Forma Financial Information
The pro forma financial information required by Item 9.01(b) will be filed by amendment to this Report within 71 calendar days after the date this Report is required to be filed.
(d) Exhibits
9
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: March 18, 2026 | BLOCKCHAIN DIGITAL INFRASTRUCTURE, INC. | |
|---|---|---|
| /s/ Jerry Tang | ||
| Name: | Jerry Tang | |
| Title: | Chief Executive Officer and President |
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Exhibit 2.4
CERTIFICATE OF MERGER
OF
BCDI MERGER SUB I INC.
INTO
SIGNING DAY SPORTS, INC.
March 16, 2026
Pursuant to Title 8, Section 251(c) of the General Corporation Law of the State of Delaware, the undersigned corporation executed the following Certificate of Merger:
FIRST: The name of the surviving corporation is Signing Day Sports, Inc., a Delaware corporation, and the name of the corporation being merged into this surviving corporation is BCDI Merger Sub I Inc., a Delaware corporation.
SECOND: The Agreement of Merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations.
THIRD: The name of the surviving corporation is Signing Day Sports, Inc., a Delaware corporation.
FOURTH: The certificate of incorporation of the surviving corporation in effect immediately prior to the effective time of the merger shall be amended and restated in its entirety to read as attached hereto as Exhibit A and shall be the Certificate of Incorporation of the surviving corporation.
FIFTH: The merger is to become effective upon filing of this Certificate of Merger with the Secretary of State of the State of Delaware.
SIXTH: The Agreement of Merger is on file at 1540 Broadway, Suite 1010, New York, NY 10036, the principal place of business of the surviving corporation.
SEVENTH: A copy of the Agreement of Merger will be furnished by the surviving corporation on request, without cost, to any stockholder of any constituent corporation.
IN WITNESS WHEREOF, said surviving corporation has caused this certificate to be signed by an authorized officer, on March 16, 2026.
| Signing Day Sports, Inc. | |
|---|---|
| By: | /s/ Daniel Nelson |
| Name: | Daniel Nelson |
| Title: | Chief Executive Officer |
[Certificate of Merger:BCDI Merger Sub I Inc - Signing Sports Day, Inc.]
Exhibit 2.5
CERTIFICATE OF MERGER
OF
BCDI MERGER SUB II LLC
INTO
ONE BLOCKCHAIN LLC
March 16, 2026
Pursuant to Title 6, Section 18-209 of the Delaware Limited Liability Company Act, the undersigned limited liability company executed the following Certificate of Merger:
FIRST: The name of the surviving limited liability company is One Blockchain LLC, a Delaware limited liability company, and the name of the limited liability company being merged into this surviving limited liability company is BCDI Merger Sub II LLC, a Delaware limited liability company.
SECOND: The Agreement of Merger has been approved, adopted, certified, executed and acknowledged by each of the constituent entities.
THIRD: The name of the surviving limited liability company is One Blockchain LLC, a Delaware limited liability company.
FOURTH: The Certificate of Formation of the surviving limited liability company shall be the Certificate of Formation of BCDI Merger Sub II LLC immediately prior to the merger.
FIFTH: The merger is to become effective upon filing of this Certificate of Merger with the Secretary of State of the State of Delaware.
SIXTH: The Agreement of Merger is on file at 1540 Broadway, Suite 1010, New York, NY 10036, the principal place of business of the surviving limited liability company.
SEVENTH: A copy of the Agreement of Merger will be furnished by the surviving limited liability company on request, without cost, to any member of any constituent limited liability company.
IN WITNESS WHEREOF, said surviving limited liability company has caused this certificate to be signed by an authorized officer, on March 16, 2026.
| ONE BLOCKCHAIN LLC | |
|---|---|
| By: | /s/ Jerry Tang |
| Name: | Jerry Tang |
| Title: | Chief Executive Officer |
[Certificate of Merger:BCDI Merger Sub II LLC - One Blockchain LLC.]
Exhibit 3.1
AMENDEDAND RESTATED CERTIFICATE OF INCORPORATION
OF
BLOCKCHAINDIGITAL INFRASTRUCTURE, INC.
BlockchAIn Digital Infrastructure, Inc., (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify as follows:
1. The name of the Corporation is BlockchAIn Digital Infrastructure, Inc. The Corporation was incorporated under the name BlockchAIn Digital Infrastructure, Inc., by the filing of its Certificate of Incorporation with the Secretary of State of the State of Delaware on April 11, 2025 (the “Existing Certificate”).
2. This Amended and Restated Certificate of Incorporation (the “Amended and Restated Certificate”), which amends and restates the Existing Certificate in its entirety, has been approved by the Board of Directors of the Corporation (the “Board”) in accordance with Sections 242 and 245 of the DGCL and has been adopted by the stockholders of the Corporation at a meeting of the stockholders of the Corporation in accordance with the provisions of Section 211 of the DGCL.
3. The text of the Existing Certificate is hereby amended and restated by this Amended and Restated Certificate to read in its entirety as set forth in EXHIBIT A attached hereto.
4. This Amended and Restated Certificate shall become effective on the date of filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, BlockchAIn Digital Infrastructure, Inc., has caused this Amended and Restated Certificate to be signed by a duly authorized officer of the Corporation, on March 16, 2026.
BLOCKCHAINDIGITAL INFRASTRUCTURE, INC.
| By: | /s/ Jerry Tang |
|---|---|
| Name: | Jerry Tang |
| Title: | Chief Executive Officer |
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ExhibitA
ARTICLEINAME
The name of the corporation is BlockchAIn Digital Infrastructure, Inc. (the “Corporation”).
ARTICLEIIREGISTERED OFFICE AND AGENT
The address of the Corporation’s registered office in the State of Delaware is c/o Telos Legal Corp, 13W Main Street, P.O. Box 953, Felton County of Kent, Delaware 19943, and the name of its registered agent at such address is Telos Legal Corp.
ARTICLEIIIPURPOSE
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”) as it now exists or may hereafter be amended and supplemented.
ARTICLEIVCAPITALIZATION
Section 4.1 Authorized Capital Stock. The total number of shares of all classes of capital stock, each with a par value of $0.0001 per share, which the Corporation is authorized to issue is 1,100,000,000 shares, consisting of (a) 1,000,000,000 shares of common stock (the “CommonStock”), and (b) 100,000,000 shares of preferred stock (the “Preferred Stock”). Subject to the rights of the holders of any series of Preferred Stock, the number of authorized shares of any of the Common Stock or the Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the capital stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL, and no vote of the holders of any of the Common Stock or the Preferred Stock voting separately as a class shall be required therefor.
Section 4.2 Preferred Stock. Subject to Article V of this Amended and Restated Certificate, the Board of Directors of the Corporation (the “Board”) is hereby expressly authorized to provide out of the unissued shares of the Preferred Stock for one or more series of Preferred Stock and to establish from time to time the number of shares to be included in each such series and to fix the voting rights, if any, designations, powers, preferences and relative, participating, optional, special and other rights, if any, of each such series and any qualifications, limitations and restrictions thereof, as shall be stated in the resolution or resolutions adopted by the Board providing for the issuance of such series and included in a certificate of designation (a “PreferredStock Designation”) filed pursuant to the DGCL, and the Board is hereby expressly vested with the authority to the full extent provided by law, now or hereafter, to adopt any such resolution or resolutions. The authority of the Board with respect to each series of Preferred Stock shall include, but not be limited to, the determination of the following:
| a. | the designation of the series, which may be by distinguishing number, letter or title; |
|---|---|
| b. | the number of shares of the series, which number the Board may thereafter (except where otherwise provided in the Preferred Stock Designation) increase or decrease (but not below the number of shares thereof then outstanding); |
| --- | --- |
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| c. | the amounts or rates at which dividends will be payable on, and the preferences, if any, of shares of the series in respect of dividends, and whether such dividends, if any, shall be cumulative or noncumulative; |
|---|---|
| d. | the dates on which dividends, if any, shall be payable; |
| --- | --- |
| e. | the redemption rights and price or prices, if any, for shares of the series; |
| --- | --- |
| f. | the terms and amount of any sinking fund, if any, provided for the purchase or redemption of shares of the series; |
| --- | --- |
| g. | the amounts payable on, and the preferences, if any, of shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation; |
| --- | --- |
| h. | whether the shares of the series shall be convertible into or exchangeable for, shares of any other class or series, or any other security, of the Corporation or any other corporation, and, if so, the specification of such other class or series or such other security, the conversion or exchange price or prices or rate or rates, any adjustments thereof, the date or dates at which such shares shall be convertible or exchangeable and all other terms and conditions upon which such conversion or exchange may be made; |
| --- | --- |
| i. | restrictions on the issuance of shares of the same series or any other class or series; |
| --- | --- |
| j. | the voting rights, if any, of the holders of shares of the series generally or upon specified events; and |
| --- | --- |
| k. | any other powers, preferences and relative, participating, optional or other special rights of each series of Preferred Stock, and any qualifications, limitations or restrictions of such shares, all as may be determined from time to time by the Board and stated in the resolution or resolutions providing for the issuance of such Preferred Stock. |
| --- | --- |
Without limiting the generality of the foregoing, the resolutions providing for issuance of any series of Preferred Stock may provide that such series shall be superior or rank equally or be junior to any other series of Preferred Stock to the extent permitted by law.
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ARTICLEV
Section 5.1 Common Stock.
(a) Voting.
(i) Except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), the holders of the Common Stock shall exclusively possess all voting power with respect to the Corporation.
(ii) Except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), the holders of shares of Common Stock shall be entitled to one vote for each such share on each matter properly submitted to the stockholders of the Corporation on which the holders of the Common Stock are entitled to vote.
(b) Dividends. Subject to applicable law, the rights, if any, of the holders of any outstanding series of the Preferred Stock and the provisions of Article IV hereof, the holders of shares of Common Stock shall be entitled to receive such dividends and other distributions (payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the Board from time to time out of any assets or funds of the Corporation legally available therefor and shall share equally on a per share basis in such dividends and distributions.
(c) Liquidation, Dissolution or Winding Up of the Corporation. Subject to applicable law, the rights, if any, of the holders of any outstanding series of the Preferred Stock and the provisions of Article IV hereof, in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of shares of Common Stock shall be entitled to receive all the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of Common Stock held by them.
Section 5.2 Rights and Options. The Corporation has the authority to create and issue rights, warrants and options entitling the holders thereof to acquire from the Corporation any shares of its capital stock of any class or classes, with such rights, warrants and options to be evidenced by or in instrument(s) approved by the Board. The Board is empowered to set the exercise price, duration, times for exercise and other terms and conditions of such rights, warrants or options; provided, however, that the consideration to be received for any shares of capital stock issuable upon exercise thereof may not be less than the par value thereof.
ARTICLEVIBOARD OF DIRECTORS
Section 6.1 Board Powers. The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. In addition to the powers and authority expressly conferred upon the Board by statute, this Amended and Restated Certificate or the Bylaws of the Corporation (“Bylaws”), the Board is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the DGCL, this Amended and Restated Certificate, and any Bylaws adopted by the stockholders of the Corporation; provided, however, that no Bylaws hereafter adopted by the stockholders of the Corporation shall invalidate any prior act of the Board that would have been valid if such Bylaws had not been adopted.
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Section 6.2 Number, Election and Term.
For the management of the business and for the conduct of the affairs of the Corporation it is further provided that:
(a) Subject to the special rights of the holders of one or more outstanding series of Preferred Stock to elect directors, if any, the initial directors of the Corporation shall initially be comprised of be no less than five (5) and no greater than (7) directors. Signing Day Sports, Inc., a Delaware corporation (“SGN”) shall be entitled to designate at least one (1) director with all others to be designated by One Blockchain LLC, a Delaware limited liability company (“One Blockchain”). The initial directors of the Corporation be classified with respect to the time for which they severally hold office into three classes, designated as Class I, Class II and Class III. The initial Class I directors shall serve for a term expiring at the first annual meeting of the stockholders following the date of this Amended and Restated Certificate; the initial Class II directors shall serve for a term expiring at the second annual meeting of the stockholders following the date of this Amended and Restated Certificate; and the initial Class III directors shall serve for a term expiring at the third annual meeting following the date of this Amended and Restated Certificate. At each annual meeting of the stockholders of the Corporation beginning with the first annual meeting of the stockholders following the date of this Amended and Restated Certificate, subject to the special rights of the holders of one or more outstanding series of Preferred Stock to elect directors, if any, the successors of the class of directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of the stockholders held in the third year following the year of their election. Each director shall hold office until his or her successor is duly elected and qualified or until his or her earlier death, resignation, disqualification or removal, The Board is authorized to assign members of the Board already in office to Class I, Class II and Class III. One Blockchain shall ensure that a sufficient number of its designees qualify as independent directors such that, when taken together with other independent directors appointed pursuant to this Section, the Board shall have a majority of “independent” directors for the purposes of the NYSE American LLC. No decrease in the number of directors shall shorten the term of any incumbent director.
(b) The number of directors which shall constitute the whole Board shall be fixed exclusively by one or more resolutions adopted from time to time by the majority of the Board.
(c) The directors of the Corporation need not be elected by written ballot unless the Bylaws so provide.
Section 6.3 Removal
Subject to the special rights of the holders of one or more outstanding series of Preferred Stock to elect directors, the Board or any individual director may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of at least a majority of the voting power of all of the then outstanding shares of voting stock of the Corporation entitled to vote at an election of directors.
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Section 6.4 Newly Created Directorships and Vacancies.
Subject to the special rights of the holders of one or more outstanding series of Preferred Stock to elect directors, except as otherwise provided by law, any vacancies on the Board resulting from death, resignation, disqualification, retirement, removal or other causes and any newly created directorships resulting from any increase in the number of directors shall be filled exclusively by the affirmative vote of a majority of the directors then in office, even though less than a quorum, or by a sole remaining director (other than any directors elected by the separate vote of one or more outstanding series of Preferred Stock), and shall not be filled by the stockholders. Any director appointed in accordance with the preceding sentence shall hold office until the expiration of the term to which such director shall have been appointed or until his or her earlier death, resignation, retirement, disqualification, or removal.
ARTICLEVIIBYLAWS
In furtherance and not in limitation of the powers conferred by statute, the Board is expressly authorized to adopt, amend or repeal the Amended and Restated Bylaws of the Corporation (as amended and/or restated from time to time). In addition to any vote of the holders of any class or series of stock of the Corporation required by applicable law or by this Amended and Restated Certificate (including any Certificate of Designation in respect of one or more series of Preferred Stock) or the Bylaws, the adoption, amendment or repeal of the Bylaws by the stockholders of the Corporation shall require the affirmative vote of the holders of at least a majority of the voting power of all of the then outstanding shares of voting stock of the Corporation entitled to vote generally in an election of directors. No Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the Board that would have been valid if such Bylaws had not been adopted.
ARTICLEVIIISTOCKHOLDERS
(a) Any action required or permitted to be taken by the stockholders of the Corporation must be effected at an annual or special meeting of the stockholders of the Corporation, and shall not be taken by written consent in lieu of a meeting. Notwithstanding the foregoing, any action required or permitted to be taken by the holders of any series of Preferred Stock, voting separately as a series or separately as a class with one or more other such series, may be taken without a meeting, without prior notice and without a vote, to the extent expressly so provided by the applicable Certificate of Designation relating to such series of Preferred Stock, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares of the relevant series of Preferred 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 and shall be delivered to the Corporation in accordance with the applicable provisions of the DGCL.
(b) Subject to the special rights of the holders of one or more series of Preferred Stock, special meetings of the stockholders of the Corporation may be called, for any purpose or purposes, at any time only by or at the direction of the Board, the Chairperson of the Board, the Chief Executive Officer or the President, and shall not be called by any other person or persons.
(c) Advance notice of stockholder nominations for the election of directors and of other business proposed to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.
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ARTICLEIXLIMITED LIABILITY; INDEMNIFICATION
Section 9.1 Limitation of Director Liability. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended unless they violated their duty of loyalty to the Corporation or its stockholders, acted in bad faith, knowingly or intentionally violated the law, authorized unlawful payments of dividends, unlawful stock purchases or unlawful redemptions, or derived improper personal benefit from their actions as directors. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.
Section 9.2 Indemnification and Advancement of Expenses.
(a) To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person who is or was made a party or is threatened to be made a party to 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 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, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such indemnitee in connection with such proceeding. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by an indemnitee 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 or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined that the indemnitee is not entitled to be indemnified under this Section 8.2 or otherwise. The rights to indemnification and advancement of expenses conferred by this Section 8.2 shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this Section 8.2(a), except for proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board.
(b) The rights to indemnification and advancement of expenses conferred on any indemnitee by this Section 8.2 shall not be exclusive of any other rights that any indemnitee may have or hereafter acquire under law, this Amended and Restated Certificate, the Bylaws, an agreement, vote of stockholders or disinterested directors, or otherwise.
(c) Any repeal or amendment of this Section 8.2 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Amended and Restated Certificate inconsistent with this Section 8.2, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.
(d) This Section 8.2 shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other than indemnitees.
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ARTICLEXCORPORATE OPPORTUNITY
(a) To the fullest extent permitted by Section 122(17) of the DGCL, the doctrine of corporate opportunity, or any other analogous doctrine, shall not apply with respect to the Corporation or any of its officers or directors, or any of their respective affiliates, in circumstances where the application of any such doctrine to a corporate opportunity would conflict with any fiduciary duties or contractual obligations they may have as of the date of this Amended and Restated Certificate or in the future. In addition to the foregoing, the doctrine of corporate opportunity shall not apply to any other corporate opportunity with respect to any of the directors or officers of the Corporation unless such corporate opportunity is expressly offered to such person in writing solely in his or her capacity as a director or officer of the Corporation and such opportunity is one the Corporation is legally and contractually permitted to undertake and would otherwise be reasonable for the Corporation to pursue.
(b) Neither the alteration, amendment, addition to or repeal of this Article IX, nor the adoption of any provision of this Amended and Restated Certificate (including any Certificate of Designation) inconsistent with this Article IX, shall eliminate or reduce the effect of this Article IX in respect of any business opportunity first identified or any other matter occurring, or any cause of action, suit or claim that, but for this Article IX, would accrue or arise, prior to such alteration, amendment, addition, repeal or adoption. This Article IX shall not limit any protections or defenses available to, or indemnification or advancement rights of, any director or officer of the Corporation under this Amended and Restated Certificate, the Bylaws or applicable law.
ARTICLEXIAMENDMENTS
(a) Notwithstanding anything contained in this Amended and Restated Certificate to the contrary, in addition to any vote required by applicable law, the following provisions in this Amended and Restated Certificate may be amended, altered, repealed or rescinded, in whole or in part, or any provision inconsistent therewith or herewith may be adopted, only by the affirmative vote of the holders of at least a majority of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class: Part (b) of Article IV, Article V, Article VI, Article VII, Article VIII, Article IX and this Article X.
(b) If any provision or provisions of this Amended and Restated Certificate shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Amended and Restated Certificate (including, without limitation, each portion of any paragraph of this Amended and Restated Certificate containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not, to the fullest extent permitted by applicable law, in any way be affected or impaired thereby and (ii) to the fullest extent permitted by applicable law, the provisions of this Amended and Restated Certificate (including, without limitation, each such portion of any paragraph of this Amended and Restated Certificate containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent permitted by law.
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ARTICLEXIIEXCLUSIVE FORUM FOR CERTAIN LAWSUITS; CONSENT TO JURISDICTION
Section 12.1 Forum. Subject to the last sentence in this Section 11.1, and unless the Corporation consents in writing to the selection of an alternative forum, to the fullest extent permitted by the applicable law, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation, its directors, officers or employees arising pursuant to any provision of the DGCL or this Amended and Restated Certificate or the Bylaws, or (iv) any action asserting a claim against the Corporation, its directors, officers or employees governed by the internal affairs doctrine and, if brought outside of Delaware, the stockholder bringing the suit will be deemed to have consented to service of process on such stockholder’s counsel except any action (A) as to which the Court of Chancery in the State of Delaware determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days following such determination), (B) which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or (C) for which the Court of Chancery does not have subject matter jurisdiction. Notwithstanding the foregoing, (i) the provisions of this Section 11.1 will not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction and (ii) 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 exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder.
Section 12.2 Consent to Jurisdiction. If any action the subject matter of which is within the scope of Section 11.1 immediately above is filed in a court other than a court located within the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder shall be deemed to have consented to (i) the personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action brought in any such court to enforce Section 11.1 immediately above (an “FSCEnforcement Action”) and (ii) having service of process made upon such stockholder in any such FSC Enforcement Action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.
Section 12.3 Severability. If any provision or provisions of this Article XII shall be held to be invalid, illegal or unenforceable as applied to any person or entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article XII (including, without limitation, each portion of any sentence of this Article XII containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) and the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby. 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 ArticleXII.
Section 12.4 Deemed Notice. Any person or entity purchasing or otherwise acquiring or holding any interest in any security of the Corporation shall be deemed to have notice of and consented to this Article XII.
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Exhibit 3.2
BLOCKCHAIN DIGITAL INFRASTRUCTURE, INC.
AMENDED AND RESTATED BYLAWS
(as adopted on March 16, 2026)
ARTICLE I — CORPORATE OFFICES
| 1.1 | REGISTERED OFFICE |
|---|
The registered office of BlockchAIn Digital Infrastructure, Inc. (the “Corporation”) shall be fixed in the Corporation’s certificate of incorporation, as the same may be amended from time to time (the “certificate of incorporation”).
| 1.2 | OTHER OFFICES |
|---|
The Corporation may at any time establish other offices.
ARTICLE II — MEETINGS OF STOCKHOLDERS
| 2.1 | PLACE OF MEETINGS |
|---|
Meetings of stockholders shall be held at a place, if any, within or outside the State of Delaware, determined by the board of directors of the Corporation (the “Boardof Directors”). The Board of Directors may, in its sole discretion, determine that a meeting of stockholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized by Section 211(a)(2) of the Delaware General Corporation Law (the “DGCL”). In the absence of any such designation or determination, stockholders’ meetings shall be held at the Corporation’s principal executive office.
| 2.2 | ANNUAL MEETING |
|---|
The Board of Directors shall designate the date and time of the annual meeting of stockholders. At the annual meeting, directors shall be elected and any other proper business, brought in accordance with Section 2.4 of these bylaws, may be transacted. The Board of Directors may cancel, postpone or reschedule any previously scheduled annual meeting at any time, before or after the notice for such meeting has been sent to the stockholders.
| 2.3 | SPECIAL MEETING |
|---|
(a) A special meeting of the stockholders may be called at any time only by (i) the Board of Directors, (ii) the chairperson of the Board of Directors, (iii) the chief executive officer or (iv) the president, but a special meeting may not be called by any other person or persons and any power of stockholders to call a special meeting of stockholders is specifically denied. The Board of Directors may cancel, postpone or reschedule any previously scheduled special meeting at any time, before or after the notice for such meeting has been sent to the stockholders.
(b) The notice of a special meeting shall include the purpose for which the meeting is called. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting by or at the direction of the Board of Directors, the chairperson of the Board of Directors, the chief executive officer or the president. Nothing contained in this Section 2.3(b) shall be construed as limiting, fixing or affecting the time when a meeting of stockholders called by action of the Board of Directors may be held.
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| 2.4 | ADVANCE NOTICE PROCEDURES |
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(a) AnnualMeetings of Stockholders.
(i) Nominations of persons for election to the Board of Directors or the proposal of other business to be transacted by the stockholders at an annual meeting of stockholders may be made only (A) pursuant to the Corporation’s notice of meeting (or any supplement thereto); (B) by or at the direction of the Board of Directors; (C) as may be provided in the certificate of designation for any class or series of preferred stock; or (D) by any stockholder of the Corporation who (1) is a stockholder of record at the time of giving of the notice contemplated by Section 2.4(a)(ii); (2) is a stockholder of record on the record date for the determination of stockholders entitled to notice of the annual meeting; (3) is a stockholder of record on the record date for the determination of stockholders entitled to vote at the annual meeting; (4) is a stockholder of record at the time of the annual meeting; and (5) complies with the procedures set forth in this Section 2.4(a).
(ii) For nominations or other business to be properly brought before an annual meeting of stockholders by a stockholder pursuant to clause (D) of Section 2.4(a)(i), the stockholder must have given timely notice in writing to the secretary and any such proposed business (other than a nomination) must constitute a proper matter for stockholder action. To be timely, a stockholder’s notice must be received by the secretary at the principal executive offices of the Corporation no earlier than 8:00 a.m., local time, on the 150th day and no later than 5:00 p.m., local time, on the 120th day prior to the first anniversary of the date of the proxy statement (as defined in this Section 2.4(a)(ii)) for the preceding year’s annual meeting of stockholders (which anniversary date shall, for purposes of the Corporation’s first annual meeting after its shares of stock are first publicly traded, be deemed to be March 17, 2027). However, if no annual meeting of stockholders was held in the preceding year, or if the date of the applicable annual meeting is more than 30 days before or more than 60 days after the first anniversary of the preceding year’s annual meeting, then to be timely such notice must be received by the secretary at the principal executive offices of the Corporation no earlier than 8:00 a.m., local time, on the 120th day prior to the day of the annual meeting and no later than the later of (A) 5:00 p.m., local time, on the 90th day before the meeting or (B) 5:00 p.m., local time, on the 10th day following the day on which public announcement of the date of the annual meeting was first made by the Corporation. In no event will the adjournment, rescheduling or postponement of any annual meeting, or any announcement thereof, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. The number of nominees a stockholder may nominate for election at the annual meeting (or in the case of a stockholder giving the notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at the annual meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such annual meeting. Notwithstanding anything in the second sentence of this Section 2.4(a)(ii) to the contrary, if the number of directors to be elected to the Board of Directors at the annual meeting is increased after the time period for which nominations would otherwise be due under this Section 2.4(a) (ii) and there is no public announcement naming the nominees for the additional directorships at least 10 days before the last day that a stockholder may deliver a notice of nomination pursuant to the foregoing provisions, then a stockholder’s notice required by this Section 2.4(a)(ii) will also be considered timely, but only with respect to nominees for any new positions created by such increase, if it is received by the secretary at the principal executive offices of the Corporation no later than 5:00 p.m., local time, on the 10th day following the day on which such public announcement is first made. “Public announcement’’ means disclosure in a press release reported by a national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934 (as amended and inclusive of rules and regulations thereunder, the “1934Act’’). “The date of the proxy statement’’ means “the date of the company’s proxy statement released to shareholders” as used in Rule 14a-8(e) promulgated under the 1934 Act, as interpreted by the Securities and Exchange Commission from time to time.
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(iii) A stockholder’s notice to the secretary must set forth:
(A) as to each person whom the stockholder proposes to nominate for election as a director:
(1) such person’s name, age, business address, residence address and principal occupation or employment; the class, series and number of shares of stock of the Corporation that are held of record or are beneficially owned by such person and a description of any Derivative Instruments (defined below) held or beneficially owned thereby or of any other agreement, arrangement or understanding (including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigate loss to, or to manage the risk or benefit of share price changes for, or to increase or decrease the voting power of such person; and all information relating to such person that is required to be disclosed in solicitations of proxies for the contested election of directors, or is otherwise required, in each case pursuant to Section 14 of the 1934 Act;
(2) such person’s written consent to being named in the proxy statement and related materials of the Corporation and the proxy statement and related materials of such stockholder as a nominee of the stockholder and to serving as a director of the Corporation if elected;
(3) a reasonably detailed description of any direct or indirect compensatory, payment, indemnification or other financial agreement, arrangement or understanding that such person has, or has had within the past three years, with any person or entity other than the Corporation (including the amount of any payment or payments received or receivable thereunder), in each case in connection with candidacy or service as a director of the Corporation (a “Third-Party Compensation Arrangement”); and
(4) a description of any other material relationships between such person and such person’s respective affiliates and associates, or others acting in concert with them, on the one hand, and such stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination is made, and their respective affiliates and associates, or others acting in concert with them, on the other hand;
(B) as to any other business that the stockholder proposes to bring before the annual meeting:
(1) a brief description of the business desired to be brought before the annual meeting;
(2) the text of the proposal or business ( including the text of any resolutions proposed for consideration and, if applicable, the text of any proposed amendment to these bylaws or the Corporation’s certificate of incorporation);
(3) the reasons for conducting such business at the annual meeting;
(4) any material interest in such business of such stockholder giving the notice and the beneficial owner, if any, on whose behalf the proposal is made, and their respective affiliates and associates, or others acting in concert with them; and
(5) a description of all agreements, arrangements and understandings between such stockholder and the beneficial owner, if any, on whose behalf the proposal is made, and their respective affiliates or associates or others acting in concert with them, and any other person or persons (including their names) in connection with the proposal of such business by such stockholder; and
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(C) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made:
(1) the name and address of such stockholder (as they appear on the Corporation’s books), of such beneficial owner and of their respective affiliates or associates or others acting in concert with them;
(2) for each class or series, the number of shares of stock of the Corporation that are, directly or indirectly, held of record or are beneficially owned by such stockholder, such beneficial owner or their respective affiliates or associates or others acting in concert with them;
(3) a description of any agreement, arrangement or understanding between such stockholder, such beneficial owner or their respective affiliates or associates or others acting in concert with them, and any other person or persons (including, in each case, their names) in connection with the proposal of such nomination or other business;
(4) a description of any agreement, arrangement or understanding (including, regardless of the form of settlement, any derivative, long or short positions, profit interests, forwards, futures, swaps, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares) that has been entered into by or on behalf of such stockholder, such beneficial owner or their respective affiliates or associates or others acting in concert with them, with respect to the Corporation’s securities (any of the foregoing, a “Derivative Instrument”), or any other agreement, arrangement or understanding that has been made the effect or intent of which is to create or mitigate loss to, manage risk or benefit of share price changes for or increase or decrease the voting power of such stockholder, such beneficial owner or their respective affiliates or associates or others acting in concert with them, with respect to the Corporation’s securities;
(5) any rights to dividends on the Corporation’s securities owned beneficially by such stockholder, such beneficial owner or their respective affiliates or associates or others acting in concert with them, that are separated or separable from the underlying security;
(6) any proportionate interest in the Corporation’s securities or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such stockholder, such beneficial owner or their respective affiliates or associates or others acting in concert with them, is a general partner or, directly or indirectly, beneficially owns an interest in a general partner of such general or limited partnership;
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(7) any performance-related fees (other than an asset-based fee) that such stockholder, such beneficial owner or their respective affiliates or associates or others acting in concert with, them is entitled to based on any increase or decrease in the value of the Corporation’s securities or Derivative Instruments, including, without limitation, any such interests held by members of the immediate family of such persons sharing the same household;
(8) any significant equity interests or any Derivative Instruments in any principal competitor of the Corporation that are held by such stockholder, such beneficial owner or their respective affiliates or associates or others acting in concert with them;
(9) any direct or indirect interest of such stockholder, such beneficial owner or their respective affiliates or associates or others acting in concert with them, in any contract with the Corporation, any affiliate of the Corporation or any principal competitor of the Corporation (in each case, including any employment agreement, collective bargaining agreement or consulting agreement);
(10) a representation and undertaking that the stockholder is a holder of record of stock of the Corporation as of the date of submission of the stockholder’s notice and intends to appear in person or by proxy at the meeting to bring such nomination or other business before the meeting;
(11) a representation and undertaking that such stockholder or any such beneficial owner intends, or is part of a group that intends, to (x) deliver a proxy statement or form of proxy to holders of at least the percentage of the voting power of the Corporation’s then- outstanding stock required to approve or adopt the proposal or to elect each such nominee; or (y) otherwise solicit proxies or votes from stockholders in support of such proposal or nomination;
(12) any other information relating to such stockholder, such beneficial owner, or their respective affiliates or associates or others acting in concert with them, or director nominee or proposed business that, in each case, would be required to be disclosed in a proxy statement or other filing required to be made in connection with the solicitation of proxies in support of such nominee (in a contested election of directors) or proposal pursuant to Section 14 of the 1934 Act; and
(13) such other information relating to any proposed item of business as the Corporation may reasonably require to determine whether such proposed item of business is a proper matter for stockholder action.
(iv) In addition to the requirements of this Section 2.4, to be timely, a stockholder’s notice (and any additional information submitted to the Corporation in connection therewith) must further be updated and supplemented (A) if necessary, so that the information provided or required to be provided in such notice is true and correct as of the record date(s) for determining the stockholders entitled to notice of, and to vote at, the meeting and as of the date that is 10 business days prior to the meeting or any adjournment, or postponement thereof and (B) to provide any additional information that the Corporation may reasonably request. Such update and supplement or additional information, if applicable, must be received by the secretary at the principal executive offices of the Corporation, in the case of a request for additional information, promptly following a request therefor, which response must be delivered not later than such reasonable time as is specified in any such request from the Corporation or, in the case of any other update or supplement of any information, not later than five business days after the record date(s) for the meeting (in the case of any update and supplement required to be made as of the record date(s)), and not later than eight business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of 10 business days prior to the meeting or any adjournment or postponement thereof). The failure to timely provide such update, supplement or additional information shall result in the nomination or proposal no longer being eligible for consideration at the meeting.
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(b) SpecialMeetings of Stockholders. Special meetings of stockholders may be called only in accordance with the certificate of incorporation and Section 2.3(a) of these bylaws. Only such business will be conducted at a special meeting of stockholders as has been brought before the special meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting (1) by or at the direction of the Board of Directors or any committee thereof or (2) provided that the Board of Directors has determined that directors shall be elected at such meeting by any stockholder who (i) is a stockholder of record at the time of giving of the notice contemplated by this Section 2.4(b); (ii) is a stockholder of record on the record date for the determination of stockholders entitled to notice of the special meeting; (iii) is a stockholder of record on the record date for the determination of stockholders entitled to vote at the special meeting; (iv) is a stockholder of record at the time of the special meeting; and (v) complies with the procedures set forth in this Section 2.4(b). The number of nominees a stockholder may nominate for election at the special meeting (or in the case of a stockholder giving the notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at the special meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such special meeting. For nominations to be properly brought by a stockholder before a special meeting pursuant to this Section 2.4(b), the stockholder’s notice must be received by the secretary at the principal executive offices of the Corporation no earlier than 8:00 a.m., local time, on the 120th day prior to the day of the special meeting and no later than 5:00 p.m., local time, on the later of the 90th day prior to the day of the special meeting or the 10th day following the day on which public announcement of the date of the special meeting at which directors are to be elected was first made by the Corporation. In no event will any adjournment, rescheduling or postponement of a special meeting or the announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice. A stockholder’s notice to the secretary must comply with the applicable notice requirements of Section 2.4(a)(iii).
(c) OtherRequirements.
(i) To be eligible to be a nominee by any stockholder for election as a director of the Corporation, the proposed nominee must provide to the secretary, in accordance with the applicable time periods prescribed for delivery of notice under Section 2.4(a)(ii) or Section 2.4(b), as applicable:
(A) a signed and completed written questionnaire (in the form provided by the secretary at the written request of the nominating stockholder, which form will be provided by the secretary within 10 days of receiving such request);
(B) a written representation and undertaking that, such nominee is not, and will not become, a party to any voting agreement, arrangement, commitment, assurance or understanding with any person or entity as to how such nominee, if elected as a director, will vote on any issue (a “VotingCommitment”) that has not been disclosed to the Corporation or any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the Corporation, with such person’s fiduciary duties under applicable law;
(C) a written representation and undertaking that, unless previously disclosed to the Corporation, such nominee is not, and will not become, a party to any Third-Party Compensation Arrangement;
(D) a written representation and undertaking that, if elected as a director, such nominee would be in compliance, and will continue to comply, with the Corporation’s corporate governance guidelines as disclosed on the Corporation’s website, as amended from time to time; and
(E) a written representation and undertaking that such nominee, if elected, intends to serve a full term on the Board of Directors.
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(ii) At the request of the Board of Directors, any person nominated by the Board of Directors for election as a director must furnish to the secretary the information that is required to be set forth in a stockholder’s notice of nomination that pertains to such nominee.
(iii) No person will be eligible to be nominated by a stockholder for election as a director of the Corporation unless nominated in accordance with the procedures set forth in this Section 2.4. No business proposed by a stockholder will be conducted at a stockholder meeting except in accordance with this Section 2.4.
(iv) The chairperson of the applicable meeting of stockholders will, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the procedures prescribed by these bylaws or that business was not properly brought before the meeting. If the chairperson of the meeting should so determine, then the chairperson of the meeting will so declare to the meeting and the defective nomination will be disregarded or such business will not be transacted, as the case may be.
(v) Notwithstanding anything to the contrary in this Section 2.4, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear in person at the meeting to present a nomination or other proposed business, such nomination will be disregarded or such proposed business will not be transacted, as the case may be, notwithstanding that proxies in respect of such nomination or business may have been received by the Corporation and counted for purposes of determining a quorum. For purposes of this Section 2.4, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, director, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting, and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting.
(vi) Without limiting this Section 2.4, a stockholder must also comply with all applicable requirements of the 1934 Act with respect to the matters set forth in this Section 2.4, it being understood that (A) any references in these bylaws to the 1934 Act are not intended to, and will not, limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Section 2.4; and (B) compliance with clause (D) of Section 2.4(a)(i) and with Section 2.4(b) are the exclusive means for a stockholder to make nominations or submit other business (other than as provided in Section 2.4(c)(vii)).
(vii) Notwithstanding anything to the contrary in this Section 2.4, the notice requirements set forth in these bylaws with respect to the proposal of any business pursuant to this Section 2.4 will be deemed to be satisfied by a stockholder if (A) such stockholder has submitted a proposal to the Corporation in compliance with Rule 14a-8 under the 1934 Act; and (B) such stockholder’s proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for the meeting of stockholders. Subject to Rule 14a-8 and other applicable rules and regulations under the 1934 Act, nothing in these bylaws will be construed to permit any stockholder, or give any stockholder the right, to include or have disseminated or described in the Corporation’s proxy statement any nomination of a director or any other business proposal.
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| 2.5 | NOTICE OF STOCKHOLDERS’ MEETINGS |
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Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given which 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. Except as otherwise provided in the DGCL, the certificate of incorporation or these bylaws, the notice of any meeting of stockholders 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 as of the record date for determining the stockholders entitled to notice of the meeting.
| 2.6 | QUORUM |
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The holders of one-third (33%) of the voting power of the capital stock of the Corporation issued and outstanding and entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of business at all meetings of the stockholders. Where a separate vote by a class or series or classes or series is required, the holders of a majority of the voting power of the outstanding shares of such class or series or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter, except as otherwise provided by law, the certificate of incorporation or these bylaws.
If, however, such quorum is not present or represented at any meeting of the stockholders, then either (a) the chairperson of the meeting, or (b) the stockholders so present (by the affirmative vote of the holders of a majority in voting power of the capital stock of the Corporation which are present in person or represented by proxy and entitled to vote thereon) shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting in accordance with Section 2.7, until a quorum is present or represented.
| 2.7 | ADJOURNED MEETING; NOTICE |
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When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time, place, if any, thereof, 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 adjourned meeting are announced at the meeting at which the adjournment is taken. 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 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 213(a) of the DGCL and Section 2.11 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.
| 2.8 | ORGANIZATION; CONDUCT OF BUSINESS |
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The chairperson of any meeting of stockholders shall be designated by the Board of Directors; in the absence of such designation, the chairperson of the Board of Directors, if any, or the chief executive officer (in the absence of the chairperson of the Board of Directors) or the president (in the absence of the chairperson of the Board of Directors and the chief executive officer), or in their absence any other executive officer of the Corporation, shall serve as chairperson of the stockholder meeting. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the chairperson of 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 chairperson of the meeting of stockholders shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairperson, 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 chairperson of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders entitled to vote at the meeting, their duly authorized and constituted proxies or such other persons as the chairperson of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The chairperson at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such chairperson should so determine, such chairperson shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the chairperson of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
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| 2.9 | VOTING |
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The stockholders entitled to vote at any meeting of stockholders shall be determined in accordance with the provisions of Section 2.11 of these bylaws, subject to Section 217 (relating to voting rights of fiduciaries, pledgors and joint owners of stock) and Section 218 (relating to voting trusts and other voting agreements) of the DGCL.
