DeFi Development Corp 10-Q for FY2026 Q1
DeFi Development Corp. (DFDV)
10-Q
2026-05-19
For: 2026-03-31
View Original
Added on
May 19, 2026
About this 10-Q
DeFi Development Corp filed this 10-Q on May 19, 2026, covering the quarter ended March 31, 2026 (FY2026 Q1).
Headline figures
Quarter ended March 31, 2026, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $2.66M
- up 828.2% from $287K a year earlier
- Net loss
- $83.39M
- compared with a net loss of $778K a year earlier
- Diluted EPS
- -$3.18
- compared with -$0.08 a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |||||
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 2026
or
| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |||||
FOR THE TRANSITION PERIOD FROM _________ to __________
COMMISSION FILE NUMBER 001-41748
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |||||||
( | ||||||||
| (Address of principal executive offices) (Zip Code) | (Registrant’s telephone number, including area code) | |||||||
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||||||||
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | o | Accelerated filer | o | ||||||||||||||
☒ | Smaller reporting company | ||||||||||||||||
| 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. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act) Yes ☐ No ☒
As of May 19, 2026, the registrant had a total of 30,118,205 shares of its common stock, par value $0.00001 per share, issued and outstanding.
DEFI DEVELOPMENT CORP.
INDEX TO FORM 10-Q
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This Quarterly Report on Form 10-Q contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). We have based these forward-looking statements largely on our current expectations and projections about future events and financial trends impacting the financial condition of our business. Forward-looking statements should not be read as a guarantee of future performance or results and will not necessarily be accurate indications of the times at, or by, which such performance or results will be achieved. Forward-looking statements are based on information available at the time those statements are made and or management’s good faith belief as of that time with respect to future events and are subject to risks and uncertainties that could cause actual performance or results to differ materially from those expressed in or suggested by the forward-looking statements.
Forward-looking statements include all statements that are not historical facts. In some cases, you can identify forward-looking statements by terms such as “may,” “will,” “should,” “could,” “would,” “expect,” “intend,” “seek,” “plan,” “anticipate,” “believe,” “estimate,” “project,” “predict,” “potential,” “might,” “forecast,” “continue,” or the negative of those terms, and similar expressions and comparable terminology intended to reference future periods. Forward-looking statements include, but are not limited to, statements about:
•The effect of and uncertainties related to the ongoing volatility in interest rates;
•Future reward yields related to operating validator nodes;
•The impact of current and future modifications to the Solana Network protocol;
•Uncertainties related to future staking reward yields;
•Our ability to achieve and maintain profitability in the future;
•The impact on our business of the regulatory environment and complexities with compliance related to such environment;
•Our ability to respond to general economic conditions;
•Our ability to manage our growth effectively and our expectations regarding the development and expansion of our business;
•Our ability to access sources of capital, including debt financing and other sources of capital to finance operations and growth;
•The success of our marketing efforts to access additional sales channels and our ability to expand our lender and borrower base;
•Our ability to grow market share in existing markets or any new markets we may enter;
•Our ability to develop new products, features and functionality that are competitive and meet market needs;
•Our ability to realize the benefits of our strategy, including our financial services and platform productivity;
•Our ability to make accurate credit and pricing decisions or effectively forecast our loss rates;
•Our ability to establish and maintain effective system of internal controls over financial reporting;
•Our ability to maintain the listing of our securities on Nasdaq;
•Sales of our common stock by us or our stockholders, which may result in increased volatility in our stock price; and
•The outcome of any legal or governmental proceedings that may be instituted against us.
Should one or more of these risks or uncertainties materialize, or should the underlying assumptions prove incorrect, actual results may differ significantly from those anticipated, believed, estimated, expected, intended or planned. Factors or events that could cause our actual results to differ may emerge from time to time, and it is not possible for us to predict all of them. We cannot guarantee future results, levels of activity, performance or achievements. Accordingly, the forward-looking statements in this Quarterly Report on Form 10-Q should not be regarded as representations that the results or conditions described in such statements will occur or that our
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objectives and plans will be achieved. Forward-looking statements contained in this Quarterly Report on Form 10-Q speak as of the date of this report and we do not assume any responsibility to update these forward-looking statements, except as required by law.
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PART I: FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
DEFI DEVELOPMENT CORP.
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
| (in thousands, except share data) | March 31, 2026 | December 31, 2025 | |||||||||
| ASSETS | |||||||||||
| Current assets: | |||||||||||
| Cash and cash equivalents | $ | $ | |||||||||
| Investments | |||||||||||
| Digital assets pledged as collateral | |||||||||||
| Deferred offering costs | |||||||||||
| Other current assets | |||||||||||
| Total current assets | |||||||||||
| Digital assets, at fair value | |||||||||||
| Digital assets, at carrying value, net | |||||||||||
| Goodwill | |||||||||||
| Intangible assets, net | |||||||||||
| Other assets | |||||||||||
| Total assets | $ | $ | |||||||||
| LIABILITIES AND STOCKHOLDERS’ EQUITY | |||||||||||
| Current liabilities: | |||||||||||
| Accounts payable and accrued expenses | $ | $ | |||||||||
| Digital asset financing arrangements | |||||||||||
| Loans payable | |||||||||||
| Other current liabilities | |||||||||||
| Total current liabilities | |||||||||||
| Long-term debt, net | |||||||||||
| Total liabilities | |||||||||||
Commitments and contingencies (Note 15) | |||||||||||
| Stockholders' equity: | |||||||||||
Preferred stock, undesignated, $ | |||||||||||
Series A Preferred stock, $ | |||||||||||
Series B Preferred stock, $ | |||||||||||
Common stock, $ | |||||||||||
| Additional paid-in capital | |||||||||||
| Treasury stock | ( | ( | |||||||||
| Accumulated other comprehensive (loss) income | ( | ( | |||||||||
| Accumulated (deficit) | ( | ( | |||||||||
| Total stockholders’ equity | |||||||||||
| Total liabilities and stockholders’ equity | $ | $ | |||||||||
See the accompanying notes to the condensed consolidated financial statements.
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DEFI DEVELOPMENT CORP.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
| Three Months Ended March 31, | |||||||||||||||||||||||
| (in thousands, except per share data) | 2026 | 2025 | |||||||||||||||||||||
| Revenue | $ | $ | |||||||||||||||||||||
| Operating expenses: | |||||||||||||||||||||||
| Cost of revenue | |||||||||||||||||||||||
| General and administrative | |||||||||||||||||||||||
| Sales and marketing | |||||||||||||||||||||||
| Research and development | |||||||||||||||||||||||
| Depreciation and amortization | |||||||||||||||||||||||
| Net loss (gain) on digital assets | |||||||||||||||||||||||
| (Gain) loss from changes in fair value of contingent consideration | ( | ||||||||||||||||||||||
| Total operating expenses | |||||||||||||||||||||||
| Operating (loss) income | ( | ( | |||||||||||||||||||||
| Interest expense | ( | ||||||||||||||||||||||
| (Loss) gain from derivative instruments | ( | ||||||||||||||||||||||
| Investment and other (expense) income, net | ( | ||||||||||||||||||||||
| (Loss) income before income taxes | ( | ( | |||||||||||||||||||||
| Income tax benefit (expense) | |||||||||||||||||||||||
| Net (loss) income | $ | ( | $ | ( | |||||||||||||||||||
| Net (loss) income per share: | |||||||||||||||||||||||
| Basic and diluted | $ | ( | $ | ( | |||||||||||||||||||
| Weighted-average shares outstanding: | |||||||||||||||||||||||
| Basic and diluted | |||||||||||||||||||||||
See the accompanying notes to the condensed consolidated financial statements.
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DEFI DEVELOPMENT CORP.
CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE (LOSS) INCOME
(Unaudited)
| Three Months Ended March 31, | |||||||||||
| (in thousands) | 2026 | 2025 | |||||||||
| Net (loss) income | $ | ( | $ | ( | |||||||
| Other comprehensive (loss) income, net of income taxes: | |||||||||||
| Cumulative translation adjustment | ( | ||||||||||
| Other comprehensive (loss) income, net of income taxes | ( | ||||||||||
| Comprehensive (loss) income | $ | ( | $ | ( | |||||||
See the accompanying notes to the condensed consolidated financial statements.
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DEFI DEVELOPMENT CORP.
CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY
(Unaudited)
| Series A Preferred Stock | Common Stock | Additional Paid-in Capital | Treasury Stock | Accumulated Other Comprehensive (Loss) Income | Accumulated (Deficit) | Total Stockholders’ Equity | |||||||||||||||||||||||||||||||||||||||||||||||
| (in thousands, except share data) | Shares | Amount | Shares | Amount | |||||||||||||||||||||||||||||||||||||||||||||||||
| Balances at December 31, 2025 | $ | $ | $ | $ | ( | $ | ( | $ | ( | $ | |||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock, net of offering costs | — | — | — | — | — | — | |||||||||||||||||||||||||||||||||||||||||||||||
| Warrants exercised | — | — | — | — | — | — | |||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock under employee stock plans | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||||||||||||||||||||
| Tax withholding related to common stock from employee stock plans | — | — | ( | — | ( | — | — | — | ( | ||||||||||||||||||||||||||||||||||||||||||||
| Repurchase of common stock | — | — | ( | — | — | ( | — | — | ( | ||||||||||||||||||||||||||||||||||||||||||||
| Warrant dividend distribution | — | — | — | — | — | — | ( | ||||||||||||||||||||||||||||||||||||||||||||||
| Share-based compensation | — | — | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||||
| Translation adjustments | — | — | — | — | — | — | ( | — | ( | ||||||||||||||||||||||||||||||||||||||||||||
| Net (loss) income | — | — | — | — | — | — | — | ( | ( | ||||||||||||||||||||||||||||||||||||||||||||
| Balances at March 31, 2026 | $ | $ | $ | $ | ( | $ | ( | $ | ( | $ | |||||||||||||||||||||||||||||||||||||||||||
| Series A Preferred Stock | Common Stock | Additional Paid-in Capital | Treasury Stock | Accumulated Other Comprehensive (Loss) Income | Accumulated Deficit | Total Stockholders’ Equity | |||||||||||||||||||||||||||||||||||||||||||||||
| (in thousands, except share data) | Shares | Amount | Shares | Amount | |||||||||||||||||||||||||||||||||||||||||||||||||
| Balances at December 31, 2024 | $ | $ | $ | $ | $ | $ | ( | $ | |||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock, net of offering costs | — | — | — | — | — | — | |||||||||||||||||||||||||||||||||||||||||||||||
| Exercise of share-based awards | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||||||||||||||||||||
| Share-based compensation | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||||||||||||||||||||
| Net (loss) income | — | — | — | — | — | — | — | ( | ( | ||||||||||||||||||||||||||||||||||||||||||||
| Balances at March 31, 2025 | $ | $ | $ | $ | $ | $ | ( | $ | |||||||||||||||||||||||||||||||||||||||||||||
See the accompanying notes to the condensed consolidated financial statements.
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DEFI DEVELOPMENT CORP.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
| Three Months Ended March 31, | |||||||||||
| (in thousands) | 2026 | 2025 | |||||||||
| Operating Activities | |||||||||||
| Net (loss) income | $ | ( | $ | ( | |||||||
| Adjustments to reconcile net (loss) income to net cash used in operating activities: | |||||||||||
| Digital assets received as revenue | ( | ||||||||||
| Digital assets paid for expenses | |||||||||||
| Depreciation and amortization | |||||||||||
| Amortization of debt discount | |||||||||||
| Share-based compensation | |||||||||||
| Net loss (gain) on digital assets | |||||||||||
| Loss (gain) from derivative instruments | |||||||||||
| Net loss (gain) on investment activity | ( | ||||||||||
| (Gain) loss from changes in fair value of contingent consideration | ( | ||||||||||
| Other | |||||||||||
| Changes in operating assets and liabilities: | |||||||||||
| Accounts receivable | ( | ||||||||||
| Prepaid expenses | |||||||||||
| Other assets | ( | ( | |||||||||
| Accounts payable and accrued expenses | ( | ( | |||||||||
| Deferred revenue | |||||||||||
| Net cash used in operating activities | ( | ( | |||||||||
| Investing Activities | |||||||||||
| Purchase of digital assets | ( | ||||||||||
| Proceeds from sales of digital assets | |||||||||||
| Purchases of investments | ( | ||||||||||
| Proceeds from the sale of investments | |||||||||||
| Net cash provided by (used in) investing activities | |||||||||||
| Financing Activities | |||||||||||
| Repayments of short-term debt | ( | ||||||||||
| Proceeds from issuance of common stock, net of offering costs | |||||||||||
| Payments related to employee stock plan taxes | ( | ||||||||||
| Proceeds from warrant exercises | |||||||||||
| Repurchase of common stock | ( | ||||||||||
| Net cash (used in) provided by financing activities | ( | ||||||||||
| Net (decrease) increase in cash and cash equivalents | ( | ( | |||||||||
| Cash and cash equivalents, at beginning of period | |||||||||||
| Cash and cash equivalents, at end of period | $ | $ | |||||||||
See the accompanying notes to the condensed consolidated financial statements.
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DEFI DEVELOPMENT CORP.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS-CONTINUED
(Unaudited)
| Three Months Ended March 31, | |||||||||||
| Supplemental Information of Cash Paid Information | 2026 | 2025 | |||||||||
| Cash paid for interest | $ | $ | |||||||||
| Cash paid for taxes, net of refunds | $ | $ | |||||||||
| Supplemental Schedule of Non-cash Investing and Financing Activities | |||||||||||
| Digital asset financing arrangement borrowings | $ | $ | |||||||||
| Repayments of digital asset financing arrangements | $ | $ | |||||||||
| Common stock issuance in connection with equity line of credit commitment fee | $ | $ | |||||||||
| Warrant dividend distribution | $ | $ | |||||||||
See the accompanying notes to the condensed consolidated financial statements.
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DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
NOTE 1—OVERVIEW AND SIGNIFICANT ACCOUNTING POLICIES
OVERVIEW
DeFi Development Corp. (“DeFi Dev", the “Company”, "we", "our", "us") is a company focused on building and managing a digital asset treasury centered on the Solana blockchain ecosystem. We also provide an online platform that connects the commercial real estate industry by providing data and software subscriptions as well as value-add services to multifamily and commercial property professionals.
SIGNIFICANT ACCOUNTING POLICIES
There have been no material changes to our significant accounting policies, critical accounting estimates, segment reporting, or recently issued accounting pronouncements from those disclosed in Note 1—Overview and Significant Accounting Policies in our Annual Report on Form 10-K for the year ended December 31, 2025.
Basis of Presentation
The condensed consolidated financial statements have been prepared in accordance with generally accepted accounting principles in the United States (“U.S. GAAP”) for interim financial information and the Securities and Exchange Commission (“SEC”) interim reporting guidelines under Article 8-03 of Regulation S-X (17 CFR Part 210) for smaller reporting companies. The December 31, 2025 condensed consolidated Balance Sheet was derived from our audited consolidated financial statements included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2025, as filed with the SEC. Accordingly, our condensed consolidated financial statements do not include all the disclosures required by U.S. GAAP and should be read in conjunction with the audited consolidated financial statements and accompanying notes included in our Annual Report on Form 10-K for the year ended December 31, 2025 filed with SEC on March 30, 2026.
In the opinion of management, these condensed consolidated financial statements reflect all adjustments, consisting only of normal recurring adjustments considered necessary for a fair presentation of our financial position and results of operations for all interim periods presented. The consolidated results of operations for the interim periods presented are not necessarily indicative of results to be expected for the full year or any other interim periods.
Principles of Consolidation
The accompanying condensed consolidated financial statements include the accounts of DeFi Dev and its wholly owned subsidiaries. All intercompany accounts and transactions are eliminated in consolidation.
Reclassifications
Reclassifications have been made to prior periods to conform to classifications used in the current period. Such reclassifications had no effect on previously reported results.
Stock Splits
On May 6, 2025, our Board of Directors approved a seven -for-one forward stock split of the Company's common stock to shareholders of record as of the close of business on May 19, 2025. All share, per share data and related pricing have been adjusted to reflect the previously mentioned stock splits for all periods presented.
Estimates and Assumptions
The preparation of our condensed consolidated financial statements requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities and disclosure of contingent assets and liabilities and the reported amounts of revenue and expenses during the reported period. Actual results may differ significantly from these estimates and assumptions. Our most significant estimates and assumptions relate to valuation of financial instruments, valuation of share-based compensation and our valuation allowances on deferred taxes. Management evaluates these estimates and assumptions on an ongoing basis using the most current information available and changes are made in the period they are known.
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DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
Fair Value Measurements
We determine fair value measurements for certain assets and liabilities in accordance with Accounting Standards Codification Topic 820, Fair Value Measurements ("ASC 820"), which defines fair value as the exit price that would be received to sell an asset or paid to transfer a liability in an ordinary transaction between market participants. ASC 820 establishes a framework for valuation techniques, prioritized by reliability, according to the following tiers:
| Level 1 | Unadjusted quoted prices in active markets for identical assets and liabilities | ||||
| Level 2 | Quoted prices for similar assets and liabilities in active markets; quoted prices for similar or identical assets and liabilities in markets that are not active; valuation models in which all significant inputs are derived from observable market data | ||||
| Level 3 | Unobservable valuation model inputs for assets and liabilities such as discounted cash flow models or similar techniques; inputs for fair value instruments; includes assumptions and may require significant judgment and estimation by management | ||||
We use this framework to measure the fair value of certain financial instruments on a recurring basis, such as our cash and cash equivalents, debt securities, marketable securities, digital assets pledged as collateral, digital assets at fair value, digital asset financing arrangements, as well as on a non-recurring basis for our acquisitions and impairment testing on our property and equipment, intangible assets and digital assets, at carrying value, convertible notes and pre-funded warrants. We also use this framework for disclosure purposes related to certain items, such as debt and our off-balance sheet transactions. See Note 14—Fair Value Measurements, for further discussion.
Concentrations of Risk
Financial instruments that potentially subject the Company to concentrations of credit risk consist principally of cash and cash equivalents. The Company generally maintains balances in various operating accounts at financial institutions that management believes to be of high credit quality, in amounts that may exceed the Federal Deposit Insurance Limit of $250,000. The Company has not experienced any losses related to its cash and cash equivalents and does not believe that it is subject to unusual credit risk beyond the normal credit risk associated with commercial banking relationships. As of March 31, 2026 and December 31, 2025, the Company’s cash and cash equivalents were held at financial institutions.
Market Risk
We are exposed to market risk related to our digital asset holdings, collateral associated with our digital asset financing arrangements and digital asset financing arrangements, which are impacted by the fair value of the respective underlying digital asset. We performed a sensitivity analysis assuming a hypothetical 10 % increase or decrease in the fair value of these digital assets to demonstrate the potential impact on our financial results.