Except as may be otherwise provided in the certificate of incorporation, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder as of the applicable record date.
Unless a different or minimum vote is required by applicable law, the certificate of incorporation, these bylaws, the rules or regulations of the stock exchange on which the Corporation’s securities are listed, or any law or regulation applicable to the Corporation or its securities, in which case such different or minimum vote shall be the applicable vote on the matter, in all matters other than the election of directors, the affirmative vote of the holders of a majority of the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders. Except as otherwise required by law, the certificate of incorporation or these bylaws, directors shall be elected by a plurality of the votes cast. Where a separate vote by a class or series or classes or series is required, in all matters other than the election of directors, the affirmative vote of the holders of a majority of the voting power of the outstanding shares of such class or series or classes or series present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of such class or series or classes or series, unless a different or minimum vote is required by applicable law, the certificate of incorporation, these bylaws, the rules or regulations of the stock exchange on which the Corporation’s securities are listed, or any law or regulation applicable to the Corporation or its securities, in which case such different or minimum vote shall be the applicable vote on the matter.
| 2.10 | STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING |
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Subject to the rights of holders of preferred stock of the Corporation, any action 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 may not be effected by any consent by such stockholders.
| 2.11 | RECORD DATES |
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In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, 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 shall not be more than 60 nor less than 10 days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting 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 making such determination.
If no record date is fixed by the Board of Directors, 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.
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 determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance with the provisions of Section 213 of the DGCL and this Section 2.11 at the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders 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, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
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| 2.12 | PROXIES |
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Each stockholder entitled to vote at a meeting of stockholders, or to take corporate action by consent without a meeting, may authorize another person or persons to act for such stockholder by proxy in accordance with the procedure established for the meeting, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. The authorization of a person to act as a proxy may be documented, signed and delivered in accordance with Section 116 of the DGCL; provided that such authorization shall set forth, or be delivered with information enabling the Corporation to determine, the identity of the stockholder granting such authorization. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212 of the DGCL.
| 2.13 | LIST OF STOCKHOLDERS ENTITLED TO VOTE |
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The Corporation shall prepare, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting; provided,however, if the record date for determining the stockholders entitled to vote is less than 10 days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. The Corporation shall not be required to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder for any purpose germane to the meeting for a period of at least 10 days prior to the meeting: (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (b) during ordinary business hours, at the Corporation’s principal place of business. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then a list of stockholders entitled to vote at the meeting shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be examined by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then such list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.
| 2.14 | INSPECTORS OF ELECTION |
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Before any meeting of stockholders, the Corporation shall appoint an inspector or inspectors of election to act at the meeting or its adjournment. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act.
Such inspectors shall:
(a) ascertain the number of shares outstanding and the voting power of each;
(b) determine the shares 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 represented at the meeting, and their count of all votes and ballots.
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. If there are multiple inspectors of election, the decision, act or certificate of a majority is effective in all respects as the decision, act or certificate of all. Any report or certificate made by the inspectors of election is prima facie evidence of the facts stated therein.
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ARTICLE III — DIRECTORS
| 3.1 | POWERS |
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The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, except as may be otherwise provided in the DGCL or the certificate of incorporation.
| 3.2 | NUMBER OF DIRECTORS |
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The Board of Directors shall consist of one or more members, each of whom shall be a natural person. The size of the Board of Directors will be fixed in the manner set forth in the certificate of incorporation. No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of office expires.
| 3.3 | ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS |
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Except as provided in Section 3.4 of these bylaws, each director, including a director elected to fill a vacancy or a newly created directorship, shall hold office until the expiration of the term for which elected and until such director’s successor is elected and qualified or until such director’s earlier death, resignation or removal. Directors need not be stockholders unless so required by the certificate of incorporation or these bylaws. The certificate of incorporation or these bylaws may prescribe other qualifications for directors.
The terms of directors shall be as set forth in the certificate of incorporation.
| 3.4 | RESIGNATION AND VACANCIES |
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Any director may resign at any time upon notice given in writing or by electronic transmission to the chairperson of the Board of Directors, chief executive officer, president or secretary of the Corporation. A resignation is effective when the resignation is delivered unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events. Unless otherwise provided in the certificate of incorporation or these bylaws, when one or more directors resign from the Board of Directors, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective.
Any vacancies or newly created directorship on the Board of Directors shall be filled in accordance with the certificate of incorporation.
| 3.5 | PLACE OF MEETINGS; MEETINGS BY TELEPHONE |
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The Board of Directors may hold meetings, both regular and special, either within or outside the State of Delaware.
Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the Board of Directors may participate in a meeting of the Board of Directors by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
| 3.6 | REGULAR MEETINGS |
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Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board of Directors.
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| 3.7 | SPECIAL MEETINGS; NOTICE |
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Special meetings of the Board of Directors for any purpose or purposes may be called at any time by the chairperson of the Board of Directors, the chief executive officer, the president, the secretary or a majority of the directors then in office; provided that the person(s) authorized to call special meetings of the Board of Directors may authorize another person or persons to send notice of such meeting.
Notice of the time and place of special meetings shall be:
(a) delivered personally by hand, by courier or by telephone;
(b) sent by United States first-class mail, postage prepaid;
(c) sent by facsimile;
(d) sent by electronic mail; or
(e) otherwise given by electronic transmission (as defined in Section 232 of the DGCL),
directed to each director at that director’s address, telephone number, facsimile number, electronic mail address or other contact for notice by electronic transmission, as the case may be, as shown on the Corporation’s records.
If the notice is (i) delivered personally by hand, by courier or by telephone, (ii) sent by facsimile, (iii) sent by electronic mail or (iv) otherwise given by electronic transmission, it shall be delivered, sent or otherwise directed to each director, as applicable, at least 24 hours before the time of the holding of the meeting. If the notice is sent by United States mail, it shall be deposited in the United States mail at least four days before the time of the holding of the meeting. Any oral notice may be communicated to the director. The notice need not specify the place of the meeting (if the meeting is to be held at the Corporation’s principal executive office) nor the purpose of the meeting, unless required by statute.
| 3.8 | QUORUM; VOTING |
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Unless otherwise provided in the certificate of incorporation, at all meetings of the Board of Directors, a majority of the total number of directors shall constitute a quorum for the transaction of business. If a quorum is not present at any meeting of the Board of Directors, then the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.
The affirmative vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors, except as may be otherwise specifically provided by statute, the certificate of incorporation or these bylaws.
| 3.9 | BOARD ACTION BY CONSENT WITHOUT A MEETING |
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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 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. Any person (whether or not then a director) may provide, whether through instruction to an agent or otherwise, that a consent to action will be effective at a future time (including a time determined upon the happening of an event), no later than 60 days after such instruction is given or such provision is made and such consent shall be deemed to have been given for purposes of this Section 3.9 at such effective time so long as such person is then a director and did not revoke the consent prior to such time. Any such consent shall be revocable prior to its becoming effective. After an action is taken, the consent or consents relating thereto shall be filed with the minutes of proceedings of the Board of Directors, or the committee or subcommittee thereof, in the same paper or electronic form as the minutes are maintained.
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| 3.10 | FEES AND COMPENSATION OF DIRECTORS |
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Unless otherwise restricted by the certificate of incorporation or these bylaws, the Board of Directors shall have the authority to fix the compensation of directors.
| 3.11 | REMOVAL OF DIRECTORS |
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Any director or the entire Board of Directors may be removed from office by stockholders of the Corporation in the manner specified in the certificate of incorporation and applicable law. No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of such director’s term of office.
| 3.12 | BOARD MINUTES |
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The Board of Directors shall keep (or direct the secretary or assistant secretary of the Corporation or another person to keep) regular minutes of its meetings.
ARTICLE IV — COMMITTEES
| 4.1 | COMMITTEES OF DIRECTORS |
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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. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors or in 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 that may require it; but no such committee shall have the power or authority to (a) approve or adopt, or recommend to the stockholders, any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval, or (b) adopt, amend or repeal any bylaw of the Corporation.
| 4.2 | SUBCOMMITTEES |
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Unless otherwise provided in the certificate of incorporation, these bylaws or the resolutions of the Board of Directors designating the committee, a committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee.
| 4.3 | COMMITTEE MINUTES |
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Each committee and subcommittee shall keep (or direct the secretary or assistant secretary of the Corporation or another person to keep) regular minutes of its meetings.
| 4.4 | MEETINGS AND ACTION OF COMMITTEES |
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Meetings and actions of committees and subcommittees shall be governed by, and held and taken in accordance with, the provisions of:
(a) Section 3.5 (Place of meetings; Meetings by telephone);
(b) Section 3.6 (Regular meetings);
(c) Section 3.7 (Special meetings; Notice);
(d) Section 3.8 (Quorum; Voting);
(e) Section 3.9 (Board action by consent without a meeting); and
(f) Section 7.4 (Waiver of notice),
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with such changes in the context of those bylaws as are necessary to substitute the committee or subcommittee and its members for the Board of Directors and its members; provided,however, (i) the time and place of regular meetings of committees or subcommittees may be determined either by resolution of the Board of Directors or by resolution of the committee or subcommittee; (ii) special meetings of committees or subcommittees may also be called by resolution of the Board of Directors or the committee or the subcommittee; and (iii) notice of special meetings of committees and subcommittees shall also be given to all alternate members who shall have the right to attend all meetings of the committee or subcommittee. The Board of Directors, or in the absence of any such action by the Board of Directors, the applicable committee or subcommittee, may adopt rules for the government of any committee or subcommittee not inconsistent with the provisions of these bylaws.
ARTICLE V — OFFICERS
| 5.1 | OFFICERS |
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The officers of the Corporation shall include a president, a treasurer and a secretary. The Corporation may also have, at the discretion of the Board of Directors, a chairperson of the Board of Directors, a vice chairperson of the Board of Directors, a chief executive officer, a chief financial officer or treasurer, one or more vice presidents, one or more assistant vice presidents, one or more assistant treasurers, one or more assistant secretaries and any such other officers as may be appointed in accordance with the provisions of these bylaws. Any number of offices may be held by the same person.
| 5.2 | APPOINTMENT OF OFFICERS |
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The Board of Directors shall appoint the officers of the Corporation, except such officers as may be appointed in accordance with the provisions of Section 5.3 of these bylaws, subject to the rights, if any, of an officer under any contract of employment.
| 5.3 | SUBORDINATE OFFICERS |
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The Board of Directors may appoint, or empower the chief executive officer or, in the absence of a chief executive officer, the president, to appoint, such other officers as the business of the Corporation may require. Each of such officers shall hold office for such period, have such authority, and perform such duties as are provided in these bylaws or as the Board of Directors may from time to time determine.
| 5.4 | REMOVAL AND RESIGNATION OF OFFICERS |
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Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by the Board of Directors or, for the avoidance of doubt, any duly authorized committee or subcommittee thereof or by any officer who has been conferred such power of removal.
Any officer may resign at any time by giving notice, in writing or by electronic transmission, to the Corporation. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice. Unless otherwise specified in the notice of resignation, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party.
| 5.5 | VACANCIES IN OFFICES |
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Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors or as provided in Section 5.3.
| 5.6 | REPRESENTATION OF SECURITIES OF OTHER ENTITIES |
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The chairperson of the Board of Directors, the chief executive officer, the president, any vice president, the treasurer, the secretary or assistant secretary of the Corporation or any other person authorized by the Board of Directors or the chief executive officer, the president or a vice president, is authorized to vote, represent and exercise on behalf of the Corporation all rights incident to any and all shares or other securities of any other entity or entities, and all rights incident to any management authority conferred on the Corporation in accordance with the governing documents of any entity or entities, standing in the name of the Corporation, including the right to act by written consent. The authority granted herein may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed by such person having the authority.
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| 5.7 | AUTHORITY AND DUTIES OF OFFICERS |
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All officers of the Corporation shall respectively have such authority and perform such duties in the management of the business of the Corporation as may be designated from time to time 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.
ARTICLE VI — STOCK
| 6.1 | STOCK CERTIFICATES; PARTLY PAID SHARES |
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The shares of the Corporation shall be represented by certificates, provided that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Unless otherwise provided by resolution of the Board of Directors, every holder of stock represented by certificates shall be entitled to have a certificate signed by, or in the name of, the Corporation by any two officers of the Corporation representing the number of shares registered in certificate form. 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 has 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 power to issue a certificate in bearer form.
The Corporation may issue the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor. Upon the face or back of each stock certificate issued to represent any such partly-paid shares, or upon the books and records of the Corporation in the case of uncertificated partly-paid shares, the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated. Upon the declaration of any dividend on fully-paid shares, the Corporation shall declare a dividend upon partly-paid shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon.
| 6.2 | SPECIAL DESIGNATION ON CERTIFICATES |
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If the Corporation is authorized to issue more than one class of stock or more than one series of any class, then the powers, the designations, the preferences and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate that the Corporation shall issue to represent such class or series of stock; provided, however, that, except as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate that the Corporation shall issue to represent such class or series of stock, a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Within a reasonable time after the issuance or transfer of uncertificated stock, the registered owner thereof shall be given a notice, in writing or by electronic transmission, containing the information required to be set forth or stated on certificates pursuant to this Section 6.2 or Sections 156, 202(a), 218(a) or 364 of the DGCL or with respect to this Section 6.2 a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Except as otherwise expressly provided by law, the rights and obligations of the holders of uncertificated stock and the rights and obligations of the holders of certificates representing stock of the same class and series shall be identical.
| 6.3 | LOST CERTIFICATES |
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Except as provided in this Section 6.3, no new certificates for shares shall be issued to replace a previously issued certificate unless the latter is surrendered to the Corporation and cancelled at the same time. 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, and 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.
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| 6.4 | DIVIDENDS |
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The Board of Directors, subject to any restrictions contained in the certificate of incorporation or applicable law, may declare and pay dividends upon the shares of the Corporation’s capital stock. Dividends may be paid in cash, in property, or in shares of the Corporation’s capital stock, subject to the provisions of the certificate of incorporation. The Board of Directors may set apart out of any of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve.
| 6.5 | TRANSFER OF STOCK |
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Transfers of record of shares of stock of the Corporation shall be made only upon its books by the holders thereof, in person or by an attorney duly authorized, and, if such stock is certificated, upon the surrender of a certificate or certificates for a like number of shares, properly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer.
| 6.6 | STOCK TRANSFER AGREEMENTS |
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The Corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes of stock of the Corporation to restrict the sale, transfer, assignment, pledge or other disposal of or encumbering of any of the shares of stock of the Corporation or any right or interest therein, whether voluntarily or by operation of law, or by gift or otherwise, of any one or more classes of shares of stock owned by such stockholders in any manner not prohibited by the DGCL.
| 6.7 | CERTAIN RESTRICTIONS ON TRANSFER |
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If the Corporation issues any shares that are not registered under the Securities Act of 1933, as amended (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 BYLAWS (AS THE SAME MAY BE AMENDED OR AMENDED AND RESTATED) AND MAY NOT BE TRANSFERRED EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM, WITHOUT THE CONSENT OF THE CORPORATION.
| 6.8 | REGISTERED STOCKHOLDERS |
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The Corporation:
(a) shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends and notices and to vote as such owner; and
(b) shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of another person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.
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ARTICLE VII — MANNER OF GIVING NOTICE AND WAIVER
| 7.1 | NOTICE OF STOCKHOLDERS’ MEETINGS |
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Notice of any meeting of stockholders shall be given in the manner set forth in the DGCL and these bylaws.
| 7.2 | NOTICE TO STOCKHOLDERS SHARING AN ADDRESS |
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Except as otherwise prohibited under the DGCL, without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under the provisions of the DGCL, the certificate of incorporation or these bylaws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders at that address to whom such notice is given. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any stockholder who fails to object in writing to the Corporation, within 60 days of having been given written notice by the Corporation of its intention to send the single notice, shall be deemed to have consented to receiving such single written notice. This Section 7.2 shall not apply to Sections 164, 296, 311, 312 or 324 of the DGCL.
| 7.3 | NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL |
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Whenever notice is required to be given, under the DGCL, the certificate of incorporation or these bylaws, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting which shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the Corporation is such as to require the filing of a certificate under the DGCL, the certificate shall state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication is unlawful.
| 7.4 | WAIVER OF NOTICE |
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Whenever notice is required to be given under any provision of the DGCL, the certificate of incorporation or these bylaws, a 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 of the event for which notice is to be given, 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 need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by the certificate of incorporation or these bylaws.
ARTICLE VIII — INDEMNIFICATION
| 8.1 | INDEMNIFICATION OF DIRECTORS AND OFFICERS IN THIRD PARTY PROCEEDINGS |
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Subject to the other provisions of this Article VIII, the Corporation shall indemnify, to the fullest extent permitted by the DGCL, as now or hereinafter in effect, 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 (a “Proceeding”) (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 or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding if 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. The termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which 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 reasonable cause to believe that such person’s conduct was unlawful.
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| 8.2 | INDEMNIFICATION OF DIRECTORS AND OFFICERS IN ACTIONS BY OR IN<br>THE RIGHT OF THE CORPORATION |
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Subject to the other provisions of this Article VIII. the Corporation shall indemnify, to the fullest extent permitted by the DGCL, as now or hereinafter in effect, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed Proceeding by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such Proceeding if 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; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
| 8.3 | SUCCESSFUL DEFENSE |
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To the extent that a present or former director or officer (for purposes of this Section 8.3 only, as such term is defined in Section 145(c)(1) of the DGCL) of the Corporation has been successful on the merits or otherwise in defense of any Proceeding described in Section 8.1 or Section 8.2, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith. The Corporation may indemnify any other person who is not a present or former director or officer (as such term is defined in Section 145(c) (1) of the DGCL) of the Corporation against expenses (including attorneys’ fees) actually and reasonably incurred by such person to the extent he or she has been successful on the merits or otherwise in defense of any Proceeding described in Section 8.1 or Section 8.2, or in defense of any claim, issue or matter therein.
| 8.4 | INDEMNIFICATION OF OTHERS |
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Subject to the other provisions of this Article VIII, the Corporation shall have power to indemnify its employees and agents, or any other persons, to the extent not prohibited by the DGCL or other applicable law. The Board of Directors shall have the power to delegate to any person or persons identified in subsections (1) through (4) of Section 145(d) of the DGCL the determination of whether employees or agents shall be indemnified.
| 8.5 | ADVANCED PAYMENT OF EXPENSES |
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Expenses (including attorneys’ fees) actually and reasonably incurred by an officer or director of the Corporation in defending any Proceeding shall, to the fullest extent permitted by law, be paid by the Corporation in advance of the final disposition of such Proceeding upon receipt of a written request therefor (together with documentation reasonably evidencing such expenses) and an undertaking by or on behalf of the person to repay such amounts if it shall ultimately be determined that the person is not entitled to be indemnified under this Article VIII or the DGCL. Such expenses (including attorneys’ fees) actually and reasonably incurred by current or former directors and officers or other current or former employees and agents of the Corporation or by persons currently or formerly serving at the request of the Corporation as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or other enterprise may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate. The right to advancement of expenses shall not apply to any Proceeding (or any part of any Proceeding) for which indemnity is excluded pursuant to these bylaws, but shall apply to any Proceeding (or any part of any Proceeding) referenced in Section 8.6(b) or 8.6(c) prior to a determination that the person is not entitled to be indemnified by the Corporation.
| 8.6 | LIMITATION ON INDEMNIFICATION |
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Subject to the requirements in Section 8.3 and the DGCL, the Corporation shall not be obligated to indemnify any person pursuant to this Article VIII in connection with any Proceeding (or any part of any Proceeding):
(a) for which payment has actually been received by or on behalf of such person under any statute, insurance policy, contract, agreement or other indemnity or advancement provision, vote or otherwise, except with respect to any excess beyond the amount actually received under any statute, insurance policy, contract, agreement, other indemnity or advancement provision, vote or otherwise;
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(b) for an accounting or disgorgement of profits pursuant to Section 16(b) of the 1934 Act, or similar provisions of federal, state or local statutory law or common law, if such person is held liable therefor (including pursuant to any settlement arrangements);
(c) for any reimbursement of the Corporation by such person of any bonus or other incentive-based or equity-based compensation or of any profits realized by such person from the sale of securities of the Corporation, as required in each case under the 1934 Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Corporation of profits arising from the purchase and sale by such person of securities in violation of Section 306 of the Sarbanes-Oxley Act), if such person is held liable therefor (including pursuant to any settlement arrangements);
(d) initiated by such person, including any Proceeding (or any part of any Proceeding) initiated by such person against the Corporation or its directors, officers, employees, agents or other indemnitees, unless (i) the Board of Directors authorized the Proceeding (or the relevant part of the Proceeding) prior to its initiation, (ii) the Corporation provides the indemnification, in its sole discretion, pursuant to the powers vested in the Corporation under applicable law, (iii) otherwise required to be made under Section 8.7 or (iv) otherwise required by applicable law; or
(e) if prohibited by applicable law.
| 8.7 | DETERMINATION; CLAIM |
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If a claim for indemnification or advancement of expenses under this Article VIII is not paid in full within 30 days after receipt by the Corporation of the written request therefor, the claimant shall be entitled to an adjudication by a court of competent jurisdiction of his or her entitlement to such indemnification or advancement of expenses. The Corporation shall indemnify such person against any and all expenses that are actually and reasonably incurred by such person in connection with any action brought in accordance with this Section 8.7 for indemnification or advancement of expenses from the Corporation under this Article VIII, to the extent such person is successful in such action, and to the extent not prohibited by law. In any such suit, the Corporation shall, to the fullest extent not prohibited by law, have the burden of proving that the claimant is not entitled to the requested indemnification or advancement of expenses.
| 8.8 | NON-EXCLUSIVITY OF RIGHTS |
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The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the certificate of incorporation or any statute, bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office. The Corporation is specifically authorized to enter into individual contracts with any or all of its directors, officers, employees or agents respecting indemnification and advancement of expenses, to the fullest extent not prohibited by the DGCL or other applicable law.
| 8.9 | INSURANCE |
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The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of the DGCL.
| 8.10 | SURVIVAL |
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The rights to indemnification and advancement of expenses conferred by this Article VIII shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
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| 8.11 | EFFECT OF REPEAL OR MODIFICATION |
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A right to indemnification or to advancement of expenses arising under a provision of the certificate of incorporation or a bylaw shall not be eliminated or impaired by an amendment to or repeal or elimination of the certificate of incorporation or these bylaws after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred.
| 8.12 | CERTAIN DEFINITIONS |
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For purposes of this Article VIII, references to the “Company” shall include, in addition to the resulting company, any constituent company (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, employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent company, or is or was serving at the request of such constituent company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving company as such person would have with respect to such constituent company if its separate existence had continued. For purposes of this Article VIII, references to “otherenterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and 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; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VIII.
ARTICLE IX — GENERAL MATTERS
| 9.1 | EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS |
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Except as otherwise provided by law, the certificate of incorporation or these bylaws, the Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute any document or instrument in the name of and on behalf of the Corporation; such authority may be general or confined to specific instances.
| 9.2 | FISCAL YEAR |
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The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors and may be changed by the Board of Directors.
| 9.3 | SEAL |
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The Corporation may adopt a corporate seal, which shall be adopted and which may be altered by the Board of Directors. The Corporation may use the corporate seal by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.
| 9.4 | CONSTRUCTION; DEFINITIONS |
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Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the DGCL shall govern the construction of these bylaws. Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular, and the term “person” includes a corporation, partnership, limited liability company, joint venture, trust or other enterprise, and a natural person. Any reference in these bylaws to a section of the DGCL shall be deemed to refer to such section as amended from time to time and any successor provisions thereto.
ARTICLE X AMENDMENTS
These bylaws may be adopted, amended or repealed by the stockholders entitled to vote; provided, however, that the affirmative vote of the holders of at least two-thirds of the total voting power of outstanding voting securities, voting together as a single class, shall be required for the stockholders of the Corporation to alter, amend or repeal, or adopt any bylaw inconsistent with, the following provisions of these bylaws: Article II, Section 3.1, Section 3.2, Section 3.4, Section 3.11, Article VIII or this Article X (including, without limitation, any such Article or Section as renumbered as a result of any amendment, alteration, change, repeal, or adoption of any other bylaw). The Board of Directors shall also have the power to adopt, amend or repeal bylaws.
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Exhibit 10.1
LOCK-UP/Leak-OutAGREEMENT
THIS LOCK-UP/LEAK-OUT AGREEMENT (this “Agreement”) is made and entered into as of March 16, 2026 between (i) BlockchAIn Digital Infrastructure, Inc., a Delaware corporation (“Holdings”), and (ii) the undersigned (the “Holder”). Holdings and the Holder are sometimes referred to herein individually as a “Party” and, collectively, as the “Parties”. Any capitalized term used but not defined in this Agreement will have the meaning ascribed to such term in the Business Combination Agreement (as defined below).
WHEREAS, Signing Day Sports, Inc., a Delaware corporation (“SGN”), Holdings, BCDI Merger Sub I Inc., a Delaware corporation (“MergerSub I”), BCDI Merger Sub II Inc. a Delaware corporation (“Merger Sub II”) and One Blockchain LLC, a Delaware limited liability company (“One Blockchain”), among others, entered into a business combination agreement, dated May 27, 2025 (the “Business Combination Agreement”), pursuant to which the parties thereto shall consummate a series of transactions, including (a) the merger of Merger Sub I with and into SGN, with SGN surviving the merger as a wholly owned subsidiary of Holdings (the “Merger I”), (b) the merger of Merger Sub II with and into One Blockchain, with One Blockchain surviving the merger as a wholly owned subsidiary of Holdings (the “Merger II”), and (c) the issuance of common shares, $0.01 par value, of Holdings (“Holdings Common Shares”), as consideration for the Mergers, to the securityholders of SGN and One Blockchain, including the Holder.
WHEREAS, pursuant to the Business Combination Agreement, and in view of the valuable consideration to be received by the Holder thereunder, Holdings and the Holder desire to enter into this Agreement, pursuant to which the Holder will agree to subject the Holdings Common Shares that the Holder will receive pursuant to the Business Combination Agreement (together with any securities paid as dividends or distributions with respect to such securities or into which such securities are exchanged or converted, the “Restricted Securities”), to limitations on disposition as set forth herein.
NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated into this Agreement as if fully set forth below, and intending to be legally bound hereby, the Parties hereby agree as follows.
1. Lock-Up Provisions.
(a) Subject to Section 1(b) and the other terms of this Agreement, Holder agrees that it shall not effectuate a Transfer of the Restricted Securities that are held by the Holder during the period commencing on the Closing Date and ending on the earlier of (i) six (6) months after the Closing Date, or (ii) the date on which Holdings completes a liquidation, merger, capital stock exchange or other similar transaction that results in all of Holdings’ stockholders having the right to exchange their Holdings Common Shares for cash, securities or other property (in each case, the “Lock-Up Period”).
(b) Notwithstanding the provisions set forth in Section 1(a), Transfers of the Restricted Securities that are held by the Holder (and that have complied with this Section 1(b)) are permitted:
(i) to Holdings, Holdings’ officers or directors or any Affiliates or immediate family members of any of Holdings’ officers or directors;
(ii) in the case of a Holder that is not an individual, to the shareholders, limited partners or members of the Holder;
(iii) in the case of a Holder that is not an individual, by virtue of the laws of the Holder’s jurisdiction of incorporation or organization, the Holder’s organizational documents or the rights attaching to the equity interests in the Holder upon dissolution of the Holder;
(iv) in the case of a Holder that is an individual, by gift to a member of the Holder’s immediate family or to a trust, the beneficiary (or beneficiaries) of which is one or more member of the Holder’s immediate family, an Affiliate of such person or to a charitable organization;
(v) in the case of a Holder that is an individual, by virtue of the laws of descent and distribution upon death of that individual;
(vi) in the case of a Holder that is an individual, pursuant to a qualified domestic relations order or in connection with a divorce settlement;
(vii) in connection with the exercise of any options, warrants or other convertible securities to purchase Holdings Common Shares (whether on a cashless basis or on another basis) to the extent that any Holdings Common Shares issued upon such exercise are Restricted Securities subject to the provisions of this Agreement;
(viii) to satisfy tax withholding obligations in connection with the Holder’s equity incentive plans or arrangements;
(ix) in connection with any bona fide mortgage, pledge or encumbrance to a financial institution, as collateral or security in connection with any bonafideloan or debt transaction or enforcement thereunder, including foreclosure thereof (provided, that neither the Holder nor the transferee shall be required to disclose such arrangement in a public filing with the SEC during the Lock-Up Period);
(x) by a Holder to any entity including any fund, partnership, company or investment trust to whom the Holder Transfers interests in one or more of its portfolio of investments, or any successor entity following a restructuring transaction of that Holder; and
(xi) in connection with a Transfer pursuant to a bona fidethird party tender offer, merger, consolidation, liquidation, share exchange or other similar transaction made to all holders of Holdings Common Shares involving a change of control of Holdings or which results in all of the holders of Holdings Common Shares having the right to exchange their Holdings Common Shares for cash, securities or other property subsequent to the consummation of such transaction;
provided, that in each of clauses (i) through (xi), the transferee must enter into a written agreement in substantially the same form of this Agreement, agreeing to be bound by the terms of this Agreement (unless the transferee is Holdings). If Holdings declares a dividend payable on the Holder’s Restricted Securities in Holdings Common Shares, those shares received as dividends will also be Restricted Securities subject to the provisions of this Agreement. The undersigned also agrees and consents to the entry of stop transfer instructions with Holding’s transfer agent and registrar against the transfer of Restricted Securities held by the undersigned and the undersigned’s Family Members, if any, except in compliance with the foregoing restrictions.
(c) If any Transfer is made or attempted contrary to the provisions of this Agreement, such Transfer shall be null and void ab initio, and Holdings shall refuse to recognize any such transferee of the Restricted Securities as one of its equity holders for any purpose. In order to enforce this Section 1, Holdings may impose stop-transfer instructions with respect to the Restricted Securities of the Holder (and any permitted transferees and assigns thereof) until the end of the Lock-Up Period.
(d) During the Lock-Up Period, each certificate evidencing any Restricted Securities (if any are issued) may be stamped or otherwise imprinted with a legend in substantially the following form, in addition to any other applicable legends.
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A LOCK-UP/LEAK-OUT AGREEMENT, DATED MARCH 16, 2026, BY AND AMONG THE ISSUER OF SUCH SECURITIES (THE “ISSUER”) AND THE ISSUER’S SECURITY HOLDER NAMED THEREIN, AS AMENDED. A COPY OF SUCH LOCK-UP AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
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(e) For the avoidance of any doubt, the Holder shall retain all of its rights as a shareholder of Holdings with respect to the Restricted Securities during the Lock-Up Period, including the right to receive dividends and the right to vote any Restricted Securities.
(f) The Holdings Common Shares issued pursuant to Section 2.12 of the Business Combination Agreement shall not be considered Restricted Securities as defined in this Agreement and shall not be subject to the Lock-Up Provisions set forth herein.
2. Leak-Out Provisions. Notwithstanding the restrictions set forth in Section 1(a), the Holder may Transfer Restricted Securities under each of the following circumstances.
(a) From and after the first day on which, subsequent to the Closing Date, the last reported sale price of Holdings Common Shares on NYSE American equals or exceeds $9.375 per share (as adjusted for stock splits, stock capitalizations, reorganizations, recapitalizations and the like) for any 20 Trading Days within any 30-Trading Day period, the Holder may Transfer, without restriction, up to 25% of the Restricted Securities held by the Holder on that date.
3. Defined Terms.
(a) “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.
(b) “Closing DateSecurities” means, for any Holder, the number of Restricted Securities received by that Holder pursuant to Section 1.6 or Section 2.2 of the Business Combination Agreement.
(c) “Family Member” shall mean the spouse of the undersigned, an immediate family member of the undersigned or an immediate family member of the undersigned’s spouse, in each case living in the undersigned’s household or whose principal residence is the undersigned’s household (regardless of whether such spouse or family member may at the time be living elsewhere due to educational activities, health care treatment, military service, temporary internship or employment or otherwise). “Immediate family member” as used above shall have the meaning set forth in Rule 16a-1(e) under the Exchange Act.
(d) “Holder” means, in addition to the undersigned, any Family Member or Affiliate.
(e) “Trading Day” means any day on which Holdings Common Shares are actually traded on NYSE American (or the exchange on which Holdings Common Shares are then listed).
(f) “Transfer” shall mean the (i) sale of, offer to sell, contract or agreement to sell (including, for the avoidance of doubt, through a distribution in specie), lend, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, effect a short sale, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the U.S. Securities and Exchange Commission promulgated thereunder with respect to, any security, (ii) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) public announcement of any intention to effect any transaction specified in clause (i) or (ii).
4. Miscellaneous.
(a) Effective Date. This Agreement shall become effective upon the Closing on the Closing Date.
(b) Termination. This Agreement shall automatically terminate on the earlier of (i) the expiration of the Lock-Up Period and (ii) the termination of the Business Combination Agreement in accordance with its terms, and, in each case thereafter, all rights and obligations of the Parties hereunder shall be of no further force or effect.
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(c) Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure solely to the benefit of the Parties hereto and their respective permitted successors and assigns. Except as otherwise provided in this Agreement, this Agreement shall not be assigned by operation of Law or otherwise without the prior written consent of the Parties. Any assignment without such consent shall be null and void; provided, that no such assignment shall relieve the assigning Party of its obligations hereunder.
(d) Third Parties. Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any person or entity that is not a Party hereto or thereto or a successor or permitted assign of such a Party.
(e) Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware applicable to contracts to be performed in that State. All legal actions and proceedings arising out of or relating to this Agreement shall be heard and determined exclusively in any Delaware Chancery Court; provided, that if jurisdiction is not then available in the Delaware Chancery Court, then any such legal Action may be brought in any federal court located in the State of Delaware or any other Delaware state court. The Parties hereby (a) irrevocably submit to the exclusive jurisdiction of the aforesaid courts for themselves and with respect to their respective properties for the purpose of any Action arising out of or relating to this Agreement brought by any Party and (b) agree not to commence any Action relating thereto except in the courts described above in Delaware, other than Actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in Delaware as described herein. Each Party further agrees that notice as provided herein shall constitute sufficient service of process and the Parties further waive any argument that such service is insufficient. Each Party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Action arising out of or relating to this Agreement or the Transactions, (i) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein for any reason, (ii) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) that (i) the Action in any such court is brought in an inconvenient forum, (ii) the venue of such Action is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(f) WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
(g) Interpretation. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement. In this Agreement, unless the context otherwise requires: (i) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (iii) the words “herein,” “hereto,” and “hereby” and other words of similar import in this Agreement shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement; and (iv) the term “or” means “and/or”. The Parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
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(h) Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery (a) in person, (b) by e-mail (without receiving notice of non-receipt or other “bounce-back”), (c) by reputable, nationally recognized overnight courier service or (d) by registered or certified mail, pre-paid and return receipt requested; provided, however, that notice given pursuant to clauses (c) and (d) above shall not be effective unless a duplicate copy of such notice is also given in person or by e-mail (without receiving notice of non-receipt or other “bounce-back”); in each case to the applicable Party at the following addresses (or at such other address for a Party as shall be specified by like notice):
| If to Holdings, to:<br><br> <br><br><br> <br>BlockchAIn Digital Infrastructure, Inc.<br><br> <br>1540 Broadway Ste 1010<br><br> <br>New York, NY 10036<br><br> <br>Attn: Jerry Tang<br><br> <br>Email: jerry.tang@vcvdigital.com<br><br> <br><br><br> <br>If to the Holder, to:<br><br> <br><br><br> <br>the address set forth under the Holder’s name on the signature<br> page hereto. | With a copy (which shall not constitute notice) to:<br><br> <br><br><br> <br>Seward & Kissel LLP<br><br> <br>One Battery Park Plaza, New York, NY 10014<br><br> <br>Attn: Keith Billotti<br><br> <br>Email: billotti@sewkis.com |
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(i) Amendments and Waivers. This Agreement may be amended, supplemented, modified or waived only by execution of a written instrument signed by each of the Parties. No failure or delay by a Party in exercising any right hereunder shall operate as a waiver thereof. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.
(j) Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
(k) Specific Performance. The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. The Parties further agree that each party shall be entitled to seek specific performance of the terms hereof and immediate injunctive relief and other equitable relief to prevent breaches, or threatened breaches, of this Agreement, without the necessity of proving the inadequacy of money damages as a remedy and without bond or other security being required, this being in addition to any other remedy to which they are entitled at law or in equity.
(l) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement among the Parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the Parties is expressly superseded; provided, that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the Parties under the Business Combination Agreement or any Ancillary Document. Notwithstanding the foregoing, nothing in this Agreement shall limit any of the rights, remedies or obligations of the Parties under any other agreement between the Holder and Holdings or any certificate or instrument executed by the Holder in favor of Holdings, and nothing in any other agreement, certificate or instrument shall limit any of the rights, remedies or obligations of the Parties under this Agreement.
(m) Further Assurances. From time to time, at another Party’s request and without further consideration (but at the requesting Party’s reasonable cost and expense), each Party shall execute and deliver such additional documents and take all such further action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.
(n) Counterparts; Facsimile. This Agreement may be executed and delivered (including by facsimile, email or other electronic transmission) in one or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank;Signature Pages Follow]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
| Holdings | |
|---|---|
| By: | |
| Name: | Jerry Tang |
| Title: | Chief Executive Officer |
[Signature Page to Lock-Up/Leak Out Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
Holder
| By: | |
|---|---|
| Name: | |
| Title: | Chief Executive Officer |
| Notice Information: | |
| --- | |
| Address: | |
| Email: |
[Signature Page to Lock-Up/Leak Out Agreement]
Exhibit 10.2
ExecutiveConsulting Agreement
EXECUTIVE CONSULTING AGREEMENT, dated as of March 12, 2026 (this “Agreement”), between BlockchAIn Digital Infrastructure, Inc., a Delaware corporation (the “Company”), and Daniel Nelson, an individual (“Consultant”). Each of the Company and Executive are sometimes referred to in this individually as a “Party” and, collectively, as the “Parties.”
- Services.
1.1 The Company hereby engages Consultant, and Consultant hereby accepts such engagement, as an independent contractor to provide certain services to the Company on the terms and conditions set forth in this Agreement.
1.2 Consultant shall assist with certain transition and advisory work in connection with the Business Combination Agreement (the “BusinessCombination Agreement”), by and among Signing Day Sports, Inc. (“Signing Day Sports”), the Company, BCDI Merger Sub I Inc., BCDI Merger Sub II LLC, and One Blockchain LLC (“One Blockchain”), as amended from time to time (the “Business Combination”) (the “Services”).
1.3 The Company does not and shall not control or direct the manner or means by which Consultant performs the Services, including but not limited to the time and place Consultant perform the Services.
1.4 The Company shall provide Consultant with access to its premises, materials, information, and systems to the extent necessary for the performance of the Services.
1.5 Consultant shall comply with all reasonable rules and procedures communicated to Consultant in writing by the Company, including those related to safety, security, and confidentiality.
Term. The term of this Agreement shall be thirty-six (36) months commencing on March 16, 2026 and shall end on March 15, 2029, unless earlier terminated in accordance with Section 8 (the “Term”). Any extension of the Term will be subject to mutual written agreement between Consultant and the Company.
Feesand expenses.
3.1 As compensation for the Services and the rights granted to the Company in this Agreement, the Company shall pay Consultant a fee of $887,000 (the “Fee”). Consultant acknowledges that Consultant will receive an IRS Form 1099 from the Company, and that Consultant shall be solely responsible for all federal, state, and local taxes.
3.2 $837,000 of the Fee shall be paid to Consultant via wire transfer of immediately available funds to an account designated in writing by Consultant within one (1) business day of the date of this Agreement. The remaining $50,000 of the Fee (the “Reserved FeePortion”) shall be placed in an interest-bearing escrow account to be used in connection with any Outstanding Liabilities (as defined herein), any remaining portion of which shall be paid to Consultant within ninety (90) days following the Closing of the Business Combination, subject to any clawback or repayment obligations provided for in Section 8.3. Notwithstanding the foregoing, if any Outstanding Liability is in dispute at such time, such amount in dispute will remain in the escrow account until final resolution of the dispute as set forth in Sections 8.3(d) and 12 hereof.
3.3 The Company shall be responsible for any reasonable, preapproved travel or other reasonable, preapproved costs or expenses incurred by Consultant in connection with the performance of the Services. Consultant must seek approval from the Company in advance of incurring any expenses in order for such expenses to be reimbursed by the Company.
4. Relationshipof the parties.
4.1 Consultant is an independent contractor of the Company, and this Agreement shall not be construed to create any association, partnership, joint venture, employment, or agency relationship between Consultant and the Company for any purpose. Consultant has no authority (and shall not hold himself out as having authority) to bind the Company and Consultant shall not make any agreements or representations on the Company’s behalf without the Company’s prior written consent.
4.2 Without limiting Section 4.1, Consultant will not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits, or any other fringe benefits or benefit plans offered by the Company to its employees, and the Company will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including for unemployment or disability, or obtaining workers’ compensation insurance on Consultant’s behalf. Consultant shall be solely responsible for, and shall indemnify the Company against, all such taxes or contributions, including penalties and interest. Any persons employed or engaged by Consultant in connection with the performance of the Services shall be Consultant’s employees or contractors and Consultant shall be fully responsible for them and indemnify the Company against any claims made by or on behalf of any such employee or contractor.
5. Intellectualproperty rights.
5.1 All documents, work product, and other materials that are delivered under this Agreement and all other writings, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, and materials, and all other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, modified, conceived, or reduced to practice in the course of performing the Services ( “Work Product”), and all patents, copyrights, trademarks (together with the goodwill symbolized thereby), trade secrets, know-how, and other confidential or proprietary information, and other intellectual property rights (collectively “IntellectualProperty Rights”) therein, shall be owned exclusively by the Company.
5.2 Consultant shall not disclose to any third party the nature or details of any Work Product inventions without the prior written consent of the Company. Any patent application for or application for registration of any Intellectual Property Rights in any Work Product that Consultant may file during the Term or thereafter will belong to the Company, and Consultant hereby irrevocably assigns to the Company, for no additional consideration, Consultant’s entire right, title, and interest in and to such application, all Intellectual Property Rights disclosed or claimed therein, and any patent or registration issuing or resulting therefrom.
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5.3 As between Consultant and the Company, the Company is, and will remain, the sole and exclusive owner of all right, title, and interest in and to any documents, specifications, data, know-how, methodologies, software, and other materials provided to you by the Company (“CompanyMaterials”), and all Intellectual Property Rights therein. Consultant has no right or license to reproduce or use any Company Materials except solely during the Term to the extent necessary to perform Consultant’s obligations under this Agreement. All other rights in and to the Company Materials are expressly reserved by the Company. Consultant has no right or license to use the Company’s trademarks, service marks, trade names, logos, symbols, or brand names without its prior written consent.
- Confidentiality.
6.1 Consultant acknowledges that Consultant will have access to information that is treated as confidential and proprietary by the Company, whether spoken, written, printed, electronic, or in any other form or medium (collectively, the “Confidential Information”). Any Confidential Information that Consultant accesses or develops in connection with the Services, including but not limited to any Work Product, shall be subject to the terms and conditions of this clause. Consultant agrees to treat all Confidential Information as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without the prior written consent of the Company in each instance, and not to use any Confidential Information for any purpose except as required in the performance of the Services. Consultant shall notify the Company immediately in the event Consultant become aware of any loss or disclosure of any Confidential Information.
6.2 Confidential Information shall not include information that:
(a) is or becomes generally available to the public other than through Consultant’s breach of this Agreement; or
(b) is communicated to Consultant by a third party that had no confidentiality obligations with respect to such information.
6.3 Nothing herein shall:
(a) be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order; or
(b) prohibit or restrict Consultant (or Consultant’s attorney) from initiating communications directly with, responding to an inquiry from, providing testimony before, or otherwise participating in any investigation or proceeding conducted by the Securities and Exchange Commission (“SEC”), the Financial Industry Regulatory Authority (“FINRA”), any other self-regulatory organization, or any other federal or state regulatory authority regarding possible securities law violations without the need for permission from or notice to the Company.
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6.4 Notice of Immunity Under the Defend Trade Secrets Act of 2016 (“DTSA”). Notwithstanding any other provision of this Agreement:
(a) Consultant will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that:
(i) is made: (A) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected violation of law; or
(ii) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.
(b) If Consultant files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Consultant may disclose the Company’s trade secrets to Consultant’s attorney and use the trade secret information in the court proceeding if Consultant:
(i) files any document containing the trade secret under seal; and
(ii) does not disclose the trade secret, except pursuant to court order.
7. Representationsand warranties.
7.1 Consultant represents and warrants to the Company that:
(a) Consultant has the right to enter into this Agreement, to grant the rights granted herein, and to perform fully all of Consultant’s obligations in this Agreement;
(b) Consultant’s entering into this Agreement with the Company and Consultant’s performance of the Services do not and will not conflict with or result in any breach or default under any other agreement to which Consultant is subject;
(c) Consultant shall not enter into any other independent contractor, employment or business relationship that impairs Consultant’s ability to perform Consultant’s obligations under this Agreement. Consultant agrees and represents that Consultant will devote such time, attention and energy as is necessary to provide the Services to the Company as required by this Agreement;
(d) Consultant has the required skill, experience, and qualifications to perform the Services, Consultant shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, and Consultant shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner;
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(e) Consultant shall perform the Services in compliance with all applicable federal, state, and local laws and regulations, including by maintaining all licenses, permits, and registrations required to perform the Services; and
(f) the Company will receive good and valid title to all Work Product, free and clear of all encumbrances and liens of any kind.
7.2 The Company hereby represents and warrants to Consultant that:
(a) it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; and
(b) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate action.
8. Termination.
8.1 During the Term, the Company shall not terminate this Agreement without Cause, which shall mean (a) Consultant’s willful misconduct or gross negligence in the performance of his duties; (b) material breach of any provision of this Agreement; (c) conviction of, or plea of guilty or no contest to, a felony or crime involving moral turpitude; (d) dishonesty, fraud, or misappropriation of the Company’s property; or (e) repeated failure to perform the Services after written notice and a reasonable opportunity to cure. Consultant may terminate this Agreement for Good Reasons, which shall mean the occurrence of any of the following events without Consultant’s prior written consent: (a) a material reduction in Consultant’s compensatory Fee or a material delay in the payment of such Fee as described in Section 3 of this Agreement; (b) a request for Consultant to materially deviate from the Services to be rendered by Consultant; (c) a material breach by the Company of any provision of this Agreement; or (d) any other action or inaction by the Company that materially and adversely affects Consultant’s ability to perform the Services under this Agreement, provided that Consultant gives written notice to the Company of the event constituting Good Reasons and the Company fails to cure such event within ten (10) days of receiving such notice.
8.2 Notwithstanding any termination of this Agreement by the Company, whether with or without Cause, or any termination of this Agreement by Consultant, whether for or not for any Good Reasons, Consultant shall be entitled to receive the Fee provided for hereunder, and the Company shall have no right hereunder to any withholding or repayment of the Fee or any portion of the Fee, subject, in each case, to any amounts required to be withheld or repaid under applicable law or Section 8.3 hereof.
8.3 Notwithstanding anything in Section 8.2 to the contrary, and subject to the limitations set forth in this Section 8.3, the Company shall be entitled to repayment of a portion of the Fee in an amount equal to the portion of the Fee that is attributable to an Outstanding Liability (as defined below), subject to the following conditions and limitations:
(a) Definition of Outstanding Liability. For purposes of this Section 8.3, “Outstanding Liability” means: (a) a liability of Signing Day Sports that (i) existed or arose prior to the closing of the Business Combination, (ii) was not disclosed in the disclosure schedules, financial statements, or other documents delivered by Signing Day Sports or One Blockchain in connection with the Business Combination Agreement, and (iii) is material, meaning such liability, individually or in the aggregate with all other Outstanding Liabilities, exceeds Five Thousand Dollars ($5,000); and/or (b) a liability of Signing Day Sports incurred in the ninety (90)-day period following the closing of the Business Combination, which liability is incurred in connection with any activities related to Signing Day Sports, including but not limited to any costs, expenses, or liabilities incurred in connection with the termination of employment of any employees or service providers of Signing Day Sports (including any severance paid to such employees or service providers).
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(b) Cap on Repayment. In no event shall the aggregate amount of all repayments required of Consultant under this Section 8.3 exceed Consultant's Pro Rata Portion (as defined in Section 8.3(e)) of the Outstanding Liabilities, and in no event shall such aggregate amount exceed the Fee actually received by Consultant.
(c) Time Limitation. The Company must deliver an Outstanding Fee Notice (as defined below) to Consultant no later than twelve (12) months following the closing of the Business Combination. Any claim for payment under this Section 8.3 not asserted by the Company within such twelve (12)-month period shall be forever waived and released.
(d) Notice and Dispute Procedure. Before any repayment obligation arises under this Section 8.3, the Company shall deliver to Consultant a written notice (an “Outstanding Fee Notice”) that (i) identifies in reasonable detail the Outstanding Liability giving rise to the repayment claim, (ii) specifies the amount of repayment sought, and (iii) includes reasonable supporting documentation. Consultant shall have ten (10) days following receipt of the Outstanding Fee Notice (the “Dispute Period”) to deliver a written objection to the Company, setting forth in reasonable detail the basis for Consultant’s dispute. If Consultant timely delivers a written objection, the parties shall negotiate in good faith for a period of fifteen (15) days to resolve such dispute. If the parties are unable to resolve the dispute within such fifteen (15)-day period, either party may submit the dispute for resolution in accordance with Section 12 of this Agreement. No repayment obligation shall be due or payable until (the “Repayment Deadline”) the later of: (A) the expiration of the Dispute Period without written objection from Consultant, or (B) final resolution of any dispute, whether by mutual agreement or by a court of competent jurisdiction. The Parties may agree to forego this Notice and Dispute Procedure in the event that Consultant agrees that any Outstanding Liability exists.
(e) Pro Rata Allocation and Payment of Outstanding Liabilities. Any Outstanding Liability shall be allocated among Consultant and each other consultant party to an Executive Consulting Agreement, dated as of the date hereof, to which the Company is a party (each, an “Other Consulting Agreement”), on a pro rata basis determined by dividing the Fee by the sum of the Fee and the “Fee” (as defined in each Other Consulting Agreement) payable under all Other Consulting Agreements (such quotient, the “Pro Rata Portion”). Any amount owed by Consultant in respect of an Outstanding Liability shall be limited to Consultant's Pro Rata Portion of such Outstanding Liability and shall be paid first from the Reserved Fee Portion (if any remains in escrow pursuant to Section 3.2). To the extent that Consultant's Pro Rata Portion of any Outstanding Liabilities exceed the amount of the Reserved Fee Portion, or to the extent any Outstanding Liability becomes due after the Reserved Fee Portion has been paid to Consultant, Consultant unconditionally, personally, and individually, guarantees to pay to the extent of Consultant's Pro Rata Portion of such additional Outstanding Liabilities to the Company within five (5) business days of the Repayment Deadline.
(f) Preservation of Fee Rights. For the avoidance of doubt, except to the extent of any repayment obligation determined in accordance with this Section 8.3, Consultant’s right to the Fee under Section 8.2 shall remain in full force and effect, and the Company shall have no other right to claw back, withhold, or offset any portion of the Fee. Consultant agrees to repay any Outstanding Liability that becomes due in accordance with the terms of this Section, whether such Outstanding Liability becomes due prior to or following payment of the Reserved Fee Portion to Consultant pursuant to the terms of Section 3.2, subject in all cases to Consultant’s Pro Rata Portion.
8.4 The terms and conditions of this clause shall survive the expiration or termination of this Agreement.
9. Assignment. Consultant may not assign Consultant’s rights or obligations under this Agreement without the prior written consent of the Company. This Agreement and all rights hereunder may be assigned by the Company, its affiliates, subsidiaries, successors and assigns.
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Remedies. In the event either Party breaches or threatens to breach any provisions of this Agreement, each Party hereby acknowledges and agrees that money damages would not afford an adequate remedy and that the other Party shall be entitled to seek a temporary or permanent injunction or other equitable relief restraining such breach or threatened breach from any court of competent jurisdiction without the necessity of showing any actual damages. Any equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages, or other available forms of relief.
11. Indemnification. Consultant agrees to indemnify, defend and hold harmless, at its cost, the Company, its subsidiaries, affiliates, and their officers, agents, directors, employees and subcontractors against any and all liability, payments, damages, costs, attorneys’ fees and expenses from any asserted or threatened claims or causes of action of whatever nature: (i) arising out of the acts or omissions of Consultant and not solely caused by the acts or omissions of the Company’s agents, personnel, representatives, or employees, in connection with Consultant’s performance of its obligations hereunder; or (ii) as a result of (A) any failure of Consultant to withhold any required amounts paid to Consultant or (B) any failure of Consultant or the Company to pay in a timely manner any income, employment or other taxes (other than the portion of payroll taxes typically paid by an employer) required to be paid by either Party as a result of any adjudication by the Internal Revenues Service, or other entity of appropriate jurisdiction, finding that the Consultant should be treated, for tax purposes, as an employee of the Company, or one of its subsidiaries or affiliates. Unless the Company requests otherwise, Consultant shall have the obligation to control the defense, negotiation and settlement of any claim for which Contractor has the obligation to provide indemnification.
Governinglaw, jurisdiction, and venue. This Agreement and all related documents, including all schedules attached hereto and all matters arising out of or relating to this Agreement and the Services provided hereunder, whether sounding in contract, tort, or statute, for all purposes shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any conflict of laws principles that would cause the laws of any other jurisdiction to apply. Each party hereto irrevocably consents to the jurisdiction of the courts of New York State or the Southern District of New York of U.S. federal courts, in either case, located in the borough of Manhattan in New York City in connection with any action, suit or other proceeding arising out of or relating to this Agreement or any action taken or omitted hereunder, and waives any claim of forum non conveniens and any objections as to laying of venue.
Miscellaneous.
13.1 Consultant shall not export, directly or indirectly, any technical data acquired from the Company, or any products utilizing any such data, to any country in violation of any applicable export laws or regulations.
13.2 All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the signature page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), email, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only if: (a) the receiving party has received the Notice; and (b) the party giving the Notice has complied with the requirements of this Section.
13.3 This Agreement, together with any other documents incorporated herein by reference and related exhibits and schedules, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
13.4 This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto, and any of the terms thereof may be waived, only by a written document signed by each party to this Agreement or, in the case of waiver, by the party or parties waiving compliance.
13.5 If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
13.6 This Agreement may be executed in multiple counterparts and by electronic signature, each of which shall be deemed an original and all of which together shall constitute one instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed and delivered as of the date first set forth above.
| BlockchAIn Digital Infrastructure, Inc. | |
|---|---|
| BY: | /s/ Jerry Tang |
| Name: | Jerry Tang |
| Title: | CEO |
| Address for notice: |
| Daniel Nelson | |
|---|---|
| BY: | /s/ Daniel Nelson |
| Name: | Daniel Nelson |
| Address for notice: |
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Exhibit 10.3
ExecutiveConsulting Agreement
EXECUTIVE CONSULTING AGREEMENT, dated as of March 12, 2026 (this “Agreement”), between BlockchAIn Digital Infrastructure, Inc., a Delaware corporation (the “Company”), and Jeffry Hecklinski, an individual (“Consultant”). Each of the Company and Executive are sometimes referred to in this individually as a “Party” and, collectively, as the “Parties.”
- Services.
1.1 The Company hereby engages Consultant, and Consultant hereby accepts such engagement, as an independent contractor to provide certain services to the Company on the terms and conditions set forth in this Agreement.
1.2 Consultant shall assist with certain transition and advisory work in connection with the Business Combination Agreement (the “BusinessCombination Agreement”), by and among Signing Day Sports, Inc. (“Signing Day Sports”), the Company, BCDI Merger Sub I Inc., BCDI Merger Sub II LLC, and One Blockchain LLC (“One Blockchain”), as amended from time to time (the “Business Combination”) (the “Services”).
1.3 The Company does not and shall not control or direct the manner or means by which Consultant performs the Services, including but not limited to the time and place Consultant perform the Services.
1.4 The Company shall provide Consultant with access to its premises, materials, information, and systems to the extent necessary for the performance of the Services.
1.5 Consultant shall comply with all reasonable rules and procedures communicated to Consultant in writing by the Company, including those related to safety, security, and confidentiality.
Term. The term of this Agreement shall be thirty (30) months commencing on March 16, 2026 and shall end on March 15, 2029, unless earlier terminated in accordance with Section 8 (the “Term”). Any extension of the Term will be subject to mutual written agreement between Consultant and the Company.
Feesand expenses.
3.1 As compensation for the Services and the rights granted to the Company in this Agreement, the Company shall pay Consultant a fee of $438,000 (the “Fee”). Consultant acknowledges that Consultant will receive an IRS Form 1099 from the Company, and that Consultant shall be solely responsible for all federal, state, and local taxes.
3.2 $413,000 of the Fee shall be paid to Consultant via wire transfer of immediately available funds to an account designated in writing by Consultant within one (1) business day of the date of this Agreement. The remaining $25,000 of the Fee (the “Reserved Fee Portion”) shall be placed in an interest-bearing escrow account to be used in connection with any Outstanding Liabilities (as defined herein), any remaining portion of which shall be paid to Consultant within ninety (90) days following the Closing of the Business Combination, subject to any clawback or repayment obligations provided for in Section 8.3. Notwithstanding the foregoing, if any Outstanding Liability is in dispute at such time, such amount in dispute will remain in the escrow account until final resolution of the dispute as set forth in Sections 8.3(d) and 12 hereof.
3.3 The Company shall be responsible for any reasonable, preapproved travel or other reasonable, preapproved costs or expenses incurred by Consultant in connection with the performance of the Services. Consultant must seek approval from the Company in advance of incurring any expenses in order for such expenses to be reimbursed by the Company.
4. Relationshipof the parties.
4.1 Consultant is an independent contractor of the Company, and this Agreement shall not be construed to create any association, partnership, joint venture, employment, or agency relationship between Consultant and the Company for any purpose. Consultant has no authority (and shall not hold himself out as having authority) to bind the Company and Consultant shall not make any agreements or representations on the Company’s behalf without the Company’s prior written consent.
4.2 Without limiting Section 4.1, Consultant will not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits, or any other fringe benefits or benefit plans offered by the Company to its employees, and the Company will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including for unemployment or disability, or obtaining workers’ compensation insurance on Consultant’s behalf. Consultant shall be solely responsible for, and shall indemnify the Company against, all such taxes or contributions, including penalties and interest. Any persons employed or engaged by Consultant in connection with the performance of the Services shall be Consultant’s employees or contractors and Consultant shall be fully responsible for them and indemnify the Company against any claims made by or on behalf of any such employee or contractor.
5. Intellectualproperty rights.
5.1 All documents, work product, and other materials that are delivered under this Agreement and all other writings, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, and materials, and all other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, modified, conceived, or reduced to practice in the course of performing the Services ( “Work Product”), and all patents, copyrights, trademarks (together with the goodwill symbolized thereby), trade secrets, know-how, and other confidential or proprietary information, and other intellectual property rights (collectively “IntellectualProperty Rights”) therein, shall be owned exclusively by the Company.
5.2 Consultant shall not disclose to any third party the nature or details of any Work Product inventions without the prior written consent of the Company. Any patent application for or application for registration of any Intellectual Property Rights in any Work Product that Consultant may file during the Term or thereafter will belong to the Company, and Consultant hereby irrevocably assigns to the Company, for no additional consideration, Consultant’s entire right, title, and interest in and to such application, all Intellectual Property Rights disclosed or claimed therein, and any patent or registration issuing or resulting therefrom.
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5.3 As between Consultant and the Company, the Company is, and will remain, the sole and exclusive owner of all right, title, and interest in and to any documents, specifications, data, know-how, methodologies, software, and other materials provided to you by the Company (“CompanyMaterials”), and all Intellectual Property Rights therein. Consultant has no right or license to reproduce or use any Company Materials except solely during the Term to the extent necessary to perform Consultant’s obligations under this Agreement. All other rights in and to the Company Materials are expressly reserved by the Company. Consultant has no right or license to use the Company’s trademarks, service marks, trade names, logos, symbols, or brand names without its prior written consent.
- Confidentiality.
6.1 Consultant acknowledges that Consultant will have access to information that is treated as confidential and proprietary by the Company, whether spoken, written, printed, electronic, or in any other form or medium (collectively, the “Confidential Information”). Any Confidential Information that Consultant accesses or develops in connection with the Services, including but not limited to any Work Product, shall be subject to the terms and conditions of this clause. Consultant agrees to treat all Confidential Information as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without the prior written consent of the Company in each instance, and not to use any Confidential Information for any purpose except as required in the performance of the Services. Consultant shall notify the Company immediately in the event Consultant become aware of any loss or disclosure of any Confidential Information.
6.2 Confidential Information shall not include information that:
(a) is or becomes generally available to the public other than through Consultant’s breach of this Agreement; or
(b) is communicated to Consultant by a third party that had no confidentiality obligations with respect to such information.
6.3 Nothing herein shall:
(a) be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order; or
(b) prohibit or restrict Consultant (or Consultant’s attorney) from initiating communications directly with, responding to an inquiry from, providing testimony before, or otherwise participating in any investigation or proceeding conducted by the Securities and Exchange Commission (“SEC”), the Financial Industry Regulatory Authority (“FINRA”), any other self-regulatory organization, or any other federal or state regulatory authority regarding possible securities law violations without the need for permission from or notice to the Company.
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6.4 Notice of Immunity Under the Defend Trade Secrets Act of 2016 (“DTSA”). Notwithstanding any other provision of this Agreement:
(a) Consultant will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that:
(i) is made: (A) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected violation of law; or
(ii) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.
(b) If Consultant files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Consultant may disclose the Company’s trade secrets to Consultant’s attorney and use the trade secret information in the court proceeding if Consultant:
(i) files any document containing the trade secret under seal; and
(ii) does not disclose the trade secret, except pursuant to court order.
7. Representationsand warranties.
7.1 Consultant represents and warrants to the Company that:
(a) Consultant has the right to enter into this Agreement, to grant the rights granted herein, and to perform fully all of Consultant’s obligations in this Agreement;
(b) Consultant’s entering into this Agreement with the Company and Consultant’s performance of the Services do not and will not conflict with or result in any breach or default under any other agreement to which Consultant is subject;
(c) Consultant shall not enter into any other independent contractor, employment or business relationship that impairs Consultant’s ability to perform Consultant’s obligations under this Agreement. Consultant agrees and represents that Consultant will devote such time, attention and energy as is necessary to provide the Services to the Company as required by this Agreement;
(d) Consultant has the required skill, experience, and qualifications to perform the Services, Consultant shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, and Consultant shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner;
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(e) Consultant shall perform the Services in compliance with all applicable federal, state, and local laws and regulations, including by maintaining all licenses, permits, and registrations required to perform the Services; and
(f) the Company will receive good and valid title to all Work Product, free and clear of all encumbrances and liens of any kind.
7.2 The Company hereby represents and warrants to Consultant that:
(a) it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; and
(b) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate action.
8. Termination.
8.1 During the Term, the Company shall not terminate this Agreement without Cause, which shall mean (a) Consultant’s willful misconduct or gross negligence in the performance of his duties; (b) material breach of any provision of this Agreement; (c) conviction of, or plea of guilty or no contest to, a felony or crime involving moral turpitude; (d) dishonesty, fraud, or misappropriation of the Company’s property; or (e) repeated failure to perform the Services after written notice and a reasonable opportunity to cure. Consultant may terminate this Agreement for Good Reasons, which shall mean the occurrence of any of the following events without Consultant’s prior written consent: (a) a material reduction in Consultant’s compensatory Fee or a material delay in the payment of such Fee as described in Section 3 of this Agreement; (b) a request for Consultant to materially deviate from the Services to be rendered by Consultant; (c) a material breach by the Company of any provision of this Agreement; or (d) any other action or inaction by the Company that materially and adversely affects Consultant’s ability to perform the Services under this Agreement, provided that Consultant gives written notice to the Company of the event constituting Good Reasons and the Company fails to cure such event within ten (10) days of receiving such notice.
8.2 Notwithstanding any termination of this Agreement by the Company, whether with or without Cause, or any termination of this Agreement by Consultant, whether for or not for any Good Reasons, Consultant shall be entitled to receive the Fee provided for hereunder, and the Company shall have no right hereunder to any withholding or repayment of the Fee or any portion of the Fee, subject, in each case, to any amounts required to be withheld or repaid under applicable law or Section 8.3 hereof.
8.3 Notwithstanding anything in Section 8.2 to the contrary, and subject to the limitations set forth in this Section 8.3, the Company shall be entitled to repayment of a portion of the Fee in an amount equal to the portion of the Fee that is attributable to an Outstanding Liability (as defined below), subject to the following conditions and limitations:
(a) Definition of Outstanding Liability. For purposes of this Section 8.3, “Outstanding Liability” means: (a) a liability of Signing Day Sports that (i) existed or arose prior to the closing of the Business Combination, (ii) was not disclosed in the disclosure schedules, financial statements, or other documents delivered by Signing Day Sports or One Blockchain in connection with the Business Combination Agreement, and (iii) is material, meaning such liability, individually or in the aggregate with all other Outstanding Liabilities, exceeds Five Thousand Dollars ($5,000); and/or (b) a liability of Signing Day Sports incurred in the ninety (90)-day period following the closing of the Business Combination, which liability is incurred in connection with any activities related to Signing Day Sports, including but not limited to any costs, expenses, or liabilities incurred in connection with the termination of employment of any employees or service providers of Signing Day Sports (including any severance paid to such employees or service providers).
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(b) Cap on Repayment. In no event shall the aggregate amount of all repayments required of Consultant under this Section 8.3 exceed Consultant's Pro Rata Portion (as defined in Section 8.3(e)) of the Outstanding Liabilities, and in no event shall such aggregate amount exceed the Fee actually received by Consultant.
(c) Time Limitation. The Company must deliver an Outstanding Fee Notice (as defined below) to Consultant no later than twelve (12) months following the closing of the Business Combination. Any claim for payment under this Section 8.3 not asserted by the Company within such twelve (12)-month period shall be forever waived and released.
(d) Notice and Dispute Procedure. Before any repayment obligation arises under this Section 8.3, the Company shall deliver to Consultant a written notice (an “Outstanding Fee Notice”) that (i) identifies in reasonable detail the Outstanding Liability giving rise to the repayment claim, (ii) specifies the amount of repayment sought, and (iii) includes reasonable supporting documentation. Consultant shall have ten (10) days following receipt of the Outstanding Fee Notice (the “Dispute Period”) to deliver a written objection to the Company, setting forth in reasonable detail the basis for Consultant’s dispute. If Consultant timely delivers a written objection, the parties shall negotiate in good faith for a period of fifteen (15) days to resolve such dispute. If the parties are unable to resolve the dispute within such fifteen (15)-day period, either party may submit the dispute for resolution in accordance with Section 12 of this Agreement. No repayment obligation shall be due or payable until (the “Repayment Deadline”) the later of: (A) the expiration of the Dispute Period without written objection from Consultant, or (B) final resolution of any dispute, whether by mutual agreement or by a court of competent jurisdiction. The Parties may agree to forego this Notice and Dispute Procedure in the event that Consultant agrees that any Outstanding Liability exists.
(e) Pro Rata Allocation and Payment of Outstanding Liabilities. Any Outstanding Liability shall be allocated among Consultant and each other consultant party to an Executive Consulting Agreement, dated as of the date hereof, to which the Company is a party (each, an “Other ConsultingAgreement”), on a pro rata basis determined by dividing the Fee by the sum of the Fee and the “Fee” (as defined in each Other Consulting Agreement) payable under all Other Consulting Agreements (such quotient, the “Pro Rata Portion”). Any amount owed by Consultant in respect of an Outstanding Liability shall be limited to Consultant's Pro Rata Portion of such Outstanding Liability and shall be paid first from the Reserved Fee Portion (if any remains in escrow pursuant to Section 3.2). To the extent that Consultant's Pro Rata Portion of any Outstanding Liabilities exceed the amount of the Reserved Fee Portion, or to the extent any Outstanding Liability becomes due after the Reserved Fee Portion has been paid to Consultant, Consultant unconditionally, personally, and individually, guarantees to pay to the extent of Consultant's Pro Rata Portion of such additional Outstanding Liabilities to the Company within five (5) business days of the Repayment Deadline.
(f) Preservation of Fee Rights. For the avoidance of doubt, except to the extent of any repayment obligation determined in accordance with this Section 8.3, Consultant’s right to the Fee under Section 8.2 shall remain in full force and effect, and the Company shall have no other right to claw back, withhold, or offset any portion of the Fee. Consultant agrees to repay any Outstanding Liability that becomes due in accordance with the terms of this Section, whether such Outstanding Liability becomes due prior to or following payment of the Reserved Fee Portion to Consultant pursuant to the terms of Section 3.2, subject in all cases to Consultant’s Pro Rata Portion.
8.4 The terms and conditions of this clause shall survive the expiration or termination of this Agreement.
9. Assignment. Consultant may not assign Consultant’s rights or obligations under this Agreement without the prior written consent of the Company. This Agreement and all rights hereunder may be assigned by the Company, its affiliates, subsidiaries, successors and assigns.
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Remedies. In the event either Party breaches or threatens to breach any provisions of this Agreement, each Party hereby acknowledges and agrees that money damages would not afford an adequate remedy and that the other Party shall be entitled to seek a temporary or permanent injunction or other equitable relief restraining such breach or threatened breach from any court of competent jurisdiction without the necessity of showing any actual damages. Any equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages, or other available forms of relief.
11. Indemnification. Consultant agrees to indemnify, defend and hold harmless, at its cost, the Company, its subsidiaries, affiliates, and their officers, agents, directors, employees and subcontractors against any and all liability, payments, damages, costs, attorneys’ fees and expenses from any asserted or threatened claims or causes of action of whatever nature: (i) arising out of the acts or omissions of Consultant and not solely caused by the acts or omissions of the Company’s agents, personnel, representatives, or employees, in connection with Consultant’s performance of its obligations hereunder; or (ii) as a result of (A) any failure of Consultant to withhold any required amounts paid to Consultant or (B) any failure of Consultant or the Company to pay in a timely manner any income, employment or other taxes (other than the portion of payroll taxes typically paid by an employer) required to be paid by either Party as a result of any adjudication by the Internal Revenues Service, or other entity of appropriate jurisdiction, finding that the Consultant should be treated, for tax purposes, as an employee of the Company, or one of its subsidiaries or affiliates. Unless the Company requests otherwise, Consultant shall have the obligation to control the defense, negotiation and settlement of any claim for which Contractor has the obligation to provide indemnification.
Governinglaw, jurisdiction, and venue. This Agreement and all related documents, including all schedules attached hereto and all matters arising out of or relating to this Agreement and the Services provided hereunder, whether sounding in contract, tort, or statute, for all purposes shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any conflict of laws principles that would cause the laws of any other jurisdiction to apply. Each party hereto irrevocably consents to the jurisdiction of the courts of New York State or the Southern District of New York of U.S. federal courts, in either case, located in the borough of Manhattan in New York City in connection with any action, suit or other proceeding arising out of or relating to this Agreement or any action taken or omitted hereunder, and waives any claim of forum non conveniens and any objections as to laying of venue.
Miscellaneous.
13.1 Consultant shall not export, directly or indirectly, any technical data acquired from the Company, or any products utilizing any such data, to any country in violation of any applicable export laws or regulations.
13.2 All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the signature page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), email, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only if: (a) the receiving party has received the Notice; and (b) the party giving the Notice has complied with the requirements of this Section.
13.3 This Agreement, together with any other documents incorporated herein by reference and related exhibits and schedules, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
13.4 This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto, and any of the terms thereof may be waived, only by a written document signed by each party to this Agreement or, in the case of waiver, by the party or parties waiving compliance.
13.5 If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
13.6 This Agreement may be executed in multiple counterparts and by electronic signature, each of which shall be deemed an original and all of which together shall constitute one instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed and delivered as of the date first set forth above.
| BlockchAIn Digital Infrastructure, Inc. | |
|---|---|
| BY: | /s/ Jerry Tang |
| Name: | Jerry Tang |
| Title: | CEO |
| Address for notice: |
| Jeffry Hecklinski | |
|---|---|
| BY: | /s/ Jeffry Hecklinski |
| Name: | Jeffry Hecklinski |
| Address for notice: |
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Exhibit 10.4
ExecutiveConsulting Agreement
EXECUTIVE CONSULTING AGREEMENT, dated as of March 12, 2026 (this “Agreement”), between BlockchAIn Digital Infrastructure, Inc., a Delaware corporation (the “Company”), and Craig Smith, an individual (“Consultant”). Each of the Company and Executive are sometimes referred to in this individually as a “Party” and, collectively, as the “Parties.”
1. Services.
1.1 The Company hereby engages Consultant, and Consultant hereby accepts such engagement, as an independent contractor to provide certain services to the Company on the terms and conditions set forth in this Agreement.
1.2 Consultant shall assist with certain transition and advisory work in connection with the Business Combination Agreement (the “BusinessCombination Agreement”), by and among Signing Day Sports, Inc. (“Signing Day Sports”), the Company, BCDI Merger Sub I Inc., BCDI Merger Sub II LLC, and One Blockchain LLC (“One Blockchain”), as amended from time to time (the “Business Combination”) (the “Services”).
1.3 The Company does not and shall not control or direct the manner or means by which Consultant performs the Services, including but not limited to the time and place Consultant perform the Services.
1.4 The Company shall provide Consultant with access to its premises, materials, information, and systems to the extent necessary for the performance of the Services.
1.5 Consultant shall comply with all reasonable rules and procedures communicated to Consultant in writing by the Company, including those related to safety, security, and confidentiality.
2. Term. The term of this Agreement shall be thirty-six (36) months commencing on March 16, 2026 and shall end on March 15, 2029, unless earlier terminated in accordance with Section 8 (the “Term”). Any extension of the Term will be subject to mutual written agreement between Consultant and the Company.
3. Feesand expenses.
3.1 As compensation for the Services and the rights granted to the Company in this Agreement, the Company shall pay Consultant a fee of $438,000 (the “Fee”). Consultant acknowledges that Consultant will receive an IRS Form 1099 from the Company, and that Consultant shall be solely responsible for all federal, state, and local taxes.
3.2 $413,000 of the Fee shall be paid to Consultant via wire transfer of immediately available funds to an account designated in writing by Consultant within one (1) business day of the date of this Agreement. The remaining $25,000 of the Fee (the “Reserved FeePortion”) shall be placed in an interest-bearing escrow account to be used in connection with any Outstanding Liabilities (as defined herein), any remaining portion of which shall be paid to Consultant within ninety (90) days following the Closing of the Business Combination, subject to any clawback or repayment obligations provided for in Section 8.3. Notwithstanding the foregoing, if any Outstanding Liability is in dispute at such time, such amount in dispute will remain in the escrow account until final resolution of the dispute as set forth in Sections 8.3(d) and 12 hereof.
3.3 The Company shall be responsible for any reasonable, preapproved travel or other reasonable, preapproved costs or expenses incurred by Consultant in connection with the performance of the Services. Consultant must seek approval from the Company in advance of incurring any expenses in order for such expenses to be reimbursed by the Company.
4. Relationshipof the parties.
4.1 Consultant is an independent contractor of the Company, and this Agreement shall not be construed to create any association, partnership, joint venture, employment, or agency relationship between Consultant and the Company for any purpose. Consultant has no authority (and shall not hold himself out as having authority) to bind the Company and Consultant shall not make any agreements or representations on the Company’s behalf without the Company’s prior written consent.
4.2 Without limiting Section 4.1, Consultant will not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits, or any other fringe benefits or benefit plans offered by the Company to its employees, and the Company will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including for unemployment or disability, or obtaining workers’ compensation insurance on Consultant’s behalf. Consultant shall be solely responsible for, and shall indemnify the Company against, all such taxes or contributions, including penalties and interest. Any persons employed or engaged by Consultant in connection with the performance of the Services shall be Consultant’s employees or contractors and Consultant shall be fully responsible for them and indemnify the Company against any claims made by or on behalf of any such employee or contractor.
5. Intellectualproperty rights.
5.1 All documents, work product, and other materials that are delivered under this Agreement and all other writings, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, and materials, and all other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, modified, conceived, or reduced to practice in the course of performing the Services ( “Work Product”), and all patents, copyrights, trademarks (together with the goodwill symbolized thereby), trade secrets, know-how, and other confidential or proprietary information, and other intellectual property rights (collectively “IntellectualProperty Rights”) therein, shall be owned exclusively by the Company.
5.2 Consultant shall not disclose to any third party the nature or details of any Work Product inventions without the prior written consent of the Company. Any patent application for or application for registration of any Intellectual Property Rights in any Work Product that Consultant may file during the Term or thereafter will belong to the Company, and Consultant hereby irrevocably assigns to the Company, for no additional consideration, Consultant’s entire right, title, and interest in and to such application, all Intellectual Property Rights disclosed or claimed therein, and any patent or registration issuing or resulting therefrom.
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5.3 As between Consultant and the Company, the Company is, and will remain, the sole and exclusive owner of all right, title, and interest in and to any documents, specifications, data, know-how, methodologies, software, and other materials provided to you by the Company (“CompanyMaterials”), and all Intellectual Property Rights therein. Consultant has no right or license to reproduce or use any Company Materials except solely during the Term to the extent necessary to perform Consultant’s obligations under this Agreement. All other rights in and to the Company Materials are expressly reserved by the Company. Consultant has no right or license to use the Company’s trademarks, service marks, trade names, logos, symbols, or brand names without its prior written consent.
6. Confidentiality.
6.1 Consultant acknowledges that Consultant will have access to information that is treated as confidential and proprietary by the Company, whether spoken, written, printed, electronic, or in any other form or medium (collectively, the “Confidential Information”). Any Confidential Information that Consultant accesses or develops in connection with the Services, including but not limited to any Work Product, shall be subject to the terms and conditions of this clause. Consultant agrees to treat all Confidential Information as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without the prior written consent of the Company in each instance, and not to use any Confidential Information for any purpose except as required in the performance of the Services. Consultant shall notify the Company immediately in the event Consultant become aware of any loss or disclosure of any Confidential Information.
6.2 Confidential Information shall not include information that:
(a) is or becomes generally available to the public other than through Consultant’s breach of this Agreement; or
(b) is communicated to Consultant by a third party that had no confidentiality obligations with respect to such information.
6.3 Nothing herein shall:
(a) be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order; or
(b) prohibit or restrict Consultant (or Consultant’s attorney) from initiating communications directly with, responding to an inquiry from, providing testimony before, or otherwise participating in any investigation or proceeding conducted by the Securities and Exchange Commission (“SEC”), the Financial Industry Regulatory Authority (“FINRA”), any other self-regulatory organization, or any other federal or state regulatory authority regarding possible securities law violations without the need for permission from or notice to the Company.
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6.4 Notice of Immunity Under the Defend Trade Secrets Act of 2016 (“DTSA”). Notwithstanding any other provision of this Agreement:
(a) Consultant will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that:
(i) is made: (A) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected violation of law; or
(ii) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.