The following table presents the hypothetical market risk impact on our digital asset holdings:
| (in thousands) | Three Months Ended March 31, 2026 | ||||
| Digital assets, at fair value | $ | ||||
| Digital assets, at carrying value | |||||
| Digital assets pledged as collateral | |||||
| Digital asset financing arrangements | ( | ||||
| Total hypothetical impact on (loss) income before income taxes | $ | ||||
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DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
Expense Disaggregation Disclosure
In November 2024, the Financial Accounting Standards Board issued Accounting Standards Update No. 2024-03, Income Statement—Reporting Comprehensive Income—Expense Disaggregation Disclosures ("ASU 2024-03"), which enhances transparency by requiring public entities to disclose more detailed information about their income statement expenses. This includes disaggregating specific natural expense categories, like employee compensation and depreciation, within certain expense captions. ASU 2024-03 applies to public entities with annual reporting periods beginning after December 15, 2026, and interim reporting periods beginning after December 15, 2027, and early adoption is permitted. We are evaluating the impact this amended guidance may have on the notes to our consolidated financial statements.
Management does not believe that any other new accounting pronouncements issued or effective during the period had or is expected to have a material effect on the accompanying condensed consolidated financial statements. As new accounting pronouncements are issued, the Company will adopt those that are applicable under the circumstances.
NOTE 2—REVENUE
We earn revenue from digital assets through our treasury strategy and from providing customers with our AI-powered online real estate platform and from other value-added products and services.
DISAGGREGATION OF REVENUE
The following table shows the disaggregation of revenue for the periods presented:
| Three Months Ended March 31, | |||||||||||||||||||||||
| (in thousands) | 2026 | 2025 | |||||||||||||||||||||
| Digital asset treasury | $ | $ | |||||||||||||||||||||
| Real estate platform | |||||||||||||||||||||||
| Total revenue | $ | $ | |||||||||||||||||||||
NOTE 3—NET (LOSS) INCOME PER SHARE
We computed basic Net (loss) income per common share by dividing Net (loss) income by the weighted-average number of common shares outstanding during the relevant period. Diluted Net (loss) income per common share is calculated by dividing Net (loss) income by the weighted average of common shares outstanding during the relevant period plus the effect of dilutive shares using the treasury stock method, which excludes shares that would have an antidilutive effect, for share-based awards and warrants and the if-converted method for the effect of shares issuable under our convertible debt instruments. In periods where we report net loss, diluted net loss per share is the same as basic net loss per share because the effects of potentially dilutive items would decrease the net loss per share.
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DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
The following table provides the computation of basic and diluted Net (loss) income per share for the periods presented:
| Three Months Ended March 31, | |||||||||||||||||||||||
| (in thousands, except per share data) | 2026 | 2025 | |||||||||||||||||||||
| Numerator | |||||||||||||||||||||||
| Net (loss) income, basic and diluted | $ | ( | $ | ( | |||||||||||||||||||
| Denominator | |||||||||||||||||||||||
| Weighted-average of common shares outstanding, basic and diluted | |||||||||||||||||||||||
| Antidilutive shares: | |||||||||||||||||||||||
| Convertible notes | |||||||||||||||||||||||
| Warrants | |||||||||||||||||||||||
| Options | |||||||||||||||||||||||
| Dividend warrants | |||||||||||||||||||||||
| Restricted stock units | |||||||||||||||||||||||
| ELOC commitment shares | |||||||||||||||||||||||
| Total antidilutive shares | |||||||||||||||||||||||
| Net (loss) income per share | |||||||||||||||||||||||
| Basic and diluted | $ | ( | $ | ( | |||||||||||||||||||
NOTE 4—SEGMENTS
We determine operating segments based on metrics that our Chief Operating Decision Maker (“CODM”) reviews internally to manage our business, including resource allocation and performance assessment. Our CODM is the , who regularly reviews financial results based on two operating segments consisting of Digital Asset Treasury and Real Estate Platform.
•Digital Asset Treasury ("Treasury"): This segment is responsible for executing and managing the Company’s treasury policy, including our owned validators.
•Real Estate Platform ("Real Estate"): This segment is responsible for providing a technology platform that connects commercial mortgage and small business borrowers looking for debt to refinance, build, or buy commercial property including apartment buildings to commercial property lenders. These property lenders include traditional banks, credit unions, real estate investment trusts ("REITs"), debt funds, and other financial institutions looking to deploy capital into commercial mortgages.
The CODM uses Segment operating (loss) income to evaluate operating segment performance and allocate resources, including current period to prior period variances on a quarterly basis. Segment (loss) income excludes the impact of income taxes, interest expense and other income (expense) items, as these are managed at the corporate level. We do not prepare separate balance sheets by operating segment for the CODM, as such, assets are not evaluated as part of operating segment performance and resource allocation. We provide the CODM depreciation and amortization expense and impairment charges that are generated from operating segment-specific assets, as these are included in Segment operating (loss) income.
| 13 | |||||||
DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
Accounting policies associated with our operating segment are the same as those previously described in Note 1—Overview and Significant Accounting Policies of the Notes to the Condensed Consolidated Financial Statements in Part I, Item 1 of this Quarterly Report on Form 10-Q and the Notes to the Consolidated Financial Statements in Part II, Item 8 of our Annual Report on Form 10-K for the year ended December 31, 2025, including transactions between segments. Transactions between segments are reported as if each were a stand-alone business and are eliminated in consolidations.
The tables below shows our Segment operating (loss) income for the periods presented:
| Three Months Ended March 31, | |||||||||||||||||||||||
| 2026 | 2025 | ||||||||||||||||||||||
| (in thousands) | Treasury | Real Estate | Treasury | Real Estate | |||||||||||||||||||
| Segment revenue | $ | $ | $ | $ | |||||||||||||||||||
| Cost of revenue | |||||||||||||||||||||||
| General and administrative | |||||||||||||||||||||||
| Sales and marketing | |||||||||||||||||||||||
| Research and development | |||||||||||||||||||||||
| Depreciation and amortization | |||||||||||||||||||||||
| Net loss (gain) on digital assets | |||||||||||||||||||||||
| (Gain) loss from changes in fair value of contingent consideration | ( | ||||||||||||||||||||||
| Total segment operating expenses | $ | $ | $ | $ | |||||||||||||||||||
| Segment operating (loss) income | $ | ( | $ | ( | $ | $ | ( | ||||||||||||||||
| 14 | |||||||
DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
The below table reconciles Segment (loss) income to consolidated (loss) income before income taxes for the periods presented:
| Three Months Ended March 31, | |||||||||||||||||||||||||||||||||||||||||||||||
| 2026 | 2025 | ||||||||||||||||||||||||||||||||||||||||||||||
| (in thousands) | Treasury | Real Estate | Corporate | Total | Treasury | Real Estate | Corporate | Total | |||||||||||||||||||||||||||||||||||||||
| Revenue | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||||||||||||
| Cost of revenue | |||||||||||||||||||||||||||||||||||||||||||||||
| General and administrative | |||||||||||||||||||||||||||||||||||||||||||||||
| Sales and marketing | |||||||||||||||||||||||||||||||||||||||||||||||
| Research and development | |||||||||||||||||||||||||||||||||||||||||||||||
| Depreciation and amortization | |||||||||||||||||||||||||||||||||||||||||||||||
| Net loss (gain) on digital assets | |||||||||||||||||||||||||||||||||||||||||||||||
| (Gain) loss from changes in fair value of contingent consideration | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||
| Total operating expenses | |||||||||||||||||||||||||||||||||||||||||||||||
| Operating (loss) income | ( | ( | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||||||
| Interest expense | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||
| (Loss) gain from derivative instruments | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||
| Investment and other (expense) income, net | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||
| (Loss) income before income taxes | $ | ( | $ | ( | $ | ( | $ | ( | $ | $ | ( | $ | $ | ( | |||||||||||||||||||||||||||||||||
NOTE 5—DIGITAL ASSETS
DIGITAL ASSETS, AT FAIR VALUE
The table below details the components of our digital assets, at fair value with units, cost basis amounts and fair value based on Level 1 inputs that use unadjusted quoted prices from active markets and Level 2 inputs for
| 15 | |||||||
DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
locked Solana ("SOL") balances which incorporates unadjusted quoted prices from active markets and observable market transactions. See Note 14—Fair Value Measurements for further discussion.
| March 31, 2026 | December 31, 2025 | ||||||||||||||||||||||||||||||||||
| (in thousands) | Units | Cost Basis | Fair Value | Units | Cost Basis | Fair Value | |||||||||||||||||||||||||||||
| Solana (SOL) | $ | $ | $ | $ | |||||||||||||||||||||||||||||||
Other(a) | NM | ||||||||||||||||||||||||||||||||||
| Total digital assets, at fair value | NM | $ | $ | $ | $ | ||||||||||||||||||||||||||||||
| NM-Amounts are not meaningful. | |||||||||||||||||||||||||||||||||||
Locked SOL
A portion of our digital assets at fair value includes locked SOL, which we purchase below the spot rate, and cannot be withdrawn from the custodial accounts in which it is held for a predetermined period. Locked SOL may be staked to earn rewards while subject to vesting restrictions.
The table below details the future release of our locked SOL, in notional amounts, which also includes collateral related to digital asset financing arrangement term loans of 560.4 thousand tokens:
| (in thousands) | March 31, 2026 | ||||
| Remaining 2026 | |||||
| 2027 | |||||
| 2028 | |||||
| 16 | |||||||
DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
The table below shows a reconciliation of activity of our digital assets, at fair value:
| (in thousands) | March 31, 2026 | December 31, 2025 | |||||||||
| Beginning balance | $ | $ | |||||||||
| Purchases of Solana | |||||||||||
| Additions from validator, staking rewards and other | |||||||||||
| Additions from convertible notes | |||||||||||
| Additions from digital asset term loans | |||||||||||
| Additions from collateralized financing arrangements | |||||||||||
| Additions from the settlement of debt securities | |||||||||||
| Return of collateral on digital asset financing arrangements | |||||||||||
| Dispositions from purchase of debt securities | ( | ||||||||||
| Dispositions from the sale of Solana | ( | ( | |||||||||
| Repayments of digital asset term loans | ( | ||||||||||
| Repayments of collateralized financing arrangements | ( | ( | |||||||||
| Dispositions of collateral for digital asset financing arrangements | ( | ( | |||||||||
| Net conversion activity and payments for expenses | ( | ( | |||||||||
Unrealized losses from changes in fair value of digital assets(a) | ( | ( | |||||||||
Unrealized gains from changes in fair value of digital assets(a) | |||||||||||
Realized loss from disposition activities(a) | ( | ( | |||||||||
Realized gain from disposition activities(a) | |||||||||||
| Ending balance | $ | $ | |||||||||
(a) These amounts are included within Net loss (gain) on digital assets as stated on our Condensed Consolidated Statements of Operations.
DIGITAL ASSETS, AT CARRYING VALUE
The tables below summarize our digital assets, at carrying value with the respective gross and net carrying amounts, as well as fair value based on Level 2 inputs that use unadjusted quoted prices from active markets.
| March 31, 2026 | |||||||||||||||||||||||
| (in thousands) | Gross Carrying Amount | Accumulated Impairments | Net Carrying Amount | Fair Value | |||||||||||||||||||
| DFDV Staked SOL (dfdvSOL) | $ | $ | ( | $ | $ | ||||||||||||||||||
| apyUSD | |||||||||||||||||||||||
| apxUSD | |||||||||||||||||||||||
Other(a) | ( | ||||||||||||||||||||||
| Total digital assets, at carrying value | $ | $ | ( | $ | $ | ||||||||||||||||||
(a) No other digital asset accounted for 10 % or more of the total balance.
| 17 | |||||||
DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
| December 31, 2025 | |||||||||||||||||||||||
| (in thousands) | Gross Carrying Amount | Accumulated Impairments | Net Carrying Amount | Fair Value | |||||||||||||||||||
| DFDV Staked SOL (dfdvSOL) | $ | $ | ( | $ | $ | ||||||||||||||||||
Other(a) | ( | ||||||||||||||||||||||
| Total digital assets, at carrying value | $ | $ | ( | $ | $ | ||||||||||||||||||
(a) No other digital asset accounted for 10 % or more of the total balance.
NOTE 6—ACQUISITIONS, DISPOSITIONS AND WIND DOWN ACTIVITIES
WIND DOWN
On March 31, 2026, our Board of Directors approved the wind down of the legacy Janover Capital Markets and Janover Insurance businesses, which constituted substantially all of the operations of our Real Estate Platform segment. The wind down reflects our strategic decision to reallocate capital and management resources toward our digital asset treasury strategy and related initiatives, focusing on SOL and the Solana ecosystem. We expect that substantially all operations of the Real Estate Platform segment will cease by the end of the second quarter 2026. We evaluated the wind down under Accounting Standards Codification Topic 205-20, Discontinued Operations ("ASC 205") and determined that, although it represents a strategic shift, it does not have, and is not expected to have, a major effect on our operations and financial results. Accordingly, the results of the affected entities are presented within continued operations.
NOTE 7—GOODWILL AND INTANGIBLE ASSETS
GOODWILL
The table below shows the changes in the carrying value of goodwill:
| (in thousands) | |||||
| Balance, December 31, 2025 | $ | ||||
| Acquired goodwill | |||||
| Accumulated impairments | |||||
| Balance, March 31, 2026 | $ | ||||
| 18 | |||||||
DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
INTANGIBLE ASSETS, NET
The following table shows the components of intangible assets, net for the periods presented:
| March 31, 2026 | December 31, 2025⁽ᵃ⁾ | |||||||||||||||||||||||||||||||||||||
| (in thousands) | Useful Lives | Gross Carrying Amount | Accumulated Amortization | Net Carrying Amount | Gross Carrying Amount | Accumulated Amortization | Net Carrying Amount | |||||||||||||||||||||||||||||||
| Finite-lived: | ||||||||||||||||||||||||||||||||||||||
| Validators | $ | $ | ( | $ | $ | $ | ( | $ | ||||||||||||||||||||||||||||||
| Developed technology | ( | ( | ||||||||||||||||||||||||||||||||||||
| Customer database | ( | ( | ||||||||||||||||||||||||||||||||||||
| Indefinite-lived: | ||||||||||||||||||||||||||||||||||||||
| Domain name | ||||||||||||||||||||||||||||||||||||||
| Total intangibles, net | $ | $ | ( | $ | $ | $ | ( | $ | ||||||||||||||||||||||||||||||
(a) On May 1, 2025 we recorded intangible assets as a result of an asset acquisition, which consisted of validators.
The following table shows the estimated amortization expense related to the net carrying amount of finite-lived intangible assets:
| Remaining 2026 | $ | ||||
| 2027 | $ | ||||
| 2028 | $ | ||||
| 2029 and thereafter | $ | ||||
NOTE 8—DEBT
The table below summarizes our debt outstanding:
| (in thousands) | Effective Interest Rate | Contractual Interest Rate | March 31, 2026 | December 31, 2025 | |||||||||||||
| Short-term debt: | |||||||||||||||||
| Loan payable | $ | $ | |||||||||||||||
| Total short-term debt | $ | $ | |||||||||||||||
| Long-term debt: | |||||||||||||||||
| April 2030 convertible notes | $ | $ | |||||||||||||||
| July 2030 convertible notes | |||||||||||||||||
| Less: unamortized discount | ( | ( | |||||||||||||||
| Total long-term debt, net of unamortized discount | $ | $ | |||||||||||||||
| Total debt | $ | $ | |||||||||||||||
| 19 | |||||||
DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
As of March 31, 2026 and December 31, 2025, the estimated fair value of our debt was approximately $126.1 million and $119.5 million, respectively. The estimated fair value of our long-term convertible notes is based on Level 3 inputs utilizing the discounted cash flow model. The discount rate applied in the valuation model is based on the yield of U.S Treasury securities with similar remaining contractual terms, plus a credit spread derived from the Intercontinental Exchange Bank of America U.S. corporate bond option-adjusted spread indices for issuers with similar credit risk profiles.
The total interest expense on our debt was $2.2 million with contractual interest rate expense of $1.8 million and amortization of debt discount and issuance costs of $0.4 million.
SHORT-TERM DEBT
In April 2025, we entered into a Director and Officer insurance policy for $666.3 thousand, where we borrowed a total of $516.5 thousand. The financed insurance premiums are payable over ten months and have a contractual annual interest rate of 7.1 % which is calculated using a 365-day calendar year. During the first quarter 2026, we fully repaid the outstanding balance of $106.7 thousand related to the insurance policy borrowings.
LONG-TERM DEBT
During the first quarter 2026, we did not have any new issuances of senior notes.
July 2030 Convertible Notes
On July 7, 2025, we issued $112.5 million in aggregate principal amount, in a private offering, of 5.5 % convertible senior notes due July 1, 2030 ("July Notes"). Additionally, the initial purchasers of the private offering exercised the right to purchase additional July Notes, as granted under the terms of the private offering, resulting in an additional issuance of 10.0 million in aggregate principal amount of the July Notes. Our July Notes bear interest at an annual rate of 5.5 % which is calculated based on a 360-day year, payable semiannually in arrears.
April 2030 Convertible Notes
On April 4, 2025, we issued $42.0 million in aggregate principal amount, in a private offering, of 2.5 % convertible notes due April 6, 2030 ("April Notes"). The April 2030 Convertible Notes bear interest at an annual rate of 2.5 % per year, accrued daily and payable quarterly in arrears on March 31, June 30, September 30 and December 31 each year. None of our April 2030 convertible notes were converted to common stock during the first quarter of 2026.
The table below shows the future payments associated with our long-term debt as of March 31, 2026:
| (in thousands) | |||||
| Remaining 2026 | $ | ||||
| 2027 through 2029 | $ | ||||
| 2030 and thereafter | $ | ||||
| 20 | |||||||
DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
NOTE 9—DERIVATIVES
The table below presents our derivative assets and liabilities as shown on our Condensed Consolidated Balance Sheets:
| (in thousands) | March 31, 2026 | |||||||||||||
| Classification | Assets | Liabilities | ||||||||||||
| Derivatives not designated as hedges: | ||||||||||||||
| Digital assets pledged as collateral | $ | $ | ||||||||||||
| Digital asset financing arrangements | ||||||||||||||
| Accrued crypto loan borrowing fees | Accounts payable and accrued expenses | |||||||||||||
| Total | $ | $ | ||||||||||||
| (in thousands) | December 31, 2025 | |||||||||||||
| Classification | Assets | Liabilities | ||||||||||||
| Derivatives not designated as hedges: | ||||||||||||||
| Digital assets pledged as collateral | $ | $ | ||||||||||||
| Digital asset financing arrangements | ||||||||||||||
| Accrued crypto loan borrowing fees | Accounts payable and accrued expenses | |||||||||||||
| Total | $ | $ | ||||||||||||
The table below presents the effect of derivative instruments, included within (Loss) gain from derivative instruments as stated on our Condensed Consolidated Statements of Operations. We did not have derivative instruments as of March 31, 2025:
| (in thousands) | Three Months Ended March 31, 2026 | ||||||||||
| Digital assets pledged as collateral | $ | ( | |||||||||
| Digital asset financing arrangements | |||||||||||
| Accounts payable | |||||||||||
| Total | $ | ( | |||||||||
DIGITAL ASSET FINANCING ARRANGEMENTS
Term Loans
On July 25, 2025, we entered into a master loan agreement under which we may borrow digital assets or cash. Each loan is documented in a separate loan request which sets forth the specific terms, including principal amount, fees, collateral requirements, and the date on which the loan is to commence and mature. The terms of the master loan agreement last one year and automatically renew for successive one year terms annually, unless terminated by either party.