(b) If Consultant files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Consultant may disclose the Company’s trade secrets to Consultant’s attorney and use the trade secret information in the court proceeding if Consultant:
(i) files any document containing the trade secret under seal; and
(ii) does not disclose the trade secret, except pursuant to court order.
7. Representationsand warranties.
7.1 Consultant represents and warrants to the Company that:
(a) Consultant has the right to enter into this Agreement, to grant the rights granted herein, and to perform fully all of Consultant’s obligations in this Agreement;
(b) Consultant’s entering into this Agreement with the Company and Consultant’s performance of the Services do not and will not conflict with or result in any breach or default under any other agreement to which Consultant is subject;
(c) Consultant shall not enter into any other independent contractor, employment or business relationship that impairs Consultant’s ability to perform Consultant’s obligations under this Agreement. Consultant agrees and represents that Consultant will devote such time, attention and energy as is necessary to provide the Services to the Company as required by this Agreement;
(d) Consultant has the required skill, experience, and qualifications to perform the Services, Consultant shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, and Consultant shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner;
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(e) Consultant shall perform the Services in compliance with all applicable federal, state, and local laws and regulations, including by maintaining all licenses, permits, and registrations required to perform the Services; and
(f) the Company will receive good and valid title to all Work Product, free and clear of all encumbrances and liens of any kind.
7.2 The Company hereby represents and warrants to Consultant that:
(a) it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; and
(b) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate action.
8. Termination.
8.1 During the Term, the Company shall not terminate this Agreement without Cause, which shall mean (a) Consultant’s willful misconduct or gross negligence in the performance of his duties; (b) material breach of any provision of this Agreement; (c) conviction of, or plea of guilty or no contest to, a felony or crime involving moral turpitude; (d) dishonesty, fraud, or misappropriation of the Company’s property; or (e) repeated failure to perform the Services after written notice and a reasonable opportunity to cure. Consultant may terminate this Agreement for Good Reasons, which shall mean the occurrence of any of the following events without Consultant’s prior written consent: (a) a material reduction in Consultant’s compensatory Fee or a material delay in the payment of such Fees as described in Section 3 of this Agreement; (b) a request for Consultant to materially deviate from the Services to be rendered by Consultant; (c) a material breach by the Company of any provision of this Agreement; or (d) any other action or inaction by the Company that materially and adversely affects Consultant’s ability to perform the Services under this Agreement, provided that Consultant gives written notice to the Company of the event constituting Good Reasons and the Company fails to cure such event within ten (10) days of receiving such notice.
8.2 Notwithstanding any termination of this Agreement by the Company, whether with or without Cause, or any termination of this Agreement by Consultant, whether for or not for any Good Reasons, Consultant shall be entitled to receive the Fee provided for hereunder, and the Company shall have no right hereunder to any withholding or repayment of the Fee or any portion of the Fee, subject, in each case, to any amounts required to be withheld or repaid under applicable law or Section 8.3 hereof.
8.3 Notwithstanding anything in Section 8.2 to the contrary, and subject to the limitations set forth in this Section 8.3, the Company shall be entitled to repayment of a portion of the Fee in an amount equal to the portion of the Fee that is attributable to an Outstanding Liability (as defined below), subject to the following conditions and limitations:
(a) Definition of Outstanding Liability. For purposes of this Section 8.3, “Outstanding Liability” means: (a) a liability of Signing Day Sports that (i) existed or arose prior to the closing of the Business Combination, (ii) was not disclosed in the disclosure schedules, financial statements, or other documents delivered by Signing Day Sports or One Blockchain in connection with the Business Combination Agreement, and (iii) is material, meaning such liability, individually or in the aggregate with all other Outstanding Liabilities, exceeds Five Thousand Dollars ($5,000); and/or (b) a liability of Signing Day Sports incurred in the ninety (90)-day period following the closing of the Business Combination, which liability is incurred in connection with any activities related to Signing Day Sports, including but not limited to any costs, expenses, or liabilities incurred in connection with the termination of employment of any employees or service providers of Signing Day Sports (including any severance paid to such employees or service providers).
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(b) Cap on Repayment. In no event shall the aggregate amount of all repayments required of Consultant under this Section 8.3 exceed Consultant's Pro Rata Portion (as defined in Section 8.3(e)) of the Outstanding Liabilities, and in no event shall such aggregate amount exceed the Fee actually received by Consultant.
(c) Time Limitation. The Company must deliver an Outstanding Fee Notice (as defined below) to Consultant no later than twelve (12) months following the closing of the Business Combination. Any claim for payment under this Section 8.3 not asserted by the Company within such twelve (12)-month period shall be forever waived and released.
(d) Notice and Dispute Procedure. Before any repayment obligation arises under this Section 8.3, the Company shall deliver to Consultant a written notice (an “Outstanding Fee Notice”) that (i) identifies in reasonable detail the Outstanding Liability giving rise to the repayment claim, (ii) specifies the amount of repayment sought, and (iii) includes reasonable supporting documentation. Consultant shall have ten (10) days following receipt of the Outstanding Fee Notice (the “Dispute Period”) to deliver a written objection to the Company, setting forth in reasonable detail the basis for Consultant’s dispute. If Consultant timely delivers a written objection, the parties shall negotiate in good faith for a period of fifteen (15) days to resolve such dispute. If the parties are unable to resolve the dispute within such fifteen (15)-day period, either party may submit the dispute for resolution in accordance with Section 12 of this Agreement. No repayment obligation shall be due or payable until (the “Repayment Deadline”) the later of: (A) the expiration of the Dispute Period without written objection from Consultant, or (B) final resolution of any dispute, whether by mutual agreement or by a court of competent jurisdiction. The Parties may agree to forego this Notice and Dispute Procedure in the event that Consultant agrees that any Outstanding Liability exists.
(e) Pro Rata Allocation and Payment of Outstanding Liabilities. Any Outstanding Liability shall be allocated among Consultant and each other consultant party to an Executive Consulting Agreement, dated as of the date hereof, to which the Company is a party (each, an “Other ConsultingAgreement”), on a pro rata basis determined by dividing the Fee by the sum of the Fee and the “Fee” (as defined in each Other Consulting Agreement) payable under all Other Consulting Agreements (such quotient, the “Pro Rata Portion”). Any amount owed by Consultant in respect of an Outstanding Liability shall be limited to Consultant's Pro Rata Portion of such Outstanding Liability and shall be paid first from the Reserved Fee Portion (if any remains in escrow pursuant to Section 3.2). To the extent that Consultant's Pro Rata Portion of any Outstanding Liabilities exceed the amount of the Reserved Fee Portion, or to the extent any Outstanding Liability becomes due after the Reserved Fee Portion has been paid to Consultant, Consultant unconditionally, personally, and individually, guarantees to pay to the extent of Consultant's Pro Rata Portion of such additional Outstanding Liabilities to the Company within five (5) business days of the Repayment Deadline.
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(f) Preservation of Fee Rights. For the avoidance of doubt, except to the extent of any repayment obligation determined in accordance with this Section 8.3, Consultant’s right to the Fee under Section 8.2 shall remain in full force and effect, and the Company shall have no other right to claw back, withhold, or offset any portion of the Fee. Consultant agrees to repay any Outstanding Liability that becomes due in accordance with the terms of this Section, whether such Outstanding Liability becomes due prior to or following payment of the Reserved Fee Portion to Consultant pursuant to the terms of Section 3.2, subject in all cases to Consultant’s Pro Rata Portion.
8.4 The terms and conditions of this clause shall survive the expiration or termination of this Agreement.
9. Assignment. Consultant may not assign Consultant’s rights or obligations under this Agreement without the prior written consent of the Company. This Agreement and all rights hereunder may be assigned by the Company, its affiliates, subsidiaries, successors and assigns.
10. Remedies. In the event either Party breaches or threatens to breach any provisions of this Agreement, each Party hereby acknowledges and agrees that money damages would not afford an adequate remedy and that the other Party shall be entitled to seek a temporary or permanent injunction or other equitable relief restraining such breach or threatened breach from any court of competent jurisdiction without the necessity of showing any actual damages. Any equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages, or other available forms of relief.
11.Indemnification. Consultant agrees to indemnify, defend and hold harmless, at its cost, the Company, its subsidiaries, affiliates, and their officers, agents, directors, employees and subcontractors against any and all liability, payments, damages, costs, attorneys’ fees and expenses from any asserted or threatened claims or causes of action of whatever nature: (i) arising out of the acts or omissions of Consultant and not solely caused by the acts or omissions of the Company’s agents, personnel, representatives, or employees, in connection with Consultant’s performance of its obligations hereunder; or (ii) as a result of (A) any failure of Consultant to withhold any required amounts paid to Consultant or (B) any failure of Consultant or the Company to pay in a timely manner any income, employment or other taxes (other than the portion of payroll taxes typically paid by an employer) required to be paid by either Party as a result of any adjudication by the Internal Revenues Service, or other entity of appropriate jurisdiction, finding that the Consultant should be treated, for tax purposes, as an employee of the Company, or one of its subsidiaries or affiliates. Unless the Company requests otherwise, Consultant shall have the obligation to control the defense, negotiation and settlement of any claim for which Contractor has the obligation to provide indemnification.
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Governinglaw, jurisdiction, and venue. This Agreement and all related documents, including all schedules attached hereto and all matters arising out of or relating to this Agreement and the Services provided hereunder, whether sounding in contract, tort, or statute, for all purposes shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any conflict of laws principles that would cause the laws of any other jurisdiction to apply. Each party hereto irrevocably consents to the jurisdiction of the courts of New York State or the Southern District of New York of U.S. federal courts, in either case, located in the borough of Manhattan in New York City in connection with any action, suit or other proceeding arising out of or relating to this Agreement or any action taken or omitted hereunder, and waives any claim of forum non conveniens and any objections as to laying of venue.
13. Miscellaneous.
13.1 Consultant shall not export, directly or indirectly, any technical data acquired from the Company, or any products utilizing any such data, to any country in violation of any applicable export laws or regulations.
13.2 All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the signature page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), email, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only if: (a) the receiving party has received the Notice; and (b) the party giving the Notice has complied with the requirements of this Section.
13.3 This Agreement, together with any other documents incorporated herein by reference and related exhibits and schedules, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
13.4 This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto, and any of the terms thereof may be waived, only by a written document signed by each party to this Agreement or, in the case of waiver, by the party or parties waiving compliance.
13.5 If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
13.6 This Agreement may be executed in multiple counterparts and by electronic signature, each of which shall be deemed an original and all of which together shall constitute one instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed and delivered as of the date first set forth above.
| BlockchAIn Digital Infrastructure, Inc. | |
|---|---|
| BY: | /s/ Jerry Tang |
| Name: | Jerry Tang |
| Title: | CEO |
| Address for notice: | |
| Craig Smith | |
| --- | --- |
| BY: | /s/ Craig Smith |
| Name: | Craig Smith |
| Address for notice: |
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Exhibit 10.5
BLOCKCHAIN DIGITAL INFRASTRUCTURE, INC.
2026 EQUITY INCENTIVE PLAN
ARTICLE I
PURPOSE
The purpose of this BlockchAIn Digital Infrastructure, Inc. Equity Incentive Plan (the “Plan”) is to benefit BlockchAIn Digital Infrastructure, Inc., a Delaware corporation (the “Company”) and its stockholders, by assisting the Company and its subsidiaries to attract, retain and provide incentives to key management employees, directors, and consultants of the Company and its Affiliates, and to align the interests of such service providers with those of the Company’s stockholders. Accordingly, the Plan provides for the granting of Non-qualified Stock Options, Incentive Stock Options, Restricted Stock Awards, Restricted Stock Unit Awards, Stock Appreciation Rights, Performance Stock Awards, Performance Unit Awards, Unrestricted Stock Awards, Distribution Equivalent Rights or any combination of the foregoing.
ARTICLE II
DEFINITIONS
The following definitions shall be applicable throughout the Plan unless the context otherwise requires:
2.1 “Affiliate” shall mean (i) any person or entity that directly or indirectly controls, is controlled by or is under common control with the Company and/or (ii) to the extent provided by the Committee, any person or entity in which the Company has a significant interest. The term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”), as applied to any person or entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person or entity, whether through the ownership of voting or other securities, by contract or otherwise..
2.2 “Award” shall mean, individually or collectively, any Option, Restricted Stock Award, Restricted Stock Unit Award, Performance Stock Award, Performance Unit Award, Stock Appreciation Right, Distribution Equivalent Right or Unrestricted Stock Award.
2.3 “Award Agreement” shall mean a written agreement between the Company and the Holder with respect to an Award, setting forth the terms and conditions of the Award, as amended.
2.4 “Board” shall mean the Board of Directors of the Company.
2.5 “Base Value” shall have the meaning given to such term in Section 14.3.
2.6 “Cause” shall mean (i) if the Holder is a party to an employment or service agreement with the Company or an Affiliate which agreement defines “Cause” (or a similar term), “Cause” shall have the same meaning as provided for in such agreement, or (ii) for a Holder who is not a party to such an agreement, “Cause” shall mean termination by the Company or an Affiliate of the employment (or other service relationship) of the Holder by reason of the Holder’s (A) intentional failure to perform reasonably assigned duties, (B) dishonesty or willful misconduct in the performance of the Holder’s duties, (C) involvement in a transaction which is materially adverse to the Company or an Affiliate, (D) breach of fiduciary duty involving personal profit, (E) willful violation of any law, rule, regulation or court order (other than misdemeanor traffic violations and misdemeanors not involving misuse or misappropriation of money or property), (F) commission of an act of fraud or intentional misappropriation or conversion of any asset or opportunity of the Company or an Affiliate, or (G) material breach of any provision of the Plan or the Holder’s Award Agreement or any other written agreement between the Holder and the Company or an Affiliate, in each case as determined in good faith by the Board, the determination of which shall be final, conclusive and binding on all parties.
2.7 “Change of Control” shall mean, except as otherwise provided in an Award Agreement, (i) for a Holder who is a party to an employment or consulting agreement with the Company or an Affiliate which agreement defines “Change of Control” (or a similar term), “Change of Control” shall have the same meaning as provided for in such agreement, or (ii) for a Holder who is not a party to such an agreement, “Change of Control” shall mean the satisfaction of any one or more of the following conditions (and the “Change of Control” shall be deemed to have occurred as of the first day that any one or more of the following conditions shall have been satisfied):
(a) Any person (as such term is used in paragraphs 13(d) and 14(d)(2) of the Exchange Act, hereinafter in this definition, “Person”), other than the Company or an Affiliate or an employee benefit plan of the Company or an Affiliate, becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities;
(b) The closing of a merger, consolidation or other business combination (a “Business Combination”) other than a Business Combination in which holders of the Shares immediately prior to the Business Combination have substantially the same proportionate ownership of the common stock or ordinary shares, as applicable, of the surviving corporation immediately after the Business Combination as immediately before;
(c) The closing of an agreement for the sale or disposition of all or substantially all of the Company’s assets to any entity that is not an Affiliate;
(d) The approval by the holders of shares of Stock of a plan of complete liquidation of the Company, other than a merger of the Company into any subsidiary or a liquidation as a result of which persons who were stockholders of the Company immediately prior to such liquidation have substantially the same proportionate ownership of shares of common stock or ordinary shares, as applicable, of the surviving corporation immediately after such liquidation as immediately before; or
(e) Within any twenty-four (24) month period, the Incumbent Directors shall cease to constitute at least a majority of the Board or the board of directors of any successor to the Company; provided, however, that any director elected to the Board, or nominated for election, by a majority of the Incumbent Directors then still in office, shall be deemed to be an Incumbent Director for purposes of this paragraph (e), but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of an individual, entity or “group” other than the Board (including, but not limited to, any such assumption that results from paragraphs (a), (b), (c), or (d) of this definition).
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Notwithstanding the foregoing, solely for the purpose of determining the timing of any payments pursuant to any Award constituting a “deferral of compensation” subject to Code Section 409A, a Change of Control shall be limited to a “change in the ownership of the Company,” a “change in the effective control of the Company,” or a “change in the ownership of a substantial portion of the assets of the Company” as such terms are defined in Section 1.409A-3(i)(5) of the U.S. Treasury Regulations.
2.8 “Code” shall mean the Internal Revenue Code of 1986, as amended, and any successor thereto. Reference in the Plan to any section of the Code shall be deemed to include any regulations or other interpretative guidance under such section, and any amendments or successor provisions to such section, regulations or guidance.
2.9 “Committee” shall mean a committee comprised of two (2) or more members of the Board who are selected by the Board as provided in Section 4.1.
2.10 “Company” shall have the meaning given to such term in the introductory paragraph, including any successor thereto.
2.11 “Consultant” shall mean any person, including an advisor, who is (i) engaged by the Company or an Affiliate to render consulting or advisory services and is compensated for such services, or (ii) serving as a member of the board of directors of an Affiliate and is compensated for such services. However, service solely as a Director, or payment of a fee for such service, will not cause a Director to be considered a “Consultant” for purposes of the Plan. Notwithstanding the foregoing, a person is treated as a Consultant under this Plan only if a Form S-8 Registration Statement under the Securities Act is available to register either the offer or the sale of the Company’s securities to such person.
2.12 “Director” shall mean a member of the Board or a member of the board of directors of an Affiliate, in either case, who is not an Employee.
2.13 “Distribution Equivalent Right” shall mean an Award granted under Article XIII of the Plan which entitles the Holder to receive bookkeeping credits, cash payments and/or Share distributions equal in amount to the distributions that would have been made to the Holder had the Holder held a specified number of Shares during the period the Holder held the Distribution Equivalent Right.
2.14 “Distribution Equivalent Right Award Agreement” shall mean a written agreement between the Company and a Holder with respect to a Distribution Equivalent Right Award.
2.15 “Effective Date” shall mean March 16, 2026.
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2.16 “Employee” shall mean any employee, including any officer, of the Company or an Affiliate.
2.17 “Exchange Act” shall mean the United States of America Securities Exchange Act of 1934, as amended.
2.18 “Fair Market Value” shall mean, as of any date, the value of a share of Stock determined as follows:
(a) If the Stock is listed on any established stock exchange or a national market system, the per share closing sales price for shares of Stock (or the closing bid, if no sales were reported) as quoted on such exchange or system on the day of determination, as reported in TheWall Street Journal or such other source as the Committee deems reliable;
(b) If the Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value of a share of Stock will be the mean between the high bid and low asked per share prices for the Stock on the day of determination, as reported in The Wall Street Journal or such other source as the Committee deems reliable; or
(c) In the absence of an established market for the Stock, the Fair Market Value will be determined in good faith by the Committee (acting on the advice of an Independent Third Party, should the Committee elect in its sole discretion to utilize an Independent Third Party for this purpose).
(d) Notwithstanding the foregoing, the determination of Fair Market Value in all cases shall be in accordance with the requirements set forth under Section 409A of the Code to the extent necessary for an Award to comply with, or be exempt from, Section 409A of the Code.
2.19 “Family Member” of an individual shall mean any child, stepchild, grandchild, parent, stepparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law, including adoptive relationships, any person sharing the Holder’s household (other than a tenant or employee of the Holder), a trust in which such persons have more than fifty percent (50%) of the beneficial interest, a foundation in which such persons (or the Holder) control the management of assets, and any other entity in which such persons (or the Holder) own more than fifty percent (50%) of the voting interests.
2.20 “Holder” shall mean an Employee, Director or Consultant who has been granted an Award or any such individual’s beneficiary, estate or representative, who has acquired such Award in accordance with the terms of the Plan, as applicable.
2.21 “Incentive Stock Option” shall mean an Option which is designated by the Committee as an “incentive stock option” and conforms to the applicable provisions of Section 422 of the Code.
2.22 “Incumbent Director” shall mean, with respect to any period of time specified under the Plan for purposes of determining whether or not a Change of Control has occurred, the individuals who were members of the Board at the beginning of such period.
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2.23 “Independent Third Party” means an individual or entity independent of the Company having experience in providing investment banking or similar appraisal or valuation services and with expertise generally in the valuation of securities or other property for purposes of this Plan. The Committee may utilize one or more Independent Third Parties.
2.24 “Non-qualified Stock Option” shall mean an Option which is not designated by the Committee as an Incentive Stock Option.
2.25 “Option” shall mean an Award granted under Article VII of the Plan of an option to purchase Shares and shall include both Incentive Stock Options and Non-qualified Stock Options.
2.26 “Option Agreement” shall mean a written agreement between the Company and a Holder with respect to an Option.
2.27 “Performance Criteria” shall mean the criteria selected by the Committee for purposes of establishing the Performance Goal(s) for a Holder for a Performance Period.
2.28 “Performance Goals” shall mean, for a Performance Period, the written goal or goals established by the Committee for the Performance Period based upon the Performance Criteria, which may be related to the performance of the Holder, the Company or an Affiliate.
2.29 “Performance Period” shall mean one or more periods of time, which may be of varying and overlapping durations, selected by the Committee, over which the attainment of the Performance Goals shall be measured for purposes of determining a Holder’s right to, and the payment of, a Performance Stock Award or a Performance Unit Award.
2.30 “Performance Stock Award” or “Performance Stock” shall mean an Award granted under Article XII of the Plan under which, upon the satisfaction of predetermined Performance Goals, Shares are paid to the Holder.
2.31 “Performance Stock Agreement” shall mean a written agreement between the Company and a Holder with respect to a Performance Stock Award.
2.32 “Performance Unit Award” or “Performance Unit” shall mean an Award granted under Article XI of the Plan under which, upon the satisfaction of predetermined Performance Goals, a cash payment shall be made to the Holder, based on the number of Units awarded to the Holder.
2.33 “Performance Unit Agreement” shall mean a written agreement between the Company and a Holder with respect to a Performance Unit Award.
2.34 “Plan” shall mean this BlockchAIn Digital Infrastructure, Inc. Equity Incentive Plan, as amended from time to time, together with each of the Award Agreements utilized hereunder.
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2.35 “Restricted Stock Award” and “Restricted Stock” shall mean an Award granted under Article VIII of the Plan of Shares, the transferability of which by the Holder is subject to Restrictions.
2.36 “Restricted Stock Agreement” shall mean a written agreement between the Company and a Holder with respect to a Restricted Stock Award.
2.37 “Restricted Stock Unit Award” and “RSUs” shall refer to an Award granted under Article X of the Plan under which, upon the satisfaction of predetermined individual service-related vesting requirements, a payment in cash or Shares shall be made to the Holder, based on the number of Units awarded to the Holder.
2.38 “Restricted Stock Unit Agreement” shall mean a written agreement between the Company and a Holder with respect to a Restricted Stock Award.
2.39 “Restriction Period” shall mean the period of time for which Shares subject to a Restricted Stock Award shall be subject to Restrictions, as set forth in the applicable Restricted Stock Agreement.
2.40 “Restrictions” shall mean the forfeiture, transfer and/or other restrictions applicable to Shares awarded to an Employee, Director or Consultant under the Plan pursuant to a Restricted Stock Award and set forth in a Restricted Stock Agreement.
2.41 “Rule 16b-3” shall mean Rule 16b-3 promulgated by the Securities and Exchange Commission under the Exchange Act, as such may be amended from time to time, and any successor rule, regulation or statute fulfilling the same or a substantially similar function.
2.42 “Shares” or “Stock” shall mean the common stock of the Company, par value $0.0001 per share.
2.43 “Stock Appreciation Right” or “SAR” shall mean an Award granted under Article XIV of the Plan of a right, granted alone or in connection with a related Option, to receive a payment equal to the increase in value of a specified number of Shares between the date of Award and the date of exercise.
2.44 “Stock Appreciation Right Agreement” shall mean a written agreement between the Company and a Holder with respect to a Stock Appreciation Right.
2.45 “Tandem Stock Appreciation Right” shall mean a Stock Appreciation Right granted in connection with a related Option, the exercise of some or all of which results in termination of the entitlement to purchase some or all of the Shares under the related Option, all as set forth in Article XIV.
2.46 “Ten Percent Stockholder” shall mean an Employee who, at the time an Option is granted to him or her, owns shares possessing more than ten percent (10%) of the total combined voting power of all classes of shares of the Company or of any parent corporation or subsidiary corporation thereof (both as defined in Section 424 of the Code), within the meaning of Section 422(b)(6) of the Code.
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2.47 “Termination of Service” shall mean a termination of a Holder’s employment with, or status as a Director or Consultant of, the Company or an Affiliate, as applicable, for any reason, including, without limitation, Total and Permanent Disability or death, except as provided in Section 6.4. In the event Termination of Service shall constitute a payment event with respect to any Award subject to Code Section 409A, Termination of Service shall only be deemed to occur upon a “separation from service” as such term is defined under Code Section 409A and applicable authorities.
2.48 “Total and Permanent Disability” of an individual shall mean the inability of such individual 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 which has lasted or can be expected to last for a continuous period of not less than twelve (12) months, within the meaning of Section 22(e)(3) of the Code.
2.49 “Unit” shall mean a bookkeeping unit, which represents such monetary amount as shall be designated by the Committee in each Performance Unit Agreement, or represents one Share for purposes of each Restricted Stock Unit Award.
2.50 “Unrestricted Stock Award” shall mean an Award granted under Article IX of the Plan of Shares which are not subject to Restrictions.
2.51 “Unrestricted Stock Agreement” shall mean a written agreement between the Company and a Holder with respect to an Unrestricted Stock Award.
ARTICLE III
EFFECTIVE DATE OF PLAN
The Plan shall be effective as of the Effective Date, provided that the Plan is approved by the stockholders of the Company within twelve (12) months of such date.
ARTICLE IV
ADMINISTRATION
4.1 Composition of Committee. The Plan shall be administered by the Committee, which shall be appointed by the Board. If necessary, in the Board’s discretion, to comply with Rule 16b-3 under the Exchange Act or relevant securities exchange or inter-dealer quotation service, the Committee shall consist solely of two (2) or more Directors who are each (i) “non-employee directors” within the meaning of Rule 16b-3 and (ii) “independent” for purposes of any applicable listing requirements;. If a member of the Committee shall be eligible to receive an Award under the Plan, such Committee member shall have no authority hereunder with respect to his or her own Award.
4.2 Powers. Subject to the other provisions of the Plan, the Committee shall have the sole authority, in its discretion, to make all determinations under the Plan, including but not limited to (i) determining which Employees, Directors or Consultants shall receive an Award, (ii) the time or times when an Award shall be made (the date of grant of an Award shall be the date on which the Award is awarded by the Committee), (iii) what type of Award shall be granted, (iv) the term of an Award, (v) the date or dates on which an Award vests, (vi) the form of any payment to be made pursuant to an Award, (vii) the terms and conditions of an Award (including the forfeiture of the Award, and/or any financial gain, if the Holder of the Award violates any applicable restrictive covenant thereof), (viii) the Restrictions under a Restricted Stock Award, (ix) the number of Shares which may be issued under an Award, (x) Performance Goals applicable to any Award and certification of the achievement of such goals, and (xi) the waiver of any Restrictions or Performance Goals, subject in all cases to compliance with applicable laws. In making such determinations the Committee may take into account the nature of the services rendered by the respective Employees, Directors and Consultants, their present and potential contribution to the Company’s (or the Affiliate’s) success and such other factors as the Committee in its discretion may deem relevant.
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4.3 Additional Powers. The Committee shall have such additional powers as are delegated to it under the other provisions of the Plan. Subject to the express provisions of the Plan, the Committee is authorized to construe the Plan and the respective Award Agreements executed hereunder, to prescribe such rules and regulations relating to the Plan as it may deem advisable to carry out the intent of the Plan, to determine the terms, restrictions and provisions of each Award and to make all other determinations necessary or advisable for administering the Plan. The Committee may correct any defect or supply any omission or reconcile any inconsistency in any Award Agreement in the manner and to the extent the Committee shall deem necessary, appropriate or expedient to carry it into effect. The determinations of the Committee on the matters referred to in this Article IV shall be conclusive and binding on the Company and all Holders.
4.4 Committee Action. Subject to compliance with all applicable laws, action by the Committee shall require the consent of a majority of the members of the Committee, expressed either orally at a meeting of the Committee or in writing in the absence of a meeting. No member of the Committee shall have any liability for any good faith action, inaction or determination in connection with the Plan.
ARTICLE V
SHARES SUBJECT TO PLAN AND LIMITATIONS THEREON
5.1 Authorized Shares. The Committee may from time to time grant Awards to one or more Employees, Directors and/or Consultants determined by it to be eligible for participation in the Plan in accordance with the provisions of Article VI. Subject to any adjustments as necessary pursuant to Article XV, the aggregate number of shares of Stock reserved and available for grant and issuance under the Plan is 7,526,299. In addition, subject to any adjustments as necessary pursuant to Article XV, such aggregate number of shares of Stock will automatically increase on January 1 of each year for a period of ten years commencing on January 1, 2026 and ending on (and including) January 1, 2035, in 752,630; provided, however, that the Board may act prior to January 1^st^ of a given year to provide that the increase for such year will be a lesser number of shares of Stock. In the event that (i) any Option or other Award granted hereunder is exercised through the tendering of Stock (either actually or by attestation) or by the withholding of Stock by the Company, or (ii) tax or deduction liabilities arising from such Option or other Award are satisfied by the tendering of Stock (either actually or by attestation) or by the withholding of Stock by the Company, then in each such case the shares of Stock so tendered or withheld shall not be added back to the shares of Stock available for grant under the Plan. Only Shares underlying Awards under this Plan that are forfeited, canceled, or expire unexercised, shall be available again for issuance under the Plan.
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5.2 Types of Shares. The Shares to be issued pursuant to the grant or exercise of an Award may consist of authorized but unissued Shares, Shares purchased on the open market or Shares previously issued and outstanding and reacquired by the Company.
5.3 Aggregate Incentive Stock Option Limit. Notwithstanding anything to the contrary in Section 5.1, and subject to Article XV, the aggregate maximum number of shares of Stock that may be issued pursuant to the exercise of Incentive Stock Options is7,526,299 shares.
ARTICLE VI
ELIGIBILITY AND TERMINATION OF SERVICE
6.1 Eligibility. Awards made under the Plan may be granted solely to individuals who, at the time of grant, are Employees, Directors or Consultants. An Award may be granted on more than one occasion to the same Employee, Director or Consultant, and, subject to the limitations set forth in the Plan, such Award may include, a Non-qualified Stock Option, a Restricted Stock Award, a Restricted Stock Unit Award, an Unrestricted Stock Award, a Distribution Equivalent Right Award, a Performance Stock Award, a Performance Unit Award, a Stock Appreciation Right, a Tandem Stock Appreciation Right, or any combination thereof, and solely for Employees, an Incentive Stock Option.
6.2 Termination of Service. Except to the extent inconsistent with the terms of the applicable Award Agreement and/or the provisions of Section 6.3 or 6.4, the following terms and conditions shall apply with respect to a Holder’s Termination of Service with the Company or an Affiliate, as applicable:
(a) The Holder’s rights, if any, to exercise any then exercisable Options and/or Stock Appreciation Rights shall terminate:
(i) If such termination is for a reason other than the Holder’s Total and Permanent Disability or death, ninety (90) days after the date of such Termination of Service;
(ii) If such termination is on account of the Holder’s Total and Permanent Disability, one (1) year after the date of such Termination of Service; or
(iii) If such termination is on account of the Holder’s death, one (1) year after the date of the Holder’s death.
Upon such applicable date the Holder (and such Holder’s estate, designated beneficiary or other legal representative) shall forfeit any rights or interests in or with respect to any such Options and Stock Appreciation Rights. Notwithstanding the foregoing, the Committee, in its sole discretion, may provide for a different time period in the Award Agreement, or may extend the time period, following a Termination of Service, during which the Holder has the right to exercise any vested Non-qualified Stock Option or Stock Appreciation Right, which time period may not extend beyond the expiration date of the Award term.
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(b) In the event of a Holder’s Termination of Service for any reason prior to the actual or deemed satisfaction and/or lapse of the Restrictions, vesting requirements, terms and conditions applicable to a Restricted Stock Award and/or Restricted Stock Unit Award, such Restricted Stock and/or RSUs shall immediately be canceled, and the Holder (and such Holder’s estate, designated beneficiary or other legal representative) shall forfeit any rights or interests in and with respect to any such Restricted Stock and/or RSUs.
6.3 Special Termination Rule. Except to the extent inconsistent with the terms of the applicable Award Agreement, and notwithstanding anything to the contrary contained in this Article VI, if a Holder’s employment with, or status as a Director of, the Company or an Affiliate shall terminate, and if, within ninety (90) days of such termination, such Holder shall become a Consultant, such Holder’s rights with respect to any Award or portion thereof granted thereto prior to the date of such termination may be preserved, if and to the extent determined by the Committee in its sole discretion, as if such Holder had been a Consultant for the entire period during which such Award or portion thereof had been outstanding. Should the Committee effect such determination with respect to such Holder, for all purposes of the Plan, such Holder shall not be treated as if his or her employment or Director status had terminated until such time as his or her Consultant status shall terminate, in which case his or her Award, as it may have been reduced in connection with the Holder’s becoming a Consultant, shall be treated pursuant to the provisions of Section 6.2, provided, however, that any such Award which is intended to be an Incentive Stock Option shall, upon the Holder’s no longer being an Employee, automatically convert to a Non-qualified Stock Option. Should a Holder’s status as a Consultant terminate, and if, within ninety (90) days of such termination, such Holder shall become an Employee or a Director, such Holder’s rights with respect to any Award or portion thereof granted thereto prior to the date of such termination may be preserved, if and to the extent determined by the Committee in its sole discretion, as if such Holder had been an Employee or a Director, as applicable, for the entire period during which such Award or portion thereof had been outstanding, and, should the Committee effect such determination with respect to such Holder, for all purposes of the Plan, such Holder shall not be treated as if his or her Consultant status had terminated until such time as his or her employment with the Company or an Affiliate, or his or her Director status, as applicable, shall terminate, in which case his or her Award shall be treated pursuant to the provisions of Section 6.2.
6.4 Termination of Service for Cause. Notwithstanding anything in this Article VI or elsewhere in the Plan to the contrary, and unless a Holder’s Award Agreement specifically provides otherwise, in the event of a Holder’s Termination of Service for Cause, all of such Holder’s then outstanding Awards shall expire immediately and be forfeited in their entirety upon such Termination of Service.
ARTICLE VII
OPTIONS
7.1 Option Period. The term of each Option shall be as specified in the Option Agreement; provided, however, that except as set forth in Section 7.3, no Option shall be exercisable after the expiration of ten (10) years from the date of its grant.If the Option would expire at a time when the exercise of the Option would violate applicable securities laws, the expiration date applicable to the Option will be automatically extended to a date that is 30 calendar days following the date such exercise would no longer violate applicable securities laws (so long as such extension shall not violate Section 409A of the Code); provided, that in no event shall such expiration date be extended beyond the expiration of the option period.
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7.2 Limitations on Exercise of Option. An Option shall be exercisable in whole or in such installments and at such times as specified in the Option Agreement
7.3 Special Limitations on Incentive Stock Options. To the extent that the aggregate Fair Market Value (determined at the time the respective Incentive Stock Option is granted) of Shares with respect to which Incentive Stock Options are exercisable for the first time by an individual during any calendar year under all plans of the Company and any parent corporation or subsidiary corporation thereof (both as defined in Section 424 of the Code) which provide for the grant of Incentive Stock Options exceeds One Hundred Thousand Dollars ($100,000) (or such other individual limit as may be in effect under the Code on the date of grant), the portion of such Incentive Stock Options that exceeds such threshold shall be treated as Non-qualified Stock Options. The Committee shall determine, in accordance with applicable provisions of the Code, Treasury Regulations and other administrative pronouncements, which of a Holder’s Options, which were intended by the Committee to be Incentive Stock Options when granted to the Holder, will not constitute Incentive Stock Options because of such limitation, and shall notify the Holder of such determination as soon as practicable after such determination. No Incentive Stock Option shall be granted to an Employee if, at the time the Incentive Stock Option is granted, such Employee is a Ten Percent Stockholder, unless (i) at the time such Incentive Stock Option is granted the Option price is at least one hundred ten percent (110%) of the Fair Market Value of the Shares subject to the Incentive Stock Option, and (ii) such Incentive Stock Option by its terms is not exercisable after the expiration of five (5) years from the date of grant. No Incentive Stock Option shall be granted more than ten (10) years from the earlier of the Effective Date or date on which the Plan is approved by the Company’s stockholders. The designation by the Committee of an Option as an Incentive Stock Option shall not guarantee the Holder that the Option will satisfy the applicable requirements for “incentive stock option” status under Section 422 of the Code.
7.4 Option Agreement. Each Option shall be evidenced by an Option Agreement in such form and containing such provisions not inconsistent with the other provisions of the Plan as the Committee from time to time shall approve, including, but not limited to, provisions intended to qualify an Option as an Incentive Stock Option. An Option Agreement may provide for the payment of the Option price, in whole or in part, by the delivery of a number of Shares (plus cash if necessary) that have been owned by the Holder for at least six (6) months and having a Fair Market Value equal to such Option price, or such other forms or methods as the Committee may determine from time to time, in each case, subject to such rules and regulations as may be adopted by the Committee. Each Option Agreement shall, solely to the extent inconsistent with the provisions of Sections 6.2, 6.3, and 6.4, as applicable, specify the effect of Termination of Service on the exercisability of the Option. Moreover, without limiting the generality of the foregoing, a Non-qualified Stock Option Agreement may provide for a “cashless exercise” of the Option, in whole or in part, by (a) establishing procedures whereby the Holder, by a properly-executed written notice, directs (i) an immediate market sale or margin loan as to all or a part of Shares to which he is entitled to receive upon exercise of the Option, pursuant to an extension of credit by the Company to the Holder of the Option price, (ii) the delivery of the Shares from the Company directly to a brokerage firm and (iii) the delivery of the Option price from sale or margin loan proceeds from the brokerage firm directly to the Company, or (b) reducing the number of Shares to be issued upon exercise of the Option by the number of such Shares having an aggregate Fair Market Value equal to the Option price (or portion thereof to be so paid) as of the date of the Option’s exercise. An Option Agreement may also include provisions relating to: (i) subject to the provisions hereof, accelerated vesting of Options, including but not limited to, upon the occurrence of a Change of Control, (ii) tax matters (including provisions covering any applicable Employee wage withholding requirements) and (iii) any other matters not inconsistent with the terms and provisions of the Plan that the Committee shall in its sole discretion determine. The terms and conditions of the respective Option Agreements need not be identical.
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7.5 Option Price and Payment. The price at which a Share may be purchased upon exercise of an Option shall be determined by the Committee; provided, however, that such Option price (i) shall not be less than the Fair Market Value of a Share on the date such Option is granted (or 110% of Fair Market Value for an Incentive Stock Option held by Ten Percent Stockholder, as provided in Section 7.3), and (ii) shall be subject to adjustment as provided in Article XV. The Option or portion thereof may be exercised by delivery of an irrevocable notice of exercise to the Company. The Option price for the Option or portion thereof shall be paid in full in the manner prescribed by the Committee as set forth in the Plan and the applicable Option Agreement, which manner, with the consent of the Committee, may include the withholding of Shares otherwise issuable in connection with the exercise of the Option. Separate share certificates shall be issued by the Company for those Shares acquired pursuant to the exercise of an Incentive Stock Option and for those Shares acquired pursuant to the exercise of a Non-qualified Stock Option.
7.6 Stockholder Rights and Privileges. The Holder of an Option shall be entitled to all the privileges and rights of a stockholder of the Company solely with respect to such Shares as have been purchased under the Option and for which share certificates have been registered in the Holder’s name.
7.7 Options and Rights in Substitution for Stock or Options Granted by Other Corporations. Options may be granted under the Plan from time to time in substitution for stock options held by individuals employed by entities who become Employees, Directors or Consultants as a result of a merger or consolidation of the employing entity with the Company or any Affiliate, or the acquisition by the Company or an Affiliate of the assets of the employing entity, or the acquisition by the Company or an Affiliate of stock or shares of the employing entity with the result that such employing entity becomes an Affiliate. Any substitute Awards granted under this Plan shall not reduce the number of Shares authorized for grant under the Plan.
7.8 Prohibition Against Repricing. Except to the extent (i) approved in advance by holders of a majority of the shares of the Company entitled to vote generally in the election of directors, or (ii) as a result of any Change of Control or any adjustment as provided in Article XV, the Committee shall not have the power or authority to reduce, whether through amendment or otherwise, the exercise price under any outstanding Option or Stock Appreciation Right, or to grant any new Award or make any payment of cash in substitution for or upon the cancellation of Options and/or Stock Appreciation Rights previously granted.
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ARTICLE VIII
RESTRICTED STOCK AWARDS
8.1 Award. A Restricted Stock Award shall constitute an Award of Shares to the Holder as of the date of the Award which are subject to a “substantial risk of forfeiture” as defined under Section 83 of the Code during the specified Restriction Period. At the time a Restricted Stock Award is made, the Committee shall establish the Restriction Period applicable to such Award. Each Restricted Stock Award may have a different Restriction Period, in the discretion of the Committee. The Restriction Period applicable to a particular Restricted Stock Award shall not be changed except as permitted by Section 8.2.
8.2 Terms and Conditions. At the time any Award is made under this Article VIII, the Company and the Holder shall enter into a Restricted Stock Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Company shall cause the Shares to be issued in the name of Holder, either by book-entry registration or issuance of one or more stock certificates evidencing the Shares, which Shares or certificates shall be held by the Company or the stock transfer agent or brokerage service selected by the Company to provide services for the Plan. The Shares shall be restricted from transfer and shall be subject to an appropriate stop-transfer order, and if any certificate is issued, such certificate shall bear an appropriate legend referring to the restrictions applicable to the Shares. After any Shares vest, the Company shall deliver the vested Shares, in book-entry or certificated form in the Company’s sole discretion, registered in the name of Holder or his or her legal representatives, beneficiaries or heirs, as the case may be, less any Shares withheld to pay withholding taxes. If provided for under the Restricted Stock Agreement, the Holder shall have the right to vote Shares subject thereto and to enjoy all other stockholder rights, including the entitlement to receive dividends on the Shares during the Restriction Period. At the time of such Award, the Committee may, in its sole discretion, prescribe additional terms and conditions or restrictions relating to Restricted Stock Awards, including, but not limited to, rules pertaining to the effect of Termination of Service prior to expiration of the Restriction Period. Such additional terms, conditions or restrictions shall, to the extent inconsistent with the provisions of Sections 6.2, 6.3 and 6.4, as applicable, be set forth in a Restricted Stock Agreement made in conjunction with the Award. Such Restricted Stock Agreement may also include provisions relating to: (i) subject to the provisions hereof, accelerated vesting of Awards, including but not limited to accelerated vesting upon the occurrence of a Change of Control, (ii) tax matters (including provisions covering any applicable Employee wage withholding requirements) and (iii) any other matters not inconsistent with the terms and provisions of the Plan that the Committee shall in its sole discretion determine. The terms and conditions of the respective Restricted Stock Agreements need not be identical. All Shares delivered to a Holder as part of a Restricted Stock Award shall be delivered and reported by the Company or the Affiliate, as applicable, to the Holder at the time of vesting.
8.3 Payment for Restricted Stock. The Committee shall determine the amount and form of any payment from a Holder for Shares received pursuant to a Restricted Stock Award, if any, provided that in the absence of such a determination, a Holder shall not be required to make any payment for Shares received pursuant to a Restricted Stock Award, except to the extent otherwise required by law.
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ARTICLE IX
UNRESTRICTED STOCK AWARDS
9.1 Award. Shares may be awarded (or sold) to Employees, Directors or Consultants under the Plan which are not subject to Restrictions of any kind, in consideration for past services rendered thereby to the Company or an Affiliate or for other valid consideration.
9.2 Terms and Conditions. At the time any Award is made under this Article IX, the Company and the Holder shall enter into an Unrestricted Stock Agreement setting forth each of the matters contemplated hereby and such other matters as the Committee may determine to be appropriate.
9.3 Payment for Unrestricted Stock. The Committee shall determine the amount and form of any payment from a Holder for Shares received pursuant to an Unrestricted Stock Award, if any, provided that in the absence of such a determination, a Holder shall not be required to make any payment for Shares received pursuant to an Unrestricted Stock Award, except to the extent otherwise required by law.
ARTICLE X
RESTRICTED STOCK UNIT AWARDS
10.1 Award. A Restricted Stock Unit Award shall constitute a promise to grant Shares (or cash equal to the Fair Market Value of Shares) to the Holder at the end of a specified vesting schedule. At the time a Restricted Stock Unit Award is made, the Committee shall establish the vesting schedule applicable to such Award. Each Restricted Stock Unit Award may have a different vesting schedule, in the discretion of the Committee. A Restricted Stock Unit shall not constitute an equity interest in the Company and shall not entitle the Holder to voting rights, dividends or any other rights associated with ownership of Shares prior to the time the Holder shall receive a distribution of Shares pursuant to Section 10.3.
10.2 Terms and Conditions. At the time any Award is made under this Article X, the Company and the Holder shall enter into a Restricted Stock Unit Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Restricted Stock Unit Agreement shall set forth the individual service-based vesting requirement which the Holder would be required to satisfy before the Holder would become entitled to distribution pursuant to Section 10.3 and the number of Units awarded to the Holder. Such conditions shall be sufficient to constitute a “substantial risk of forfeiture” as such term is defined under Section 409A of the Code. At the time of such Award, the Committee may, in its sole discretion, prescribe additional terms and conditions or restrictions relating to Restricted Stock Unit Awards in the Restricted Stock Unit Agreement, including, but not limited to, rules pertaining to the effect of Termination of Service prior to expiration of the applicable vesting period. The terms and conditions of the respective Restricted Stock Unit Agreements need not be identical.
10.3 Distributions of Shares. The Holder of a Restricted Stock Unit shall be entitled to receive Shares or a cash payment equal to the Fair Market Value of a Share, or one Share, as determined in the sole discretion of the Committee and as set forth in the Restricted Stock Unit Agreement, for each Restricted Stock Unit subject to such Restricted Stock Unit Award, if the Holder satisfies the applicable vesting requirement. Such distribution shall be made no later than by the fifteenth (15^th^) day of the third (3^rd^) calendar month next following the end of the calendar year in which the Restricted Stock Unit first becomes vested (i.e., no longer subject to a “substantial risk of forfeiture”).
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ARTICLE XI
PERFORMANCE UNIT AWARDS
11.1 Award. A Performance Unit Award shall constitute an Award under which, upon the satisfaction of predetermined individual and/or Company (and/or Affiliate) Performance Goals based on selected Performance Criteria, a cash payment shall be made to the Holder, based on the number of Units awarded to the Holder. At the time a Performance Unit Award is made, the Committee shall establish the Performance Period and applicable Performance Goals. Each Performance Unit Award may have different Performance Goals, in the discretion of the Committee. A Performance Unit Award shall not constitute an equity interest in the Company and shall not entitle the Holder to voting rights, dividends or any other rights associated with ownership of Shares.
11.2 Terms and Conditions. At the time any Award is made under this Article XI, the Company and the Holder shall enter into a Performance Unit Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Committee shall set forth in the applicable Performance Unit Agreement the Performance Period, Performance Criteria and Performance Goals which the Holder and/or the Company would be required to satisfy before the Holder would become entitled to payment pursuant to Section 11.3, the number of Units awarded to the Holder and the dollar value or formula assigned to each such Unit. Such payment shall be subject to a “substantial risk of forfeiture” under Section 409A of the Code. At the time of such Award, the Committee may, in its sole discretion, prescribe additional terms and conditions or restrictions relating to Performance Unit Awards, including, but not limited to, rules pertaining to the effect of Termination of Service prior to expiration of the applicable performance period. The terms and conditions of the respective Performance Unit Agreements need not be identical.
11.3 Payments. The Holder of a Performance Unit shall be entitled to receive a cash payment equal to the dollar value assigned to such Unit under the applicable Performance Unit Agreement if the Holder and/or the Company satisfy (or partially satisfy, if applicable under the applicable Performance Unit Agreement) the Performance Goals set forth in such Performance Unit Agreement. All payments shall be made no later than by the fifteenth (15^th^) day of the third (3^rd^) calendar month next following the end of the Company’s fiscal year to which such performance goals and objectives relate.
ARTICLE XII
PERFORMANCE STOCK AWARDS
12.1 Award. A Performance Stock Award shall constitute a promise to grant Shares (or cash equal to the Fair Market Value of Shares) to the Holder at the end of a specified Performance Period subject to achievement of specified Performance Goals. At the time a Performance Stock Award is made, the Committee shall establish the Performance Period and applicable Performance Goals based on selected Performance Criteria. Each Performance Stock Award may have different Performance Goals, in the discretion of the Committee. A Performance Stock Award shall not constitute an equity interest in the Company and shall not entitle the Holder to voting rights, dividends or any other rights associated with ownership of Shares unless and until the Holder shall receive a distribution of Shares pursuant to Section 12.3.
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12.2 Terms and Conditions. At the time any Award is made under this Article XII, the Company and the Holder shall enter into a Performance Stock Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Committee shall set forth in the applicable Performance Stock Agreement the Performance Period, selected Performance Criteria and Performance Goals which the Holder and/or the Company would be required to satisfy before the Holder would become entitled to the receipt of Shares pursuant to such Holder’s Performance Stock Award and the number of Shares subject to such Performance Stock Award. Such distribution shall be subject to a “substantial risk of forfeiture” under Section 409A of the Code. If such Performance Goals are achieved, the distribution of Shares (or the payment of cash, as determined in the sole discretion of the Committee), shall be made in accordance with Section 12.3, below. At the time of such Award, the Committee may, in its sole discretion, prescribe additional terms and conditions or restrictions relating to Performance Stock Awards, including, but not limited to, rules pertaining to the effect of the Holder’s Termination of Service prior to the expiration of the applicable performance period. The terms and conditions of the respective Performance Stock Agreements need not be identical.
12.3 Distributions of Shares. The Holder of a Performance Stock Award shall be entitled to receive a cash payment equal to the Fair Market Value of a Share, or one Share, as determined in the sole discretion of the Committee, for each Performance Stock Award subject to such Performance Stock Agreement, if the Holder satisfies the applicable vesting requirement. Such distribution shall be made no later than by the fifteenth (15^th^) day of the third (3^rd^) calendar month next following the end of the Company’s fiscal year to which such performance goals and objectives relate.
ARTICLE XIII
DISTRIBUTION EQUIVALENT RIGHTS
13.1 Award. A Distribution Equivalent Right shall entitle the Holder to receive bookkeeping credits, cash payments and/or Share distributions equal in amount to the distributions that would have been made to the Holder had the Holder held a specified number of Shares during the specified period of the Award.
13.2 Terms and Conditions. At the time any Award is made under this Article XIII, the Company and the Holder shall enter into a Distribution Equivalent Rights Award Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Committee shall set forth in the applicable Distribution Equivalent Rights Award Agreement the terms and conditions, if any, including whether the Holder is to receive credits currently in cash, is to have such credits reinvested (at Fair Market Value determined as of the date of reinvestment) in additional Shares or is to be entitled to choose among such alternatives. Such receipt shall be subject to a “substantial risk of forfeiture” under Section 409A of the Code and, if such Award becomes vested, the distribution of such cash or Shares shall be made no later than by the fifteenth (15^th^) day of the third (3^rd^) calendar month next following the end of the Company’s fiscal year in which the Holder’s interest in the Award vests. Distribution Equivalent Rights Awards may be settled in cash or in Shares, as set forth in the applicable Distribution Equivalent Rights Award Agreement. A Distribution Equivalent Rights Award may, but need not be, awarded in tandem with another Award (other than an Option or a SAR), whereby, if so awarded, such Distribution Equivalent Rights Award shall expire, terminate or be forfeited by the Holder, as applicable, under the same conditions as under such other Award.
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13.3 Interest Equivalents. The Distribution Equivalent Rights Award Agreement for a Distribution Equivalent Rights Award may provide for the crediting of interest on a Distribution Rights Award to be settled in cash at a future date (but in no event later than by the fifteenth (15^th^) day of the third (3^rd^) calendar month next following the end of the Company’s fiscal year in which such interest is credited and vested), at a rate set forth in the applicable Distribution Equivalent Rights Award Agreement, on the amount of cash payable thereunder.
ARTICLE XIV
STOCK APPRECIATION RIGHTS
14.1 Award. A Stock Appreciation Right shall constitute a right, granted alone or in connection with a related Option, to receive a payment equal to the increase in value of a specified number of Shares between the date of Award and the date of exercise.
14.2 Terms and Conditions. At the time any Award is made under this Article XIV, the Company and the Holder shall enter into a Stock Appreciation Right Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Committee shall set forth in the applicable Stock Appreciation Right Agreement the terms and conditions of the Stock Appreciation Right, including (i) the base value (the “Base Value”) for the Stock Appreciation Right, which shall be not less than the Fair Market Value of a Share on the date of grant of the Stock Appreciation Right, (ii) the number of Shares subject to the Stock Appreciation Right, (iii) the period during which the Stock Appreciation Right may be exercised; provided, however, that no Stock Appreciation Right shall be exercisable after the expiration of ten (10) years from the date of its grant, and (iv) any other special rules and/or requirements which the Committee imposes upon the Stock Appreciation Right. Upon the exercise of some or all of the portion of a Stock Appreciation Right, the Holder shall receive a payment from the Company, in cash or in the form of Shares having an equivalent Fair Market Value or in a combination of both, as determined in the sole discretion of the Committee, equal to the product of:
(a) The excess of (i) the Fair Market Value of a Share on the date of exercise, over (ii) the Base Value, multiplied by,
(b) The number of Shares with respect to which the Stock Appreciation Right is exercised.
14.3 Tandem Stock Appreciation Rights. If the Committee grants a Stock Appreciation Right which is intended to be a Tandem Stock Appreciation Right, the Tandem Stock Appreciation Right shall be granted at the same time as the related Option, and the following special rules shall apply:
(a) The Base Value shall be equal to or greater than the per Share exercise price under the related Option;
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(b) The Tandem Stock Appreciation Right may be exercised for all or part of the Shares which are subject to the related Option, but solely upon the surrender by the Holder of the Holder’s right to exercise the equivalent portion of the related Option (and when a Share is purchased under the related Option, an equivalent portion of the related Tandem Stock Appreciation Right shall be canceled);
(c) The Tandem Stock Appreciation Right shall expire no later than the date of the expiration of the related Option;
(d) The value of the payment with respect to the Tandem Stock Appreciation Right may be no more than one hundred percent (100%) of the difference between the per Share exercise price under the related Option and the Fair Market Value of the Shares subject to the related Option at the time the Tandem Stock Appreciation Right is exercised, multiplied by the number of the Shares with respect to which the Tandem Stock Appreciation Right is exercised; and
(e) The Tandem Stock Appreciation Right may be exercised solely when the Fair Market Value of the Shares subject to the related Option exceeds the per Share exercise price under the related Option.
ARTICLE XV
RECAPITALIZATION OR REORGANIZATION
15.1 Adjustments to Shares. The shares with respect to which Awards may be granted under the Plan are Shares as presently constituted; provided, however, that if, and whenever, prior to the expiration or distribution to the Holder of Shares underlying an Award theretofore granted, the Company shall effect a subdivision or consolidation of the Shares or the payment of an Share dividend on Shares without receipt of consideration by the Company, the number of Shares with respect to which such Award may thereafter be exercised or satisfied, as applicable, (i) in the event of an increase in the number of outstanding Shares, shall be proportionately increased, and the purchase price per Share shall be proportionately reduced, and (ii) in the event of a reduction in the number of outstanding Shares, shall be proportionately reduced, and the purchase price per Share shall be proportionately increased. Notwithstanding the foregoing or any other provision of this Article XV, any adjustment made with respect to an Award (x) which is an Incentive Stock Option, shall comply with the requirements of Section 424(a) of the Code, and in no event shall any adjustment be made which would render any Incentive Stock Option granted under the Plan to be other than an “incentive stock option” for purposes of Section 422 of the Code, and (y) which is a Non-qualified Stock Option, shall comply with the requirements of Section 409A of the Code, and in no event shall any adjustment be made which would render any Non-qualified Stock Option granted under the Plan to become subject to Section 409A of the Code.
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15.2 Recapitalization. If the Company recapitalizes or otherwise changes its capital structure, thereafter upon any exercise or satisfaction, as applicable, of a previously granted Award, the Holder shall be entitled to receive (or entitled to purchase, if applicable) under such Award, in lieu of the number of Shares then covered by such Award, the number and class of shares and securities to which the Holder would have been entitled pursuant to the terms of the recapitalization if, immediately prior to such recapitalization, the Holder had been the holder of record of the number of Shares then covered by such Award.
15.3 Other Events. In the event of changes to the outstanding Shares by reason of an extraordinary cash dividend, reorganization, merger, consolidation, combination, split-up, spin-off, exchange or other relevant change in capitalization occurring after the date of the grant of any Award and not otherwise provided for under this Article XV, any outstanding Awards and any Award Agreements evidencing such Awards shall be adjusted by the Board in its discretion in such manner as the Board shall deem equitable or appropriate taking into consideration the applicable accounting and tax consequences, as to the number and price of Shares or other consideration subject to such Awards. In the event of any adjustment pursuant to Sections 15.1, 15.2 or this Section 15.3, the aggregate number of Shares available under the Plan pursuant to Section 5.1 may be appropriately adjusted by the Board, the determination of which shall be conclusive. In addition, the Committee may make provision for a cash payment to a Holder or a person who has an outstanding Award.
15.4 Change of Control. The Committee may, in its sole discretion, at the time an Award is made or at any time prior to, coincident with or after the time of a Change of Control, cause any Award either (i) to be canceled in consideration of a payment in cash or other consideration in amount per share equal to the excess, if any, of the price or implied price per Share in the Change of Control over the per Share exercise, base or purchase price of such Award, which may be paid immediately or over the vesting schedule of the Award; (ii) to be assumed, or new rights substituted therefore, by the surviving corporation or a parent or subsidiary of such surviving corporation following such Change of Control; (iii) accelerate any time periods, or waive any other conditions, relating to the vesting, exercise, payment or distribution of an Award so that any Award to a Holder whose employment has been terminated as a result of a Change of Control may be vested, exercised, paid or distributed in full on or before a date fixed by the Committee; (iv) to be purchased from a Holder whose employment has been terminated as a result of a Change of Control, upon the Holder’s request, for an amount of cash equal to the amount that could have been obtained upon the exercise, payment or distribution of such rights had such Award been currently exercisable or payable; or (v) terminate any then outstanding Award or make any other adjustment to the Awards then outstanding as the Committee deems necessary or appropriate to reflect such transaction or change. The number of Shares subject to any Award shall be rounded to the nearest whole number.
15.5 Powers Not Affected. The existence of the Plan and the Awards granted hereunder shall not affect in any way the right or power of the Board or of the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change of the Company’s capital structure or business, any merger or consolidation of the Company, any issue of debt or equity securities ahead of or affecting Shares or the rights thereof, the dissolution or liquidation of the Company or any sale, lease, exchange or other disposition of all or any part of its assets or business or any other corporate act or proceeding.
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15.6 No Adjustment for Certain Awards. Except as hereinabove expressly provided, the issuance by the Company of shares of any class or securities convertible into shares of any class, for cash, property, labor or services, upon direct sale, upon the exercise of rights or warrants to subscribe therefor or upon conversion of shares or obligations of the Company convertible into such shares or other securities, and in any case whether or not for fair value, shall not affect previously granted Awards, and no adjustment by reason thereof shall be made with respect to the number of Shares subject to Awards theretofore granted or the purchase price per Share, if applicable.
ARTICLE XVI
AMENDMENT AND TERMINATION OF PLAN
The Plan shall continue in effect, unless sooner terminated pursuant to this Article XVI, until the tenth (10^th^) anniversary of the date on which it is adopted by the Board (except as to Awards outstanding on that date). The Board may amend, alter, suspend, discontinue, or terminate the Plan or any portion thereof at any time; provided that (i) no amendment to Section 7.8 (repricing prohibitions) shall be made without stockholder approval and (ii) no such amendment, alteration, suspension, discontinuation or termination shall be made without stockholder approval if such approval is necessary to comply with any tax or regulatory requirement applicable to the Plan (including, without limitation, as necessary to comply with any rules or requirements of any securities exchange or inter-dealer quotation system on which the Stock may be listed or quoted); provided, further, that any such amendment, alteration, suspension, discontinuance or termination that would materially and adversely affect the rights of any Holder or beneficiary of any Award theretofore granted shall not to that extent be effective without the consent of the affected Holder or beneficiary (unless such change is required in order to exempt the Plan or any Award from Section 409A of the Code).
ARTICLE XVII
MISCELLANEOUS
17.1 No Right to Award. Neither the adoption of the Plan by the Company nor any action of the Board or the Committee shall be deemed to give an Employee, Director or Consultant any right to an Award except as may be evidenced by an Award Agreement duly executed on behalf of the Company, and then solely to the extent and on the terms and conditions expressly set forth therein.
17.2 No Rights Conferred. Nothing contained in the Plan shall (i) confer upon any Employee any right with respect to continuation of employment with the Company or any Affiliate, (ii) interfere in any way with any right of the Company or any Affiliate to terminate the employment of an Employee at any time, (iii) confer upon any Director any right with respect to continuation of such Director’s membership on the Board, (iv) interfere in any way with any right of the Company or an Affiliate to terminate a Director’s membership on the Board at any time, (v) confer upon any Consultant any right with respect to continuation of his or her consulting engagement with the Company or any Affiliate, or (vi) interfere in any way with any right of the Company or an Affiliate to terminate a Consultant’s consulting engagement with the Company or an Affiliate at any time.
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17.3 Other Laws; No Fractional Shares; Withholding. The Company shall not be obligated by virtue of any provision of the Plan to recognize the exercise of any Award or to otherwise sell or issue Shares in violation of any laws, rules or regulations, and any postponement of the exercise or settlement of any Award under this provision shall not extend the term of such Award. Neither the Company nor its directors or officers shall have any obligation or liability to a Holder with respect to any Award (or Shares issuable thereunder) (i) that shall lapse because of such postponement, or (ii) for any failure to comply with the requirements of any applicable law, rules or regulations, including but not limited to any failure to comply with the requirements of Section 409A of this Code. No fractional Shares shall be delivered, nor shall any cash in lieu of fractional Shares be paid. The Company shall have the right to deduct in cash (whether under this Plan or otherwise) in connection with all Awards any taxes required by law to be withheld and to require any payments required to enable it to satisfy its withholding obligations. In the case of any Award satisfied in the form of Shares, no Shares shall be issued unless and until arrangements satisfactory to the Company shall have been made to satisfy any tax withholding obligations applicable with respect to such Award. Subject to such terms and conditions as the Committee may impose, the Company shall have the right to retain, or the Committee may, subject to such terms and conditions as it may establish from time to time, permit Holders to elect to tender, Shares (including Shares issuable in respect of an Award) to satisfy, in whole or in part, the amount required to be withheld.
17.4 No Restriction on Corporate Action. Nothing contained in the Plan shall be construed to prevent the Company or any Affiliate from taking any corporate action which is deemed by the Company or such Affiliate to be appropriate or in its best interest, whether or not such action would have an adverse effect on the Plan or any Award made under the Plan. No Employee, Director, Consultant, beneficiary or other person shall have any claim against the Company or any Affiliate as a result of any such action.
17.5 Restrictions on Transfer. No Award under the Plan or any Award Agreement and no rights or interests herein or therein, shall or may be assigned, transferred, sold, exchanged, encumbered, pledged or otherwise hypothecated or disposed of by a Holder except (i) by will or by the laws of descent and distribution, or (ii) where permitted under applicable tax rules, by gift to any Family Member of the Holder, subject to compliance with applicable laws. An Award may be exercisable during the lifetime of the Holder only by such Holder or by the Holder’s guardian or legal representative unless it has been transferred by gift to a Family Member of the Holder, in which case it shall be exercisable solely by such transferee. Notwithstanding any such transfer, the Holder shall continue to be subject to the withholding requirements provided for under Section 17.3 hereof.
17.6 Beneficiary Designations. Each Holder may, from time to time, name a beneficiary or beneficiaries (who may be contingent or successive beneficiaries) for purposes of receiving any amount which is payable in connection with an Award under the Plan upon or subsequent to the Holder’s death. Each such beneficiary designation shall serve to revoke all prior beneficiary designations, be in a form prescribed by the Company and be effective solely when filed by the Holder in writing with the Company during the Holder’s lifetime. In the absence of any such written beneficiary designation, for purposes of the Plan, a Holder’s beneficiary shall be the Holder’s estate.
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17.7 Rule 16b-3. It is intended that the Plan and any Award made to a person subject to Section 16 of the Exchange Act shall meet all of the requirements of Rule 16b-3. If any provision of the Plan or of any such Award would disqualify the Plan or such Award under, or would otherwise not comply with the requirements of, Rule 16b-3, such provision or Award shall be construed or deemed to have been amended as necessary to conform to the requirements of Rule 16b-3.
17.8 Clawback Policy. All Awards (including on a retroactive basis) granted under the Plan are subject to the terms of any Company forfeiture, incentive compensation recoupment, clawback or similar policy as it may be in effect from time to time, as well as any similar provisions of applicable laws, as well as any other policy of the Company that may apply to the Awards, such as anti-hedging or pledging policies, as they may be in effect from time to time. In particular, these policies and/or provisions shall include, without limitation, (i) any Company policy established to comply with applicable laws (including, without limitation, Section 304 of the Sarbanes-Oxley Act and Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act), and/or (ii) the rules and regulations of the applicable securities exchange or inter-dealer quotation system on which the shares of Stock or other securities are listed or quoted, and these requirements shall be deemed incorporated by reference into all outstanding Award Agreements.
17.9 No Obligation to Notify or Minimize Taxes. The Company shall have no duty or obligation to any Holder to advise such Holder as to the time or manner of exercising any Award. Furthermore, the Company shall have no duty or obligation to warn or otherwise advise such Holder of a pending termination or expiration of an Award or a possible period in which the Award may not be exercised. The Company has no duty or obligation to minimize the tax consequences of an Award to any person.
17.10 Section 409A of the Code.
(a) Notwithstanding any provision of this Plan to the contrary, all Awards made under this Plan are intended to be exempt from or, in the alternative, comply with Section 409A of the Code and the authoritative guidance thereunder, including the exceptions for stock rights and short-term deferrals. The Plan shall be construed and interpreted in accordance with such intent. Each payment under an Award shall be treated as a separate payment for purposes of Section 409A of the Code.
(b) If a Holder is a “specified employee” (as such term is defined for purposes of Section 409A of the Code) at the time of his termination of service, no amount that is nonqualified deferred compensation subject to Section 409A of the Code and that becomes payable by reason of such termination of service shall be paid to the Holder (or in the event of the Holder’s death, the Holder’s representative or estate) before the earlier of (x) the first business day after the date that is six months following the date of the Holder’s termination of service, and (y) within 30 days following the date of the Holder’s death. For purposes of Section 409A of the Code, a termination of service shall be deemed to occur only if it is a “separation from service” within the meaning of Section 409A of the Code, and references in the Plan and any Award Agreement to “termination of service” or similar terms shall mean a “separation from service.” If any Award is or becomes subject to Section 409A of the Code, unless the applicable Award Agreement provides otherwise, such Award shall be payable upon the Holder’s “separation from service” within the meaning of Section 409A of the Code. If any Award is or becomes subject to Section 409A of the Code and if payment of such Award would be accelerated or otherwise triggered under a Change of Control, then the definition of Change of Control shall be deemed modified, only to the extent necessary to avoid the imposition of any additional tax under Section 409A of the Code, to mean a “change in control event” as such term is defined for purposes of Section 409A of the Code.
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(c) Any adjustments made pursuant to Article XV to Awards that are subject to Section 409A of the Code shall be made in compliance with the requirements of Section 409A of the Code, and any adjustments made pursuant to Article XV to Awards that are not subject to Section 409A of the Code shall be made in such a manner as to ensure that after such adjustment, the Awards either (x) continue not to be subject to Section 409A of the Code or (y) comply with the requirements of Section 409A of the Code.
17.11 Indemnification. Each person who is or shall have been a member of the Committee or of the Board shall be indemnified and held harmless by the Company against and from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred thereby in connection with or resulting from any claim, action, suit, or proceeding to which such person may be made a party or may be involved by reason of any action taken or failure to act under the Plan and against and from any and all amounts paid thereby in settlement thereof, with the Company’s approval, or paid thereby in satisfaction of any judgment in any such action, suit, or proceeding against such person; provided, however, that such person shall give the Company an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive and shall be independent of any other rights of indemnification to which such persons may be entitled under the Company’s Articles of Incorporation or By-laws, by contract, as a matter of law, or otherwise.
17.12 Other Benefit Plans. No Award, payment or amount received hereunder shall be taken into account in computing an Employee’s salary or compensation for the purposes of determining any benefits under any pension, retirement, life insurance or other benefit plan of the Company or any Affiliate, unless such other plan specifically provides for the inclusion of such Award, payment or amount received. Nothing in the Plan shall be construed to limit the right of the Company to establish other plans or to pay compensation to its employees, in cash or property, in a manner which is not expressly authorized under the Plan.
17.13 Limits of Liability. Any liability of the Company with respect to an Award shall be based solely upon the contractual obligations created under the Plan and the Award Agreement. None of the Company, any member of the Board nor any member of the Committee shall have any liability to any party for any action taken or not taken, in good faith, in connection with or under the Plan.
17.14 Governing Law. Except as otherwise provided herein, the Plan shall be governed by and construed in accordance with the internal laws of the State of Delaware applicable to contracts made and performed wholly within the State of Delaware, without giving effect to the conflict of law provisions thereof.
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17.15 Subplans. The Board may from time to time establish one or more sub-plans under the Plan for purposes of satisfying applicable blue sky, securities or tax laws of various jurisdictions. The Board shall establish such sub-plans by adopting supplements to the Plan setting forth (i) such limitations on the Committee’s discretion under the Plan as the Board deems necessary or desirable and (ii) such additional terms and conditions not otherwise inconsistent with the Plan as the Board shall deem necessary or desirable. All supplements adopted by the Board shall be deemed to be part of the Plan, but each supplement shall apply only to Holders within the affected jurisdiction and the Company shall not be required to provide copies of any supplement to Holders in any jurisdiction that is not affected.
17.16 Notification of Election Under Section 83(b) of the Code. If any Holder, in connection with the acquisition of Stock under an Award, makes the election permitted under Section 83(b) of the Code, if applicable, the Holder shall notify the Company of the election within ten days of filing notice of the election with the Internal Revenue Service.
17.17 Paperless Administration. If 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 Holder may be permitted through the use of such an automated system.
17.18 Broker-Assisted Sales. In the event of a broker-assisted sale of Stock in connection with the payment of amounts owed by a Holder under or with respect to the Plan or Awards: (a) any Stock to be sold through the broker-assisted sale will be sold on the day the payment first becomes due, or as soon thereafter as practicable; (b) the Stock may be sold as part of a block trade with other Holders in the Plan in which all participants receive an average price; (c) the applicable Holder will be responsible for all broker’s fees and other costs of sale, and by accepting an Award, each Holder agrees to indemnify and hold the Company harmless from any losses, costs, damages, or expenses relating to any such sale; (d) to the extent the Company or its designee receives proceeds of the sale that exceed the amount owed, the Company will pay the excess in cash to the applicable Holder as soon as reasonably practicable; (e) the Company and its designees are under no obligation to arrange for the sale at any particular price; and (f) if the proceeds of the sale are insufficient to satisfy the Holder’s applicable obligation, the Holder may be required to pay immediately upon demand to the Company or its designee an amount in cash sufficient to satisfy any remaining portion of the Holder’s obligation.
17.19 Data Privacy. As a condition for receiving any Award, each Holder explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of personal data as described in this Section 17.19 by and among the Company and its subsidiaries and Affiliates exclusively for implementing, administering and managing the Holder’s participation in the Plan. The Company and its subsidiaries and Affiliates may hold certain personal information about a Holder, including the Holder’s name, address and telephone number; birthdate; social security, insurance number or other identification number; salary; nationality; job title(s); any Stock held in the Company or its subsidiaries and Affiliates; and Award details, to implement, manage and administer the Plan and Awards (the “Data”). The Company and its subsidiaries and Affiliates may transfer the Data amongst themselves as necessary to implement, administer and manage a Holder’s participation in the Plan, and the Company and its subsidiaries and Affiliates may transfer the Data to third parties assisting the Company with Plan implementation, administration and management. These recipients may be located in the Holder’s country, or elsewhere, and the Holder’s country may have different data privacy laws and protections than the recipients’ country. By accepting an Award, each Holder authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, to implement, administer and manage the Holder’s participation in the Plan, including any required Data transfer to a broker or other third party with whom the Company or the Holder may elect to deposit any Stock. The Data related to a Holder will be held only as long as necessary to implement, administer, and manage the Holder’s participation in the Plan. A Holder may, at any time, view the Data that the Company holds regarding the Holder, request additional information about the storage and processing of the Data regarding the Holder, recommend any necessary corrections to the Data regarding the Holder or refuse or withdraw the consents in this Section 17.19 in writing, without cost, by contacting the local human resources representative. The Company may cancel Holder’s ability to participate in the Plan and, in the Committee’s discretion, the Holder may forfeit any outstanding Awards if the Holder refuses or withdraws the consents in this Section 17.19.
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17.20 Severability of Provisions. If any provision of the Plan is held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of the Plan, and the Plan shall be construed and enforced as if such invalid or unenforceable provision had not been included in the Plan.
17.21 No Funding. The Plan shall be unfunded. The Company shall not be required to establish any special or separate fund or to make any other segregation of funds or assets to ensure the payment of any Award. Prior to receipt of Shares or a cash distribution pursuant to the terms of an Award, such Award shall represent an unfunded unsecured contractual obligation of the Company and the Holder shall have no greater claim to the Shares underlying such Award or any other assets of the Company or Affiliate than any other unsecured general creditor.
17.22 Headings. Headings used throughout the Plan are for convenience only and shall not be given legal significance.
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Exhibit 14.1
BLOCKCHAIN DIGITAL INFRASTRUCTURE, INC.
CODE OF BUSINESS CONDUCT AND ETHICS
TABLE OF CONTENTS
| Page | |||
|---|---|---|---|
| Introduction | 1 | ||
| Scope of Code | 1 | ||
| 1. | Compliance with Laws, Rules, Regulations,<br> and Other Company Policies | 2 | |
| 2. | Compliance with Antitrust and Competition Laws | 2 | |
| 3. | Compliance with Anti-Corruption Laws | 3 | |
| 4. | Entertainment, Gifts, Favors, and Gratuities | 4 | |
| 5. | Political Contributions | 4 | |
| 6. | Compliance with Insider Trading Laws | 4 | |
| 7. | Fair Dealing | 5 | |
| 8. | Conflicts of Interest | 6 | |
| 9. | Outside Activities, Corporate Opportunities,<br> and Fiduciary Duties | 7 | |
| 10. | Illegal Discrimination and Sexual and Other<br> Verbal or Physical Harassment | 8 | |
| 11. | Record-Keeping | 8 | |
| 12. | Confidentiality | 9 | |
| 13. | Protection and Proper Use of Company Assets | 10 | |
| 14. | Cybersecurity | 10 |
i
| 15. | Corporate Disclosures | 10 | |
|---|---|---|---|
| 16. | Corporate Communications, Public Relations, and Investor Relations | 11 | |
| 17. | Reporting Illegal or Unethical Behavior or Violations of this Code | 11 | |
| 18. | Enforcement | 12 | |
| 19. | Waivers and Amendments of this Code | 12 | |
| 20. | No Rights Created | 12 | |
| SCHEDULE A | 13 | ||
| SCHEDULE B | 22 | ||
| SCHEDULE C | 25 |
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BLOCKCHAIN DIGITAL INFRASTRUCTURE, INC.
CODE OF BUSINESS CONDUCT AND ETHICS
Introduction
This Code of Business Conduct and Ethics (the “Code”) of Blockchain Digital Infrastructure, Inc. (the “Company,” “Blockchain,” “we,” or “us”) covers a wide range of business practices and procedures that govern the manner in which we conduct our daily business with our shareholders, customers, vendors, and each other. Blockchain’s continued growth, long-term success, and competitive excellence depend on our ability to protect and fortify the reputation we have diligently worked to cultivate in the industries and communities in which we operate—a reputation that demonstrates our unwavering commitment to honesty, integrity, fairness, and respect. This Code aims to expose areas of ethical risk to our management and board of directors (the “Board”), provide our employees, officers, and directors with guidance on identifying and resolving ethical issues, establish mechanisms for reporting unethical conduct to the Company, and foster a culture of honesty and accountability within the Company and on behalf of the Company in business relationships with our customers, shareholders, business partners, and competitors.
This Code is broad in scope and not meant to address every conceivable problem or scenario that might prompt an officer, director, or employee to seek the Company’s guidance, ask questions, or raise concerns about conducting business legally and ethically. This Code sets out basic principles to guide the Company’s directors, officers, and employees. All of the Company’s directors, officers, and employees should conduct themselves in accordance with this Code and seek to avoid even the appearance of improper behavior in any way relating to the Company. In appropriate circumstances, this Code should also be provided to and followed by the Company’s agents and representatives, including consultants.
Any director or officer who has any questions about this Code should consult with the Company’s Chief Executive Officer (the “CEO”) or the person designated as the Company’s Compliance Officer (being, as of the adoption of this Code the Company’s Chief Financial Officer) (the “Compliance Officer”), as appropriate in the circumstances. Any employee who has questions about the Code or a situation involving the Code should ask the employee’s supervisor or, if the employee prefers, the CEO or Compliance Officer.
Scope of Code
This Code is intended to provide a framework for conducting business in accordance with the legal and ethical principles described above, to deter wrongdoing, and to promote the following:
| ● | honest<br> and ethical conduct, including the ethical handling of actual or apparent conflicts of interest<br> between personal and professional relationships; |
|---|---|
| ● | full,<br> fair, accurate, timely, and understandable disclosure in reports and documents the Company<br> files with, or submits to, the Securities and Exchange Commission (the “SEC”),<br> and in other communications made by the Company; |
| --- | --- |
| ● | compliance<br> with applicable governmental laws, rules, and regulations and the rules and regulations of<br> the NYSE American LLC; |
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| ● | prompt<br> internal reporting of violations of this Code to the appropriate person or persons identified<br> in this Code; |
| --- | --- |
| ● | accountability<br> for adherence to this Code; and |
| --- | --- |
| ● | adherence<br> to a high standard of business ethics. |
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1. Compliance with Laws, Rules, Regulations, and Other Company Policies
Obeying the law, both in letter and in spirit, is the foundation on which the Company’s ethical standards are built. All directors, officers, and employees should respect and obey all laws, rules, and regulations applicable to the Company’s business and operations. Although directors, officers, and employees are not expected to know all of the details of these laws, rules, and regulations, it is important to know enough to determine when to seek advice from supervisors, managers, other officers, or other appropriate Company personnel.
The Company also maintains policies that expand upon certain matters discussed in this Code, including insider trading, related-party transactions, whistleblower matters, and executive compensation, all of which supplement what is set forth in this Code and are readily available to Company personnel upon request to the Compliance Officer.