During the first quarter 2026, we renewed a loan under our master loan agreement, where we repaid and subsequently borrowed 60 thousand SOL or $12.9 million (using exchange rates as of the date the SOL was repaid and borrowed). We primarily used the proceeds from the loan requests for SOL decentralized finance (“DeFi”) activities. The previously mentioned loan request has a three month maturity with an annual contractual borrowing fee of 13.0 %, which is calculated daily based on 360-days and payable on the loan maturity date. Under the terms of the loan request, we are required to post collateral in the form of the digital asset borrowed or cash, which is calculated as a percentage of the total loan value, at 300.0 % and maintain a minimum collateral coverage
| 21 | |||||||
DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
of 200.0 %. If the collateral coverage declines to 150.0 % or lower and is not remediated in a timely manner, the lender has the right to liquidate some or all of the posted collateral. The lender has a security interest in the collateral assets through repayment of the loan. We derecognize the SOL provided as collateral and record an asset on our Condensed Consolidated Balance Sheets. In the event we repay the loan prior to the maturity date, we shall pay the lender a fee equal to 20.0 % of the borrowing fee that would have accrued from the date of the repayment until the maturity date of the loan. SOL that we borrow is included in Digital assets, at fair value as stated on our Condensed Consolidated Balance Sheets.
Open-Term Loans
On February 23, 2026, we entered into a loan request under the previously mentioned master loan agreement, where we borrowed $4.0 million USD Coin ("USDC"). The loan has no maturity date and the lender is able to request repayment at any time, at which point we have one business day to settle the loan. Conversely, we can settle the loan at any time without penalties. The loan request has an annual contractual borrowing fee of 10.0 %, which is calculated daily based on 360-days and payable on repayment of the loan. Under the terms of the loan request, we are required to post collateral in the form of SOL, which is calculated as a percentage of the total loan value, which is 200 % and we are to maintain a minimum collateral coverage of 175 %. If the collateral coverage declines to 125 % or lower and is not remediated in a timely manner, the lender has the right to liquidate some or all of the posted collateral. The lender has a security interest in the collateral asset through repayment of the loan. We derecognize the SOL provided as collateral and record an asset on our Condensed Consolidated Balance Sheets.
As of March 31, 2026, digital asset term loans outstanding were $17.7 million and we had $46.5 million of posted collateral which is recorded within Digital assets pledged as collateral as stated on our Condensed Consolidated Balance Sheets. Since the value of the posted collateral exceeded the associated liability, our net economic exposure is effectively zero. During the three months ended March 31, 2026, total borrowing fees recognized within Interest expense, as stated on our Condensed Consolidated Statements of Operations, was $0.5 million.
Collateralized Financing Arrangements
We enter into digital asset financing arrangements through DeFi protocols that allow digital assets to be deposited as collateral in order to obtain borrowings of additional digital assets. We may redeposit these borrowed assets into lending protocols and subsequently borrow additional assets against those deposits. This strategy is intended to increase our exposure to staking rewards, lending yields and other protocol incentives. The borrowed digital assets do not have a specified maturity date and are repayable at our option at any time. The interest rate on these borrowings are established by each DeFi protocol and are variable. The interest rate is determined based on the borrow demand for each digital asset on the DeFi protocol. Interest is calculated daily and payable on the date repayment is made. We do not have an explicit right of offset under the terms of the collateralized financing arrangements and present the associated liabilities and assets on a gross basis. Through the first quarter 2026, we received proceeds of $78.2 million (using exchange rates as of the date the digital assets were borrowed) and repaid a total of $43.8 million (using exchange rates as of the date the digital assets were repaid). We used the proceeds from these collateralized financing arrangements for SOL DeFi activities.
We derecognize the digital assets provided as collateral related to these borrowings and record an asset on our Condensed Consolidated Balance Sheets. As of March 31, 2026, we had $65.3 million of posted collateral relating to our collateralized financing arrangements which is recorded within Digital assets pledged as collateral as stated on our Condensed Consolidated Balance Sheets. Our net economic impact related to our collateralized financing arrangements was zero as the outstanding balance and related collateral are the same amount.
| 22 | |||||||
DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
The table below shows our outstanding collateralized financing arrangements in our Condensed Consolidated Balance Sheets:
| (in thousands) | March 31, 2026 | December 31, 2025 | ||||||
| Solana (SOL) | $ | $ | ||||||
| PayPal USD (PYUSD) | ||||||||
| Global Dollar (USDG) | ||||||||
Other(a) | ||||||||
| Total | $ | $ | ||||||
| (a) No other digital asset or stablecoin accounted for 10% or more of total collateralized financing arrangements. | ||||||||
NOTE 10—STOCKHOLDERS’ EQUITY
SHARE REPURCHASES
During the first quarter 2026, we repurchased 1,601,747 shares of our common stock for approximately $10.5 million.
COMMON STOCK WARRANTS
Convertible Note Warrants
Contemporaneously with the April Notes, we issued two series of warrants for each $1,000 in principal amount of convertible notes that provided Investors the right to purchase approximately 58.34 shares (2.4 million shares in total) of our common stock at an exercise price of $17.14 per share in one series and approximately 46.66 shares of our common stock (2.0 million shares in total) at an exercise price of $21.43 per share in the second series. The warrants were exercisable immediately upon issuance and have a term of five years from the date of issuance. During the first quarter of 2026, we issued 43.8 thousand and 35.1 thousand shares in total, or $124.5 thousand, for the first and second series, respectively, as a result of the warrant dividend declared in October 2025. We determined that the warrant dividend is an equity-linked instrument and was recorded at fair value as a reduction to Accumulated deficit with a corresponding increase to Additional paid-in capital, as stated on our Condensed Consolidated Balance Sheets. See Note 14—Fair Value Measurements, for further discussion.
As of March 31, 2026, all warrants issued in connection with these convertible notes remained unexercised and outstanding. See Note 8—Debt for further discussion.
Pre-Funded Warrants
On August 24, 2025, we entered into subscription agreements (the "Subscription Agreements") with certain institutional and accredited investors (“Warrant Investors”) pursuant to which the Company, subject to the restrictions and satisfaction of the conditions in the Subscription Agreements, agreed to sell in a private placement to the Warrant Investors an aggregate of 4,187,953 5,812,089 shares of common stock at an exercise price of $0.0001 per share. The purchase price for one share of common stock was $12.50 and the purchase price for one pre-funded warrant was $12.4999 per share. As of March 31, 2026, 4.9 million warrants were exercised and 0.9 million were outstanding.
On May 1, 2025, we entered into a securities purchase agreement with a syndicate of investors ("the PIPE Investors"), where we agreed to, among other things, enter into a related registration rights agreement in connection with the issuance and sale, in a private placement, of the following securities to the PIPE Investors for gross proceeds of approximately $24.0 million: 2,210,866 shares of our common stock and pre-funded warrants to purchase up to 1,453,753 of our common stock at an exercise price of approximately $0.0014 per share. The purchase price for one share of common stock or pre-funded warrant was approximately $6.57 . The pre-funded warrants became exercisable 21 days after we filed the Definitive Information Statement on Schedule 14C on June 2, 2025 regarding stockholder approval of the issuance of shares subject to pre-funded warrants in
| 23 | |||||||
DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
accordance with Nasdaq listing requirements. The exercise price and number of pre-funded warrant shares issuable upon exercise of the pre-funded warrant are subject to appropriate adjustment in the event of stock dividends, stock splits, reorganizations or similar events affecting our common stock and the exercise price. The pre-funded warrants may be exercised, in whole or in part, at any time by means of a “cashless exercise". Through the first quarter 2026, 1.5 million warrants were exercised and none were outstanding.
EQUITY LINE OF CREDIT
On June 11, 2025, we entered into a share purchase agreement for an equity line of credit (the "ELOC") with RK Capital Management LLC ("RK"), under which RK has agreed to purchase, from time to time, up to an aggregate of $1.0 billion ("Initial Commitment") of our common stock over the term of the agreement. Subject to certain conditions the Initial Commitment may be increased to $5.0 billion. The Company filed with the SEC a registration statement to register for resale under the Securities Act on June 16, 2025, so the registered shares may be issued to RK. In connection with the ELOC, we agreed to pay a commitment fee of $12.5 million, over a twelve month period, in the form of common stock. In the first quarter of 2026, we recorded $3.1 million in commitment fees, or 702.1 thousand shares, of which $2.2 million is included within Investment and other (expense) income, net and $0.9 million in stockholders' equity.
During the first quarter 2026, we issued 0.5 million of common stock for approximately $2.0 million in net proceeds. We used the net proceeds for working capital purposes. See Note 18—Subsequent Events for discussion on activity that occurred after the balance sheet date under the ELOC.
ACCUMULATED OTHER COMPREHENSIVE (LOSS) INCOME
All cumulative translation adjustments recorded in Accumulated other comprehensive (loss) income arise from changes in foreign currency exchange rates on our foreign operations. No deferred taxes have been provided as we have elected to permanently reinvest such earnings in the respective foreign jurisdiction. The table below presents information on the changes in the components of Accumulated other comprehensive (loss) income:
| (in thousands) | |||||
| Balance December 31, 2025 | $ | ( | |||
| Cumulative translation adjustments | ( | ||||
| Balance March 31, 2026 | $ | ( | |||
NOTE 11—SHARE-BASED COMPENSATION
Share-based compensation expense includes restricted stock units, or RSUs, and stock options.
SHARE-BASED COMPENSATION EXPENSE
The table below shows the total pre-tax share-based compensation expenses recorded for the periods presented:
| Three Months Ended March 31, | |||||||||||||||||||||||
| (in thousands) | 2026 | 2025 | |||||||||||||||||||||
| General and administrative | $ | $ | |||||||||||||||||||||
| Sales and marketing | |||||||||||||||||||||||
| Research and development | |||||||||||||||||||||||
| Total | $ | $ | |||||||||||||||||||||
| 24 | |||||||
DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
STOCK OPTIONS
The table below shows activity related to stock options:
| Options | Weighted Average Exercise Price | ||||||||||
| Outstanding as of December 31, 2025 | $ | ||||||||||
| Granted | |||||||||||
| Exercised | ( | ||||||||||
| Forfeited | ( | ||||||||||
| Outstanding as of March 31, 2026 | $ | ||||||||||
| Exercisable March 31, 2026 | $ | ||||||||||
As of March 31, 2026, unrecognized pretax compensation of $9.9 million related to stock options which will be recognized over a weighted average period of approximately 3.6 years.
RESTRICTED STOCK UNITS
The table below shows the activity for our restricted stock:
| Units | Weighted Average Fair Value | ||||||||||
| Nonvested as of December 31, 2025 | $ | ||||||||||
| Granted | |||||||||||
| Vested | ( | ||||||||||
| Forfeited | |||||||||||
| Nonvested as of March 31, 2026 | $ | ||||||||||
As of March 31, 2026, unrecognized pretax compensation of $3.8 million related to restricted stock units which will be recognized over a weighted average period of approximately 3.4 years.
NOTE 12—INVESTMENTS
The following table provides the components of Investment and other (expense) income, net:
| (in thousands) | Three Months Ended March 31, 2026 | Three Months Ended March 31, 2025 | |||||||||
| Equity in net (loss) income of investees, net | $ | ( | $ | ||||||||
| Realized and unrealized (loss) gain on debt securities, net | |||||||||||
| Realized and unrealized gain (loss) on equity securities, net | |||||||||||
| Other (expense) income, net | ( | ||||||||||
| Investment and other (loss) income, net | $ | ( | $ | ||||||||
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DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
The table below shows the components of our investments:
| (in thousands) | March 31, 2026 | December 31, 2025 | |||||||||
| Equity method securities | $ | $ | |||||||||
| Non-marketable securities | |||||||||||
| Marketable securities | |||||||||||
| Debt securities | |||||||||||
| Total | $ | $ | |||||||||
EQUITY METHOD SECURITIES
On August 27, 2025, we entered into a subscription agreement with Cykel AI where we agreed to purchase 10.4 million of prepaid warrants for £1.25 million, or $1.7 million (using exchange rates as of the agreement date). Under the terms of the subscription agreement, we will be granted an additional 10.4 million of cash warrants exercisable at a 10 % premium to the price per share stated in the second capital raise (the "Second Capital Raise") per cash warrant. As of March 31, 2026 the Second Capital Raise has not occurred. Additionally, we have the right to appoint two board members to the Company and an additional board member once the Second Capital Raise closes. For the three months ended March 31, 2026, we recognized a $610.6 thousand loss resulting from of our share of earnings in the investee, which was recorded in Other (expense) income, net as stated on our Condensed Consolidated Statements of Operations.
NON-MARKETABLE EQUITY SECURITIES
During the first quarter 2026, we invested approximately $630.0 thousand in Peak Consulting Labs Inc. ("Peak"), a privately held company, through a Simple Agreement for Future Equity ("SAFE"). We account for these non-marketable securities in accordance with Accounting Standards Codification Topic 321, Investments—Equity Securities ("ASC 321"). Under ASC 321, the SAFE is an equity security that does not have a readily determinable fair value. We have elected the measurement alternative under ASC 321-10-35-2, under which the investment is carried at cost, less impairment, and adjusted for observable price changes in orderly transactions for identical or similar securities of the same issuer. We concluded that Peak, is a variable interest entity under the framework detailed in Accounting Standards Codification Topic 810, Consolidations ("ASC 810"). Under ASC 810, we determined that consolidation of Peak is not required as we do not have the power to direct the activities that most significantly impact the economic performance of Peak and we are not the primary beneficiary.
As of March 31, 2026, no upward adjustments, downward adjustments, impairment charges, or realized gains or losses have been recognized, our carrying value was $630.0 thousand which is included within Investments on our Condensed Consolidated Balance Sheets.
DEBT SECURITIES
On September 19, 2025, we entered into a securities purchase agreement with Flora Growth Corp. (“Flora”) in which we agreed to, among other things, purchase convertible notes for 93.3 thousand SOL, or $23.1 million (using the exchange rate as of the agreement date) due September 2030, contingent upon certain closing conditions as described in the agreement. The convertible notes have an interest rate of 8.0 % per year, accrued daily and payable in SOL on a quarterly basis, in arrears, on March 31, June 30, September 30 and December 31 each year. On October 24, 2025, the closing conditions were met.
Subsequently, on December 29, 2025, we entered into a note settlement agreement (the "Note Settlement Agreement") with Flora, where we agreed to settle the aforementioned convertible notes, including principal, accrued interest and fees, for approximately $11.0 million in SOL (using exchange rates as of the date the SOL was received), $1.75 million in cash and approximately $0.8 million worth of common shares of Flora.
| 26 | |||||||
DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
During the first quarter 2026, we received approximately 6.7 thousand SOL, or $841.0 thousand, related to the remaining balance of the Note Settlement Agreement with Flora and recognized a loss of $425.7 thousand upon settlement.
MARKETABLE EQUITY SECURITIES
In December 2025, we received shares of common stock in Flora as part of a Note Settlement Agreement. We initially recorded the common shares at fair value as of the settlement date and have subsequently remeasured to fair value as of the balance sheet date. During the first quarter 2026, we sold a portion of the common stock for approximately $163.4 thousand.
NOTE 13—INCOME TAXES
EFFECTIVE TAX RATE
Our effective tax rate for the three months ended March 31, 2026 and March 31, 2025 was 0.0 21 % as a result of our U.S losses for which no benefit will be realized.
The Company has historically calculated the provision for income taxes during interim reporting periods by applying an estimate of the annual effective tax rate for the full fiscal year to ordinary income or loss (pretax income or loss excluding unusual or infrequently occurring discrete items) for the reporting period. Consistent with this approach, the Company is using the estimated annual effective tax rate (the "AETR") method to calculate taxes for the period ending March 31, 2026, and is discretely recognizing specific events referred to as "discrete items" as they occur.
The Company recognizes deferred tax assets to the extent that it believes that these assets are more likely than not to be realized. In making such a determination, the Company considers all available positive and negative evidence, including future reversals of existing taxable temporary differences, projected future taxable income, tax-planning strategies, and results of recent operations.
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DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
NOTE 14—FAIR VALUE MEASUREMENTS
ASSETS AND LIABILITIES MEASURED AT FAIR VALUE ON A RECURRING BASIS
The Company’s financial assets and liabilities subject to fair value measurements on a recurring basis and the level of inputs used for such measurements were as follows:
| March 31, 2026 | |||||||||||||||||||||||||||||
| Fair Value | |||||||||||||||||||||||||||||
| (in thousands) | Carrying Value | Level 1 | Level 2 | Level 3 | Total | ||||||||||||||||||||||||
| Assets: | |||||||||||||||||||||||||||||
| Digital assets, at fair value | $ | $ | $ | $ | $ | ||||||||||||||||||||||||
| Digital assets pledged as collateral | |||||||||||||||||||||||||||||
Stablecoins(a) | |||||||||||||||||||||||||||||
Marketable securities(b) | |||||||||||||||||||||||||||||
| Total assets | $ | $ | $ | $ | $ | ||||||||||||||||||||||||
| Liabilities: | |||||||||||||||||||||||||||||
| Digital asset financing arrangements | $ | $ | $ | $ | $ | ||||||||||||||||||||||||
Accrued crypto loan borrowing fees(c) | |||||||||||||||||||||||||||||
| Total liabilities | $ | $ | $ | $ | $ | ||||||||||||||||||||||||
| (a) Amounts are included within Other current assets as stated on our Condensed Consolidated Balance Sheets. | |||||||||||||||||||||||||||||
| (b) Amounts are included within Investments as stated on our Condensed Consolidated Balance Sheets. | |||||||||||||||||||||||||||||
| (c) Amounts are included within Accounts payable and accrued expenses as stated on our Condensed Consolidated Balance Sheets. | |||||||||||||||||||||||||||||
| December 31, 2025 | |||||||||||||||||||||||||||||
| Fair Value | |||||||||||||||||||||||||||||
| (in thousands) | Carrying Value | Level 1 | Level 2 | Level 3 | Total | ||||||||||||||||||||||||
| Assets: | |||||||||||||||||||||||||||||
| Digital assets, at fair value | $ | $ | $ | $ | $ | ||||||||||||||||||||||||
| Digital assets pledged as collateral | |||||||||||||||||||||||||||||
Stablecoins(a) | |||||||||||||||||||||||||||||
Debt securities(b) | |||||||||||||||||||||||||||||
Marketable securities(b) | |||||||||||||||||||||||||||||
| Total | $ | $ | $ | $ | $ | ||||||||||||||||||||||||
| Liabilities: | |||||||||||||||||||||||||||||
| Digital asset financing arrangements | $ | $ | $ | $ | $ | ||||||||||||||||||||||||
Accrued crypto loan borrowing fees(c) | |||||||||||||||||||||||||||||
| Total | $ | $ | $ | $ | $ | ||||||||||||||||||||||||
| (a) Amounts are included within Other current assets as stated on our Condensed Consolidated Balance Sheets. | |||||||||||||||||||||||||||||
| (b) Amounts are included within Investments as stated on our Condensed Consolidated Balance Sheets. | |||||||||||||||||||||||||||||
| (c) Amounts are included within Accounts payable and accrued expenses as stated on our Condensed Consolidated Balance Sheets. | |||||||||||||||||||||||||||||
| 28 | |||||||
DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
Financial assets and liabilities classified within Level 1 are valued using unadjusted quoted prices for identical assets and liabilities in active markets. There are no active markets for our locked SOL holdings. Accordingly, we have valued the locked SOL holdings using unadjusted quoted price on the active market we identified as the principal market, and adjusted for Level 2 inputs, which incorporate observable market transactions executed by public companies comparable to our Digital Asset Treasury segment and those transactions entered into by us.
Our derivative instruments are primarily comprised of digital asset financing arrangements and digital assets pledged as collateral for those financing arrangements and are valued based on the underlying digital asset. Derivative instruments that are classified within Level 1 are valued using unadjusted quoted prices on the active exchange that we have identified as the principal market for the underlying digital asset. For derivative instruments classified within Level 2 we determine the value using quoted prices for identical tokens in markets that are not active.
ASSETS AND LIABILITIES MEASURED AT FAIR VALUE ON A NONRECURRING BASIS
In addition to assets and liabilities that are recorded at fair value on a recurring basis, under the framework of ASC 820, we are also required to record assets and liabilities at fair value on a nonrecurring basis for items such as acquisitions, impairment testing on property and equipment and intangible assets.
Impairments
During the first quarter 2026, we recognized impairment charges of $10.7 million on our digital assets, at carrying value due to the weakening of our liquid staking tokens against the U.S. dollar.
Warrant Dividend
We determined the fair value of the warrant dividend issued to our convertible note warrant holders to be $124.5 thousand in total, representing a $1.63 price per warrant. The fair value was determined using the Black-Scholes Option model, which utilizes significant inputs, or level 3 inputs, as defined by the fair value hierarchy. See Note 10—Stockholders’ Equity, for further discussion.
The table below shows the inputs that were used for the valuation:
March 31, 2026 | |||||
| Stock price | $ | ||||
| Strike price, series 1 | $ | ||||
| Strike price, series 2 | $ | ||||
| Dividend | % | ||||
| Risk free rate | % | ||||
| Term | |||||
| Volatility | % | ||||
OTHER FINANCIAL INSTRUMENTS
The carrying value of our cash and cash equivalents, accounts receivable and accounts payable approximates fair value as of March 31, 2026 and December 31, 2025, respectively, due to the short-term nature of these instruments.
NOTE 15—COMMITMENTS AND CONTINGENCIES
LITIGATION AND REGULATORY
We may become subject to legal proceedings, regulatory investigations and claims that arise in the ordinary course of business. If this occurs we will review each proceeding, investigation and claim on a case by case basis and determine the probability of losses after considering, among other things, opinions and views of legal counsel
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DEFI DEVELOPMENT CORP.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-Continued
(Unaudited)
and outcomes of similar cases and circumstances, there is significant judgment in making these estimates and actual results may differ significantly from these estimates.
COMMITMENTS
Revolving Credit Facility
On January 24, 2026, we entered into a revolver (the "Revolver") with our equity method investee. Under the terms of the agreement, we committed to provide a revolving credit facility of up to $4.75 million for 36 months. The credit facility bears an annual interest rate of 10 %, which accrues daily based on a 360-day year. The first interest payment is due to us 18 months after the date of the Revolver. As of March 31, 2026, amounts available to our equity method investee under the Revolver was $4.75 million.
NOTE 16—OFF BALANCE SHEET TRANSACTIONS
As of March 31, 2026, customers delegated 367.0 thousand SOL tokens or $30.5 million (using exchange rates as of the balance sheet date) to our validators. These amounts are not presented on our Condensed Consolidated Balance Sheets as we do not control the staked SOL.
NOTE 17—RELATED PARTY TRANSACTIONS
WIND DOWN
On March 31, 2026, the Company agreed to a severance agreement with Mr. Janover, current Director, and agreed to sell certain of our Real Estate Platform segment domains to Mr. Janover for $10.0 thousand. See Note 6—Acquisitions, Dispositions and Wind Down Activities for further discussion.
INVESTMENT
On February 12, 2026, we entered into a SAFE agreement with Peak, an entity for which Joseph Onorati, our Chief Executive Officer and President of the Board of Directors, also serves as Chief Executive Officer, and which is therefore considered a related party. Under the term of the agreement, we purchased the right to obtain certain equity securities of Peak upon the occurrence of certain future events, as described in the agreement, for $630.0 thousand. See Note 12—Investments, for further discussion.
NOTE 18—SUBSEQUENT EVENTS
We have evaluated events and transactions that occurred after the balance date through May 19, 2026, the date the condensed consolidated financial statements were available to be issued, we concluded the following events required disclosure to the Notes to the Condensed Consolidated Financial Statements.
PROMISSORY NOTE AGREEMENT
On May 4, 2026, we entered into promissory note agreement to provide a $3.0 million USDC unsecured callable loan to Preference Capital (BVI) Ltd. The promissory note bears an annual interest rate of 15 %, which is calculated on a 360-day year. Interest is to be paid to us in USDC and capitalized on a quarterly basis due on the last day of the calendar quarter. The borrowed amount is due to us the earlier of the one-year anniversary of the promissory note, default event as described under the agreement or two business days after we demand repayment.
ELOC
We issued 530.8 thousand shares representing two months of commitment fee payments.
CONVERTIBLE NOTES
We repurchased $7.9 million in aggregate principal amount of our July Notes for approximately $4.8 million.
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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
This Quarterly Report on Form 10-Q contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, including statements that involve expectations, plans, or intentions. These statements include but are not limited to discussions on our strategy, future operations, future revenue, projected costs, prospects, plans and objectives of management. These forward-looking statements can be identified by words such as "may," "will," "would," "should," "could," "expect," "anticipate," "believe," "estimate," "might," "intend," "continue," "strategy," "future," "opportunity," "plan," "predict," "project," "target," "potential", "forecast," and other similar expressions. These forward-looking statements involve known and unknown risks and uncertainties that may cause our actual results and financial condition to significantly differ from those expressed or implied in our forward-looking statements. We discuss such risks and uncertainties in Part I, Item 1A, Risk Factors in our Annual Report on Form 10-K for the year ended December 31, 2025, as well as in our unaudited condensed consolidated financial statements, related notes, and the other information appearing in this report and our other filings with the Securities and Exchange Commission. We do not intend, and assume no obligation except as required by law, to update any of our forward-looking statements after the date of this report to reflect actual results, new information, or future events or circumstances. Readers are cautioned not to place undue reliance on such forward-looking statements and to read the following “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in conjunction with the unaudited condensed consolidated financial statements and the related notes that appear in this report. All references to "we," "us," "our," "the Company," and "DeFi Dev" refer to DeFi Development Corp. and its consolidated subsidiaries, unless otherwise noted.
The following Management’s Discussion and Analysis of Financial Condition and Results of Operations (“MD&A”) is intended to help the reader understand the results of operations and financial condition of DeFi Dev. MD&A is provided as a supplement to, and should be read in conjunction with, our Annual Report on Form 10-K for the year ended December 31, 2025, and our condensed consolidated financial statements and the accompanying Notes to Condensed Consolidated Financial Statements (Part I, Item 1 of this Quarterly Report on Form 10-Q).
OVERVIEW
THE COMPANY
In 2025, we pivoted our primary business strategy to the acquisition, long-term holding, and active management of SOL and SOL-related digital assets. Our treasury strategy includes accumulating SOL, locked SOL, liquid staking tokens such as dfdvSOL, and other SOL-denominated or SOL-native positions. We also operate Solana validators, enabling us to participate directly in the Solana proof-of-stake consensus mechanism and generate staking rewards.
We continuously evaluate capital market conditions, the broader cryptoeconomy, and macroeconomic factors in determining the timing and structure of financing transactions used to support our digital asset treasury strategy. Our objective is to expand our exposure to the Solana ecosystem over the long term.
In addition to our digital asset treasury operations, we continue to operate our commercial real estate technology platform, which provides data, software subscriptions, and value-added services connecting commercial property borrowers and lenders, including banks, credit unions, REITs, debt funds, and other institutional capital providers.
We consider these our two operating segments: “Digital Asset Treasury” and the “Real Estate Platform”.
RECENT SIGNIFICANT DEVELOPMENTS
The following are the more significant developments in our business during the three months ended March 31, 2026:
•On March 31, 2026, our Board of Directors approved the wind down of the legacy Janover Capital Markets and Janover Insurance businesses, which constituted substantially all of the operations of our Real Estate Platform segment. The wind down reflects our strategic decision to reallocate capital and management resources toward our digital asset treasury strategy and related initiatives, focusing on SOL and the Solana ecosystem. We expect that substantially all operations of the Real Estate Platform segment will cease by the end of the second quarter 2026.
•We repurchased a total of 1,601,747 shares of our common stock for $10.5 million under our share repurchase program.
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•We received net proceeds of $2.0 million through the issuance of our common stock under our equity line of credit. We used the proceeds for working capital purposes.
•We received proceeds from digital asset financing arrangements of $91.1 million and repaid $56.7 million. We used the proceeds from these borrowing for working capital purposes and SOL decentralized finance (“DeFi”) activities.
MODIFICATIONS TO THE SOLANA PROTOCOL
The Solana Network is an open-source blockchain whose development has historically been led and overseen by a group of core contributors, including the Solana Foundation, Solana Labs and independent developers. This core group of contributors periodically propose and implement updates to the Solana protocol, which is intended to enhance network performance, scalability, reliability and functionality.
The release of protocol updates on the Solana Network are not always immediately adopted and depends heavily on acceptance and adoption by validators to upgrade to the software containing the protocol updates. If validator acceptance and adoption is not sufficient, the network may experience fragmentation, or "forks", which could result in multiple versions of the network operating simultaneously and may adversely affect network stability, transaction processing and user activity.
Recent and ongoing developments have focused on improving transaction speed and scalability. As of the date of this Quarterly Report on Form 10-Q, the following Solana protocol developments have occurred or are currently being developed to occur:
•Alpenglow Consensus Protocol: Solana's newly developed consensus architecture, which is intended to replace certain legacy consensus components, including the existing Proof-of-History mechanism. Implementation of this framework began in December 2025 and is expected to rollout in the third quarter of 2026. Alpenglow is intended to significantly reduce transaction finality times, improve network performance and increase network usage, which could positively impact staking and validator-related revenue.
•Firedancer: An independently developed validator client, referred to as "Firedancer", was introduced on the Solana Network in December 2025, with rollout and adoption continuing in 2026. Firedancer is an independently developed version of the Solana validator software and is intended to improve performance, resiliency, and client diversity. The newly developed validator software is currently compatible with existing Solana protocols, enabling validators to adopt it without requiring a protocol-level change or a fork. Firedancer may reduce the risk of a network-wide interruption due to a single software bug. However, the implementation of the software may cause risks for new bugs, new hardware or operational requirements for validators and potential instability during rollout.
•Increased Block Capacity: The Solana Network, in a series of protocol upgrades, is developing protocol enhancements designed to increase transaction capacity and improve network performance, including upgrades intended to support more complex transactions and increase the number of transactions processed per block. These protocol upgrades are expected to be included in future software releases, including a planned release in 2026. If successfully implemented, these upgrades may improve network efficiency and reduce congestion during periods of high demand. Since these upgrades are not yet implemented and are subject to change, the impact of these upgrades on our Digital Asset Treasury segment are uncertain.
•Block Reward Distribution: Currently, the Solana Network is developing protocol updates related to the distribution of block-level rewards among validators and delegators. These updates are intended to improve transparency and standardize how transaction fees and other network-generated rewards are shared. The result of these potential protocol updates remain uncertain and may affect the amount of staking and validator revenue at our Digital Asset Treasury segment.
The impact of these and other protocol changes to the Solana Network is inherently uncertain and remain subject to ongoing development, testing, validator acceptance and adoption and timing. Accordingly, we cannot predict whether, or to what extent, such changes will affect our Digital Asset Treasury segment.
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SELECTED CONSOLIDATED OPERATING RESULTS
| Three Months Ended March 31, | ||||||||||||||||||||||||||||||||||||||
| (in thousands) | 2026 | 2025 | $ Change | |||||||||||||||||||||||||||||||||||
| Revenue | $ | 2,664 | $ | 287 | $ | 2,377 | ||||||||||||||||||||||||||||||||
| Net loss (gain) on digital assets | $ | 51,030 | $ | — | $ | 51,030 | ||||||||||||||||||||||||||||||||
Operating expenses(a) | $ | 6,854 | $ | 1,170 | $ | 5,684 | ||||||||||||||||||||||||||||||||
| Operating (loss) income | $ | (55,220) | $ | (883) | $ | (54,337) | ||||||||||||||||||||||||||||||||
| Interest expense | $ | (2,696) | $ | — | $ | (2,696) | ||||||||||||||||||||||||||||||||
| (Loss) gain from derivative instruments | $ | (22,838) | $ | — | $ | (22,838) | ||||||||||||||||||||||||||||||||
| Investment and other (expense) income, net | $ | (2,636) | $ | 105 | $ | (2,741) | ||||||||||||||||||||||||||||||||
| Income tax benefit (expense) | $ | — | $ | — | $ | — | ||||||||||||||||||||||||||||||||
| Net (loss) income | $ | (83,390) | $ | (778) | $ | (82,612) | ||||||||||||||||||||||||||||||||
| (a) Excludes net loss (gain) on digital assets. | ||||||||||||||||||||||||||||||||||||||
THREE MONTHS ENDED MARCH 31, 2026 AND 2025
Consolidated Revenue
Our consolidated revenue increased $2.4 million for the three months ended March 31, 2026, primarily due to digital asset revenue generated from our treasury strategy which was driven by rewards from staking our digital asset holdings.
Consolidated Net Loss (Gain) on Digital Assets
Consolidated net loss (gain) on digital assets was $51.0 million for the three months ended March 31, 2026, primarily due to the decline of SOL against the U.S. Dollar and losses related to dispositions from converting a portion of our SOL holdings into liquid staking tokens and from sales of digital assets.
Consolidated Operating Expenses
Our Digital Asset Treasury segment accounted for the $5.7 million increase in consolidated operating expenses for the three months ended March 31, 2026 primarily due to general and administrative expenses related to professional fees and employee-related costs.
Consolidated (Loss) Gain From Derivative Instruments
Consolidated (loss) gain from derivative instruments was $22.8 million for the three months ended March 31, 2026, and primarily included losses of $45.8 million related to decreases in the fair value of collateral related to our digital asset financing arrangements, which was partially offset by $22.9 million of gains related to declines in the fair value of our digital asset financing arrangements
Consolidated Net (Loss) Income
Consolidated net (loss) increased $82.6 million for the three months ended March 31, 2026, primarily due to the previously mentioned losses related to net loss (gain) on digital assets and from our derivative instruments, coupled with increases in operating expenses related to general and administrative expenses.
SEGMENT OPERATING RESULTS
Our segment operating results are presented based on how management evaluates operating performance and internally reports financial information. See Note 4—Segments of the Notes to the Condensed Consolidated Financial Statements in Part I, Item 1, of this Quarterly Report on Form 10-Q, for further discussion on our segments.
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DIGITAL ASSET TREASURY
In 2025, our Board of Directors adopted a new treasury policy, which updated our treasury management to include digital assets, starting with Solana’s native token, SOL. We believe acquiring and holding SOL long-term provides diversification of our treasury holdings and additional growth opportunities through operating validators and staking rewards. We believe that investing in the Solana Network through its native token provides an opportunity for us to create value for our shareholders due to the continuous disruptive innovation the network offers to various industries. Currently, Solana is a category leader in decentralized finance, gaming and metaverse, decentralized physical infrastructure networks, asset tokenization, payment processing, and global value transfer.
Our digital asset treasury strategy is primarily funded through various financing transactions including, among others, issuing common stock, and to a lesser extent, cash on hand from our operations. Management continuously evaluates current market conditions of the overall cryptoeconomy, capital market conditions, and macroeconomic conditions to determine whether to enter into additional financing transactions. Management intends to focus on accumulating digital assets, focusing on SOL, and holding it long-term. We currently do not have a specific target for the amount or type of digital asset holdings we intend to acquire and hold, nor do we have specific plans to acquire a significant amount of any cryptocurrency other than SOL.
Our operating results and financial condition is and will continue to be impacted by price volatility in digital asset markets, which may cause significant fluctuations from period to period and may not be necessarily indicative of future performance. In addition, our revenue may vary due to changes in staking reward yields and Solana protocol defined reward structures, including the annual inflationary rate.
| Three Months Ended March 31, | ||||||||||||||||||||||||||||||||||||||||||||
| (in thousands) | 2026 | 2025 | ||||||||||||||||||||||||||||||||||||||||||
| Revenue | $ | 2,402 | $ | — | ||||||||||||||||||||||||||||||||||||||||
| Operating expenses: | ||||||||||||||||||||||||||||||||||||||||||||
| Cost of revenues | 96 | — | ||||||||||||||||||||||||||||||||||||||||||
| General and administrative | 5,071 | — | ||||||||||||||||||||||||||||||||||||||||||
| Sales and marketing | 150 | — | ||||||||||||||||||||||||||||||||||||||||||
| Research and development | 125 | — | ||||||||||||||||||||||||||||||||||||||||||
| Depreciation and amortization | 304 | — | ||||||||||||||||||||||||||||||||||||||||||
| Net loss (gain) on digital assets | 51,030 | — | ||||||||||||||||||||||||||||||||||||||||||
| Total operating expenses | 56,776 | — | ||||||||||||||||||||||||||||||||||||||||||
| Segment operating (loss) income | $ | (54,374) | $ | — | ||||||||||||||||||||||||||||||||||||||||
Revenue
Revenue for the three months ended March 31, 2026 was primarily driven from rewards earned on staking our digital asset holdings and to a lesser extent from operating our owned and managed validators.
Operating Expenses
General and Administrative
General and administrative expenses for the three months ended March 31, 2026 was primarily driven by $2.5 million of professional fees and $2.1 million of employee-related costs.
Net Loss (Gain) on Digital Assets
Net loss (gain) on digital assets generated during the three months ended March 31, 2026 primarily reflects $26.8 million of losses due to the decline of SOL relative to the U.S. Dollar, $13.4 million of realized losses resulting from converting a portion of our SOL holdings into liquid staking tokens as well as from selling digital assets and $10.7 million of impairments driven by our liquid staking tokens.