If you become aware of the violation of any law, rule, or regulation by the Company, whether by its officers, employees, directors, or any third party doing business on behalf of the Company, it is your responsibility to promptly report the matter to your supervisor or to the CEO. While it is the Company’s desire to address matters internally, nothing in this Code should discourage you from reporting any illegal activity, including any violation of the securities laws, antitrust laws, environmental laws, or any other federal, state, or foreign law, rule, or regulation, to the appropriate regulatory authority. Neither the Company nor any of its directors, officers, or employees shall discharge, demote, suspend, threaten, harass, discriminate, or retaliate in any other manner against an employee who reports any such violation, unless it is determined that the employee’s report was made with knowledge that it was false. This Code should not be construed to prohibit you from testifying, participating, or otherwise assisting in any state or federal administrative, judicial, or legislative proceeding or investigation.
2. Compliance with Antitrust and Competition Laws
(a) Purpose. Antitrust laws promote fairness, economic freedom, and competition in the marketplace by prohibiting anti-competitive conduct and unfair, restrictive, or collusive practices. A primary focus of antitrust law is on the conduct of and agreements between competitors, such as agreements to fix pricing, make collusive bids, restrain trade, monopolize industries, divide customers, territories, or markets, refuse to do business, or set end-user prices with distributors. While this brief commentary is not intended to provide employees with all answers to antitrust and competition questions, it is designed to help employees recognize situations that have antitrust and competition implications so that they will know when to seek advice.
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(b) Prohibited Activities. The following practices are prohibited by antitrust and competition laws:
| ● | making<br>any understanding, plan, or agreement with a competitor about prices, price changes, bids, discounts, promotions, rebates, terms and<br>conditions of sales, profits, or any other matter relating to or affecting price. |
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| ● | discussing,<br>planning, or making agreements with competitors to allocate customers, divide territories, or control or limit sales; |
| --- | --- |
| ● | discussing,<br>planning, or making agreements with competitors to refrain from doing business with a particular company or to limit doing business with<br>a particular company; or |
| --- | --- |
| ● | discussing<br>or exchanging information with a competitor about any of the foregoing matters. |
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3. Compliance with Anti-Corruption Laws
(a) Purpose. The Company expects all employees, officers, and directors to conduct business ethically and lawfully, which requires compliance with all local rules, regulations, anti-bribery laws, and anti-corruption laws.
(b) Payments to Domestic Government Officials. Employees, officers, and directors are prohibited from paying, gifting, transferring, providing, or promising or offering to provide anything of value—including money, tickets, or access to events—to any government official, which includes any officer, employee, or other person acting for or on behalf of a government or a government unit, for the purpose of influencing the official’s acts or decisions, inducing the official to use personal influence to affect any governmental act or decision, or obtaining any kind of preferential treatment or direct benefit for the Company. Any gifts or proposed gifts that an employee, officer, or director is not certain are appropriate should be discussed with such individual’s supervisor or the Company’s Compliance Officer, as applicable or appropriate.
(c) Payments to Foreign Officials Under the FCPA. Many countries have laws that prohibit the payment of bribes to domestic government officials. Through the U.S. Foreign Corrupt Practices Act (the “FCPA”), the United States also prohibits the payment of bribes to foreign government officials, which includes any employee, agent, or other person acting for or on behalf of a foreign government. Under the FCPA, the Company is prohibited from directly or indirectly offering, paying, promising to pay, or authorizing the payment of money or anything of value to any foreign official for the purpose of influencing the foreign official in his or her official capacity, inducing the foreign official to act or fail to act in violation of his or her duties, or securing any improper advantage from the foreign official to assist the Company in obtaining or retaining business for or with, or directing business to, any person. The FCPA also prohibits using intermediaries (for example, foreign affiliates, agents, or consultants) to channel payments to government officials for any of the same purposes. The FCPA applies to the actions of the Company and of its employees, officers, and directors as well as certain third parties that act on the Company’s behalf.
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Entertainment, Gifts, Favors, and Gratuities
(a) Gifts. The purpose of business entertainment and gifts in a commercial setting is to create good will and sound working relationships, not to gain unfair advantage with customers. No gift or entertainment should ever be offered, given, provided, or accepted by a director, officer, or employee, any family member of a director, officer, or employee, or any agent relating to the individual’s position with the Company unless it: (i) is not a cash gift; (ii) is consistent with customary business practices; (iii) is not excessive in value; (iv) cannot be construed as a bribe or payoff; and (v) does not violate any laws or regulations. Any gifts or proposed gifts that an employee, officer, or director is not certain are appropriate should be discussed with such individual’s supervisor or the Company’s Compliance Officer, as applicable or appropriate.
(b) Payments Requiring Pre-Approval. Regardless of intention, local practices, or competitive pressures, the Company must avoid even the appearance of attempting to bribe any individual, which is particularly important when dealing with domestic or foreign government officials, employees of government-owned or government-controlled enterprises, or officials of political parties. Accordingly, employees, officers, and directors must obtain the Compliance Officer’s written pre-approval before offering, paying, providing, or promising to pay or provide anything of value—including complimentary or discounted tickets, event access, or money—to any government or political official, whether domestic or foreign. When in doubt, seek approval from the Compliance Officer anytime you are considering providing something of value to a government or political official.
5. Political Contributions
The Company will not contribute directly or indirectly to political parties or candidates for office unless approved by the CEO or Compliance Officer, and only in accordance with applicable laws.
6. Compliance with Insider Trading Laws
(a) Purpose. Securities transactions are regulated by numerous complex laws, the violations of which can result in the imposition of severe civil and criminal penalties on individuals and corporations. This section summarizes the Company’s Insider Trading Policy, which employees, officers, and directors should consult for a full description of the prohibition on insider trading. The following rules related to insider trading apply to all of the Company’s employees, officers, and directors.
(b) General Prohibitions. Directors, officers, and employees who have access to confidential information relating to the Company are not permitted to use or share that information for stock-trading purposes or for any other purpose except the conduct of the Company’s business. All non-public information about the Company should be considered confidential information. To use non-public information for personal financial benefit or to “tip off” others who might make an investment decision on the basis of such information is not only unethical and against Company policy but also illegal. Directors, officers, and employees also should comply with insider trading standards and procedures adopted by the Company, including the Company’s Policy on Avoidance of Insider Trading. If a question arises regarding the disclosure of non-public information or something otherwise related to insider trading, the director, officer, or employee should consult with the Company’s Chief Financial Officer (the “CFO”), who serves as the Compliance Officer for the Company’s Insider Trading Policy.
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(c) Insider-Trading Rules. The following insider-trading rules apply to all of the Company’s employees, officers, and directors:
(i) All acquisitions, dispositions, transfers, and other transactions in the Company’s securities by any employee, officer, director, or other person designated by the Compliance Officer, any of their family members or designees, or any entity controlled by them (each such individual or entity, an “Insider”) must be pre-cleared by the Compliance Officer.
(ii) Insiders who receive, become aware of, or are in possession of any material non-public information (“MNPI”) about the Company, any entity doing business with the Company, or any security being bought or sold by the Insider may not buy or sell any of the Company’s securities until a reasonable time has passed after the information has been disclosed to the public. Information is “material” if its disclosure would probably impact the price of a security or if it something that reasonable investors would want to know before making an investment decision. Examples include knowledge of new developments; unpublished sales; earnings or dividend figures; new contracts with customers, suppliers, third-party operators, or performers; tender offers; acquisitions; mergers; or sales of businesses.
(iii) Trading in the securities of outside companies while in the possession of MNPI is also prohibited. Examples of MNPI that might be obtained as a result of an Insider’s position with the Company include proposed acquisitions of outside companies or awards of important contracts to suppliers of the Company.
(iv) Insiders are prohibited from “tipping off” investors outside the Company and can be liable for selectively disclosing MNPI to any person who may trade in the Company’s securities on the basis of the MNPI.
(v) Specific additional legal restrictions on trading in the Company’s securities apply to the Company’s executive officers and directors, who have been furnished with detailed explanations of these restrictions.
(d) Insider Trading Policy. Officers, employees, and directors are required to comply with the Company’s Insider Trading Policy, which is attached hereto as Schedule A.
7. Fair Dealing
The Company seeks to compete in a fair and honest manner. The Company seeks competitive advantages through superior performance rather than through unethical or illegal business practices. Stealing proprietary information, possessing trade secret information that was obtained without the owner’s consent, or inducing such disclosures by past or present employees of other companies is prohibited. Each director, officer, and employee should endeavor to respect the rights of and deal fairly with the Company’s customers, suppliers, service providers, competitors, and employees, including the making of unfair comments about competitor’s products. No director, officer, or employee should take unfair advantage of anyone relating to the Company’s business or operations through manipulation, concealment, or abuse of privileged information, misrepresentation of material facts, or any unfair dealing practice.
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Conflicts of Interest
(a) Defining Conflicts of Interest. A “conflict of interest” exists when an individual’s private interest interferes in any way – or even appears to conflict – with the interests of the Company. A conflict-of-interest situation can arise when a director, officer, or employee takes actions or has interests that may make it difficult to perform his or her work on behalf of the Company in an objective and effective manner. Conflicts of interest may also arise when a director, officer, or employee, or a member of his or her family, receives improper personal benefits as a result of his or her position with the Company. Loans to, or guarantees of obligations of, employees and their family members may create conflicts of interest.
Service to the Company should never be subordinated to personally gain an advantage. Conflicts of interest, whenever possible, should be avoided. In particular, clear conflict-of-interest situations involving directors, officers, and employees who occupy supervisory positions or who have discretionary authority in dealing with any third party may include the following:
| ● | any<br>significant ownership interest in any supplier or customer; |
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| ● | any<br>consulting or employment relationship with any customer, supplier, or competitor; |
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| ● | any<br>outside business activity or other interests that detracts from an individual’s ability to devote appropriate time and attention<br>to his or her responsibilities to the Company or affects the individuals motivation or performance as an Employee; |
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| ● | the<br>receipt of non-nominal gifts or excessive entertainment from any organization with which the Company has current or prospective business<br>dealings; |
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| ● | being<br>in the position of supervising, reviewing, or having any influence on the job evaluation, pay, or benefit of any family member; and |
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| ● | selling<br>anything to the Company or buying anything from the Company, except on the same terms and conditions as comparable directors, officers,<br>or employees are permitted to so purchase or sell. |
| --- | --- |
It is almost always a conflict of interest for a Company officer or employee to work simultaneously for a competitor, customer, or supplier. No officer or employee may work for a competitor as a consultant or board member unless the arrangement is fully disclosed in advance to, and approved by, the Board. The best policy is to avoid any direct or indirect business connection with the Company’s customers, suppliers, and competitors, except on the Company’s behalf.
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(b) Reporting Conflicts of Interest. Conflicts of interest are prohibited as a matter of Company policy, except under guidelines approved by the Board. Conflicts of interest may not always be clear-cut, and further review and discussions may be appropriate. Any director or officer who becomes aware of a conflict or potential conflict should bring it to the attention of the CEO or the Compliance Officer, as appropriate in the circumstances. Any employee who becomes aware of a conflict or potential conflict should bring it to the attention of a supervisor, manager, or other appropriate personnel, or consult the procedures described in Section 17 of this Code. Supervisors and all employees are obligated to make the CEO or the Compliance Officer aware of any conflict or potential conflict that they may be aware of regarding any employee of the Company.
(c) Potential Conflict-of-Interest Scenarios. The following is a non-exhaustive list of examples of situations involving potential conflicts of interest that should be disclosed:
(i) Making any loan or guarantee of any personal obligation on behalf of the Company to any employee, officer, or director, or receiving any such Company loan or guarantee;
(ii) Being employed by or acting independently as a consultant for any competitor, customer, or supplier of the Company;
(iii) Working a second job outside of the Company or managing your own business;
(iv) Forming a company or starting a business within the same industry as the Company or that in any way could compete with the Company;
(v) Directing Company business to any entity in which an employee or an employee’s family member has a substantial interest;
(vi) Owning, or having a substantial ownership interest in, any competitor, customer, or supplier of the Company;
(vii) Using Company assets, intellectual property, or other resources for personal gain; or
(viii) Accepting anything that has more than nominal value—such as any gift, discount, or compensation—from an individual or entity that does or seeks to do business with the Company, other than routine entertainment and meals that are business related and conducted on behalf of the Company in furtherance of the Company’s interests.
9. Outside Activities, Corporate Opportunities, and Fiduciary Duties
(a) Outside Activities. The Company recognizes and respects the right of its directors, officers, and employees to engage in outside activities that they may deem proper and desirable, provided that these activities do not impair or interfere with the performance of their duties to the Company or their ability to act in the Company’s best interests. In most, if not all, cases this will mean that our directors, officers, and employees must avoid situations that present a potential or actual conflict between their personal interests and the Company’s interests.
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(b) Prohibitions on Outside or Self-Interested Corporate Activities. Directors, officers, and employees are prohibited from taking for themselves personally or directing to a third party any opportunity that is discovered through the use of corporate property, information, or position without the consent of the Board (in the case of officers or directors) or the CEO or Compliance Officer (in the case of employee who does not serve in an officer position), except to the extent such corporate opportunity has been renounced by the Company in its Articles of Incorporation or in resolutions adopted by the Board. No director, officer, or employee may use corporate property, information, or position for improper personal gain, and no director, officer, or employee may compete with the Company directly or indirectly. Directors, officers, and employees owe a duty to the Company to advance its legitimate interests when the opportunity to do so arises.
(c) Fiduciary Duties. Directors and officers of the Company must adhere to their fundamental duties of good faith, due care, and loyalty owed to the Company and its shareholders, and to their duty to act at all times with the best interests of the Company and its shareholders in mind. Any business arrangements or transactions with the Company in which any directors, officers, or certain other parties have a direct or indirect material financial interest must be approved in accordance with the Company’s Related Party Transactions Policy, attached hereto as Schedule B.
10. Illegal Discrimination and Sexual and Other Verbal or Physical Harassment
The diversity of the Company’s employees is a tremendous asset. The Company is firmly committed to providing equal opportunity in all aspects of employment and will not tolerate any illegal discrimination or illegal sexual and other illegal verbal or physical harassment of any kind, including discrimination or harassment based on sex, age, race, color, religion, national origin, disability, ancestry, marital or veteran status, or any other legally protected status. Any director or employee who is aware of any such conduct or perceived conduct must promptly report it to the head of human resources or the CEO, who will promptly conduct an investigation. The Company may terminate for cause any employee who, as a result of its investigation, it judges has violated this or other such Company policy. Employees shall treat all persons with respect and fairness, and all relationships (whether written, oral or electronic) shall be businesslike and free of any illegal bias, prejudice, harassment, and retaliation.
11. Record-Keeping
The Company requires honest and accurate recording and reporting of information in order to make responsible business decisions.
Directors, officers and employees regularly use business expense accounts, which must be documented and recorded accurately. If an officer or employee is not sure whether a certain expense is legitimate, the employee should ask his or her supervisor, the CFO, or the Company’s controller.
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All of the Company’s books, records, accounts, and financial statements must be maintained in reasonable detail, must appropriately reflect the Company’s transactions, and must conform both to applicable legal requirements and to the Company’s system of internal controls. Unrecorded or “off the books” funds or assets should not be maintained unless permitted by applicable law or regulation.
Business records and communications often become public, and the Company and its officers and employees should avoid exaggeration, derogatory remarks, guesswork, or inappropriate characterizations of people and companies that can be misunderstood. This applies equally to e-mail, internal memos, and formal reports. The Company’s records should always be retained or destroyed according to the Company’s record retention policies. In accordance with those policies, in the event of litigation or governmental investigation, directors, officers, and employees should consult with the CFO before taking any action because it is critical that any impropriety or possible appearance of impropriety be avoided.
12. Confidentiality
(a) Defining Confidential Information. Directors, officers, and employees must maintain the confidentiality of confidential information entrusted to them by the Company or its customers, suppliers, business partners, or others with whom the Company is considering a business or other transaction except when disclosure is authorized by an executive officer or required or mandated by laws or regulations. Confidential information includes all non-public information that might be useful or helpful to competitors or harmful to the Company or its customers, suppliers, or business partners if disclosed. It also includes information that suppliers, customers, and business partners have entrusted to the Company. The obligation to refrain from disclosing confidential information is in addition to the requirements of any confidentiality agreement that you may have entered into with the Company. Additionally, employees should take appropriate precautions to ensure that confidential or sensitive business or technical information, whether it is proprietary to the Company or another company, is not communicated within the Company except to employees who have a need to know such information to perform their responsibilities for the Company. The obligation to preserve confidential information continues even after employment ends.
(b) Prohibited Disclosures of Confidential Information. Third parties may ask you for information concerning the Company. Subject to the exceptions noted in the preceding paragraph, employees, officers and directors (other than the Company’s authorized spokespersons) must not discuss internal Company matters with, or disseminate internal Company information to, anyone outside the Company, except as required in the performance of their Company duties and, if appropriate, after a confidentiality agreement is in place. This prohibition applies particularly to inquiries concerning the Company from the media, market professionals (such as securities analysts, institutional investors, investment advisers, brokers and dealers) and security holders. All responses to inquiries on behalf of the Company must be made only by the Company’s authorized spokespersons. If you receive any inquiries of this nature, you must decline to comment and refer the inquirer to your supervisor or one of the Company’s authorized spokespersons.
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Protection and Proper Use of Company Assets
All directors, officers, and employees should endeavor to protect the Company’s assets and ensure their efficient use. Theft, carelessness, and waste have a direct impact on the Company’s profitability. Any suspected incident of fraud or theft should be immediately reported for investigation. Company assets should be used for legitimate business purposes and should not be used for non-Company business.
The obligation to protect the Company’s assets includes its proprietary information. Proprietary information includes intellectual property, such as trade secrets, patents, trademarks, and copyrights, as well as business, marketing and service plans, engineering and manufacturing ideas, designs, databases, records, salary information, and any unpublished financial data and reports. Unauthorized use or distribution of this information would violate Company policy. It could also be illegal and result in civil or even criminal penalties.
14. Cybersecurity
The Company has a strong commitment to information security and the prevention of cyber-attacks. This commitment is vitally important to sustaining compliance and competitiveness and protecting our reputation in the marketplace. Security controls are in place and reviewed continuously to protect against emerging cyber threats. The Company reserves the right, without notice, to monitor the use of the Company’s information systems in order to, among other things, ensure the integrity of the systems and identify unauthorized use, access, or release of Company data and systems. You are personally responsible for knowing and complying with the Company’s information-security policies and practices and those of third-parties that apply to the Company. The inappropriate use of information technology or data may expose the Company to risks, including cyber-attacks and security breaches of information technology. Do not intentionally compromise or subvert the Company’s cybersecurity controls. You must be careful when handling information tools and systems so that you do not inadvertently allow unauthorized access to confidential information. You must report any suspected cybersecurity exposures or incidents to your supervisor, the head of the Company’s information technology, the CEO, or the Compliance Officer immediately.
15. Corporate Disclosures
All directors, officers, and employees should support the Company’s goal to have full, fair, accurate, timely, and understandable disclosure in the periodic reports required to be filed by the Company with the SEC. Although most employees hold positions that are removed from the Company’s required filings with the SEC, each director, officer, and employee should promptly bring to the attention of the CEO, the CFO, the Controller, or the Audit Committee, as appropriate in the circumstances, any of the following:
| ● | Any<br>material information to which such individual may become aware that affects the disclosures made by the Company in its public filings<br>or would otherwise assist the CEO, the CFO, the Controller, and the Audit Committee in fulfilling their responsibilities with respect<br>to such public filings; |
|---|---|
| ● | Any<br>information the individual may have concerning (1) significant deficiencies in the design or operation of internal controls that could<br>adversely affect the Company’s ability to record, process, summarize, and report financial data, or (2) any fraud, whether or not<br>material, that involves management or other employees who have a significant role in the Company’s financial reporting, disclosures,<br>or internal controls; and |
| --- | --- |
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| ● | Any<br>information the individual may have concerning evidence of a material violation of the securities or other laws, rules, or regulations<br>applicable to the Company and the operation of its business, by the Company or any agent thereof. |
|---|
16. Corporate Communications, Public Relations, and Investor Relations
Only the CEO, the CFO, and the Chairman of the Company or a designee(s) of the CEO are authorized to communicate on behalf of the Company with shareholders, prospective investors, bankers, the press, broadcast media, or the general public. Any inquiries from these sources should promptly be referred to one of these individuals without further comment.
17. Reporting Illegal or Unethical Behavior or Violations of this Code
(a) Evaluating and Reporting Concerns. Directors, officers, and employees are encouraged to talk to supervisors, managers, or other appropriate personnel when in doubt about the best course of action in a particular situation. Directors, officers, and employees should report any observed illegal or unethical behavior and any perceived violations of laws, rules, regulations, or this Code to supervisors, managers, or the CEO, or directly to any member of the Audit Committee of the Board. It is the policy of the Company not to allow retaliation for reports of misconduct by others made in good faith.
(b) Whistleblower Policy. The Company maintains a Whistleblower Policy, which is attached hereto as Schedule C, for (i) the receipt, retention, and treatment of complaints received by the Company regarding accounting, internal accounting controls, or auditing matters and (ii) the confidential, anonymous submission by the Company’s employees of concerns regarding questionable accounting or auditing matters. The Whistleblower Policy provides an avenue for the submission of complaints on an anonymous basis.
(c) ***Communication Alternatives.***In addition to communicating with the appropriate personnel in person, questions or concerns regarding potential violations of the Code, any Company policy or procedure, or any law, rule, or regulation can be communicated using the following avenues:
| ● | By<br>e-mail to the Compliance Officer, to the CEO at, or, in relation to concerns involving accounting, internal accounting controls, to the<br>CFO or to the Chair of the Audit Committee; |
|---|---|
| ● | In<br>writing, addressed to the attention of the Company’s Compliance Officer, at 1540 Broadway, Suite 1010, New York, NY 10036; or |
| --- | --- |
| ● | By<br>phoning the Company at (917) 558-3563. |
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Enforcement
(a) Compliance. The Board, the Audit Committee, or the CEO, in consultation with the Company’s outside legal counsel and, when they deem it appropriate, with the Board or the Audit Committee, shall determine appropriate actions to be taken in the event of violations of this Code. Such actions shall be reasonably designed to deter wrongdoing and to promote accountability for adherence to this Code and to these additional procedures, and may include, among other things, written notices to the individual involved that the Board has determined that there has been a violation, censure by the Board, demotion or re-assignment of the individual involved, suspension with or without pay or benefits (as determined by the Board), and termination of the individual’s employment or position. In determining the appropriate action in a particular case, the Board or such designee shall take into account all relevant information, including the nature and severity of the violation, whether the violation was a single occurrence or repeated occurrences, whether the violation appears to have been intentional or inadvertent, whether the individual in question had been advised prior to the violation as to the proper course of action, and whether or not the individual in question had committed other violations in the past.
(b) Cooperation. Employees, officers, and directors are expected to fully cooperate with the Company in any investigation of misconduct or a potential violation of the Code, any other Company policy or procedure, or any law, rule or regulation. Employees, officers, and directors are expected to provide and not conceal any information and documentation requested or otherwise known to be relevant to the subject matter at issue, to make themselves available for participation throughout the course of any such investigatory efforts, and to be honest and candid at all times.
19. Waivers and Amendments of this Code
(a) Waivers. Any waiver of this Code for directors or executive officers may be made only by the Board or a committee of the Board and will be promptly disclosed to stockholders as required by applicable laws, rules, and regulations, including the rules of the SEC and under applicable exchange or NYSE American rules. Any such waiver also must be disclosed in a Form 8-K.
(b) Amendments. All amendments to this Code must be approved by the Board and, if required, must be promptly disclosed to the Company’s securityholders in accordance with U.S. securities laws and NYSE American LLC rules and regulations.
20. No Rights Created
This Code is a statement of certain fundamental principles, policies, and procedures that govern the Company’s officers, directors, and employees in the conduct of the Company’s business. It is not intended to and does not create any rights in any employee, customer, client, visitor, supplier, competitor, shareholder, or any other person or entity.
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SCHEDULE A
INSIDER TRADING POLICY
Background and Objective
The Board of Directors of Blockchain Digital Infrastructure, Inc. (the “Company”) has adopted this Insider Trading Policy (this “Policy”) for our directors, officers, employees and consultants. It applies to the trading of the Company’s securities as well as the securities of other publicly traded companies with whom we have a business relationship.
Federal and state securities laws prohibit the purchase or sale of a company’s securities by persons who are aware of material information about that company that is not generally known or available to the public. Likewise, these laws prohibit persons who are aware of such material nonpublic information from disclosing this information to others who may trade. Companies and their controlling persons are also subject to liability if they fail to take reasonable steps to prevent insider trading by company personnel.
It is important that you understand the breadth of activities that constitute illegal insider trading and the consequences, which can be severe. The U.S. Securities and Exchange Commission (the “SEC”) and the Financial Industry Regulatory Authority, stock exchanges and similar entities in other jurisdictions where we may do business, investigate and are very effective at detecting insider trading. These agencies, along with government prosecutors, pursue insider trading violations vigorously. Cases have been prosecuted successfully against trading by employees through foreign accounts, trading by family members and friends, and trading involving only a small number of shares.
This Policy is designed to prevent insider trading (or allegations of insider trading) and to protect the Company’s reputation for integrity and ethical conduct. It is your obligation to understand and comply with this Policy. Should you have any questions regarding this Policy, please contact the Chief Financial Officer or such person’s designee if that officer is not available, collectively referred to in this Policy as the “Compliance Officer.”
Penalties for Noncompliance
Civil and Criminal Penalties. For individuals, potential penalties for insider trading violations include: (1) imprisonment for up to 20 years; (2) criminal fines of up to $5 million; and (3) civil fines of up to three times the profit gained or loss avoided.
Controlling-Person Liability. If the Company fails to take appropriate steps to prevent illegal insider trading, the Company may have “controlling person” liability for a trading violation, with civil penalties of up to the greater of $1 million or three times the profit gained or loss avoided, as well as a criminal penalty of up to $25 million. The civil penalties can extend personal liability to the Company’s directors, officers and other supervisory personnel if they fail to take appropriate steps to prevent insider trading.
Company Sanctions. Failure to comply with this Policy may also subject you to Company-imposed sanctions, including termination, whether or not your failure to comply with this Policy results in a violation of law.
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Scope of Policy
Persons Covered. As a director, officer, employee or consultant of the Company or its subsidiaries, this Policy applies to you. The same restrictions that apply to you also apply to:
| ● | Your<br>family members who reside with you; |
|---|---|
| ● | Anyone<br>else who lives in your household; and |
| --- | --- |
| ● | Any<br>family members who do not live in your household but whose transactions in Company securities are directed by you or are subject to your<br>influence or control (such as parents or children who consult with you before they trade in Company securities). |
| --- | --- |
You are responsible for making sure that the purchase or sale of any security covered by this Policy by any such person complies with this Policy.
Companies Covered. The prohibition on insider trading in this Policy is not limited to trading in the Company’s own securities. It includes trading in the securities of other firms, such as business associates or suppliers of the Company and those with which the Company may be negotiating major transactions or contractual relationships, such as an acquisition, investment, license or sale. Information that is not material to the Company may nevertheless be material to one of those other firms.
Transactions Covered. Trading includes purchases and sales of stock, derivative securities such as put and call options, convertible debentures and convertible preferred stock, and debt securities (debentures, bonds and notes).
Transactions not Covered. This Policy does not apply to the transactions described below as permitted under “Transactions under Our Equity Compensation Plans,” “Transactions Not Involving a Purchase or Sale” and “Rule 10b5-1 Plans.”
Statement of Policy
No Trading on Inside Information. You may not trade in the securities of the Company, directly or through family members or other persons or entities, if you are aware of material nonpublic information relating to the Company. Similarly, you may not trade in the securities of any other company if you are aware of material nonpublic information about the other company that you obtained in the course of your employment with, or services for, the Company.
No Tipping. You may not pass material nonpublic information on to others or recommend to others the purchase or sale of any securities when you are aware of such information. This practice, known as “tipping,” also violates the securities laws and can result in the same civil and criminal penalties that apply to insider trading, even though you did not trade and did not gain any benefit from the other person’s trading.
No Exception for Hardship. The existence of a personal financial emergency or hardship does not excuse you from compliance with this Policy.
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No Exception for Transactions Not Intendedto be Based on Inside Information. It does not matter that you may have decided to engage in a transaction before becoming aware of material nonpublic information or that the material nonpublic information did not affect your decision to engage in the transaction. It is also irrelevant that publicly disclosed information about the Company might, even aside from the material nonpublic information, provide a sufficient basis for engaging in the transaction. In other words, your possession of inside information prevents you from engaging in a transaction, even if you would have engaged in such transaction without such inside information.
Blackout and Pre-Clearance Procedures
To help prevent inadvertent violations of the federal securities laws and to avoid even the appearance of trading on the basis of inside information, our Board of Directors has adopted an Addendum to this Policy setting forth policies prohibiting trading during certain “blackout periods” and requiring the pre-clearance of transactions, that applies to the following individuals:
| ● | Directors<br>of the Company; |
|---|---|
| ● | Executive<br>officers and any person performing the function of an executive officer of the Company; |
| --- | --- |
| ● | Any<br>other person identified in the Addendum or that is designated by the Compliance Officer from time to time; and |
| --- | --- |
| ● | Any<br>spouse or relative of any of the above who resides in the same home or whose transactions in Company securities are directed by any of<br>the above individuals or are subject to influence or control by any of the above individuals. |
| --- | --- |
The Company will notify you if you are subject to the blackout periods and pre-clearance policies set forth in the Addendum.
Definition of “Material Nonpublic Information”
Inside information has two important elements—materiality and public availability.
MaterialInformation. Information is material if there is a substantial likelihood that a reasonable investor would consider it important in deciding whether to buy, hold or sell a security. Any information that could reasonably be expected to affect the price of the security is material. Common examples of material information are:
| ● | Projections<br>of future earnings or losses, or other earnings guidance; |
|---|---|
| ● | Earnings<br>or operating results that are inconsistent with the consensus expectations of the investment community; |
| --- | --- |
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| ● | A<br>pending or proposed merger, acquisition or tender offer or an acquisition or disposition of significant assets; |
|---|---|
| ● | A<br>change in senior management; |
| --- | --- |
| ● | Major<br>events regarding the Company’s securities, including the declaration of a forward or reverse stock split or the offering of additional<br>securities; |
| --- | --- |
| ● | Severe<br>financial liquidity problems; |
| --- | --- |
| ● | Actual<br>or threatened major litigation, or the resolution of such litigation; |
| --- | --- |
| ● | The<br>acquisition or license of products; |
| --- | --- |
| ● | New<br>major contracts, orders, suppliers, customers, partners or finance sources, or the loss thereof; and |
| --- | --- |
| ● | The<br>introduction or a change in status of significant new products. |
| --- | --- |
Both positive and negative information can be material. Because trading that receives scrutiny will be evaluated after the fact with the benefit of hindsight, questions concerning the materiality of particular information should be resolved in favor of materiality. In other words, in case of doubt, trading should be avoided.
NonpublicInformation. Nonpublic information is information that is not generally known or available to the public. One common misconception is that material information loses its “nonpublic” status as soon as it is publicly disclosed. In fact, information is considered to be available to the public only when it has been released broadly to the marketplace (such as by a press release or an SEC filing) and the investing public has had time to absorb the information fully. As a general rule, the Company continues to consider information nonpublic until the close of the first full trading day after the information is released. For example, if the Company discloses earnings before trading begins on a Tuesday, then the first time you can buy or sell Company securities is the opening of the market on Wednesday (assuming you are not aware of other material nonpublic information at that time). However, if the Company discloses earnings after trading begins on that Tuesday, then the first time you can buy or sell Company securities is the opening of the market on Thursday.
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Additional Guidance Regarding Trading of Securities
The Company considers it improper for those who are employed by, or associated with, the Company to engage in short-term or speculative transactions in the Company’s securities or in other transactions in the Company’s securities that may lead to inadvertent violations of the insider trading laws. Accordingly, your trading in Company securities is subject to the following additional guidelines:
Short Sales. You may not engage in short sales of the Company’s securities (sales of securities that you do not own, i.e., borrowed securities). You also may not engage in short sales “against the box” (sales of securities that you own, but with delayed delivery).
Publicly Traded Options. You may not engage in transactions in publicly traded options on the Company’s securities, such as puts, calls and other derivative securities, on an exchange or in any other organized market.
Hedging. You may not engage in hedging transactions, including, but not limited to, zero-cost collars, forward sale contracts and many others, which involve the establishment of a short position in the Company’s securities and limit or eliminate your ability to profit from an increase in the value of the Company’s securities. Such transactions are complex and involve many aspects of the federal securities laws, including filing and disclosure requirements.
Standing or Limit Orders. Standing or limit orders should be used only for a very brief period of time, if at all. A standing order placed with a broker to sell or purchase Company stock at a specified minimum or maximum price leaves you with no control over the timing of the transaction. The limit order could be executed by the broker when you are aware of material nonpublic information, which would result in unlawful insider trading.
Margin Accounts and Pledges. Securities held in a margin account or pledged as collateral for a loan may be sold without your consent by the broker if you fail to meet a margin call or by the lender in foreclosure if you default on the loan. A margin or foreclosure sale that occurs when you are aware of material nonpublic information may, under some circumstances, result in unlawful insider trading. Because of this danger, you may not hold securities in a margin account or pledge Company securities as collateral for a loan.
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Transactions Under Our Equity Compensation Plans
This Policy does not apply to transactions under our equity compensation plans, except as noted below:
| ● | StockOption Exercises. This Policy’s trading restrictions generally do not apply to the exercise of a stock option. The trading<br>restrictions do apply, however, to any sale of the underlying stock or to a cashless exercise of the option through a broker, as this<br>entails selling a portion of the underlying stock to cover the costs of exercise. |
|---|---|
| ● | Vestingof Awards. This Policy’s trading restrictions do not apply to the vesting of stock options, restricted stock or stock units,<br>or the exercise of a right to have shares withheld to satisfy the tax withholding consequences of vesting. The Policy would apply to<br>market sales of any shares received, including sales to cover the tax consequences of vesting. |
| --- | --- |
Transactions Not Involving a Purchase or Sale
Bona fide gifts of securities are not subject to this Policy unless the person making the gift has reason to believe that the recipient intends to sell the securities at a time when the person making the gift (or a family member or other related person or entity) would be prohibited from doing so. If you own shares of a mutual fund that invests in our securities, there are no restrictions on trading the shares of the mutual fund at any time.
Rule 10b5-1 Plans
Trades by covered persons in the Company’s securities that are executed pursuant to a Rule 10b5-1 plan implemented as described below are not subject to the prohibition on trading on the basis of material nonpublic information contained in this Policy or to the restrictions relating to pre-clearance procedures and blackout periods set forth in this Policy.
Rule 10b5-1 provides an affirmative defense from insider trading liability under the federal securities laws for trading plans that meet certain requirements. In general, a Rule10b5-1 plan must be entered into at a time when you are not aware of material nonpublic information. If you are subject to the blackout provisions of the Addendum, you may not establish a Rule 10b5-1 plan during any blackout period. Once the plan is adopted, you must not exercise any influence over the amount of securities to be traded, the price at which they are to be traded or the date of the trade. The plan must either specify (including by formula) the amount, pricing and timing of transactions in advance, or delegate discretion on those matters to an independent third party not under your control or influence.
The Company requires that all Rule 10b5-1 plans be approved in writing in advance by the Compliance Officer. In addition, unless expressly agreed by the Company, all Rule 10b5-1 plans must be with, and administered by, a singular broker designated by the Company
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Post-Termination Transactions
This Policy continues to apply to your transactions in Company securities even after you have separated from service with the Company or a subsidiary. If you are aware of material nonpublic information when your employment or service relationship terminates, you may not trade in Company securities until that information has become public or is no longer material.
Unauthorized Disclosure
Maintaining the confidentiality of Company information is essential for competitive, security and other business reasons, as well as to comply with securities laws. You should treat all information you learn about the Company or its business plans in connection with your service as confidential and proprietary to the Company. Company employees and representatives should treat all corporate information with discretion and discuss confidential data only with those Company employees and representatives who have a right and a need to know. In particular, do not discuss confidential information with relatives, friends or acquaintances. Inadvertent disclosure of confidential or inside information may expose the Company and you to significant risk of investigation and litigation.
The timing and nature of the Company’s disclosure of material information to outsiders is subject to legal rules, the breach of which could result in substantial liability to you, the Company and its management. Accordingly, it is important that responses to inquiries about the Company by the press, investment analysts or others in the financial community be made on the Company’s behalf only through authorized individuals. Please consult the Company’s Regulation FD Compliance Policy for more details regarding the Company’s policy on speaking to the media, financial analysts and investors.
In addition, you are prohibited at all times from posting any information about the Company, its products, its customers, its potential customers, its business associates, or its competitors, as well as any other “material” nonpublic information, in any Internet discussion group or social media site or outlet.
Personal Responsibility
You should remember that the ultimate responsibility for adhering to this Policy and avoiding improper trading rests with you. If you violate this Policy, the Company may take disciplinary action, including dismissal.
Company Assistance
Your compliance with this Policy is of the utmost importance both for you and for the Company. If you have any questions about this Policy or its application to any proposed transaction, you may obtain additional guidance from the Compliance Officer. Please do not try to resolve uncertainties on your own, as the rules relating to insider trading are often complex and not always intuitive while violations entail severe consequences.
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ADDENDUM TO INSIDER TRADING POLICY
We have established additional procedures to assist in the administration of this Policy, to facilitate compliance with laws prohibiting insider trading while in possession of material nonpublic information, and to avoid the appearance of any impropriety. These additional procedures are applicable only to those individuals that are identified in the Policy or are designated by the Compliance Officer from time to time as described below.
Pre-Clearance Procedures. Directors and executive officers subject to Section 16 of the Securities Exchange Act of 1934, and employees or other personnel designated by the Compliance Officer as deemed likely to be in possession of material nonpublic information, as well as their family members who reside in the same home and entities that they control (collectively, “Covered Persons”), may not engage in any transaction in our securities without first obtaining pre-clearance of the transaction from the Compliance Officer. A request for pre-clearance should be submitted to the Compliance Officer at least two (2) business days in advance of the proposed transaction. The Compliance Officer is under no obligation to approve a transaction submitted for pre-clearance, and may determine not to permit the transaction. If a person seeks pre-clearance and permission to engage in the transaction is denied, then he or she should refrain from initiating any transaction in our securities, and should not inform any other person of the restriction.
When a request for pre-clearance is made, the requestor should carefully consider whether he or she may be aware of any material nonpublic information, and should describe fully those circumstances to the Compliance Officer. The requestor should be prepared to file a Form 4 for the proposed transaction (if applicable) and to comply with SEC Rule 144 and file Form 144, if necessary, at the time of any sale. We assist our directors and executive officers in completing and filing the appropriate forms and advance notice of the transactions allows us to complete these filings on a timely basis.
Quarterly Trading Restrictions. Covered Persons may not conduct any transactions involving our securities (other than as specified by this Policy), during a “Blackout Period” beginning on the last trading day of each fiscal quarter and ending after the first business day following the date of the public disclosure of our earnings results for that quarter. This Blackout Period applies even if you are not aware of material, nonpublic information at that time. Further, even if a Blackout Period is not in effect, at no time may you trade in Company securities if you are aware of material nonpublic information about the Company.
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*Event-Specific Trading Restriction Periods.*From time to time, an event may occur that is material to Company and is known by only a limited group of directors, officers, employees and/or other Company representatives. So long as the event remains material and nonpublic, Covered Persons may not trade Company securities. In addition, our financial results may be sufficiently material in a particular fiscal quarter that, in the judgment of the Compliance Officer, Covered Persons should refrain from trading in our securities even sooner than the typical Blackout Period described above. In that situation, the Compliance Officer may notify these persons that they should not plan to trade in our securities until further advised by the Compliance Officer, without disclosing the reason for the restriction. The existence of an event-specific trading restriction period or extension of a Blackout Period will not be communicated widely within the Company, and should not be communicated to any other person.
Exceptions. The quarterly trading restrictions and event-driven trading restrictions do not apply to those transactions to which the Policy does not apply, as described in the Policy under the headings “Transactions under Our Equity Compensation Plans” and “Transactions Not Involving a Purchase or Sale.” Further, the requirement for pre-clearance, the quarterly trading restrictions and event-specific trading restrictions do not apply to transactions conducted pursuant to approved Rule 10b5-1 plans, described under the heading “Rule 10b5-1 Plans.” However, the establishment of a Rule 10b5-1 plan by a Covered Person does require pre-clearance and may not occur during any Blackout Period or event-specific trading restriction period.
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SCHEDULE B
BLOCKCHAIN DIGITAL INFRASTRUCTURE INC.
RELATED PARTY TRANSACTIONS POLICY
Background and Objective
The Board of Directors (the “Board”) of Blockchain Digital Infrastructure, Inc. (the “Company”) recognizes that certain proposed transactions involving the Company and its directors and executive officers present a heightened risk of conflicts of interest or the perception thereof. Therefore, the Board, in cooperation with the Audit Committee of the Board (the “Committee”) has adopted this Related Party Transactions Policy (the “Policy”) to ensure that all proposed Related Party Transactions (as defined below) are subject to review, approval or ratification in accordance with the procedures set forth below.
Definitions
For purposes of this Policy, the following terms have the following meanings:
a. “Immediate Family Member” means any child, stepchild, parent, stepparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law of a person, and any person (other than a tenant or an employee) sharing the household of such person.
b. “Related Party” means any person who is or was (since the beginning of the last fiscal year for which the Company was required to file an Annual Report on Form 10-K, even if such person does not presently serve in that role) an executive officer, director or nominee for director of the Company, any stockholder owning more than 5% of any class of the company’s voting securities, or an Immediate Family Member of any such person.
c. “Related Party Transaction” means any transaction, arrangement or relationship, or any series of similar transactions, arrangements or relationships, in which: (i) the Company or any of its subsidiaries is or will be a participant; (ii) any Related Party has or will have a direct or indirect material interest; and (iii) the amount involved exceeds, or is expected to exceed, the then-applicable threshold for potential disclosure under Item 404 of Regulation S-K adopted by the SEC. This also includes any material amendment or modification to an existing Related Party Transaction.
Procedures
It is the responsibility of the Committee to administer this Policy. Prior to entering into a Related Party Transaction, the Related Party (or if the Related Party is an Immediate Family Member of an executive officer, director or director nominee of the Company, such executive officer, director or director nominee) must notify the Chairperson of the Committee of the facts and circumstances of the proposed Related Party Transaction. The Chairperson of the Committee will undertake an evaluation of the Related Party Transaction. If that evaluation indicates that the Related Party Transaction would require the approval of the Committee, the Chairperson of the Committee will report the Related Party Transaction, together with a summary of the material facts, to the Committee for consideration at the next regularly scheduled Committee meeting or sooner if deemed appropriate.
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The Committee will review all of the relevant facts and circumstances of all Related Party Transactions that require the Committee’s approval and either approve or disapprove of the entry into the Related Party Transaction, subject to the exceptions described below. In determining whether to approve or ratify a Related Party Transaction, the Committee will take into account, among other factors it deems appropriate: (i) whether the transaction was undertaken in the ordinary course of business of the Company, (ii) whether the Related Party Transaction was initiated by the Company, a subsidiary of the Company or the Related Party; (iii) whether the transaction with the Related Party is proposed to be, or was, entered into on terms no less favorable to the Company than terms that could have been reached with an unrelated third party; (iv) the purpose of, and the potential benefits to the Company of, the Related Party Transaction, (v) the approximate dollar value of the amount involved in the Related Party Transaction, particularly as it relates to the Related Party; (vi) the Related Party’s interest in the Related Party Transaction; and (vii) any other information regarding the Related Party Transaction or the Related Party that would be material to investors in light of the circumstances of the particular transaction.
The Committee will review all relevant information available to it about the Related Party Transaction. The Committee may approve the Related Party Transaction only if the Committee determines in good faith that, under all of the circumstances, the transaction is in the best interests of the Company and its stockholders. The Committee, in its sole discretion, may impose conditions as it deems appropriate on the Company or the Related Party in connection with the approval of the Related Party Transaction.
If a Related Party Transaction involves a Related Party who is a director or an Immediate Family Member of a director then serving on the Committee, such director may not participate in any discussion or vote regarding approval or ratification of approval such Related Party Transaction. However, such director will provide all material information concerning the Related Party Transaction to the Committee. Such director may be counted in determining the presence of a quorum at a meeting of the Committee that considers such Related Party Transaction.
If the Chairperson of the Committee determines it is impractical or undesirable to wait until a Committee meeting to consummate a Related Party Transaction, the Chairperson of the Committee may review and approve the Related Party Transaction in accordance with the procedures set forth herein. Any such approval (and the rationale for such approval) must be reported to the Committee at the next regularly scheduled Committee meeting.
If the Company becomes aware of a Related Party Transaction that has not been approved in accordance with this Policy, the Related Party Transaction will be reviewed in accordance with the procedures set forth in this Policy and, if the Committee determines it to be appropriate, ratified at the Committee’s next regularly scheduled meeting. In any case where the Committee determines not to ratify a Related Party Transaction that has been commenced without approval, the Committee may direct additional actions including, but not limited to, immediate discontinuation or rescission of the Related Party Transaction, or modification of the Related Party Transaction to make it acceptable for ratification.
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Ongoing Transactions
If a Related Party Transaction will be ongoing, the Committee may establish guidelines for Company management to follow in its ongoing dealings with the Related Party. Thereafter, the Committee, on at least an annual basis, will review and assess ongoing relationships with the Related Party to ensure that they are in compliance with the Committee’s guidelines and that the Related Party Transaction remains appropriate.
Standing Pre-Approval for Certain Interested Transactions
The following types of Related Party Transactions are deemed to be pre-approved or ratified in accordance with this Policy, as applicable, by the Committee, even if the aggregate amount involved will exceed the amount involved exceeds, or is expected to exceed, the then-applicable threshold for potential disclosure under Item 404 of Regulation S-K adopted by the SEC. In connection with each regularly scheduled meeting of the Committee, a summary of each new Related Party Transaction deemed pre-approved pursuant to this paragraph will be provided to the Committee for its review.
a. Employment of executive officers. Any employment by the Company of an executive officer of the Company or any of its subsidiaries if the Compensation Committee of the Board approved (or recommended that the Board approve) such employment and the compensation payable to the executive officer.
b. Director compensation. Any compensation paid to a member of the Board pursuant to the Board’s non-employee director compensation program as then in effect.
c. Transactions where all stockholders receive proportional benefits. Any transaction where the Related Party’s interest arises solely from the ownership of a class of equity securities of the Company and all holders of that class of equity securities received or will receive the same benefit on a pro rata basis.
d. Indemnification. Indemnification and advancement of expenses made pursuant to the Company’s organization documents or pursuant to any agreement.
Existing Policies and Procedures
Related Party Transactions must also comply with the Company’s existing policies and procedures, including the Code of Business Conduct and Ethics.
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SCHEDULE C
WHISTLEBLOWER POLICY
Background and Objective
The Board of Directors (the “Board”) of Blockchain Digital Infrastructure, Inc. (the “Company”) has adopted this Policy setting forth the process under which the Company will address complaints regarding accounting standards, accounting controls audits practices, and related matters. The Company’s Code of Business Conduct separately sets forth the separate process under which complaints regarding certain other ethical and legal matters are addressed.
General
Any person may submit a good faith complaint under these procedures regarding accounting or auditing matters to the management of the Company. The person may do so without fear of dismissal or retaliation of any kind for any lawful action taken in making the complaint. The Company is committed to achieving compliance with all applicable securities laws and regulations, accounting standards, accounting controls and audit practices. The Audit Committee of the Board of Directors (the “Audit Committee”) oversees treatment of employee concerns in this area. In order to facilitate the reporting of complaints, the Audit Committee has established the following procedures for: (1) the Audit Committee’s receipt, retention and treatment of complaints regarding accounting, internal accounting controls, or auditing matters (“Accounting Matters”); and (2) the confidential, anonymous submission by Company employees and personnel of concerns regarding questionable accounting or auditing matters.
Receipt of Complaints
Any person with concerns regarding Accounting Matters may report their concerns at any time to the Audit Committee Chairperson or the other members of the Audit Committee. This report may be made in person or in writing. These members are identified on the Company’s website https://oneblockchain.ai/ and in reports and filings the Company submits to the Securities and Exchange Commission.
In addition, complaints may be submitted on a confidential or anonymous basis to the Audit Committee to the Chairperson of the Audit Committee by email to: [ ].
A person submitting a submission is encouraged to provide as much specific information as possible, including names, dates, places, events and that person’s belief why the incident(s) is a questionable Accounting Matter.
25
Scope of Matters Covered by this Policy
The procedures in this Policy relate to complaints relating to any questionable Accounting Matters, including, without limitation, the following:
| ● | fraud<br>or deliberate error in the preparation, evaluation, review or audit of any financial statement of the Company; |
|---|---|
| ● | fraud<br>or deliberate error in the recording and maintaining of financial records of the Company; |
| --- | --- |
| ● | deficiencies<br>in or noncompliance with the Company’s internal accounting controls; |
| --- | --- |
| ● | misrepresentation<br>or false statement to or by a senior officer or accountant regarding a matter contained in the financial records, financial reports or<br>audit reports of the Company; and |
| --- | --- |
| ● | deviation<br>from full and fair reporting of the Company’s financial condition. |
| --- | --- |
Treatment of Complaints
Upon receipt of a complaint, the Audit Committee will: (i) determine whether the complaint actually pertains to Accounting Matters; and (ii) when possible, acknowledge receipt of the complaint to the sender.
All complaints that pertain to Accounting Matters will be reported to the Audit Committee. Any complaints not related to Accounting Matters will be directed to the Chairman of the Board.
Complaints relating to Accounting Matters will be reviewed under Audit Committee direction and oversight by other persons and advisors as the Audit Committee determines to be appropriate. Confidentiality will be maintained to the fullest extent possible, consistent with the need to conduct an adequate review.
Prompt and appropriate corrective action will be taken when and as warranted in the judgment of the Audit Committee.
In accordance with the Company’s Code of Conduct, the Company will not discharge, demote, suspend, threaten, harass or in any manner discriminate against any individual in the terms and conditions of employment or their engagement, for lawful actions taken in making a good faith complaint regarding Accounting Matters.
Reporting and Retention of Complaints and Investigations
The Chairperson of the Audit Committee will maintain a log of all complaints, tracking their receipt, investigation and resolution and will prepare a periodic summary report thereof for the Audit Committee. Copies of complaints and such log will be maintained in accordance with the Company policy.
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Exhibit 21.1
List of Subsidiaries
| Subsidiary | Place of Incorporation |
|---|---|
| One Blockchain LLC | Delaware |
| Signing Day Sports, Inc. | Delaware |
Exhibit 99.1
Signing Day Sports and BlockchAIn ConsummateBusiness Combination
BlockchAIn Inc. Anticipated to Commence TradingUnder Ticker “AIB” on NYSE
American on March 17, 2026 at 9:30 a.m. EDT
SCOTTSDALE, AZ and NEW YORK, NY / GLOBE NEWSWIRE/ March 16, 2026 / – Signing Day Sports, Inc. (“Signing Day Sports” or the “Company”) (NYSE American: SGN), a technology platform designed to help student-athletes connect with college sports programs (“Signing Day Sports” or the “Company”), and BlockchAIn Digital Infrastructure, Inc. (“BlockchAIn Inc.”) today jointly announced the successful completion of their previously announced business combination, resulting in each of Signing Day Sports and One BlockchainLLC, a developer and operator of digital infrastructure focused on high-performance computing (“HPC”) and artificial intelligence (“AI”) hosting (“BlockchAIn LLC” and, together with BlockchAIn Inc, “BlockchAIn”), becoming wholly-owned subsidiaries of BlockchAIn Inc. BlockchAIn Inc. is anticipated to commence trading on NYSE American at 9:30 a.m. EDT on March 17, 2026, under the ticker symbol “AIB”.
Commenting on the closing of the transaction, Jerry Tang, Chief Executive Officer of BlockchAIn Inc., said, “Completing this business combination marks an important milestone for our organization as we enter the public markets. We appreciate the efforts of the teams across both companies who worked diligently to bring this combination to completion. With the closing of the transaction and our anticipated listing under the ticker ‘AIB,’ we are focused on executing our strategy to build scalable digital infrastructure designed to support the rapidly expanding demand for AI and HPC. We believe the combined company is well positioned to leverage our platform and development pipeline as we pursue long-term growth.”
Advisors
Maxim Group LLC is serving as financial advisor to BlockchAIn in connection with the transaction. Bevilacqua PLLC is serving as legal counsel to Signing Day Sports, and Loeb & Loeb LLP is serving as legal counsel to BlockchAIn.
About One Blockchain LLC
BlockchAIn LLC is a developer and operator of digital infrastructure focused on HPC and AI hosting. BlockchAIn LLC has planned AI data center expansions with favorable economics for activation in 2026 and 2027. BlockchAIn LLC operations are currently centered around its existing 40 MW data center facility in South Carolina. In 2024, this facility generated approximately $22.9 million in revenue and approximately $5.7 million in net income. BlockchAIn LLC’s mission is to become a leader in creating and operating scalable sustainable power and data infrastructure purpose-built for AI hosting, AI workloads, HPC, and accelerated compute applications.
About Signing Day Sports, Inc.
Signing Day Sports’ mission is to help student-athletes achieve their goal of playing college sports. Signing Day Sports’ app allows student-athletes to build their Signing Day Sports’ recruitment profile, which includes information college coaches need to evaluate and verify them through video technology. The Signing Day Sports app includes a platform to upload a comprehensive data set including video-verified measurables (such as height, weight, 40-yard dash, wingspan, and hand size), academic information (such as official transcripts and SAT/ACT scores), and technical skill videos (such as drills and mechanics that exemplify player mechanics, coordination, and development).
CONTACT INFORMATION:
| Signing Day Sports, Inc. | BlockchAIn Digital Infrastructure, Inc. and One Blockchain LLC |
|---|---|
| Crescendo Communications, LLC | BlockchAIn Digital Infrastructure, Inc. and One Blockchain LLC: |
| 212-671-1020 | Chris Tyson |
| SGN@crescendo-ir.com | Executive Vice President<br><br> MZ Group - MZ North America<br><br> Phone: (949) 491-8235 <br><br>GWH@mzgroup.us www.mzgroup.us |
Forward-Looking Statements
This press release contains “forward-looking statements” that are subject to substantial risks and uncertainties. All statements, other than statements of historical fact, contained in this press release are forward-looking statements. Forward-looking statements contained in this press release may be identified by the use of words such as “may,” “could,” “will,” “should,” “would,” “expect,” “plan,” “intend,” “anticipate,” “believe,” “estimate,” “predict,” “potential,” “project” or “continue” or the negative of these terms or other comparable terminology and include, but are not limited to, statements regarding the anticipated listing of BlockchAIn Inc’s common stock on NYSE American under the ticker symbol “AIB” and the expected benefits of the transaction. These statements are only predictions. You should not place undue reliance on forward-looking statements because they involve known and unknown risks, uncertainties, and other factors, including without limitation, the occurrence of any event, change or other circumstances that could prevent the common stock of BlockchAIn Inc. from commencing trading on the NYSE American LLC at 9:30 a.m. EDT on March 17, 2026 or, subsequently, of continuing to trade on such market or of qualifying to trade on any securities trading market; the parties’ ability to integrate their respective businesses into a combined publicly listed company post-merger, the parties’ ability to obtain sufficient funding to maintain operations and develop additional services and offerings, market acceptance of the parties’ current products and services and planned offerings, competition from existing or new offerings that may emerge, impacts from strategic changes to the parties’ business on net sales, revenues, income from continuing operations, or other results of operations, the parties’ ability to attract new users and customers, the parties’ ability to retain or obtain intellectual property rights, the parties’ ability to adequately support future growth, the parties’ ability to comply with user data privacy laws and other current or anticipated legal requirements, and the parties’ ability to attract and retain key personnel to manage their business effectively. These risks, uncertainties and other factors are described more fully in the section titled “Risk Factors” of the Registration Statement on Form S-4 filed by BlockchAIn Inc. with the SEC on December 1, 2025, as amended on December 23, 2025, January 21, 2026, January 22, 2026, January 30, 2026, and February 17, 2026, which was declared effective by the SEC on January 30, 2026, and the proxy statement/prospectus that was filed by BlockchAIn Inc. with the SEC on February 17, 2026, relating to this transaction. See also the section titled “Risk Factors” in the Company’s periodic reports which are filed with the SEC. These risks, uncertainties and other factors are, in some cases, beyond the parties’ control and could materially affect results. If one or more of these risks, uncertainties or other factors become applicable, or if these underlying assumptions prove to be incorrect, actual events or results may vary significantly from those implied or projected by the forward-looking statements. No forward-looking statement is a guarantee of future performance. All subsequent written and oral forward-looking statements concerning Signing Day Sports, BlockchAIn, or any of their affiliates, or other matters and attributable to Signing Day Sports, BlockchAIn, any of their affiliates, or any person acting on their behalf are expressly qualified in their entirety by the cautionary statements above. Forward-looking statements contained in this announcement are made as of this date, and the Company and BlockchAIn undertake no duty to update such information except as required under applicable law.
Exhibit 99.2
BLOCKCHAIN DIGITAL INFRASTRUCTURE, INC.
AUDIT COMMITTEE CHARTER
Adopted: March 16, 2026
The Audit Committee (the “Committee”) is a committee of the board of directors (the “Board”) of Blockchain Digital Infrastructure, Inc. (the “Company”). The responsibilities and powers of the Committee of the Board, as delegated by the Board, are set forth in this charter. Whenever the Committee takes an action, it shall exercise its independent judgment on an informed basis that the action is in the best interests of the Company and its shareholders.
I. PURPOSE
The Committee is appointed by the Board to assist the Board in fulfilling its responsibilities for the oversight and monitoring of the quality and integrity of the accounting, auditing internal controls, and reporting practices of the Company, and performs such other duties as are directed by the Board. The Committee’s role includes a particular focus on the qualitative aspects of financial reporting to shareholders, and on the Company’s processes to manage business and financial risk, and for compliance with significant applicable legal, ethical, and regulatory requirements. The Committee is directly responsible for the appointment, compensation, retention, and oversight of the public accounting firm engaged to prepare or issue audit reports on the financial statements of the Company.
II. COMMITTEEMEMBERSHIP
The membership of the Committee shall consist of at least three independent directors (and in no case should there be less than a majority of independent directors) as defined by Section 803 of the NYSE American Company Guide, Rule 10A-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and any exchange or national listing market system, if any, upon which the Company’s securities are listed or quoted for trading (the “Trading Market”). Each member of the Committee shall be able to read and understand fundamental financial statements, including the Company’s balance sheet, income statement, and cash flow statement. At least one member of the Committee shall have past employment experience in finance or accounting, requisite professional certification in accounting, or any other comparable experience or background which results in the individual’s financial sophistication, including being or having been a chief executive officer, chief financial officer or other senior officer with financial oversight responsibilities, and shall qualify as an “audit committee financial expert” under the rules of the SEC and the NYSE American’s listing standards. Each member shall be free of any relationship that, in the opinion of the Board, would interfere with his or her individual exercise of independent judgment. No member of the Committee can have participated in the preparation of the financial statements of the Company or any subsidiary of the Company at any time during the past three years. Applicable laws and regulations shall be followed in evaluating a member’s independence.
The members of the Committee shall be appointed by and serve at the discretion of the Board. The members of the Committee must elect a chairperson (the “Chairperson”) of the Committee from among their number. The Board may remove any member from the Committee at any time, with or without cause. A Committee member may resign by delivering his or her written resignation to the Chairperson of the Board, or may be removed by majority vote of the Board by delivery to such member of written notice of removal, to take effect at a date specified therein, or upon delivery of such written notice to such member if no date is specified. The members of the Committee shall serve until their successors are appointed and qualified. The Board shall have the power at any time to fill vacancies in the Committee, subject to such new member(s) satisfying any applicable requirements.
III. COMMUNICATIONS/REPORTING
The public accounting firm shall report directly to the Committee. The public accounting firm must be given reasonable notice of, and has the right to attend and be heard at, each meeting of the Committee, and must attend a meeting of the Committee when requested to do so by the Committee and after being given reasonable notice to do so. On the request of the public accounting firm, the Chairperson of the Committee must convene a meeting of the Committee to consider any matter that the public accounting firm believes should be brought to the attention of the Board or shareholders. The Committee is expected to maintain free and open communication with the public accounting firm, the internal accounting staff, and the Company’s management. This communication shall include private executive sessions, at least annually, with these parties. The Committee Chairperson shall report on the Committee activities, and issues arising before the Committee, to the full Board.
IV. MEETINGS
The Committee shall meet on a quarterly basis or more frequently as circumstances require. The Committee may ask members of management or others to attend the meetings.
Actions of the Committee may be taken in person at a meeting or in writing without a meeting. Actions taken at a meeting, to be valid, shall require the approval of a quorum of the members of the Committee present and voting. The quorum for a meeting of the Committee is a majority of the members of the Committee (and in no case should there be less than a majority of independent directors). Actions taken in writing, to be valid, shall be signed by all members of the Committee. The Committee will maintain written minutes of its meetings, which minutes will be filed with the minutes of the meetings of the Board, prepared by the secretary or a person appointed by the Committee. All meetings require the presence of a majority of the members of the Committee to conduct business. Each Committee member shall have one vote.
The agenda for the Committee meetings will be prepared in consultation between the Committee Chairperson and members of the Committee, and when appropriate, with Company’s financial management and the public accounting firm.
The Committee will be governed by the same rules regarding meetings (including meetings in person or by telephone or other similar communications equipment), action without meetings, notice, waiver of notice, and quorum and voting requirements as are applicable to the Board. The Committee may request that any directors, officers or employees of the Company, or other persons whose advice and counsel are sought by the Committee, attend any meeting of the Committee to provide such pertinent information as the Committee requests. The Committee will meet separately with members of the Company’s management, with the Company’s internal auditors or other personnel primarily responsible for the design, implementation and, once implemented, performance of the Company’s internal audit function, and with the Company’s independent auditors at such times as the Committee deems appropriate. The Committee will maintain written minutes of its meetings, which minutes will be filed with the minutes of the meetings of the Board.
V. RESPONSIBILITIES
The Committee shall report regularly to the Board. The Committee relies on the expertise and knowledge of management, the internal accounting staff, and the public accounting firm in carrying out its oversight responsibilities. Management of the Company is responsible for determining the Company’s financial statements are complete, accurate and in accordance with generally accepted accounting principles. The public accounting firm is accountable to the full Board and the Committee. The public accounting firm is responsible for auditing the Company’s financial statements. It is not the duty of the Committee to plan or conduct audits, to determine that the financial statements are complete and accurate and are in accordance with generally accepted accounting principles, to conduct investigations, or to assure compliance with laws and regulations or the Company’s internal policies, procedures, and controls. The Committee must, review and report to the Board on the following before they are published: (a) the financial statements of the Company, (b) the public accounting firm’s report, if any, prepared in relation to those financial statements. The Board must provide to the Committee the financial statements and the public accounting firm’s report referred to above in sufficient time to allow the Committee to review and report on those financial statements and the public accounting firm’s report.
VI. SPECIFICRESPONSIBILITIES
| 1. | Perform such functions as assigned by law, the Company’s Amended and Restated Certificate of Incorporation<br>and By Laws, or the Board. |
|---|---|
| 2. | Receive periodic reports from the Company’s public accounting firm regarding the firm’s independence<br>(including disclosures required by the Public Company Accounting Oversight Board (the “PCAOB”)), discuss such reports with<br>public accounting firm, and take appropriate action to oversee the independence of the public accounting firm. |
| --- | --- |
| 3. | Provide a report in the annual proxy statement that includes the Committee’s review and discussion<br>of matters with management and the independent public accounting firm. In addition, a copy of the Committee charter shall be made available<br>on the Company website. |
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| 4. | Appoint, approve the compensation of, determine whether to retain or terminate, and provide oversight<br>of the public accounting firm. The Committee may delegate the responsibility of approving proposed non-audit services that arise between<br>Committee meetings to the Chairperson, provided that the decision to approve the service is presented at the next scheduled Committee<br>meeting. Establish policies for audit partner rotation in compliance with applicable laws and regulations. The Committee may establish<br>pre-approval policies and procedures for such services that comply with applicable laws, rules and regulations subject to certain de minimus<br>exceptions for permitted non-audit services described in Section 10A(i)(1)(B) of the Exchange Act, which shall be approved by the Committee<br>prior to the completion of the audit. |
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| 5. | Confirm annually and review the independence of the public accounting firm, and the firm’s non-audit<br>services and related fees. At least annually, obtain and review a report by the independent auditor describing: (i) the audit firm’s<br>internal quality-control procedures; (ii) any material issues raised by the most recent internal quality-control review, or peer review,<br>of the audit firm, or (iii) by any inquiry or investigation by governmental or professional authorities, within the preceding five years,<br>respecting one or more independent audits carried out by the audit firm, and any steps taken to deal with any such issues described in<br>the report. |
| --- | --- |
| 6. | Verify the Committee consists of a minimum of three members who meet all applicable standards of independence<br>and are financially literate, including at least one member who has financial management expertise. |
| --- | --- |
| 7. | Review with the public accounting firm and the Company’s financial management the adequacy and effectiveness<br>of the Company’s internal controls and operating procedures, including computerized information system controls and security the<br>responsibilities, budget and staffing of the Company’s internal audit and control function, as well as the need for any special<br>audit procedures in response to material control deficiencies, through inquiry and discussions with the Company’s independent auditors<br>and management. Establish policies regarding the hiring of employees or former employees of the independent auditors in accordance with<br>the applicable rules of NYSE American and the SEC. Review, in consultation with the independent auditors, the annual audit plan and scope<br>of audit activities and monitor such plan’s progress. Review the reports prepared by management, assessing the adequacy and effectiveness<br>of the Company’s internal controls and procedures, prior to the inclusion of such reports in the Company’s periodic filings<br>as required under SEC rules. Review the internal controls and procedures designed to assess, monitor and manage business risk and legal<br>and ethical compliance programs. |
| --- | --- |
| 8. | Review policies and procedures regarding transactions, and review and oversee the transactions, between<br>the Company and officers, directors and other related parties that are not a normal part of the Company’s business (“related<br>party transactions”) in accordance with the applicable rules of NYSE American and the SEC (it being understood that if the Board<br>creates a special committee in connection with such a transaction or holds a meeting of the non-interested directors of the Board to approve<br>such transaction, the Committee shall not be required to consider such transaction or assess conflicts of interest in connection with<br>such transaction). |
| --- | --- |
| 9. | Meet with management and the public accounting firm to review earnings press releases, as well as the<br>Company’s policies with respect to release of financial information and earnings guidance to be provided to analysts and rating<br>agencies, including any proposed use of “pro forma” or “adjusted” non- GAAP and non-International Financial Reporting<br>Standards (“IFRS”) information. Discuss with management and the independent auditors any correspondence with regulators or<br>governmental agencies and any published reports that raise material issues regarding the Company’s financial statements or accounting<br>policies. |
| --- | --- |
| 10. | Review and discuss with management and the independent public accounting firm the annual and quarterly<br>financial statements of the Company and the independent public accounting firm’s report, if any, prepared in relation to those financial<br>statements, including: (a) the Company’s disclosures under “Management’s Discussion and Analysis of Financial Condition<br>and Results of Operations”; (b) any material changes in accounting principles or practices used in preparing the financial statements<br>prior to the filing of a report on Form 10-K or 10-Q with the SEC; (c) all critical audit matters identified by the independent public<br>auditor; (d) the items required to be discussed by the applicable requirements of the PCAOB and the SEC, and other matters, if any, brought<br>to the attention of the Committee by employees or officers of the Company; (e) prior to issuance any financial information provided by<br>the Company to the general public or any regulatory body; and (f) recommend to the Board, if appropriate, that the Company’s annual<br>audited financial statements be included in the Company’s Annual Report on Form 10-K. |
| --- | --- |
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| 11. | Discuss with management, the internal auditor and the independent auditors significant financial reporting issues raised and judgments made in connection with the preparation of the Company’s financial statements, including the review of (i) major issues regarding accounting principles and financial statement presentation, including any significant changes in the Company’s selection or application of accounting principles; (ii) analyses prepared by management and/or the independent auditors setting forth significant financial reporting issues raised and judgments made in connection with the preparation of the financial statements, including analyses of the effects of alternative GAAP or IFRS methods on the financial statements; (iii) the effect of regulatory and accounting initiatives, as well as off-balance sheet arrangements, on the Company’s financial statements.<br><br> <br><br><br> <br>Review on<br>a regular basis with the Company’s independent auditors any problems or difficulties encountered by the independent auditors in<br>the course of any audit work, including management’s response with respect thereto, any restrictions on the scope of the independent<br>auditors’ activities or on access to requested information, and any significant disagreements with management; and ensure the resolution<br>of any disagreements between management and the independent auditors regarding financial reporting. |
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| 12. | In connection with each periodic report of the Company, review management’s disclosure to the Committee<br>under Section 302 of the Sarbanes-Oxley Act (the “Act”), and the contents of the Chief Executive Officer’s and the Chief<br>Financial Officer’s certifications to be filed under Section 302 and 906 of the Act. |
| --- | --- |
| 13. | Meet with the public accounting firm in executive session to discuss any matters that the Committee or<br>the public accounting firm believe should be discussed privately with the Committee. |
| --- | --- |
| 14. | Meet with the Chief Financial Officer, and separately, in executive session to discuss any matters that<br>the Committee believes should be discussed with the Committee. |
| --- | --- |
| 15. | Establish procedures for the receipt, retention and treatment of complaints received by the Company regarding<br>accounting, internal accounting controls, or auditing matters; and the confidential, anonymous submission by employees of the Company<br>of concerns regarding questionable accounting or auditing matters. |
| --- | --- |
| 16. | Oversee compliance with the Company’s Code of Business Conduct and Ethics and consider conflicts<br>of interest (it being understood that if the Board creates a special committee in connection with a transaction or holds a meeting of<br>the non-interested directors of the Board to approve a transaction, the Committee shall not be required to consider such transaction or<br>assess conflicts of interest in connection with such transaction). |
| --- | --- |
| 17. | In the Committee’s sole discretion, appoint and set the compensation of such special or independent<br>counsel, accountants or other experts as the Committee deems necessary or appropriate to discharge its duties and responsibilities. The<br>Committee shall have appropriate resources and authority to discharge its responsibilities, including appropriate funding for payment<br>of reasonable compensation to its advisors in such amounts as the Committee deems necessary to carry out its duties. |
| --- | --- |
| 18. | Conduct periodic oversight and meet periodically to review the Company’s financial and business<br>risk management, including regularly reviewing the Company’s cybersecurity and other information technology risks, controls and<br>procedures and the Company’s plans to mitigate cybersecurity risks and to respond to data breaches. |
| --- | --- |
| 19. | Review and reassess the adequacy of this charter on an annual basis and recommend any proposed changes<br>to the Board for approval |
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| 20. | Conduct an annual performance review of the Committee that (i) assesses the Committee’s performance<br>relative to the purpose, duties and responsibilities of the Committee outlined in this Charter and in Section 803 of the Company Guide,<br>and (ii) establishes the Committee’s goals and objectives for the following year. The Committee may conduct this annual performance<br>evaluation in the manner deemed appropriate by the Committee in its business judgment. |
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| 21. | Discuss with the Company’s chief legal officer legal matters that may have a material impact on<br>the financial statements or the Company’s compliance procedures. Receive reports from the Company’s legal counsel regarding<br>any material violation of law or any material breach of fiduciary duty by the Company, an officer, employee or any agent of the Company. |
| --- | --- |
| 22. | Ensure the rotation of the lead (or coordinating) audit partner and other significant audit partners as<br>required by applicable law, rules and regulations. |
| --- | --- |
| 23. | Review proposed major changes to the Company’s accounting and auditing principles and practices<br>as suggested by management or the independent auditor. |
| --- | --- |
| 24. | Perform any other activities consistent with this Charter, the Company’s Amended and Restated Certificate<br>of Incorporation and By-Laws, and governing law as the Committee or the Board deems necessary or appropriate. |
| --- | --- |
| 25. | Receive reports from the Auditor regarding illegal acts that have been detected by or have otherwise come<br>to the attention of the Auditor in the course of the audit or otherwise. |
| --- | --- |
| 26. | Receive reports submitted to the Committee by the Auditor pursuant to Section 10A(k) of the Exchange Act<br>regarding: (i) critical accounting policies and practices to be used in the audit; (ii) alternative treatments of financial information;<br>and (iii) material written communications between the independent auditor and management. |
| --- | --- |
| 27. | Review and discuss with the Chief Executive Officer and the Chief Financial Officer their respective conclusions<br>set forth in the Company’s Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, regarding the effectiveness of the Company’s<br>disclosure controls and procedures. |
| --- | --- |
| 28. | Review and discuss with the Chief Executive Officer and the Chief Financial Officer any matters required<br>to be disclosed by such officers pursuant to Rule 13a-14 of the Exchange Act regarding any significant deficiencies in the design or operation<br>of the Company’s internal control over financial reporting which could adversely affect the Company’s ability to record, process,<br>summarize and report financial data. |
| --- | --- |
| 29. | Review and discuss with the Chief Executive Officer and the Chief Financial Officer any matters required<br>to be disclosed by such officers pursuant to Rule 13a-14 of the Exchange Act regarding any fraud involving management or other employees<br>who have a significant role in the Company’s internal control over financial reporting. |
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DELEGATION OF AUTHORITY
The Committee may, to the extent permitted under applicable law, the rules of NYSE American and the SEC, and the Company’s Articles of Incorporation and Bylaws, form and delegate authority to subcommittees when appropriate.
COMPENSATION
Members of the Committee will receive such fees, if any, for their service as Committee members as may be determined by the Board. Such fees may include retainers or per-meeting fees and will be paid in such form of consideration as is determined by the Board in accordance with the applicable rules of the NYSE American and the SEC. Members of the Committee may not receive any compensation from the Company except the fees that they receive for service as a member of the Board or any committee thereof and reimbursement for reasonable expenses.
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Exhibit 99.3
BLOCKCHAIN DIGITAL INFRASTRUCTURE, INC
COMPENSATION COMMITTEE CHARTER
Adopted: March 16, 2026
I. PURPOSE
The Compensation Committee (the “Committee”) is appointed by the board of directors (the “Board”) to establish policies with respect to the compensation of Blockchain Digital Infrastructure’s (the “Company’s) officers. The Committee has overall responsibilities for approving and evaluating the Company’s officer compensation plans, policies and programs. In addition to such other duties as may be assigned to the Committee by the Board from time to time, the purpose of the Committee is to assist the Board in (a) discharging its responsibilities for approving and evaluating the officer compensation plans, policies and programs of the Company, (b) reviewing and recommending to the Board regarding compensation to be provided to the Company’s employees and directors, and (c) administering the equity compensation plans of the Company. The Committee shall ensure that the Company’s compensation programs are competitive, designed to attract and retain highly qualified directors, officers and employees, encourage high performance, promote accountability and assure that employee interests are aligned with the interests of the Company’s shareholders.
The Committee is also responsible for producing an annual report on executive compensation for inclusion in the Company’s proxy statement, if so required.
II. COMMITTEEMEMBERSHIP
The membership of the Committee shall consist of at least two (2) members, comprised solely of members who are: (i) “independent directors” for the purpose of serving on the Committee, as defined under Section 805(c)(1) of NYSE American’s listing standards, as applicable to the Company; (ii) “non-employee directors” as defined in Rule 16b-3 promulgated under Section 16 of the Securities Exchange Act of 1934, as amended; and (iii) “outside directors” under Section 162(m) of the Internal Revenue Code of 1986, as amended, as applicable. The Board shall appoint the members of the Committee and the chairperson. The Board may remove any member from the Committee at any time, with or without cause. Each member of the Committee shall ensure that he or she is free from, and remains free from, any relationship that may interfere with the exercise of his or her independent judgment as a member of this Committee. Each Committee member shall have one vote.
The members of the Committee shall serve until their successors are appointed and qualified.
A Committee member may resign by delivering his or her written resignation to the Chairperson of the Board, or may be removed by majority vote of the Board by delivery to such member of written notice of removal, to take effect at a date specified therein, or upon delivery of such written notice to such member if no date is specified. The Board shall have the power at any time to fill vacancies in the Committee, subject to such new member(s) satisfying any applicable requirements.
III. OUTSIDEADVISERS
The Committee shall have the sole authority to retain and to terminate any compensation consultant, legal counsel or financial or other advisor (each, a “Compensation Advisor”) to be used to assist in the performance of its duties and responsibilities, without consulting or obtaining the approval of senior management of the Company in advance and shall have the sole authority to approve the Compensation Advisor’s fees and other retention terms. The Committee may request any officer or employee of the Company or the Company’s outside counsel or independent auditor to attend a meeting of the Committee or to meet with any member of, or consultants to, the Company. The Company must provide for appropriate funding, as determined by the Committee, for payment of reasonable compensation to a Compensation Advisor retained by the Committee.
When so required, prior to hiring or obtaining advice from a Compensation Advisor whether retained by the Committee or management (other than internal legal counsel), the Committee will consider all factors relevant to the Compensation Advisor’s independence from management, including the following:
| ● | the provision of other services to the Company by the Compensation Advisor (including subsidiaries or<br>affiliates of the Compensation Advisor); |
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| ● | the amount of fees received from the Company by the Compensation Advisor, as a percentage of the total<br>revenue of the Compensation Advisor; |
| --- | --- |
| ● | the policies and procedures of the Compensation Advisor that are designed to prevent conflicts of interest; |
| --- | --- |
| ● | any business or personal relationships of the Compensation Advisor employees rendering services to the<br>Committee, or of the Compensation Advisor, with a member of the Committee; |
| --- | --- |
| ● | any shares of the Company owned by the Compensation Advisor employees rendering services to the Committee,<br>or by the Compensation Advisor; |
| --- | --- |
| ● | any business or personal relationship of the Compensation Advisor employees rendering services to the<br>Committee, or the Compensation Advisor, with an executive officer of the Company; and |
| --- | --- |
| ● | any other factor(s) prescribed by the NYSE American that the Committee needs to consider in reviewing<br>the independence of prospective Compensation Advisors. |
| --- | --- |
The Committee will annually review an assessment of any potential conflict of interest raised by the work of a compensation consultant (and other Compensation Advisor, as required) that is involved in determining or recommending executive and/or director compensation. Any conflicts of interest raised by the work of compensation consultants shall be disclosed in accordance with applicable legal authority or regulatory guidance.
IV. MEETINGS
The Committee shall meet as often as it determines is appropriate to carry out its responsibilities under this charter, but not less than two (2) times a year, in person or telephonically, and at such times and places as the Committee members determine. Actions of the Committee may be taken in person at a meeting or in writing without a meeting. Actions taken at a meeting, to be valid, shall require the approval of a majority of the members of the Committee present and voting, which will constitute a quorum. Actions taken in writing, to be valid, shall be signed by all members of the Committee. The chairperson of the Committee shall report its minutes from each meeting to the Board.
The Committee shall annually review and evaluate its own performance.