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REAL ESTATE PLATFORM
We have developed a platform that connects commercial mortgage and small business borrowers looking for debt to refinance, build, or buy commercial property, including apartment buildings, to commercial property lenders. These property lenders include traditional banks, credit unions, REITs, debt funds, and other financial institutions looking to deploy capital into commercial mortgages. The platform connects borrowers to our internal capital markets advisors who guide the borrower through the process and connect them with the right loan product and lender.
The Real Estate Platform segment derives its revenue primarily from platform fees and subscription revenue. Platform fees include referral and advisory fees generated from multifamily and commercial real estate and small business debt transactions. We earn platform revenue from fees charged to our customers that utilize our platform and our capital markets advisor sales team, who will assist in the match between lenders and borrowers. These fees include a share of the revenue per transaction by the lender, typically 1% of the loan amount, and in some cases a fixed negotiated fee from the borrower.
Our data and software offerings are generally offered on a subscription basis. We provide data, transparency, and tools, generally as annual software subscriptions, to help stakeholders navigate the most complex components of the multifamily and commercial property lifecycles – debt (Janover Capital Markets), insurance (Janover Insurance), and equity (Janover Connect, Janover Engage).
On March 31, 2026, our Board of Directors approved the wind down of the legacy Janover Capital Markets and Janover Insurance businesses, which constituted substantially all of the operations of our Real Estate Platform segment. The wind down reflects our strategic decision to reallocate capital and management resources toward our digital asset treasury strategy and related initiatives, focusing on SOL and the Solana ecosystem. We expect that substantially all operations of the Real Estate Platform segment will cease by the end of the second quarter 2026.
| Three Months Ended March 31, | ||||||||||||||||||||||||||||||||||||||
| (in thousands) | 2026 | 2025 | $ Change | % Change | ||||||||||||||||||||||||||||||||||
| Revenue | $ | 262 | $ | 287 | $ | (25) | (8.9 | %) | ||||||||||||||||||||||||||||||
| Operating expenses: | ||||||||||||||||||||||||||||||||||||||
| Cost of revenues | 7 | 7 | — | (0.9 | %) | |||||||||||||||||||||||||||||||||
| General and administrative | 935 | 543 | 392 | 71.8 | % | |||||||||||||||||||||||||||||||||
| Sales and marketing | 103 | 465 | (362) | (77.8 | %) | |||||||||||||||||||||||||||||||||
| Research and development | 16 | 169 | (153) | (90.5 | %) | |||||||||||||||||||||||||||||||||
| Depreciation and amortization | 47 | 50 | (3) | (4.6 | %) | |||||||||||||||||||||||||||||||||
| (Gain) loss from changes in fair value of contingent consideration | — | (64) | 64 | NM | ||||||||||||||||||||||||||||||||||
| Total operating expenses | 1,108 | 1,170 | (62) | (5.3 | %) | |||||||||||||||||||||||||||||||||
| Segment operating (loss) income | $ | (846) | $ | (883) | $ | 37 | 4.1 | % | ||||||||||||||||||||||||||||||
NM-Amounts are not meaningful
Revenue
Real estate revenue decreased $25.0 thousand, or 8.9%, for the three months ended March 31, 2026 compared to the same period in 2025, primarily due to decreased software as a service ("SaaS") subscription revenue, partially offset by an increase in platform fees. SaaS subscription revenue for the quarter ended March 31, 2026 was approximately $105.0 thousand, compared to $215.0 thousand for the same period in the prior year, a decrease of 51.1%. We expect our SaaS subscription revenue to decline in fiscal 2026, after the sale of the Janover Pro ("JPro") business unit in September 2025, which represented the majority of our subscription revenue in fiscal 2025.
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Operating Expenses
General and Administrative
General and administrative increased $392.0 thousand, or 71.8%, for the three months ended March 31, 2026 compared to the same period in 2025, due to the severance agreement with Blake Janover, our former Chief Commercial Officer and current Director.
Sales and Marketing
Sales and marketing decreased $362.0 thousand, or 77.8%, for the three months ended March 31, 2026 compared to the same period in 2025, primarily due to a reduction in employee-related costs and expenses related to contractors resulting from the disposition of JPro.
Research and Development
Research and development decreased $153.0 thousand, or 90.5%, for the three months ended March 31, 2026 compared to the same period in 2025, due to a reduction in employee-related costs and expenses related to contractors resulting from the disposition of JPro.
LIQUIDITY AND CAPITAL RESOURCES
| (in thousands) | March 31, 2026 | December 31, 2025 | |||||||||
| Sources of liquidity: | |||||||||||
| Cash and cash equivalents | $ | 3,683 | $ | 5,920 | |||||||
| Marketable securities | $ | 554 | $ | 698 | |||||||
| Obligations: | |||||||||||
| Loans payable | $ | — | $ | 107 | |||||||
| Digital asset financing arrangements | $ | 82,986 | $ | 67,521 | |||||||
| Long-term debt, net | $ | 127,779 | $ | 127,361 | |||||||
We believe that the sources of liquidity discussed below, and access to capital markets will be sufficient in both the short and long term to meet our working capital requirements and future obligations.
SOURCES OF LIQUIDITY
Principal Sources of Liquidity
As of March 31, 2026, our principal sources of liquidity consist of cash and cash equivalents and marketable securities.
•Cash and cash equivalents: represents our most immediately available source of liquidity and consisted of demand deposits and money market instruments.
•Marketable securities: consist of publicly-held equity securities, which are held at fair value and may be liquidated to generate cash, subject to market conditions.
Potential Sources of Liquidity
Equity Line of Credit
On June 11, 2025, we entered into a share purchase agreement with RK Capital Management LLC that provided us with an equity line of credit (“ELOC”), where we have the right, but not the obligation, to sell up to $1.0 billion of our common stock over a 36 month period, subject to the terms and conditions of the agreement. We may request a one-time increase in the commitment amount up to an aggregate of $5.0 billion, subject to certain conditions.
The amount and timing of proceeds are at our discretion and are dependent on several factors, including the market price and trading volume of our common stock, current market conditions and compliance with
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contractual and regulatory limitations. Although the ELOC represents a significant potential source of liquidity, it does not constitute a committed source of cash, and we may not be able to access the facility on favorable terms, or at all, at the times or in the amounts desired.
During periods when market conditions are favorable, we expect to utilize the ELOC as an important component of our external liquidity strategy to fund working capital requirements, strategic initiatives and digital asset treasury activities. During the first quarter 2026, we received $2.0 million of net proceeds under the ELOC.
As of March 31, 2026, approximately $930.5 million remained available under the ELOC, subject to the terms and conditions of the agreement.
Digital Assets
As of March 31, 2026, our digital asset holdings were $98.6 million, and had an aggregate fair value of $102.6 million (using exchange rates as of the balance sheet date), of which $54.6 million is unencumbered, and may be sold to generate liquidity. Management may from time to time, if necessary, and subject to crypto market conditions, monetize the digital assets we receive from staking activities and validator operations to meet liquidity needs.
Cash Flows
The following table summarizes our cash flows from operating, investing, and financing activities:
| Three Months Ended March 31, | |||||||||||
| (in thousands) | 2026 | 2025 | |||||||||
| Net cash used in operating activities | $ | (9,817) | $ | (785) | |||||||
| Net cash provided by (used in) investing activities | $ | 16,191 | $ | — | |||||||
| Net cash (used in) provided by financing activities | $ | (8,611) | $ | 70 | |||||||
Net cash used in operating activities was $9.8 million for the three months ended March 31, 2026, primarily due to payments for interest on our debt, professional services and employee-related costs.
Net cash provided by investing activities was $16.2 million for the three months ended March 31, 2026, primarily due to proceeds from the sale of digital assets and investments, which was partially offset by purchases of digital assets and investments.
Net cash used in financing activities was $8.6 million for the three months ended March 31, 2026, primarily due to repurchases of shares of our common stock under our share repurchase program, which was partially offset by proceeds from issuance of our common stock under the ELOC.
MATERIAL CASH REQUIREMENTS AND OTHER OBLIGATIONS
Short-Term Liquidity Requirements
Our short-term obligations include working capital requirements, short-term debt, digital asset financing arrangements, interest payments related to our convertible notes and an ELOC commitment fee.
•Interest payments on long-term debt: Under the terms of our convertible notes, we are required to make periodic interest payments. The April Notes have an interest rate of 2.5%, which accrues daily and is required to be paid quarterly in arrears on March 31, June 30, September 30 and December 31 each year. Our July Notes have an interest rate of 5.5%, which is calculated based on a 360-day year and is required to be paid semi-annually in arrears on January 1 and July 1 of each year.
•Digital asset financing arrangements: We entered into several digital asset financing arrangements where we borrowed SOL, with annual contractual borrowing fees ranging from 10.0% to 13.0% payable on the loan maturity date. These arrangements require us to provide collateral denominated in SOL with initial levels of 200.0% to 300.0% of the total loan value and must maintain a minimum collateral coverage between 175.0% to 200.0%. If the value of the posted collateral falls below this threshold we may be required to post additional SOL. If the collateral coverage declines to 150.0% or lower and is not remediated in a timely manner, the lender has the right to liquidate some or all of the posted collateral. In addition, we also entered into a callable open term loan under the previously mentioned master loan
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agreement, where we borrowed $4.0 million USDC Coin ("USDC"). Repayments of our digital asset financing arrangements is required to be settled in the borrowed digital asset. Our ability to repay the loans and comply with collateral requirements is subject to availability of SOL and USDC in our digital asset treasury and the fluctuations in the price of these assets.
•ELOC commitment fee: We expect to repay the remaining commitment fee balance of $3.1 million during 2026, which will be settled through the issuance of our common stock.
•Promissory note: On May 4, 2026, we entered into a promissory note agreement to provide a $3.0 million USDC unsecured callable loan to Preference Capital (BVI) Ltd. The promissory note bears an annual interest rate of 15%, which is calculated on a 360-day year. Interest is to be paid to us in USDC and capitalized on a quarterly basis due on the last day of the calendar quarter. The borrowed amount is due to us the earlier of the one-year anniversary of the promissory note, default event as described under the agreement or two business days after we demand repayment.
Long-Term Liquidity Requirements
Our long-term obligations include outstanding principal repayments of our long-term debt and interest payments related to that debt, as well as funding commitments under a revolving credit facility to our equity method investee.
•Long-term debt: The outstanding principal balance on our convertible notes have maturity dates of April 6, 2030 and July 1, 2030. As of March 31, 2026, the outstanding principal balances on the April Notes and July Notes were $11.5 million and $122.5 million, respectively.
•Revolving credit facility: On January 24, 2026, we entered into a Revolving Credit Facility Agreement (the “Revolver”) with our equity method investee. Under the terms of the agreement we committed to provide a revolving credit facility of up to $4.75 million for 36 months. The credit facility bears an annual interest rate of 10%, which accrues daily based on a 360-day year. The first interest payment is due to us 18 months after the date of the Revolver.
SHARE REPURCHASES AND DIVIDENDS
In November 2023, our Board of Directors authorized a share repurchase program that provided for the repurchase of up to $1.0 million of our common stock, with no expiration from the date of authorization. In September 2025, our Board of Directors authorized an increase to the current share repurchase program up to $100.0 million. Under this authorization, an initial $10.0 million threshold has been established, and management must obtain Board approval before making any additional repurchases. Subsequently, on January 8, 2026, the Board of Directors increased the previously mentioned threshold by $15.0 million to $25.0 million. As of March 31, 2026, we had $78.0 million remaining under the authorization.
We expect to repurchase additional shares of our common stock under the authorization in the open market or in private transactions. The timing, method, and amount of future repurchases will be determined by management based on its evaluation of market conditions and other factors. The repurchase program does not obligate the Company to acquire any particular amount of common stock, and it may be modified, suspended, or discontinued at any time.
CRITICAL ACCOUNTING ESTIMATES
The preparation of our condensed consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities and disclosure of contingent assets and liabilities and the reported amounts of revenue and expenses during the reported period. Actual results may differ significantly from these estimates and assumptions. Note 1—Overview and Significant Accounting Policies of the Notes to the Condensed Consolidated Financial Statements in Part I, Item 1 of this Quarterly Report on Form 10-Q and the Notes to the Consolidated Financial Statements in Part II, Item 8 of our Annual Report on Form 10-K for the year ended December 31, 2025 describe the significant accounting policies and methods used in the preparation of our condensed consolidated financial statements. There have been no material changes to the Company's critical accounting estimates since the Annual Report on Form 10-K for the year ended December 31, 2025.
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ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We are a "smaller reporting company" as defined by §229.10(f) of Regulation S-K and are not required to provide the information required by this Item.
ITEM 4. CONTROLS AND PROCEDURES
DISCLOSURE CONTROLS AND PROCEDURES
Our management, including our Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of our disclosure procedures and controls (as defined in Rules 13a-15(e) and 15d-15(e)) under the Securities Exchange Act of 1934, as amended, (the "Exchange Act") as of March 31, 2026.
Disclosure controls and procedures are designed to provide reasonable assurance that the information we are required to disclose in reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC rules and forms, and that such information is accumulated and communicated to our management, including our Chief Executive Officer and our Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosures.
Based on the evaluation, the Chief Executive Officer and Chief Financial Officer have concluded that these disclosure controls and procedures were not effective as of March 31, 2026 due to material weaknesses in our internal control over financial reporting as described below.
A material weakness is a deficiency or a combination of deficiencies in internal controls over financial reporting such that there is a reasonable possibility that a material misstatement of the annual or interim consolidated financial statements will not be prevented or detected on a timely basis. Management identified the following material weaknesses:
•The Company did not have a formalized system of internal control over financial reporting in place to ensure that risks are properly assessed, controls are properly designed and implemented, and internal controls are properly monitored and operating effectively.
•The Company did not maintain a sufficient complement of formally documented general information technology controls over access, segregation of duties, security, and change management.
•The Company does not have sufficient accounting personnel to ensure adequate segregation of duties which restricts our ability to properly review information related to financial reporting, including applying complex accounting principles and calculations, in a timely manner.
Planned Remediation
Management continues to work to improve its controls related to the material weaknesses described above, including enhancing our overall internal control framework, strengthening information technology controls, expanding our accounting and financial reporting resources and implementing enhanced financial reporting review controls.
Enhancement of Internal Control Framework
Management has engaged an external consultant to assist in enhancing and formalizing our internal control over financial reporting framework in accordance with the criteria set forth in the Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. This includes, but is not limited to, documenting key financial reporting controls and establishing monitoring procedures designed to ensure that controls are appropriately designed and operating effectively.
Strengthening Information Technology Controls
Management, with the assistance of the external consultant, will implement formalized information technology controls over systems that we utilize for financial reporting. These controls included, but are not limited to, documented policy and procedures related to user access management, segregation of duties, system security and change management processes.
Accounting and Financial Reporting Resources and Review Controls
Management intends to focus on hiring experienced finance and accounting personnel or expand consulting services in areas focused around technical accounting and internal controls, subject to fiscal feasibility.
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Management intends to enhance current review procedures by engaging an external consultant to perform independent reviews over the preparation and analysis of financial information and complex calculations. Additionally, engage external specialist as needed to provide assistance in accounting for significant or complex transactions.
INHERENT LIMITATIONS ON EFFECTIVENESS OF CONTROLS
Our management, including our Chief Executive Officer and our Chief Financial Officer, does not expect that our disclosure controls and procedures or our internal control over financial reporting, will prevent all misstatements, errors and fraud. Because of inherent limitations, these control systems are intended to provide only reasonable, not absolute assurance that the objectives of the controls systems are met.
CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING
Other than the items mention above, there were no other changes in the Company’s internal control procedures over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) during our fiscal quarter ended March 31, 2026, that has materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.
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PART II – OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Refer to Part I, Item 1, Note 15—Commitments and Contingencies of the Notes to the Condensed Consolidated Financial Statements for a discussion of significant developments in our legal proceedings since December 31, 2025. Also refer to Item 3, "Legal Proceedings" in our Annual Report on Form 10-K for the fiscal year ended December 31, 2025 for a prior discussion of our legal proceedings.
ITEM 1A. RISK FACTORS
Any investment in our securities involves a high degree of risk. In addition to the other information set forth in this Quarterly Report on Form 10-Q, you should carefully consider the factors discussed in Part I, Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the year ended December 31, 2025, which could materially affect our business, financial condition, operating results, reputation, future prospects, or the trading price of the Company’s stock. These are not the only risks facing the Company. Additional risks and uncertainties that we are unaware of or that we deem immaterial may also become important factors that adversely affect our business.
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
STOCK REPURCHASE ACTIVITY
The table below summarizes the stock repurchase activity under our stock repurchase program during the three months ended March 31, 2026:
| (in thousands, except per share amounts) | Total Number of Shares Purchased(a) | Average Price Paid Per Share(b) | Total Number of Shares Purchased as Part of Publicly Announced Plans or Programs | Approximate Dollar Value of Shares that May Yet Be Purchased Under the Plans or Programs | ||||||||||
| Balance as of December 31, 2025 | 2,049 | $ | 5.62 | 2,049 | $ | 88,474 | ||||||||
| January 1, 2026 through January 31, 2026 | 1,503 | 6.68 | 1,503 | 78,443 | ||||||||||
| February 1, 2026 through February 28, 2026 | 99 | 4.75 | 99 | 77,973 | ||||||||||
| March 1, 2026 through March 31, 2026 | — | — | — | — | ||||||||||
| Balance as of March 31, 2026 | 3,651 | $ | 6.03 | 3,651 | $ | 77,973 | ||||||||
(a) On November 16, 2023, our Board of Directors announced that they had authorized a stock repurchase program that provides for the repurchase of up to $1.0 million of our common stock, with no expiration from the date of authorization. In September 2025, our Board of Directors authorized an increase to the current stock repurchase program to provide for the repurchase of up to $100.0 million of our common stock. Under this authorization, an initial $10.0 million threshold has been established, and management must obtain Board approval before making any additional repurchases. Subsequently, on January 8, 2026, the Board of Directors increased the previously mentioned threshold by $15.0 million to $25.0 million. Share repurchases under our stock repurchase program may be made through open market transactions or pursuant to a Rule 10b5-1 trading plan, subject to market conditions. Repurchases will be funded from our working capital or other financing alternatives.
(b) Average price paid per share for open market purchases includes broker commissions.
EMPLOYEE EQUITY INCENTIVE PROGRAM SHARE WITHHOLDING
We withhold shares of our common stock associated with net share settlements to cover tax withholding obligations of awards under our employee equity incentive program. During the first quarter of 2026, we withheld approximately 3.2 thousand shares for a total value of $16.4 thousand, through net share settlements.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. MINE SAFETY DISCLOSURES
Not applicable.
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ITEM 5. OTHER INFORMATION
INSIDER TRADING ARRANGEMENTS
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ITEM 6. EXHIBITS
| Exhibit No. | Description | |||||||
| 3.1 | ||||||||
| 3.2 | ||||||||
| 3.3 | ||||||||
| 3.4 | ||||||||
| 3.5 | ||||||||
| 3.6 | ||||||||
| 3.7 | ||||||||
| 10.1* | ||||||||
| 10.2* | ||||||||
| 10.3* | ||||||||
| 10.4* | ||||||||
| 10.5* | ||||||||
| 10.6 | ||||||||
| 10.7 | ||||||||
| 31.1* | ||||||||
| 31.2* | ||||||||
| 32.1*† | ||||||||
| 32.2*† | ||||||||
| 101.INS | Inline XBRL Taxonomy Extension Schema With Embedded Linkbase Documents | |||||||
| 101.SCH | Inline XBRL Taxonomy Extension Schema Document. | |||||||
| 104* | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101). | |||||||
*Filed herewith.