Committee Authority and Responsibilities
The Committee shall, among its duties and responsibilities as may be delegated to the Committee by the Board, and in addition to any duties and responsibilities imparted to the Committee by the SEC or exchange or national listing market system, if any, upon which the Company’s securities are listed or quoted for trading (the “Trading Market”) or any other applicable laws or regulations:
| 1. | The Committee shall on an annual basis conduct an evaluation of the Chief Executive Officer’s performance<br>and report to the Board on the results of such evaluation. In addition, the Committee shall, with the input of the Chief Executive Officer,<br>conduct an annual assessment of the Company’s other Senior Management. With respect to the Chief Executive Officer and all other<br>executive officers, the Committee shall annually review and approve corporate goals and objectives relevant to compensation, evaluate<br>performance in light of those goals and objectives, and determine and approve compensation levels and any bonuses based on this evaluation,<br>and applicable under plans or policies approved by the Board or the Committee. In evaluating and approving CEO compensation, the Committee<br>shall consider the results of the most recent shareholder advisory vote on executive compensation (“Say on Pay Vote”) conducted<br>pursuant to Section 14A of the 1934 Act unless the Company has not conducted a Say on Pay Vote because it is relying on an exemption provided<br>by Section 14A(e) of the 1934 Act. The CEO cannot be present during any voting or deliberations by the Committee on his or her compensation; |
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| 2. | In consultation with the CEO, determine the salaries and contingent compensation of the other non-CEO<br>individuals who are deemed to be “officers” of the Company under Rule 16a-1(f) of the 1934 Act (each, an “Executive<br>Officer”). In evaluating and determining the compensation of an Executive Officer, the Committee shall consider the results of the<br>most recent Say on Pay Vote unless no such vote has been conducted due to the Company’s reliance on an exemption provided by Section<br>14A(e) of the 1934 Act; |
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| 3. | The Committee shall make recommendations to the Board with respect to incentive compensation, equity-based<br>plans, and benefit plans. To the extent directed or authorized by the Board, the Committee shall adopt or administer such plans<br>on behalf of the Board and the Company The Committee shall approve grants of equity and equity-based awards. No Executive, including the<br>Chief Executive Officer, may be present during voting or deliberations relating to his or her own compensation package. At its discretion,<br>the Committee shall determine from time to time which Executives, if any, may be present during voting or deliberations relating to the<br>compensation package of any other Executive. The Committee shall approve all special perquisites, special cash payments and other special<br>compensation and benefit arrangements for the Company’s executive officers and employees. The Committee shall also Review and recommend<br>to the Board the adoption of or changes to the compensation of the Company’s independent directors. |
| --- | --- |
| 4. | The Committee shall review, recommend to the Board, and administer all plans that require “disinterested<br>administration” under Rule 16b-3 under the Securities Exchange Act of 1934, as amended, as applicable. |
| --- | --- |
| 5. | The Committee shall review and monitor matters related to human capital management, including talent acquisition,<br>development and retention, internal pay equity, diversity and inclusion, and corporate culture. The Committee shall also review the form,<br>terms and provisions of employment and similar agreements with the Company’s executive officers and any amendments thereto. |
| --- | --- |
| 6. | The Committee shall periodically review the compensation of non-employee directors as established by the<br>Board, and if deemed advisable by the Committee, make recommendations to the Board for changes thereto. |
| --- | --- |
| 7. | The Committee shall approve the overall amount or percentage of plan and/or bonus awards to be granted<br>to all Company employees and delegate to the Company’s executive management the right and power to specifically grant such awards<br>to each Company employee within the aggregate limits and parameters set by the Committee. |
| --- | --- |
| 8. | The Committee shall conduct an annual risk assessment to ensure that the Company’s executive compensation<br>plans and programs do not promote the assumption of excessive risk and remain consistent with the approved overall compensation philosophy<br>and strategy. The Committee shall further oversee risks relating to any and all of the Company’s compensation policies, practices<br>and procedures. |
| --- | --- |
| 9. | The Committee shall annually review each director’s share ownership to determine satisfaction of<br>the Company’s director share ownership expectation, if any, or reasonable progress towards its satisfaction. |
| --- | --- |
| 10. | The Committee shall annually review each officer’s share ownership to determine whether the Company’s<br>officer share ownership expectation, if any, is being met, or reasonable progress is being made toward its satisfaction. |
| --- | --- |
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| 11. | The Committee shall review and approve the Compensation Discussion and Analysis (or other executive compensation<br>disclosure, if the Compensation Discussion and Analysis is not required) for inclusion in the Company’s annual meeting proxy statement<br>and shall produce the Committee report on executive compensation, if so required to be included in the Company’s proxy statement<br>for its annual meeting of shareholders. |
|---|---|
| 12. | In connection with any shareholder advisory vote on the frequency with which the Company shall hold a<br>shareholder advisory vote on the compensation of the Company’s named executive officers identified in the Company’s proxy<br>statement (also known as “say-on-pay”), the Committee shall review and recommend for approval by the Board (a) the frequency<br>that should be recommended to the Company’s shareholders and (b) the frequency with which the Company should submit to the shareholders<br>advisory “say-on-pay” votes, taking into account any prior shareholder advisory votes on such frequency. Further, the Committee<br>shall review the results of any “say-on-pay” votes and consider whether to make or recommend adjustments to the Company’s<br>executive compensation policies and practices as a result of such votes. |
| --- | --- |
| 13. | The Committee may form and delegate authority to subcommittees when appropriate. |
| --- | --- |
| 14. | The Committee shall make regular reports to the Board. |
| --- | --- |
| 15. | The Committee shall approve such reports on compensation as are necessary for filing with the SEC and<br>other government bodies. |
| --- | --- |
| 16. | Review and recommend to the Board for approval the frequency with which the Company will conduct Say on<br>Pay Votes, taking into account the results of the most recent shareholder advisory vote on frequency of Say on Pay Votes required by Section<br>14A of the 1934 Act unless no such vote has been conducted due to the Company’s reliance on an exemption under Section 14A(e) of<br>the 1934 Act, and review and approve the proposals regarding the Say on Pay Vote and the frequency of the Say on Pay Vote to be included<br>in the Company’s proxy statement. |
| --- | --- |
| 17. | The Committee will conduct and review with the Board an annual performance evaluation that (i) assesses<br>the Committee’s performance relative to the purpose, duties and responsibilities of the Committee outlined in this Charter and in<br>Section 805 of the Company Guide, and (ii) establishes the Committee’s goals and objectives for the following year. The Committee<br>may conduct this annual performance evaluation in the manner deemed appropriate by the Committee in its business judgment. |
| --- | --- |
| 18. | Carry out any other duties and responsibilities assigned to the Committee by the Board, to the extent<br>permitted by law and the Company’s Bylaws. |
| --- | --- |
DELEGATION OF AUTHORITY
The Committee may, to the extent permitted under applicable law, the rules of NYSE American and the SEC, and the Company’s Articles of Incorporation and Bylaws, form subcommittees and delegate authority to them when appropriate.
COMPENSATION
Members of the Committee will receive such fees, if any, for their service as Committee members as may be determined by the Board. Such fees may include retainers or per-meeting fees and will be paid in such form of consideration as the Board may determine in accordance with the applicable rules of NYSE American and the SEC.
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Exhibit 99.4
BLOCKCHAIN DIGITAL INFRASTRUCTURE, INC.
NOMINATING & CORPORATE GOVERNANCE COMMITTEE CHARTER
Adopted: March 16, 2026
I. PURPOSE
The Nominating and Corporate Governance Committee (the “Committee”) is a committee of the board of directors (the “Board”) of Blockchain Digital Infrastructure, Inc. (the “Company”). The purpose of the Committee shall be to (1) identify qualified individuals for membership on the Board and recommend to the Board the director nominees for the next annual meeting of shareholders, (2) develop and recommend to the Board a set of corporate governance principles if and when deemed appropriate, (3) lead the Board in its annual review of the Board’s performance, (4) review the Company’s policies and programs that relate to matters of corporate responsibility and (5) review and advise the Board on corporate governance matters generally including providing relevant input regarding any related matters required by the Delaware corporate laws, the U.S. federal securities laws and the listing standards and rules and standards of the NYSE American Stock Exchange (“NYSE American”) or any other national securities exchange upon which the Company’s common stock may be listed.
II. MEMBERSHIPON THE COMMITTEE
The membership of the Committee shall consist solely of independent directors, as required by Section 804 of the NYSE American Company Guide (“Section 804”), except as otherwise permitted by Section 804 as well as any independence and other requirements of the Securities and Exchange Commission (the “SEC”) and other applicable laws. The Committee shall be comprised of at least the minimum number of independent directors required to serve on the committee under the NYSE American Company Guide. The Board shall appoint the members of the Committee following each annual meeting of shareholders, and such member will serve at the discretion of the Board, until their successors are appointed and qualified. The Board shall designate one member of the Committee as its chairperson. The Board may remove any member from the Committee at any time, with or without cause. The Committee may form subcommittees for any purpose that the Committee deems appropriate and may delegate to such subcommittees such power and authority as the Committee deems appropriate.
III. DUTIESAND RESPONSIBILITIES OF THE COMMITTEE
1. BoardReview: On an annual basis the Committee shall oversee the annual review of the effectiveness of the directors. The evaluation shall assess the Board’s contribution to the Company and identify areas for improvement. The Committee shall also administer an annual reevaluation of each director to determine each director’s ongoing ability and suitability to serve on the Board.
2. Criteriafor Nomination to the Board: The Committee shall exercise its independent judgment to identify, evaluate and recommend to the Board and the Company’s stockholders nominees for election to the Board, in accordance with the requirements established by the SEC and the NYSE American and with the Board’s general criteria for directors set forth in the Company’s corporate governance standards and policies as in effect from time to time;
3. Nominationof Directors: The Committee shall annually consider the size, composition and needs of the Board and consider and recommend candidates for membership on the Board. The Committee shall recommend the composition of the Board for each annual meeting of shareholders. The Committee shall solicit and receive recommendations and review the qualifications of potential candidates. The Committee shall recommend to the Board each year the director nominees for election at the next annual meeting of shareholders. In case of a vacancy on the Board, upon the recommendation of the Committee, the Board may elect a new or replacement director to the Board during the course of the year to serve until the next annual meeting of shareholders.
4. DirectorOn-boarding and Education: The Committee shall oversee and implement, as necessary, director on-boarding and continuing education programs, including compliance with any applicable director continuing education requirements;
**5. Reportsto the Board:**The Committee shall report regularly to the Board on its meetings and review with the Board significant issues and concerns that arise at meetings of the Committee.
**6. CharterReview:**On an annual basis, the Committee shall review the adequacy of this charter, and recommend to the Board any modifications or changes for approval by the Board.
**7. CommitteeAssignments:**The Committee shall be responsible for recommending the assignment of Board members to the Company’s various Board Committees.
**8. CommitteeReview:**The Committee shall perform an annual evaluation of its effectiveness.
**9. CorporateGovernance Policies and Practices:**The Committee shall periodically, and at least annually, review the Company’s corporate governance policies and practices and recommend changes to the Board when appropriate in light of the Company’s position, developments in laws and regulations applicable to the Company, and corporate governance trends and practices. The Committee shall oversee compliance by the Board and its committees with applicable laws and regulations, including the stock exchange and SEC rules and regulations.
**10. ShareholderProposals:**The Committee shall review and assess shareholder proposals submitted to the Company for inclusion in the Company’s proxy statement, including an assessment of the relevance and significance of any such proposal.
11. Meetingsof the Committee: The Committee will meet at least twice each year with the option of holding additional meetings at such times as it deems necessary or appropriate. The Committee will keep written minutes of its meetings. Meetings of the Committee shall be called by a majority of the members of the Committee upon such notice as is provided for in the Company’s articles with respect to meetings of the Board. A majority of the Committee members shall constitute a quorum. Actions of the Committee may be taken in person at a meeting or in writing without a meeting. Actions taken at a meeting, to be valid, shall require the approval of a majority of the members of the Committee present and voting. Actions taken in writing, to be valid, shall be signed by all members of the Committee.
12. DirectorResignation Policy: Directors are expected to submit a letter of resignation at the time of retirement from active employment with the Company, or under the following circumstances:
(a) Whenever a director, after election to the Board, becomes employed by or a director of a competitor of the Company.
(b) Whenever the health or physical condition of a director would prevent him or her from satisfactorily fulfilling the responsibilities of the position.
(c) Whenever a change of circumstance affects a director’s continuing independence.
A Committee member may resign by delivering his or her written resignation to the chairperson of the Board, or may be removed by majority vote of the Board by delivery to such member of written notice of removal, to take effect at a date specified therein, or upon delivery of such written notice to such member if no date is specified. The Board shall have the power at any time to fill vacancies in the Committee, subject to such new member(s) satisfying any applicable requirements. In the event that the proposed letter of resignation is not accepted, the director’s tenure will continue. The Board shall have the power at any time to fill vacancies in the Committee, subject to such new member(s) satisfying the above requirements.
13. Advicefrom internal or external counsel: In performing all of its responsibilities, the Committee shall have the authority to hire and obtain advice, reports or opinions from internal or external counsel and expert advisors, including search firms, and to set the terms and fees for any such counsel and advisors. The Company must provide for appropriate funding, as determined by the Committee, for the payment of reasonable compensation to a consultant, legal counsel or other adviser retained by the Committee.
14. Scopeof Investigation: The Committee shall have the authority to conduct or authorize investigations into any matters within the scope of its responsibilities as it shall deem appropriate, including the authority to request any officer, employee or adviser of the Company to meet with the Committee or any advisers engaged by the Committee.
DELEGATION OF AUTHORITY
The Committee may, to the extent permitted under applicable law, the rules of the NYSE American and the SEC, and the Company’s Articles of Incorporation and Bylaws, form and delegate authority to subcommittees when appropriate.
COMPENSATION
Members of the Committee shall receive such fees, if any, for their service as Committee members, as may be determined by the Board. Such fees may include retainers or per-meeting fees and shall be paid in such form of consideration as is determined by the Board in accordance with the applicable rules of the NYSE American and the SEC.
Exhibit 99.5
BLOCKCHAIN DIGITAL INFRASTRUCTURE, INC.
EXECUTIVE COMPENSATION
CLAWBACK POLICY
Effective as of March 16, 2026
| 1. | OVERVIEW |
|---|
In accordance with the applicable rules set forth in the NYSE American LLC Company Guide (the “NYSE Rules”), Section 10D and Rule 10D-1 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (“Rule 10D-1”), the Board of Directors (the “Board”) of Blockchain Digital Infrastructure, Inc. (the “Company”) has adopted this Policy (the “Policy”) to provide for the recovery of erroneously awarded Incentive-based Compensation from Officers. All capitalized terms used and not otherwise defined herein shall have the meanings set forth in Section H, below.
| 2. | RECOVERY OF ERRONEOUSLY AWARDED COMPENSATION |
|---|
(a) In the event of an Accounting Restatement, the Company will reasonably promptly recover the Erroneously Awarded Compensation Received in accordance with NYSE Rules and Rule 10D-1 as follows:
| (i) | After an Accounting Restatement, the Compensation Committee (if composed entirely of independent directors,<br>or in the absence of such a committee, a majority of independent directors serving on the Board) (the “Committee*”*)<br>shall determine the amount of any Erroneously Awarded Compensation Received by each Officer and shall promptly notify each Officer with<br>a written notice containing the amount of any Erroneously Awarded Compensation and a demand for repayment or return of such compensation,<br>as applicable. For Incentive-based Compensation based on (or derived from) the Company’s stock price or total shareholder return,<br>where the amount of Erroneously Awarded Compensation is not subject to mathematical recalculation directly from the information in the<br>applicable Accounting Restatement: |
|---|---|
| (1) | The amount to be repaid or returned shall be determined by the Committee based on a reasonable estimate<br>of the effect of the Accounting Restatement on the Company’s stock price or total shareholder return upon which the Incentive-based<br>Compensation was Received; and |
| --- | --- |
| (2) | The Company shall maintain documentation of the determination of such reasonable estimate and provide<br>the relevant documentation as required to the NYSE. |
| --- | --- |
| (ii) | The Committee shall have discretion to determine the appropriate means of recovering Erroneously Awarded<br>Compensation based on the particular facts and circumstances. Notwithstanding the foregoing, except as set forth in Section B(2) below,<br>in no event may the Company accept an amount that is less than the amount of Erroneously Awarded Compensation in satisfaction of an Officer’s<br>obligations hereunder. |
| --- | --- |
| (iii) | To the extent that the Officer has already reimbursed the Company for any Erroneously Awarded Compensation<br>Received under any duplicative recovery obligations established by the Company or applicable law, it shall be appropriate for any such<br>reimbursed amount to be credited to the amount of Erroneously Awarded Compensation that is subject to recovery under this Policy. |
| --- | --- |
| (iv) | To the extent that an Officer fails to repay all Erroneously Awarded Compensation to the Company when<br>due, the Company shall take all actions reasonable and appropriate to recover such Erroneously Awarded Compensation from the applicable<br>Officer. The applicable Officer shall be required to reimburse the Company for any and all expenses reasonably incurred (including legal<br>fees) by the Company in recovering such Erroneously Awarded Compensation in accordance with the immediately preceding sentence. |
| --- | --- |
(b) Notwithstanding anything herein to the contrary, the Company shall not be required to take the actions contemplated by Section B(1) above if the Committee (which, as specified above, is composed entirely of independent directors or in the absence of such a committee, a majority of the independent directors serving on the Board) determines that recovery would be impracticable and either of the following conditions are met:
| (i) | The Committee has determined that the direct expenses to be paid to a third party to assist in enforcing<br>the Policy would exceed the amount to be recovered. Before making this determination, the Company must make a reasonable attempt to recover<br>the Erroneously Awarded Compensation, document such attempt(s) and provide such documentation to the NYSE American; or |
|---|---|
| (ii) | Recovery would likely cause an otherwise tax-qualified retirement plan, under which benefits are broadly<br>available to employees of the Company, to fail to meet the requirements of Section 401(a)(13) or Section 411(a) of the Internal Revenue<br>Code of 1986, as amended, and regulations thereunder. |
| --- | --- |
| 3. | DISCLOSURE REQUIREMENTS |
|---|
The Company shall file all disclosures with respect to this Policy required by applicable filings and rules of the U.S. Securities and Exchange Commission (the “SEC”).
| 4. | PROHIBITION OF INDEMNIFICATION |
|---|
The Company shall not be permitted to insure or indemnify any Officer against (i) the loss of any Erroneously Awarded Compensation that is repaid, returned or recovered pursuant to the terms of this Policy, or (ii) any claims relating to the Company’s enforcement of its rights under this Policy. Further, the Company shall not enter into any agreement that exempts any Incentive-based Compensation that is granted, paid or awarded to an Officer from the application of this Policy or that waives the Company’s right to recovery of any Erroneously Awarded Compensation, and this Policy shall supersede any such agreement (whether entered into before, on or after the Effective Date of this Policy).
| 5. | ADMINISTRATION AND INTERPRETATION |
|---|
This Policy shall be administered by the Committee, and any determinations made by the Committee shall be final and binding on all affected individuals.
The Committee is authorized to interpret and construe this Policy and to make all determinations necessary, appropriate, or advisable for the administration of this Policy and for the Company’s compliance with NYSE American Rules, Section 10D, Rule 10D-1 and any other applicable law, regulation, rule or interpretation of the SEC or NYSE American promulgated or issued in connection therewith.
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| 6. | AMENDMENT; TERMINATION |
|---|
The Committee may amend this Policy from time to time in its discretion and shall amend this Policy as it deems necessary. Notwithstanding anything in this Section F to the contrary, no amendment or termination of this Policy shall be effective if such amendment or termination would (after taking into account any actions taken by the Company contemporaneously with such amendment or termination) cause the Company to violate any federal securities laws, SEC rules or NYSE rules.
| 7. | OTHER RECOVERY RIGHTS |
|---|
This Policy shall be binding and enforceable against all Officers and, to the extent required by applicable law or guidance from the SEC or NYSE American, their beneficiaries, heirs, executors, administrators or other legal representatives. The Committee intends that this Policy will be applied to the fullest extent required by applicable law. Any employment agreement, equity award agreement, compensatory plan or any other agreement or arrangement with an Officer shall be deemed to include, as a condition to the grant of any benefit thereunder, an agreement by the Officer to abide by the terms of this Policy. Any right of recovery under this Policy is in addition to, and not in lieu of, any other remedies or rights of recovery that may be available to the Company under applicable law, regulation or rule or pursuant to the terms of any policy of the Company or any provision in any employment agreement, equity award agreement, compensatory plan, agreement or other arrangement.
| 8. | DEFINITIONS |
|---|
For purposes of this Policy, the following capitalized terms shall have the meanings set forth below.
(a) “AccountingRestatement” means an accounting restatement due to the material noncompliance of the Company with any financial reporting requirement under the securities laws, including any required accounting restatement to correct an error in previously issued financial statements that is material to the previously issued financial statements (a “Big R” restatement), or that would result in a material misstatement if the error were corrected in the current period or left uncorrected in the current period (a “little r” restatement).
(b) “ClawbackEligible Incentive Compensation” means all Incentive-based Compensation Received by an Officer (i) on or after the effective date of the applicable NYSE rules (October 2, 2023), (ii) after beginning service as an Officer, (iii) who served as an Officer at any time during the applicable performance period relating to any Incentive-based Compensation (whether or not such Officer is serving at the time the Erroneously Awarded Compensation is required to be repaid to the Company), (iv) while the Company has a class of securities listed on a national securities exchange or a national securities association, and (v) during the applicable Clawback Period.
(c) “ClawbackPeriod” means, with respect to any Accounting Restatement, the three completed fiscal years of the Company immediately preceding the Restatement Date (as defined below), and if the Company changes its fiscal year, any transition period of less than nine months within or immediately following those three completed fiscal years.
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(d) “ErroneouslyAwarded Compensation” means, with respect to each Officer in connection with an Accounting Restatement, the amount of Clawback Eligible Incentive Compensation that exceeds the amount of Incentive-based Compensation that otherwise would have been Received had it been determined based on the restated amounts, computed without regard to any taxes paid.
(e) “Officer” means each individual who is currently or was previously designated as an “officer” of the Company as defined in Rule 16a-1(f) under the Exchange Act. For the avoidance of doubt, the identification of an Officer for purposes of this Policy shall include each “executive officer” who is or was identified pursuant to Item 401(b) of Regulation S-K as well as the principal financial officer and principal accounting officer (or, if there is no principal accounting officer, the controller).
(f) “FinancialReporting Measures” means measures determined and presented in accordance with U.S. generally accepted accounting principles and all other measures derived wholly or in part from such measures. Stock price and total shareholder return (and any measures that are derived wholly or in part from stock price or total shareholder return) shall, for purposes of this Policy, be considered Financial Reporting Measures. A Financial Reporting Measure need not be presented in the Company’s financial statements or included in a filing with the SEC.
(g) “Incentive-basedCompensation” means any compensation that is granted, earned or vested based wholly or in part upon the attainment of a Financial Reporting Measure.
(h) “NYSE” means the New York Stock Exchange or NYSE American LLC.
(i) “Received” means, with respect to any Incentive-based Compensation, actual or deemed receipt, and Incentive-based Compensation shall be deemed received in the Company’s fiscal period during which the Financial Reporting Measure specified in the Incentive-based Compensation award is attained, even if the payment or grant of the Incentive-based Compensation to the Officer occurs after the end of that period.
(j) “RestatementDate” means the earlier to occur of (i) the date the Board, a committee of the Board or the officers of the Company authorized to take such action if Board action is not required, concludes, or reasonably should have concluded, that the Company is required to prepare an Accounting Restatement, or (ii) the date a court, regulator or other legally authorized body directs the Company to prepare an Accounting Restatement.
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Exhibit A
ATTESTATION AND ACKNOWLEDGEMENT OF
EXECUTIVE COMPENSATION CLAWBACK POLICY
By my signature below, I acknowledge and agree that:
I have received and read the attached Executive Compensation Clawback Policy (the “Policy”).
I hereby agree to abide by all of the terms of this Policy both during and after my employment with the Company, including, without limitation, by promptly repaying or returning any Erroneously Awarded Compensation to the Company as determined in accordance with this Policy.
| Signature: |
|---|
| Printed Name: |
| --- |
| Date: |
| --- |
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Exhibit 99.6
INSIDER TRADING POLICY
Background and Objective
The Board of Directors of Blockchain Digital Infrastructure, Inc. (the “Company”) has adopted this Insider Trading Policy (this “Policy”) for our directors, officers, employees and consultants. It applies to the trading of the Company’s securities as well as the securities of other publicly traded companies with whom we have a business relationship.
Federal and state securities laws prohibit the purchase or sale of a company’s securities by persons who are aware of material information about that company that is not generally known or available to the public. Likewise, these laws prohibit persons who are aware of such material nonpublic information from disclosing this information to others who may trade. Companies and their controlling persons are also subject to liability if they fail to take reasonable steps to prevent insider trading by company personnel.
It is important that you understand the breadth of activities that constitute illegal insider trading and the consequences, which can be severe. The U.S. Securities and Exchange Commission (the “SEC”) and the Financial Industry Regulatory Authority, stock exchanges and similar entities in other jurisdictions where we may do business, investigate and are very effective at detecting insider trading. These agencies, along with government prosecutors, pursue insider trading violations vigorously. Cases have been prosecuted successfully against trading by employees through foreign accounts, trading by family members and friends, and trading involving only a small number of shares.
This Policy is designed to prevent insider trading (or allegations of insider trading) and to protect the Company’s reputation for integrity and ethical conduct. It is your obligation to understand and comply with this Policy. Should you have any questions regarding this Policy, please contact the Chief Financial Officer or such person’s designee if that officer is not available, collectively referred to in this Policy as the “Compliance Officer.”
Penalties for Noncompliance
Civil and Criminal Penalties. For individuals, potential penalties for insider trading violations include: (1) imprisonment for up to 20 years; (2) criminal fines of up to $5 million; and (3) civil fines of up to three times the profit gained or loss avoided.
Controlling-Person Liability. If the Company fails to take appropriate steps to prevent illegal insider trading, the Company may have “controlling person” liability for a trading violation, with civil penalties of up to the greater of $1 million or three times the profit gained or loss avoided, as well as a criminal penalty of up to $25 million. The civil penalties can extend personal liability to the Company’s directors, officers and other supervisory personnel if they fail to take appropriate steps to prevent insider trading.
Company Sanctions. Failure to comply with this Policy may also subject you to Company-imposed sanctions, including termination, whether or not your failure to comply with this Policy results in a violation of law.
Scope of Policy
Persons Covered. As a director, officer, employee or consultant of the Company or its subsidiaries, this Policy applies to you. The same restrictions that apply to you also apply to:
Your family members who reside with you;
Anyone else who lives in your household; and
Any family members who do not live in your household but whose transactions in Company securities are directed by you or are subject to your influence or control (such as parents or children who consult with you before they trade in Company securities).
You are responsible for making sure that the purchase or sale of any security covered by this Policy by any such person complies with this Policy.
Companies Covered. The prohibition on insider trading in this Policy is not limited to trading in the Company’s own securities. It includes trading in the securities of other firms, such as business associates or suppliers of the Company and those with which the Company may be negotiating major transactions or contractual relationships, such as an acquisition, investment, license or sale. Information that is not material to the Company may nevertheless be material to one of those other firms.
Transactions Covered. Trading includes purchases and sales of stock, derivative securities such as put and call options, convertible debentures and convertible preferred stock, and debt securities (debentures, bonds and notes).
Transactions not Covered. This Policy does not apply to the transactions described below as permitted under “Transactions under Our Equity Compensation Plans,” “Transactions Not Involving a Purchase or Sale” and “Rule 10b5-1 Plans.”
Statement of Policy
No Trading on Inside Information. You may not trade in the securities of the Company, directly or through family members or other persons or entities, if you are aware of material nonpublic information relating to the Company. Similarly, you may not trade in the securities of any other company if you are aware of material nonpublic information about the other company that you obtained in the course of your employment with, or services for, the Company.
No Tipping. You may not pass material nonpublic information on to others or recommend to others the purchase or sale of any securities when you are aware of such information. This practice, known as “tipping,” also violates the securities laws and can result in the same civil and criminal penalties that apply to insider trading, even though you did not trade and did not gain any benefit from the other person’s trading.
No Exception for Hardship. The existence of a personal financial emergency or hardship does not excuse you from compliance with this Policy.
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No Exception for Transactions Not Intendedto be Based on Inside Information. It does not matter that you may have decided to engage in a transaction before becoming aware of material nonpublic information or that the material nonpublic information did not affect your decision to engage in the transaction. It is also irrelevant that publicly disclosed information about the Company might, even aside from the material nonpublic information, provide a sufficient basis for engaging in the transaction. In other words, your possession of inside information prevents you from engaging in a transaction, even if you would have engaged in such transaction without such inside information.
Blackout and Pre-Clearance Procedures
To help prevent inadvertent violations of the federal securities laws and to avoid even the appearance of trading on the basis of inside information, our Board of Directors has adopted an Addendum to this Policy setting forth policies prohibiting trading during certain “blackout periods” and requiring the pre-clearance of transactions, that applies to the following individuals:
Directors of the Company;
Executive officers and any person performing the function of an executive officer of the Company;
Any other person identified in the Addendum or that is designated by the Compliance Officer from time to time; and
Any spouse or relative of any of the above who resides in the same home or whose transactions in Company securities are directed by any of the above individuals or are subject to influence or control by any of the above individuals.
The Company will notify you if you are subject to the blackout periods and pre-clearance policies set forth in the Addendum.
Definition of “Material NonpublicInformation”
Inside information has two important elements—materiality and public availability.
Material Information. Information is material if there is a substantial likelihood that a reasonable investor would consider it important in deciding whether to buy, hold or sell a security. Any information that could reasonably be expected to affect the price of the security is material. Common examples of material information are:
Projections of future earnings or losses, or other earnings guidance;
Earnings or operating results that are inconsistent with the consensus expectations of the investment community;
A pending or proposed merger, acquisition or tender offer or an acquisition or disposition of significant assets;
A change in senior management;
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Major events regarding the Company’s securities, including the declaration of a forward or reverse stock split or the offering of additional securities;
Severe financial liquidity problems;
Actual or threatened major litigation, or the resolution of such litigation;
The acquisition or license of products;
New major contracts, orders, suppliers, customers, partners or finance sources, or the loss thereof; and
The introduction or a change in status of significant new products.
Both positive and negative information can be material. Because trading that receives scrutiny will be evaluated after the fact with the benefit of hindsight, questions concerning the materiality of particular information should be resolved in favor of materiality. In other words, in case of doubt, trading should be avoided.
Nonpublic Information. Nonpublic information is information that is not generally known or available to the public. One common misconception is that material information loses its “nonpublic” status as soon as it is publicly disclosed. In fact, information is considered to be available to the public only when it has been released broadly to the marketplace (such as by a press release or an SEC filing) and the investing public has had time to absorb the information fully. As a general rule, the Company continues to consider information nonpublic until the close of the first full trading day after the information is released. For example, if the Company discloses earnings before trading begins on a Tuesday, then the first time you can buy or sell Company securities is the opening of the market on Wednesday (assuming you are not aware of other material nonpublic information at that time). However, if the Company discloses earnings after trading begins on that Tuesday, then the first time you can buy or sell Company securities is the opening of the market on Thursday.
Additional Guidance Regarding Trading ofSecurities
The Company considers it improper for those who are employed by, or associated with, the Company to engage in short-term or speculative transactions in the Company’s securities or in other transactions in the Company’s securities that may lead to inadvertent violations of the insider trading laws. Accordingly, your trading in Company securities is subject to the following additional guidelines:
Short Sales. You may not engage in short sales of the Company’s securities (sales of securities that you do not own, i.e., borrowed securities). You also may not engage in short sales “against the box” (sales of securities that you own, but with delayed delivery).
Publicly Traded Options. You may not engage in transactions in publicly traded options on the Company’s securities, such as puts, calls and other derivative securities, on an exchange or in any other organized market.
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Hedging. You may not engage in hedging transactions, including, but not limited to, zero-cost collars, forward sale contracts and many others, which involve the establishment of a short position in the Company’s securities and limit or eliminate your ability to profit from an increase in the value of the Company’s securities. Such transactions are complex and involve many aspects of the federal securities laws, including filing and disclosure requirements.
Standing or Limit Orders. Standing or limit orders should be used only for a very brief period of time, if at all. A standing order placed with a broker to sell or purchase Company stock at a specified minimum or maximum price leaves you with no control over the timing of the transaction. The limit order could be executed by the broker when you are aware of material nonpublic information, which would result in unlawful insider trading.
Margin Accounts and Pledges. Securities held in a margin account or pledged as collateral for a loan may be sold without your consent by the broker if you fail to meet a margin call or by the lender in foreclosure if you default on the loan. A margin or foreclosure sale that occurs when you are aware of material nonpublic information may, under some circumstances, result in unlawful insider trading. Because of this danger, you may not hold securities in a margin account or pledge Company securities as collateral for a loan.
Transactions Under Our Equity CompensationPlans
This Policy does not apply to transactions under our equity compensation plans, except as noted below:
| Stock Option Exercises. This Policy’s trading restrictions generally do not apply<br> to the exercise of a stock option. The trading restrictions do apply, however, to any sale of the underlying stock or to a cashless<br> exercise of the option through a broker, as this entails selling a portion of the underlying stock to cover the costs of<br> exercise. |
|---|
| Vesting of Awards. This Policy’s trading restrictions do not apply to the vesting of<br> stock options, restricted stock or stock units, or the exercise of a right to have shares withheld to satisfy the tax withholding<br> consequences of vesting. The Policy would apply to market sales of any shares received, including sales to cover the tax<br> consequences of vesting. |
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Transactions Not Involving a Purchase orSale
Bona fide gifts of securities are not subject to this Policy unless the person making the gift has reason to believe that the recipient intends to sell the securities at a time when the person making the gift (or a family member or other related person or entity) would be prohibited from doing so. If you own shares of a mutual fund that invests in our securities, there are no restrictions on trading the shares of the mutual fund at any time.
Rule 10b5-1 Plans
Trades by covered persons in the Company’s securities that are executed pursuant to a Rule 10b5-1 plan implemented as described below are not subject to the prohibition on trading on the basis of material nonpublic information contained in this Policy or to the restrictions relating to pre-clearance procedures and blackout periods set forth in this Policy.
Rule 10b5-1 provides an affirmative defense from insider trading liability under the federal securities laws for trading plans that meet certain requirements. In general, a Rule10b5-1 plan must be entered into at a time when you are not aware of material nonpublic information. If you are subject to the blackout provisions of the Addendum, you may not establish a Rule 10b5-1 plan during any blackout period. Once the plan is adopted, you must not exercise any influence over the amount of securities to be traded, the price at which they are to be traded or the date of the trade. The plan must either specify (including by formula) the amount, pricing and timing of transactions in advance, or delegate discretion on those matters to an independent third party not under your control or influence.
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The Company requires that all Rule 10b5-1 plans be approved in writing in advance by the Compliance Officer. In addition, unless expressly agreed by the Company, all Rule 10b5-1 plans must be with, and administered by, a singular broker designated by the Company
Post-Termination Transactions
This Policy continues to apply to your transactions in Company securities even after you have separated from service with the Company or a subsidiary. If you are aware of material nonpublic information when your employment or service relationship terminates, you may not trade in Company securities until that information has become public or is no longer material.
Unauthorized Disclosure
Maintaining the confidentiality of Company information is essential for competitive, security and other business reasons, as well as to comply with securities laws. You should treat all information you learn about the Company or its business plans in connection with your service as confidential and proprietary to the Company. Company employees and representatives should treat all corporate information with discretion and discuss confidential data only with those Company employees and representatives who have a right and a need to know. In particular, do not discuss confidential information with relatives, friends or acquaintances. Inadvertent disclosure of confidential or inside information may expose the Company and you to significant risk of investigation and litigation.
The timing and nature of the Company’s disclosure of material information to outsiders is subject to legal rules, the breach of which could result in substantial liability to you, the Company and its management. Accordingly, it is important that responses to inquiries about the Company by the press, investment analysts or others in the financial community be made on the Company’s behalf only through authorized individuals. Please consult the Company’s Regulation FD Compliance Policy for more details regarding the Company’s policy on speaking to the media, financial analysts and investors.
In addition, you are prohibited at all times from posting any information about the Company, its products, its customers, its potential customers, its business associates, or its competitors, as well as any other “material” nonpublic information, in any Internet discussion group or social media site or outlet.
Personal Responsibility
You should remember that the ultimate responsibility for adhering to this Policy and avoiding improper trading rests with you. If you violate this Policy, the Company may take disciplinary action, including dismissal.
Company Assistance
Your compliance with this Policy is of the utmost importance both for you and for the Company. If you have any questions about this Policy or its application to any proposed transaction, you may obtain additional guidance from the Compliance Officer. Please do not try to resolve uncertainties on your own, as the rules relating to insider trading are often complex and not always intuitive while violations entail severe consequences.
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ADDENDUM TO INSIDER TRADING POLICY
We have established additional procedures to assist in the administration of this Policy, to facilitate compliance with laws prohibiting insider trading while in possession of material nonpublic information, and to avoid the appearance of any impropriety. These additional procedures are applicable only to those individuals that are identified in the Policy or are designated by the Compliance Officer from time to time as described below.
Pre-Clearance Procedures. Directors and executive officers subject to Section 16 of the Securities Exchange Act of 1934, and employees or other personnel designated by the Compliance Officer as deemed likely to be in possession of material nonpublic information, as well as their family members who reside in the same home and entities that they control (collectively, “Covered Persons”), may not engage in any transaction in our securities without first obtaining pre-clearance of the transaction from the Compliance Officer. A request for pre-clearance should be submitted to the Compliance Officer at least two (2) business days in advance of the proposed transaction. The Compliance Officer is under no obligation to approve a transaction submitted for pre-clearance, and may determine not to permit the transaction. If a person seeks pre-clearance and permission to engage in the transaction is denied, then he or she should refrain from initiating any transaction in our securities, and should not inform any other person of the restriction.
When a request for pre-clearance is made, the requestor should carefully consider whether he or she may be aware of any material nonpublic information, and should describe fully those circumstances to the Compliance Officer. The requestor should be prepared to file a Form 4 for the proposed transaction (if applicable) and to comply with SEC Rule 144 and file Form 144, if necessary, at the time of any sale. We assist our directors and executive officers in completing and filing the appropriate forms and advance notice of the transactions allows us to complete these filings on a timely basis.
Quarterly Trading Restrictions. Covered Persons may not conduct any transactions involving our securities (other than as specified by this Policy), during a “Blackout Period” beginning on the last trading day of each fiscal quarter and ending after the first business day following the date of the public disclosure of our earnings results for that quarter. This Blackout Period applies even if you are not aware of material, nonpublic information at that time. Further, even if a Blackout Period is not in effect, at no time may you trade in Company securities if you are aware of material nonpublic information about the Company.
*Event-Specific Trading Restriction Periods.*From time to time, an event may occur that is material to Company and is known by only a limited group of directors, officers, employees and/or other Company representatives. So long as the event remains material and nonpublic, Covered Persons may not trade Company securities. In addition, our financial results may be sufficiently material in a particular fiscal quarter that, in the judgment of the Compliance Officer, Covered Persons should refrain from trading in our securities even sooner than the typical Blackout Period described above. In that situation, the Compliance Officer may notify these persons that they should not plan to trade in our securities until further advised by the Compliance Officer, without disclosing the reason for the restriction. The existence of an event-specific trading restriction period or extension of a Blackout Period will not be communicated widely within the Company, and should not be communicated to any other person.
Exceptions. The quarterly trading restrictions and event-driven trading restrictions do not apply to those transactions to which the Policy does not apply, as described in the Policy under the headings “Transactions under Our Equity Compensation Plans” and “Transactions Not Involving a Purchase or Sale.” Further, the requirement for pre-clearance, the quarterly trading restrictions and event-specific trading restrictions do not apply to transactions conducted pursuant to approved Rule 10b5-1 plans, described under the heading “Rule 10b5-1 Plans.” However, the establishment of a Rule 10b5-1 plan by a Covered Person does require pre-clearance and may not occur during any Blackout Period or event-specific trading restriction period.
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