†In accordance with Item 601(b)(32)(ii) of Regulation S-K and SEC Release Nos. 33-8238 and 34-47986, Final Rule: Management's Reports on Internal Control Over Financial Reporting and Certification of
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Disclosure in Exchange Act Periodic Reports, the certifications furnished in Exhibits 32.1 and 32.2 hereto are deemed to accompany this Quarterly Report on Form 10-Q and will not be deemed “filed” for purpose of Section 18 of the Exchange Act. Such certifications will not be deemed to be incorporated by reference into any filing under the Securities Act or the Exchange Act, except to the extent that the registrant specifically incorporates it by reference.
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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 thereunto duly authorized.
| DeFi DEVELOPMENT CORP. | ||||||||
| (Registrant) | ||||||||
Date: May 19, 2026 | By: | /s/Joseph Onorati | ||||||
| Joseph Onorati Chief Executive Officer, President and Chairman of the Board of Directors | ||||||||
| (Principal Executive Officer) | ||||||||
Date: May 19, 2026 | By: | /s/Fei (John) Han | ||||||
| Fei (John) Han Chief Financial Officer (Principal Financial and Accounting Officer) | ||||||||
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Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the “Agreement”), dated for reference purposes as of January 1, 2026 (the “Effective Date”), is made and entered into by and between DeFi Development Corp., formerly Janover Inc., a Delaware corporation (the “Company”), and Joseph Onorati (the “Executive” and together with the Company, the “Parties” and individually a “Party”). This Agreement replaces and supersedes the employment agreement between the Parties dated as of April 15, 2025. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in Section 11.
RECITALS
WHEREAS, subject to the amended and restated terms and conditions hereinafter set forth, Company wishes to continue to employ Executive as its Chief Executive Officer and Executive wishes to continue to be employed by Company as its Chief Executive Officer.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises, terms, provisions, and conditions set forth in this Agreement, the adequacy and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:
AGREEMENT
1.Employment. Subject to the terms and conditions set forth in this Agreement, Company hereby offers, and Executive hereby accepts, continued employment with Company.
2.Term. The Executive’s employment hereunder shall be effective as of the Effective Date and shall remain in effect until it is terminated in accordance with Sections 5 and 6 below (the “Term”).
3.Capacity and Performance.
(a)During the Term, the Executive shall be employed by Company on a full-time basis as its Chief Executive Officer. Executive shall perform such duties and responsibilities as directed by the Board of Directors of the Company (the “Board”), consistent with Executive’s position on behalf of Company.
(b)Executive shall devote his full business time, attention, skill, and best efforts to the performance of his duties under this Agreement and shall not engage in any other business or occupation during the Term, including, without limitation, any activity that: (x) conflicts with the interests of the Company or any other member of the Company Group, (y) interferes with the proper and efficient performance of Executive’s duties for the Company, or (z) interferes with Executive’s exercise of judgment in the Company’s best interests. Notwithstanding the foregoing, nothing herein shall preclude Executive from: (i) serving, with the prior written consent of the Board, as a member of the Board of Directors or Advisory Board (or the equivalent in the case of a non-corporate entity) of a noncompeting for-profit business and one or more charitable organizations, (ii) developing, consulting for, or providing services to a noncompeting business, with the prior written consent of the Board; (iii) engaging in charitable activities and community affairs, and (iv) managing Executive’s personal investments and affairs; provided, however, that the activities set out in clauses (i), (ii), (iii), and (iv) shall be limited by Executive so as not to materially interfere, individually or in the aggregate, with the performance of his duties and responsibilities hereunder.
(c)Executive’s employment with Company shall be exclusive with respect to the business of Company. Accordingly, during the Term, Executive shall devote Executive’s full business time and Executive’s best efforts, business judgment, skill and knowledge to the advancement of the business and interests of Company and the discharge of Executive’s duties and responsibilities hereunder, except for permitted vacation (and other paid time off) periods, reasonable periods of illness or incapacity, time spent on activities expressly permitted under Section 3(b), and reasonable and customary time spent on civic,
Exhibit 10.1
charitable and religious activities; provided, however, that in each case such activities shall not interfere in any material respect with Executive’s duties and responsibilities hereunder.
(d)During the Term, the Executive will report directly to the Board.
(e)The Board appointed Executive as the Chief Executive Officer on April 4, 2025.
4.Compensation and Benefits.
(a)Base Salary. For services performed by Executive under this Agreement, Company shall pay Executive an annual base salary of $574,000, minus applicable withholdings and deductions, payable at the same times as salaries are payable to other executives of Company (the “Base Salary”). During the Term, the Base Salary shall be reviewed by the Compensation Committee and/or the Board each year, and the Board may, from time to time, increase or decrease such Base Salary and any reference to “Base Salary” herein shall refer to such Base Salary, as increased.
(b)Annual Bonus. For each fiscal year of the Company during the Term, the Company shall afford Executive the opportunity to earn an incentive bonus (“Bonus”) as described in this Section 4(b). The aggregate target Bonus payable to Executive under such program(s) shall be 65% of the Base Salary or any other amount set by the Compensation Committee of the Board in its discretion, and shall be payable to the extent the applicable performance goals are achieved (which goals and payment matrices shall be set by the Compensation Committee of the Board in its discretion). The amount of the Bonus will be determined by certification by the Board that the applicable goals have been achieved, and the Board shall promptly provide such certification following the achievement of the applicable goals.
(c)Equity Awards. During the Term, the Executive shall be entitled to receive equity awards (the “Equity Awards”) either now or in the future, on terms and conditions similar to those applicable to other executive officers of the Company generally, inside or outside of any established equity plan. The amount and terms of the Equity Awards awarded to the Executive shall be set by the Compensation Committee in its discretion. The Equity Awards will be evidenced by a restricted stock unit award agreement, a stock option agreement, or any other form of equity award agreement under the Company’s Equity Incentive Plan (the “Equity Plan”), and will be subject to the terms and conditions of such agreements and the Equity Plan.
(d)Change in Control. To the extent not already vested, the Equity Awards granted to Executive will fully vest upon (i) a Change of Control Severance Event (as defined below) or (ii) a Change in Control followed by a change in job title or position.
(e)Other Executive Benefits. During the Term, the Executive shall be entitled to participate in all executive benefit plans, including health and 401(k) plans, from time to time generally in effect for Company’s executives (collectively, “Benefit Plans”). Such participation and receipt of benefits under any such Benefit Plans shall be on the same terms (including cost-sharing between Company and Executive) as are applicable to other Company executives and shall be subject to the terms of the applicable plan documents and generally applicable Company policies. The Company may alter, modify, add to or delete the Benefit Plans in a manner nondiscriminatory to Executive at any time in accordance with applicable plan rules.
(f)Vacation. The Executive shall be entitled to an annual vacation of 20 days plus ten established holiday days per full calendar year of his employment with the Company hereunder. Any unused vacation in one accrued calendar year may not be carried over to any subsequent calendar year.
(g)Business and Travel Expenses. Company shall pay or reimburse Executive for all reasonable, customary and necessary business expenses (including travel, lodging, networking, and entertainment expenses) which are correctly documented and incurred or paid by Executive in the performance of Executive’s duties and responsibilities hereunder, subject to the rules, regulations, and procedures of Company and in effect from time to time.
2
Exhibit 10.1
5.Termination of Employment; Severance Benefits. Notwithstanding the provisions of Section 2, the Executive’s employment hereunder shall terminate under the following circumstances:
(a)Death. If Executive’s dies during the Term, Executive’s employment hereunder shall immediately and automatically terminate. In such event, Company shall pay to Executive’s designated beneficiary or, if no beneficiary has been selected by Executive, to Executive’s estate, the Final Compensation. Company shall have no further obligation hereunder to Executive, Executive’s beneficiary, or Executive’s estate upon the termination of Executive’s employment under this Section 5(a) including, specifically, that the provisions of Section 5(d) shall not apply.
(b)Disability.
(i)Company may terminate Executive’s employment hereunder due to Executive’s Disability during the Term by giving Executive thirty (30) days’ written notice of its intent to terminate, but in no event shall such termination be effective prior to the expiration of the time periods in the definition of “Disability.” Notwithstanding the foregoing, Company will, after engaging in an interactive process with Executive to discern whether reasonable accommodation(s) can be provided without undue hardship upon Company, offer Executive reasonable accommodation(s) to enable Executive to perform the essential functions of Executive’s position to the extent required by applicable law (if any) before terminating Executive’s employment hereunder. Executive may decline such reasonable accommodation, in which case Executive’s employment hereunder will terminate as provided in this subsection.
(ii)In the event of such termination for Disability, Executive will receive Executive’s Final Compensation. Company shall have no further obligation hereunder to Executive upon termination of Executive’s employment under this Section 5(d), including, specifically, that the provisions of Section 5(d) shall not apply.
(iii)Subject to Executive’s rights under the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”), Company may designate another Executive to act in Executive’s place during any period of Executive’s Disability during which Executive is unable to perform the essential functions of Executive’s position with or without reasonable accommodation. Notwithstanding any such designation, Executive shall continue to receive the Base Salary in accordance with Section 4(a) and coverage under the Benefit Plans in accordance with Section 4(b), to the extent permitted by the then-current terms of the applicable benefit plans and as provided under the FMLA, if applicable, until the earliest to occur of:(A) the end of the Term, (B) Executive becomes eligible for disability income benefits under Company’s disability income plan, or (C) the termination of Executive’s employment.
(iv)While receiving disability income payments under Company’s disability income plan (if applicable), Company will continue to pay to Executive Executive’s Base Salary under Section 4(a), but may offset any such disability income payments Executive receives against the Base Salary payments. Executive will also continue to participate in the Benefit Plans in accordance with Section 4(b) and the terms of such Benefit Plans, until the end of the Term or until the termination of Executive’s employment, whichever occurs first.
(v)If any question arises as to whether during any period Executive has a Disability as defined herein, Executive may, and at the request of Company shall, submit to a medical examination by a qualified, unbiased physician selected by Company and reasonably acceptable to Executive or Executive’s duly appointed guardian, if any, to determine whether Executive has a Disability and such determination shall for the purposes of this Agreement be conclusive of the issue.
(c)By Company for Cause. Company may terminate Executive’s employment hereunder for Cause, as defined in Section 11(c), at any time upon notice to Executive setting forth in reasonable detail the nature of such Cause. Upon the giving of notice of termination of Executive’s employment hereunder for Cause, Executive will receive Executive’s Final Compensation. Except as provided herein, Company will have no further obligation to Executive upon termination of Executive’s employment under this Section 5(c). Any notice of termination of Executive’s employment hereunder for Cause, or any notice to Executive regarding
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Exhibit 10.1
any event, condition or circumstance that, if not cured, if applicable, in accordance with the above, could give rise to a termination of Executive’s employment hereunder for Cause, shall set forth in detail the applicable event(s), condition(s) or circumstance(s) constituting reason(s) or potential reason(s) for such termination hereunder.
(d)By Company Other than for Cause or by Executive for Good Reason. Company may terminate Executive’s employment hereunder other than for Cause at any time upon thirty (30) days’ written notice to Executive and Executive may terminate Executive’s employment hereunder for Good Reason at any time upon thirty (30) days’ written notice to Company.
(i)In the event of a termination of Executive’s employment under this Section 5(d), in addition to the Final Compensation, Executive shall receive payment of such Bonus as determined under Section 4(b) shall be at the time proscribed by Section 4(b), if the date of termination occurs after the end of a calendar year but prior to the date on which a Bonus is paid under Section 4(b).
(ii)Any obligation of Company to Executive under this Section 5(d) (other than for the Final Compensation or for benefits required by law) is conditioned upon Executive’s execution and delivery to Company and the expiration of all applicable statutory revocation periods of a release of claims in the form attached hereto as Exhibit A (the “Executive Release”), provided, that the terms of such Executive Release shall be subject to modification to the extent necessary to comply with: (a) the fact that Company is simultaneously terminating more than one executive as part of a group termination decision or (b) changes in applicable law, if any, occurring after the date hereof, and prior to the date such Executive Release is executed.
(e)[intentionally omitted]
(f)Change in Control Severance. Except as otherwise set forth herein, if a Change in Control occurs, and on, or at any time during the 6 months following, the Change in Control, (i) the Company terminates Executive’s employment for any reason other than Cause or Disability, or (ii) Executive terminates Executive’s employment for Good Reason (a “Change of Control Severance Event”), Executive shall be entitled to the following benefits:
(i)The Company shall pay Executive, in a lump sum within 60 days following termination of Executive’s employment, severance equal to two times the sum of Executive’s Base Salary.
(ii)Executive also shall be entitled to receive any and all vested benefits accrued under any other incentive plans to the date of termination of employment, the amount, entitlement to, form, and time of payment of such benefits to be determined by the terms of such incentive plans. For purposes of calculating Executive’s benefits under the incentive plans, Executive’s employment shall be deemed to have terminated under circumstances that have the most favorable result for Executive under the applicable incentive plan.
(iii)If, upon the date of termination of Executive’s employment, Executive holds any awards with respect to securities of the Company, (A) all such awards that are restricted stock units/options shall immediately become vested and exercisable upon such date and shall be exercisable thereafter until expiration of the full term of the restricted stock units/options; (B) all restrictions on any such awards of restricted stock, restricted stock units or other awards shall terminate or lapse, and all such awards of restricted stock, restricted stock units or other awards shall be vested and payable; and (C) all performance goals applicable to any such performance-based awards that are “in cycle” (i.e., the performance period is not yet complete) shall be deemed satisfied at the “target” level (assuming 100% payout), and (D) all such awards shall be paid in accordance with the terms of the applicable award agreement. The provisions of this subsection shall be subject (and defer) to the provisions of any incentive plan, award agreement or other agreement as it relates to an individual award to the extent such provisions provide treatment that is more favorable to Executive than the treatment described in this subsection and such more favorable provisions in such incentive plan, award agreement or other agreement shall supersede any inconsistent or contrary provision of this subsection. All of Executive’s awards with respect to securities of the Company that are outstanding upon the date of termination of Executive’s employment shall continue to be subject to, and enjoy the benefits and protections under,
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Exhibit 10.1
the terms of the incentive plan, the award agreement and any other plan, agreement, policy or other arrangement to which such awards are subject as of the effective date of Executive’s participation, including any employment security agreement or other written compensation arrangement (even if the remaining terms thereof are waived), without application of this subsection.
(iv)Executive and Executive’s spouse and other qualified beneficiaries shall be eligible for continued coverage as follows:
(A)If the Executive, Executive’s spouse and/or Executive’s other qualified beneficiaries are enrolled under a group health plan as defined by COBRA, on the date of termination of Executive’s employment, Executive, Executive’s spouse and/or Executive’s qualified beneficiaries may elect to continue such coverage under COBRA, except that the maximum coverage period shall be extended to no less than the Severance Period (but no more than 1 year) for that Executive, unless, after electing COBRA, the individual attains age 65 and becomes eligible for Medicare, in which case COBRA shall end for that individual. If Executive, Executive’s spouse and/or Executive’s other qualified beneficiaries elect COBRA coverage, the Company shall pay a portion of the COBRA costs for the Severance Period for that Executive (subject to any earlier termination of COBRA). The portion to be paid by the Company shall equal the amount necessary so that the total of the COBRA costs paid by Executive is equal to the costs that would have been paid by Executive for such coverage as an active employee immediately prior to termination of Executive’s employment or, if less, prior to the Change in Control. The cost of COBRA coverage paid by the Company may be taxable income to the Executive and reported on Executive’s Internal Revenue Service Form W-2. Executive, Executive’s spouse and/or Executive’s qualified beneficiaries may continue coverage under COBRA after the Severance Period for that Executive, provided they pay the full COBRA costs and COBRA otherwise remains available.
(B)The benefits and/or extended coverage provided under this subsection shall cease prior to the date such benefits and/or extended coverage would otherwise end under subsection if and when Executive (i) obtains employment with another employer during the Severance Period and becomes eligible for coverage under any substantially similar plan provided by his/her new employer or (ii) fails to pay the required active employee portion of the cost of coverage provided under this subsection in the time and manner specified by the Company or its designee.
(v)Executive shall be entitled to payment for any accrued but unused vacation in accordance with the Company’s policy in effect at the time of termination of Executive’s employment, in a lump sum within sixty (60) days following such termination. Executive shall not be entitled to receive any payments or other compensation attributable to vacation that would have been earned had Executive’s employment continued during the Severance Period, and Executive waives any right to receive any such compensation.
(vi)Executive shall not be entitled to reimbursement for any other fringe benefits or perquisite payments during the Severance Period, including but not limited to dues and expenses related to club memberships, automobile, cell phone, expenses for professional services, executive physicals, and other similar perquisites.
6.Effect of Termination.
(a)Upon termination of Executive’s employment hereunder and subject to the provisions of Section 5 and Section 6(c), Company’s entire obligation to Executive shall be payment of Final Compensation.
(b)In connection with the cessation of Executive’s service as Chief Executive Officer of Company for any reason, except as may otherwise be requested by the Company in writing and agreed upon in writing by Executive, Executive shall be deemed to have resigned from any and all directorships, committee memberships, and any other positions Executive holds with the Company or any other member of the Company Group. Executive hereby agrees that no further action is required by Executive or any of the preceding to make the transitions and resignations provided for in this paragraph effective, but Executive
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Exhibit 10.1
nonetheless agrees to execute any documentation Company reasonably requests at the time to confirm it and to not reassume any such service or position without the written consent of Company.
(c)Except as otherwise required by Consolidated Omnibus Budget Reconciliation Act or any similar federal or state law, benefits shall continue or terminate pursuant to the terms of the applicable benefit plan or agreement, without regard to any continuation of Base Salary or other payment to Executive following such date of termination.
(d)The provisions of this Section 6 shall apply to any termination of employment. Provisions of this Agreement will survive any termination if so provided herein or if necessary or desirable to accomplish the purposes of other surviving provisions, including, without limitation, the obligations of Executive under Section 7 through Section 9.
(e)Any termination of Executive’s employment with Company under this Agreement shall automatically be deemed to be simultaneous resignation of all other positions and titles (including any director positions) that Executive holds with Company and any Affiliate or subsidiary thereof. This Section 6(e) shall constitute a resignation notice for such purposes.
(f)Upon termination of the Executive’s employment or upon the Company’s request at any other time, the Executive will deliver to the Company all of the Company’s property, equipment, and documents, together with all copies thereof, and any other material containing or disclosing any Intellectual Property or Confidential Information and certify in writing that the Executive has fully complied with the foregoing obligation. The Executive agrees that the Executive will not copy, delete, or alter any Company computer equipment information before the Executive returns it to the Company. In addition, if the Executive has used any personal computer, server, or email system to receive, store, review, prepare or transmit any Company information, including but not limited to, Confidential Information, the Executive agrees to provide the Company with a computer-usable copy of all such Confidential Information and then permanently delete and expunge such Confidential Information from those systems; and the Executive agrees to provide the Company access to the Executive’s system as reasonably requested to verify that the necessary copying and/or deletion is completed.
7.Confidential Information.
(a)Executive acknowledges that Company continually develops Confidential Information, that Executive may develop Confidential Information for Company and that Executive may learn of Confidential Information during the course of employment with Company. Executive will comply with the policies and procedures of Company for protecting Confidential Information and shall not disclose to any Person or use, other than as required by applicable law, regulation or process, for the proper performance of Executive’s duties and responsibilities to Company, or with the express written permission of the Board, any Confidential Information obtained by Executive incidental to Executive’s employment or other association with Company. Executive understands that this restriction shall continue to apply after Executive’s employment terminates, regardless of the reason for such termination.
(b)Notwithstanding anything contained in this Section 7 to the contrary, nothing contained herein shall prevent Executive from disclosing any Confidential Information required by law, subpoena, court order or other legal processes to be disclosed; provided, that, Executive shall give prompt written notice to Company of such requirement, disclose no more information than is so required and cooperate, at Company’s cost and expense, with any attempt by Company to obtain a protective order or similar treatment with respect to such information.
(c)Pursuant to the Defend Trade Secrets Act of 2016, Executive understands that:
(i)Executive may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a suspected violation of law; or is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding; and
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Exhibit 10.1
(ii)if Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the employer’s trade secrets to Executive’s attorney and use the trade secret information in the court proceeding if Executive files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
8.Assignment of Rights to Intellectual Property. Executive shall promptly and fully disclose to Company all Intellectual Property developed for the benefit of Company in the course of Executive’s employment by Company. Executive hereby assigns and agrees to assign to Company (or as otherwise directed by Company) Executive’s full right, title, and interest in and to all such Intellectual Property. Executive agrees to execute any and all applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without limitation the execution and delivery of instruments of further assurance or confirmation) requested by Company (at Company’s expense) to assign to Company the Intellectual Property developed for the benefit of Company in the course of Executive’s employment by Company and to permit Company to enforce any patents, copyrights or other proprietary rights to the Intellectual Property. Executive will not charge Company for time spent in complying with these obligations. All copyrightable works that Executive creates developed for the benefit of Company in the course of Executive’s employment by Company shall be considered “work made for hire.”
9.Restricted Activities. Executive agrees that the restrictions on Executive’s activities during and after Executive’s employment set forth below are necessary to protect the goodwill, Confidential Information and other legitimate interests of Company and its successors and assigns:
(a)During the Term of this Agreement and during the Restricted Period following termination of employment, Executive will not, without the prior written consent of Company, directly or indirectly, and whether as principal or investor or as an Executive, officer, director, manager, partner, consultant, agent, or otherwise, alone or in association with any other Person, firm, corporation, or other business organization, engage or otherwise become involved in a Competing Business (as defined below) in any country in which the Company conducted business during the Term; provided, however, that the provisions of this Section 9 shall apply solely to those activities of a Competing Business which are congruent with those activities with which Executive was personally involved or for which Executive was responsible while employed by the Company or its subsidiaries during the twelve (12) month period preceding termination of Executive’s employment. This Section 9 will not be violated, however, by Executive’s investment of up to $500,000 in the aggregate in one or more publicly traded companies that engage in a Competing Business. “Competing Business” means a business or enterprise (other than Company or its subsidiaries) engaged in the commercial mortgage brokerage, commercial mortgage marketplace, and any other business directly competing with the business of the Company as currently conducted or otherwise conducted by the Company during the Term (the “Restricted Activities”). “Restricted Period” means twenty-four (24) months.
(b)During the Term of this Agreement and during the Restricted Period (as defined above), Executive will not engage in any Wrongful Solicitation. A “Wrongful Solicitation” shall be deemed to occur when Executive directly or indirectly (except in the course of Executive’s employment with Company), for the purpose of conducting or engaging in a Competing Business, calls upon, solicits, advises or otherwise does, or attempts to do, business with any Person who is, or was, during the then most recent 12-month period, a customer of Company or any of its subsidiaries, or takes away or interferes or attempts to take away or interfere with any custom, trade, business, patronage or affairs of Company or any of its subsidiaries, or hires or attempts to hire any Person who is, or was during the most recent 12-month period, an Executive, officer, representative or agent of Company or any of its subsidiaries, or solicits, induces, or attempts to solicit or induce any Person who is an Executive, officer, representative or agent of Company or any of its subsidiaries to leave the employ or agency of the Company or any of its subsidiaries, or violate the terms of their contract, or any employment consulting or agent agreement, with it.
(c)It is expressly understood and agreed that although Executive and Company consider the restrictions contained in this Section 9 to be reasonable if a court makes a final judicial determination of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an
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Exhibit 10.1
unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as the court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(d)Executive expressly understands that in the event of a violation of any period specified in this Section 9, such period shall be extended by a period of time equal to that period beginning with the commencement of any such violation and ending when such violation shall have been finally terminated in good faith.
10.Enforcement of Covenants. Executive acknowledges that Executive has carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed upon Executive pursuant to Sections 7, 8 and 9, and Executive agrees that these restraints are necessary for the reasonable and proper protection of Company and its successors and assigns and that each and every one of the restraints is reasonable in respect to the subject matter, length of time and geographic area. Executive further acknowledges that, were Executive to breach any of the covenants in Section 7, Section 8 and/or Section 9 the damage to the Company would be irreparable. Executive therefore agrees that Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by Executive of any of the covenants herein, without any requirement to post a bond or similar security. The Parties further agree that in the event that any provision of Section 7, Section 8 and/or Section 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.
11.Definitions. Words or phrases that are initially capitalized or within quotation marks shall have the meanings provided in this Section 11 and as provided elsewhere. For purposes of this Agreement, the following definitions apply:
(a)“$” refers to U.S. Dollars.
(b)“Affiliate” means, with respect to any specified Person, any other Person which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person (for the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to either: (i) direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise, or (ii) vote at least fifty percent (50%) or more of the securities having voting power for the election of a majority of the directors (or Persons performing similar functions) of such Person.
(c)“Cause” means if Executive is discharged by Company on account of the occurrence of one or more of the following events:
(i)Executive’s continued refusal or failure to perform (other than by reason of Disability) Executive’s material duties and responsibilities to Company if such refusal or failure is not cured within thirty (30) days following written notice of such refusal or failure by Company to Executive, or Executive’s continued refusal or failure to follow any reasonable lawful direction of the Board if such refusal or failure is not cured within thirty (30) days following written notice of such refusal or failure by Company to Executive;
(ii)willful, grossly negligent or unlawful misconduct by Executive which causes material harm to Company or its reputation;
(iii)the Company is directed in writing by regulatory or governmental authorities to terminate the employment of Executive or Executive engages in activities that: (A) are not approved or authorized by the Board, and (B) cause actions to be taken by regulatory or governmental authorities that have a material adverse effect on Company; or
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Exhibit 10.1
(iv)a conviction, plea of guilty, or plea of nolo contendere by Executive, of or with respect to a criminal offense which is a felony or other crime involving dishonesty, disloyalty, fraud, embezzlement, theft, or similar action(s) (including, without limitation, acceptance of bribes, kickbacks or self-dealing), or the material breach of Executive’s fiduciary duties with respect to Company.
(d)“Change in Control” means the occurrence, in a single transaction or in a series of related transactions, of any one or more of the following events:
(i)A transaction or series of transactions (other than an offering of common stock to the general public through a registration statement filed by the Company with the Securities and Exchange Commission) whereby any “Person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company, any of its subsidiaries, an Executive benefit plan maintained by the Company or any of its subsidiaries or a “Person” that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13(d)(3) under the Exchange Act) of securities of the Company possessing more than fifty percent (50%) of the total combined voting power of the Company’s securities outstanding immediately after such acquisition;
(ii)The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination, or (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions:
(A) which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the Person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such Person, the “Successor Entity”) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and
(B)after which no Person or group beneficially owns voting securities representing fifty percent (50%) or more of the combined voting power of the Successor Entity; provided, however, that no Person or group shall be treated for purposes of this Section 11(d) as beneficially owning fifty percent (50%) or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction.
A transaction shall not constitute a Change in Control if its sole purpose is to change the State of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction.
(e)“Code” means the Internal Revenue Code of 1986, as amended.
(f)“Company” has the meaning ascribed to it in the preamble of this Agreement.
(g)“Company Group” shall mean the Company together with any of its direct or indirect subsidiaries.
(h)“Compensation Committee” shall mean the committee of the Board designated to make compensation decisions relating to senior executive officers of the Company.
(i)“Confidential Information” means any and all nonpublic information of the Company. Confidential Information includes, without limitation, such information relating to (i) the development, research, testing, manufacturing, marketing, and financial activities of the Company, (ii) the Services, (iii) the costs, sources of supply, financial performance, and strategic and/or business plans of Company, (iv) the identity and special needs of the customers and prospective customers of Company, and (v) the people and organizations with whom Company has business relationships and those relationships. Confidential Information also includes any information that Company has received, or may receive hereafter, belonging to customers or others with any understanding, express or implied, that the information would not be disclosed. Notwithstanding the foregoing, “Confidential Information” does not include (x) any information
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Exhibit 10.1
that is or becomes generally known to the industry or the public through no wrongful act of Executive or any representative of Executive and (y) any information that is made legitimately available to Executive by a third Party without breach of any confidentiality obligation.
(j)“Disability” means Executive’s inability, due to any illness, injury, accident or condition of either a physical or psychological nature, to substantially perform Executive’s duties and responsibilities hereunder for a period of one hundred twenty (120) consecutive days, or for any one hundred and eighty (180) days during any period of three hundred and sixty-five (365) consecutive calendar days, exclusive of any leave Executive may take under the Family and Medical Leave Act, 29 U.S.C. § 12101 et seq. (“FMLA”) or as a reasonable accommodation under the Americans with Disabilities Act, 29 U.S.C. § 2601 et seq.(“ADA”).
(k)“Final Compensation” means the amount equal to the sum of: (i) the Base Salary earned but not paid through the date of termination of employment, payable not later than the next scheduled payroll date, (ii) any business and related expenses and allowances incurred by Executive or to which Executive is entitled under Section 4(g) but unreimbursed on the date of termination of employment; provided that with respect to business expenses unreimbursed under Section 4(g), such expenses and required substantiation and documentation are submitted within one hundred eighty (180) days of termination in the case of termination on account of Executive’s death, or thirty (30) days on account of termination for any reason other than death, and that such expenses are reimbursable under Company’s applicable reimbursement policy, and (iii) any other supplemental compensation, insurance, retirement or other benefits due and payable or otherwise required to be provided under Section 4 in accordance with the terms and conditions of the applicable plan or agreement.
(l)“Good Reason” means, without Executive’s express written consent: (i) a material reduction in the Base Salary, then in effect, except a material diminution generally affecting all of the members of the Company’s management, (ii) a material reduction in job title, position or responsibility, or (iii) a material breach of any term or condition contained in this Agreement. However, none of the foregoing events or conditions will constitute Good Reason unless (i) Executive provides Company with written notice of the existence of Good Reason within ninety (90) days following the occurrence thereof, (ii) Company does not reverse or otherwise cure the event or condition within thirty (30) days of receiving that written notice, and (iii) Executive resigns Executive’s employment within thirty (30) days following the expiration of that cure period.
(m)“Intellectual Property” means inventions, discoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets) conceived, made, created, developed or reduced to practice by Executive (whether alone or with others, whether or not during normal business hours or on or off Company premises) during Executive’s employment that relate to either the Services or any prospective activity of Company or that make use of Confidential Information or any of the equipment or facilities of Company.
(n)“Person” means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a trust, and any other entity or organization other than Company.
(o)“Sale of Company” means the sale of Company to an independent third Party or group of independent third Parties pursuant to which such Party or Parties acquire: (i) equity interests possessing the voting power under normal circumstances to elect a majority of the Board of Directors or similar governing body of Company (whether by merger, consolidation or sale or transfer of such equity interests), or (ii) all or substantially all of Company’s assets determined on a consolidated basis.
(p)“Services” means all services planned, researched, developed, tested, manufactured, sold, licensed, leased or otherwise distributed or put into use by Company, together with all products provided or planned by Company, during Executive’s employment.
(q)“Severance Period” shall mean that number of years or partial years following termination of Executive’s employment equal to the number of years or partial years of Base Salary that the Executive receives under Section 5(f).
(r)“Term End Date” shall mean the last day of the Term of this Employment Agreement.
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Exhibit 10.1
12.Withholding. All payments made by Company under this Agreement may be reduced by any tax or other amounts required to be withheld by Company under applicable law or by any amounts authorized in writing by Executive.
13.Assignment. Neither Company nor Executive may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other; provided, however, that Company may assign its rights and obligations under this Agreement without the consent of Executive in the event of a Sale of Company. This Agreement shall inure to the benefit of and be binding upon Company and Executive, their respective successors, executors, administrators, heirs and permitted assigns.
14.Compliance with Code Section 409A.
(a)Notwithstanding any provision of this Agreement to the contrary, Executive’s employment will be deemed to have terminated on the date of Executive’s “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with Company.
(b)It is intended that this Agreement will comply with Section 409A of the Code, and any regulations and guideline issued thereunder (“Section 409A”) to the extent that any compensation and benefits provided hereunder constitute deferred compensation subject to Section 409A. This Agreement shall be interpreted on a basis consistent with this intent. The Parties will negotiate in good faith to amend this Agreement as necessary to comply with Section 409A in a manner that preserves the original intent of the Parties to the extent reasonably possible. No action or failure to act, pursuant to this Section 14 shall subject Company to any claim, liability, or expense, and Company shall not have any obligation to indemnify or otherwise protect Executive from the obligation to pay any taxes pursuant to Section 409A of the Code.
(c)For purposes of the application of Treas. Reg. § 1.409A-1(b)(4) (or any successor provision), each payment in a series of payments will be deemed a separate payment.
(d)Notwithstanding anything in this Agreement to the contrary, if any amount or benefit that would constitute non-exempt “deferred compensation” for purposes of Section 409A of the Code would otherwise be payable or distributable under this Agreement by reason of Executive’s separation from service during a period in which Executive is a “specified Executive” (as defined under Code Section 409A and the final regulations thereunder), then, subject to any permissible acceleration of payment by Company under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic relations order), (j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment of employment taxes):
(i)if the payment or distribution is payable in a lump sum, the Executive’s right to receive payment or distribution of such non-exempt deferred compensation will be delayed until the earlier of Executive’s death or the first day of the seventh month following Executive’s separation from service; and
(ii)if the payment or distribution is payable over time, the amount of such non-exempt deferred compensation that would otherwise be payable during the six months immediately following Executive’s separation from service will be accumulated, and the Executive’s right to receive payment or distribution of such accumulated amount will be delayed until the earlier of Executive’s death or the first day of the seventh month following Executive’s separation from service, whereupon the accumulated amount will be paid or distributed to Executive and the normal payment or distribution schedule for any remaining payments or distributions will resume.
This Section 14(d) should not be construed to prevent the application of Treas. Reg § 1.409A-1(b)(9)(iii) (or any successor provision) to amounts payable hereunder (or any portion thereof).
15.Golden Parachute Limitation. Notwithstanding anything in this Section or elsewhere in this Agreement to the contrary, in the event the payments and benefits payable hereunder to or on behalf of Executive (which the Parties agree will not include any portion of payments allocated to the non-competition and non-solicitation provisions of Section 9) that are classified as payments of reasonable compensation for purposes of Section 280G of the Code, when added to all other amounts and benefits payable to or on behalf of Executive, would result in the loss of a deduction under Code Section 280G, or the imposition of an excise tax under Code
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Exhibit 10.1
Section 4999, the amounts and benefits payable hereunder shall be reduced to such extent as may be necessary to avoid such loss of deduction or imposition of excise tax. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Code Section 409A and where two or more economically equivalent amounts are subject to reduction, but payable at different times, such amounts shall be reduced on a pro-rata basis. All calculations required to be made under this subsection will be made by the Company’s independent public accountants, subject to the right of Executive’s professional advisors to review the same. The Parties recognize that the actual implementation of the provisions of this subsection are complex and agree to deal with each other in good faith to resolve any questions or disagreements arising hereunder.
16.Successors.
(a)Company’s Successors. Subject to Section 5(f), any successor to the Company (whether direct or indirect and whether by purchase, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company’s business and/or assets shall assume the obligations under this Agreement and agree expressly to perform the obligations under this Agreement in the same manner and to the same extent as the Company would be required to perform such obligations in the absence of a succession. For all purposes under this Agreement, the term “Company” shall include any successor to the Company’s business and/or assets which executes and delivers the assumption agreement described in this Section 16 or which becomes bound by the terms of this Agreement by operation of law.
(b)Executive’s Successors. The terms of this Agreement and all rights of Executive hereunder shall inure to the benefit of, and be enforceable by, Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
17.Clawback Provisions. Any amounts payable under this Agreement are subject to any policy (whether in existence as of the Effective Date or later adopted) established by the Company providing for clawback or recovery of amounts that were paid to the Executive. The Company will make any determination for clawback or recovery in its sole discretion and in accordance with any applicable law or regulation.
18.Indemnification. Company will indemnify Executive to the fullest extent permitted by law, for all amounts (including, without limitation, judgments, fines, settlement payments, expenses and reasonable out-of-pocket attorneys’ fees) incurred or paid by Executive in connection with any action, suit, investigation or proceeding, or threatened action, suit, investigation or proceeding, arising out of or relating to the performance by Executive of services for, or the acting by Executive as a director, officer or Executive of, Company, or any subsidiary of Company. Any fees or other necessary expenses incurred by Executive in defending any such action, suit, investigation or proceeding shall be paid by Company in advance, subject to Company’s right to seek repayment from Executive if a determination is made that Executive was not entitled to indemnification.
19.Severability. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in the circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
20.Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving Party. The failure of either Party to require the performance of any term or obligation of this Agreement, or the waiver by either Party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
21.Survival. Section 6 through and including Section 32 shall survive and continue in full force in accordance with their terms notwithstanding the termination of Executive’s employment (and hence the Term of this Agreement) for any reason.
22.Notices. Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing and shall be effective when delivered in Person, with respect to notices delivered personally, or upon confirmed receipt when delivered by facsimile or deposited with a reputable, nationally recognized
12
Exhibit 10.1
overnight courier service and addressed or faxed to Executive at Executive’s last known address on the books of Company or, in the case of Company, at its principal place of business, attention: Secretary, Board of Directors.
23.Entire Agreement. This Agreement constitutes the entire agreement between the Parties (including with respect to Company, its successors and assigns) with respect to Executive’s employment and supersedes all prior communications, agreements and understandings, written or oral, with respect to the terms and conditions of Executive’s employment.
24.Amendment. This Agreement may be amended or modified only by a written instrument signed by Executive and by an expressly authorized representative of Company.
25.Headings. The headings and captions in this Agreement are for convenience only and in no way define or describe the scope or content of any provision of this Agreement.
26.Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. Furthermore, the delivery of a copy of such signature by facsimile transmission or other electronic exchange methodology shall constitute a valid and binding execution and delivery of this Agreement by such Party, and such electronic copy shall constitute an enforceable original document. Counterpart signatures need not be on the same page and shall be deemed effective upon receipt.
27.Additional Obligations. Without implication that the contrary would otherwise be true, Executive’s obligations under Section 7, Section 8 and Section 9 are in addition to, and not in limitation of, any obligations that Executive may have under applicable law (including any law regarding trade secrets, duty of loyalty, fiduciary duty, unfair competition, unjust enrichment, slander, libel, conversion, misappropriation and fraud).
28.Attorneys’ Fees. In any action or proceeding brought to enforce any provision of this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, costs, and expenses from the other Party to the action or proceeding. For purposes of this Agreement, the “prevailing Party” shall be deemed to be that Party who obtains substantially the result sought, whether by settlement, mediation, judgment or otherwise, and “attorneys’ fees” shall include, without limitation, the reasonable out-of-pocket attorneys’ fees incurred in retaining counsel for advice, negotiations, suit, appeal or other legal proceeding, including mediation and arbitration.
29.Confidentiality. The Parties acknowledge and agree that this Agreement and each of its provisions are and shall be treated strictly confidential. During the Term and thereafter, Executive shall not disclose any terms of this Agreement to any Person or entity without the prior written consent of Company, with the exception of Executive’s tax, legal or accounting advisors or for legitimate business purposes of Executive, or as otherwise required by law.
30.No Rule of Construction. This Agreement shall be construed to be neither against nor in favor of any Party hereto based upon any Party’s role in drafting this Agreement, but rather in accordance with the fair meaning hereof.
31.Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the state of Florida.
32.WAIVER OF JURY TRIAL. EXECUTIVE AND THE COMPANY EXPRESSLY WAIVE ANY RIGHT EITHER MAY HAVE TO A JURY TRIAL CONCERNING ANY CIVIL ACTION THAT MAY ARISE FROM THIS AGREEMENT OR THE RELATIONSHIP OF THE PARTIES HERETO.
33.Conditions. This Agreement and the Executive’s continued employment hereunder is conditional on the Company’s satisfaction (determined in the Company’s sole discretion) that the Executive has met the legal requirements to perform the Executive’s role, including but not limited to satisfactory results of a background and/or credit search or any other applicable security clearance checks and criminal record checks and other reference checks that the Company performs. The Executive acknowledges and agrees that in signing this Agreement, and providing the Company with the necessary documentation to perform the checks required for
13
Exhibit 10.1
the Executive’s role and with references, the Executive is providing consent to the Company or its agent, to performs such checks and contact the references the Executive provided to the Company.
34.Prior Restrictions. By signing below, the Executive represents that the Executive is not bound by the terms of any agreement with any Person which restricts in any way the Executive’s hiring by the Company and the performance of the Executive’s expected job duties; the Executive also represents that, during the Executive’s employment with the Company, the Executive shall not disclose or make use of any confidential information of any other persons or entities in violation of any of their applicable policies or agreements and/or applicable law.
35.Independent Legal Counsel. By signing below, the Executive hereby acknowledges that the Executive has been encouraged to obtain independent legal advice regarding the execution of this Agreement, and that the Executive has either obtained such advice or voluntarily chosen not to do so, and hereby waives any objections or claims the Executive may make resulting from any failure on the Executive’s part to obtain such advice.
36.Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original when executed, but all of which taken together shall constitute the same Agreement. Delivery of an executed counterpart of a signature page to this Agreement by electronic transmission, including in portable document format (.pdf), shall be deemed as effective as delivery of an original executed counterpart of this Agreement.
[SIGNATURE PAGE FOLLOWS]
14
Exhibit 10.1
IN WITNESS WHEREOF, this Agreement has been executed by Company (by its duly authorized representative) and by Executive, as of the date first above written.
DEFI DEVELOPMENT CORP. | ||||||||
By: | /s/ Joseph Onorati | |||||||
Name: Joseph Onorati | ||||||||
Title: Chief Executive Officer | ||||||||
EXECUTIVE: | ||||||||
/s/ Joseph Onorati | ||||||||
JOSEPH ONORATI | ||||||||
15
Exhibit 10.1
EXHIBIT A
Release of Claims
FOR AND IN CONSIDERATION OF the benefits to be provided me in connection with the termination of my employment, as set forth in that certain Amended and Restated Employment Agreement, dated as of January 1, 2026 (the “Agreement”), between me and DeFi Development Corp. (the “Company”), or under any severance pay plan applicable to me, which benefits are conditioned on my signing this Release of Claims and to which I am not otherwise entitled, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, I, on my own behalf and on behalf of my heirs, executors, administrators, beneficiaries, representatives and assigns, and all others connected with me, hereby release and forever discharge Company and any of its subsidiaries and Affiliates (as that term is defined in Section 11(b) of the Agreement) and all of their respective past, present and future officers, directors, trustees, equity holders, executives, agents, managers, joint venturers, representatives, successors and assigns, and all others connected with any of them (collectively, the “Released Parties”), both individually and in their official capacities, from any and all causes of action, rights and claims of any type or description, known or unknown, which I have had in the past, now have, or might now have, through the date of my signing of this Release of Claims, in any way resulting from, arising out of or connected with my employment by the Company or any of its Affiliates or the termination of that employment, including, but not limited to, any allegation, claim or violation arising under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended (including the Older Worker Benefit Protection Act); the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification Act; Executive Retirement Income Security Act of 1974; the Fair Labor Standards Act; any applicable Executive Orders; or their state or local counterparts; or under any other federal, state or local civil or human rights law, or under any other federal, state or local law, regulation or ordinance; or under any public policy, contract or tort, or under common law; or arising under any policies, practices or procedures of the Company; or any claim for wrongful discharge, breach of contract, intentional infliction of emotional distress or defamation; or any claim for costs, fees or other expenses, including attorneys’ fees incurred in these matters (all of the foregoing collectively referred to herein as “Claims”), other than (i) the right to payment of any vested or accrued benefits under any supplemental compensation, insurance, retirement and/or other benefit plan or agreement applicable to Executive, (ii) the right to payment of any amounts owed to me by Company pursuant to Section 5 of the Agreement, (iii) any rights under applicable workers compensation or unemployment compensation laws, (iv) any rights that survive termination of my employment pursuant to an restricted stock units/options grant agreement or certificate to purchase the Company’s (or an Affiliate’s) capital stock, (v) any rights with respect to the Company’s (or an Affiliate’s) capital stock owned by Executive, or (vi) any rights to indemnification under the Agreement, the Company’s by-laws or any other applicable law.
In signing this Release of Claims, I acknowledge my understanding that I may not sign it prior to the termination of my employment, but that I may consider the terms of this Release of Claims for up to twenty-one (21) days (or such longer period as the Company may specify) from the later of the date my employment with the Company terminates or the date I receive this Release of Claims. I also acknowledge that I am advised by the Company and its Affiliates to seek the advice of an attorney prior to signing this Release of Claims; that I have had sufficient time to consider this Release of Claims and to consult with an attorney, if I wished to do so, or to consult with any other Person of my choosing before signing; and that I am signing this Release of Claims voluntarily and with a full understanding of its terms.
I represent that I have not filed against the Released Parties any complaints, charges, or lawsuits arising out of my employment, or any other matter arising on or prior to the date of this Release of Claims, and covenant and agree that I will never individually or with any Person file, or commence the filing of, any charges, lawsuits, complaints or proceedings with any governmental agency, or against the Released Parties with respect to any of the matters released by me pursuant to this Release of Claims.
I further acknowledge that, in signing this Release of Claims, I have not relied on any promises or representations, express or implied, that are not set forth expressly in the Agreement. I understand that I may revoke this Release of
A-1
Exhibit 10.1
Claims at any time within seven (7) days of the date of my signing by written notice to the Secretary, Board of Directors of the Company (or such other Person as the Company may specify by notice to me given in accordance with the Agreement) and that this Release of Claims will take effect only upon the expiration of such seven-day revocation period and only if I have not timely revoked it.
Intending to be legally bound, I have signed this Release of Claims as of the date written below.
Signature: | ||||||||
Name: | ||||||||
Date Signed: | ||||||||
A-2
Exhibit 10.2
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the “Agreement”), dated for reference purposes as of January 1, 2026 (the “Effective Date”), is made and entered into by and between DeFi Development Corp., formerly Janover Inc., a Delaware corporation (the “Company”), and Fei Han (aka John Han) (the “Executive” and together with the Company, the “Parties” and individually a “Party”). This Agreement replaces and supersedes the employment agreement between the Parties dated as of April 14, 2025. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in Section 11.
RECITALS
WHEREAS, subject to the amended and restated terms and conditions hereinafter set forth, Company wishes to continue to employ Executive as its Chief Financial Officer and Executive wishes to continue to be employed by Company as its Chief Financial Officer.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises, terms, provisions, and conditions set forth in this Agreement, the adequacy and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:
AGREEMENT
1.Employment. Subject to the terms and conditions set forth in this Agreement, Company hereby offers, and Executive hereby accepts continued employment with Company.
2.Term. The Executive’s employment hereunder shall be effective as of the Effective Date and shall continue for two (2) years from the Effective Date (the “Initial Term”), unless terminated earlier pursuant to the terms of this Agreement; provided that, on expiry of such Initial Term, the Agreement shall be deemed to be automatically extended, upon the same terms and conditions, for successive periods of one (1) year (each “Renewal Term”), unless either Party provides written notice of its intention not to extend the term of the Agreement at least 90 days prior to the applicable renewal date. The Initial Term and each Renewal Term are hereinafter referred to as the “Term.”
3.Capacity and Performance.
(a)During the Term, the Executive shall be employed by Company on a full-time basis as its Chief Financial Officer. Executive shall perform such duties and responsibilities as directed by the Board of Directors of the Company (the “Board”), consistent with Executive’s position on behalf of Company.
(b)Executive shall devote his full business time, attention, skill, and best efforts to the performance of his duties under this Agreement and shall not engage in any other business or occupation during the Term, including, without limitation, any activity that: (x) conflicts with the interests of the Company or any other member of the Company Group, (y) interferes with the proper and efficient performance of Executive’s duties for the Company, or (z) interferes with Executive’s exercise of judgment in the Company’s best interests. Notwithstanding the foregoing, nothing herein shall preclude Executive from: (i) serving, with the prior written consent of the Board, as a member of the Board of Directors or Advisory Board (or the equivalent in the case of a non-corporate entity) of a noncompeting for-profit business and one or more charitable organizations, (ii) developing, consulting for, or providing services to a noncompeting business, with the prior written consent of the Board; (iii) engaging in charitable activities and community affairs, and (iv) managing Executive’s personal investments and affairs; provided, however, that the activities set out in clauses (i), (ii), (iii) and (iv) shall be limited by Executive so as not to materially interfere, individually or in the aggregate, with the performance of his duties and responsibilities hereunder.
(c)Executive’s employment with Company shall be exclusive with respect to the business of Company. Accordingly, during the Term, Executive shall devote Executive’s full business time and Executive’s best efforts, business judgment, skill and knowledge to the advancement of the business and interests of Company and the discharge of Executive’s duties and responsibilities hereunder, except for permitted vacation (and other paid time off) periods, reasonable periods of illness or incapacity, time spent on activities expressly permitted under Section 3(b), and reasonable and customary time spent on civic,
Exhibit 10.2
charitable and religious activities, provided, however, that in each case such activities shall not interfere in any material respect with Executive’s duties and responsibilities hereunder.
(d)During the Term, the Executive will report directly to the Chief Executive Officer.
(e)The Board appointed Executive as the Chief Financial Officer on April 14, 2025.
(f)Executive shall be employed to perform his duties under this Agreement at the primary office location of Company, or at such other location or locations as may be mutually agreeable to Executive and Company. Notwithstanding this, it is expected that the Executive shall be required to travel a reasonable amount of time in the performance of his duties under this Agreement.
4.Compensation and Benefits.
(a)Base Salary. For services performed by Executive under this Agreement, Company shall pay Executive an annual base salary of $450,000, minus applicable withholdings and deductions, payable at the same times as salaries are payable to other executives of Company (the “Base Salary”). During the Term, the Base Salary shall be reviewed by the Compensation Committee and/or the Board each year, and the Board may, from time to time, increase such Base Salary and any reference to “Base Salary” herein shall refer to such Base Salary, as increased.
(b)Annual Bonus. For each fiscal year of the Company during the Term, the Company shall afford Executive the opportunity to earn an incentive bonus (“Bonus”) as described in this Section 4(b). The aggregate target Bonus payable to Executive under such program(s) shall be 65% of the Base Salary or any other amount set by the Compensation Committee of the Board in its discretion, and shall be payable to the extent the applicable performance goals are achieved (which goals and payment matrices shall be set by the Compensation Committee of the Board in its discretion). The amount of the Bonus will be determined by certification by the Board that the applicable goals have been achieved, and the Board shall promptly provide such certification following the achievement of the applicable goals.
(c)Equity Awards. During the Term, the Executive shall be entitled to receive equity awards either now or in the future, on terms and conditions similar to those applicable to other executive officers of the Company generally, inside or outside of any established equity plan. The amount and terms of the long-term incentive awards awarded to the Executive shall be set by the Compensation Committee in its discretion. The RSU award will be evidenced by a restricted stock unit award agreement using the Company’s standard form for employee restricted stock unit award grants under the Company’s Equity Incentive Plan (the “Equity Plan”), and will be subject to the terms and conditions of such restricted stock unit award agreement and the Equity Plan.
(d)Change in Control. To the extent not already vested, the RSUs granted to Executive (as stated above), will fully vest upon a Change in Control (and participate fully with other stockholders in such Change in Control) if Executive is providing services in any capacity to the Company on the date of such Change in Control. In addition, if Executive is providing services as an executive of the Company on the date of a Change in Control, to the extent not already vested, all other outstanding equity awards, including the RSU award, will fully vest upon such Change in Control (and participate fully with other stockholders in such Change in Control).
(e)Other Executive Benefits. During the Term, the Executive shall be entitled to participate in all executive benefit plans, including health and 401(k) plans, from time to time generally in effect for Company’s executives (collectively, “Benefit Plans”). Such participation and receipt of benefits under any such Benefit Plans shall be on the same terms (including cost-sharing between Company and Executive) as are applicable to other Company executives and shall be subject to the terms of the applicable plan documents and generally applicable Company policies. The Company may alter, modify, add to or delete the Benefit Plans in a manner nondiscriminatory to Executive at any time in accordance with applicable plan rules.
(f)Vacation. The Executive shall be entitled to an annual vacation of 20 days plus ten established holiday days per full calendar year of his employment with the Company hereunder. Any unused vacation in one accrued calendar year may not be carried over to any subsequent calendar year.
(g)Business and Travel Expenses. Company shall pay or reimburse Executive for all reasonable, customary and necessary business expenses (including cell phone, travel, lodging, networking, and entertainment expenses) which are correctly documented and incurred or paid by Executive in the performance of
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Exhibit 10.2
Executive’s duties and responsibilities hereunder, subject to the rules, regulations, and procedures of Company and in effect from time to time.
5.Termination of Employment; Severance Benefits. Notwithstanding the provisions of Section 2, the Executive’s employment hereunder shall terminate under the following circumstances:
(a)Death. If Executive’s dies during the Term, Executive’s employment hereunder shall immediately and automatically terminate. In such event, Company shall pay to Executive’s designated beneficiary or, if no beneficiary has been selected by Executive, to Executive’s estate, the Final Compensation. Company shall have no further obligation hereunder to Executive, Executive’s beneficiary, or Executive’s estate upon the termination of Executive’s employment under this Section 5(a) including, specifically, that the provisions of Section 5(d) shall not apply.
(b)Disability.
(i)Company may terminate Executive’s employment hereunder due to Executive’s Disability during the Term by giving Executive thirty (30) days’ written notice of its intent to terminate, but in no event shall such termination be effective prior to the expiration of the time periods in the definition of “Disability.” Notwithstanding the foregoing, Company will, after engaging in an interactive process with Executive to discern whether reasonable accommodation(s) can be provided without undue hardship upon Company, offer Executive reasonable accommodation(s) to enable Executive to perform the essential functions of Executive’s position to the extent required by applicable law (if any) before terminating Executive’s employment hereunder. Executive may decline such reasonable accommodation, in which case Executive’s employment hereunder will terminate as provided in this subsection.
(ii)In the event of such termination for Disability, Executive will receive Executive’s Final Compensation. Company shall have no further obligation hereunder to Executive upon termination of Executive’s employment under this Section 5(d), including, specifically, that the provisions of Section 5(d) shall not apply.
(iii)Subject to Executive’s rights under the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”), Company may designate another Executive to act in Executive’s place during any period of Executive’s Disability during which Executive is unable to perform the essential functions of Executive’s position with or without reasonable accommodation. Notwithstanding any such designation, Executive shall continue to receive the Base Salary in accordance with Section 4(a) and coverage under the Benefit Plans in accordance with Section 4(b), to the extent permitted by the then-current terms of the applicable benefit plans and as provided under the FMLA, if applicable, until the earliest to occur of: (A) the end of the Term, (B) Executive becomes eligible for disability income benefits under Company’s disability income plan, or (C) the termination of Executive’s employment.
(iv)While receiving disability income payments under Company’s disability income plan (if applicable), Company will continue to pay to Executive Executive’s Base Salary under Section 4(a), but may offset any such disability income payments Executive receives against the Base Salary payments. Executive will also continue to participate in the Benefit Plans in accordance with Section 4(b) and the terms of such Benefit Plans, until the end of the Term or until the termination of Executive’s employment, whichever occurs first.
(v)If any question arises as to whether during any period Executive has a Disability as defined herein, Executive may, and at the request of Company shall, submit to a medical examination by a qualified, unbiased physician selected by Company and reasonably acceptable to Executive or Executive’s duly appointed guardian, if any, to determine whether Executive has a Disability and such determination shall for the purposes of this Agreement be conclusive of the issue.
(c)By Company for Cause. Company may terminate Executive’s employment hereunder for Cause, as defined in Section 11(c), at any time upon notice to Executive setting forth in reasonable detail the nature of such Cause. Upon the giving of notice of termination of Executive’s employment hereunder for Cause, Executive will receive Executive’s Final Compensation. Except as provided herein, Company will have no further obligation to Executive upon termination of Executive’s employment under this Section 5(c). Any notice of termination of Executive’s employment hereunder for Cause, or any notice to Executive regarding any event, condition or circumstance that, if not cured, if applicable, in accordance with the above, could give rise to a termination of Executive’s employment hereunder for Cause, shall set forth in detail the
3
Exhibit 10.2
applicable event(s), condition(s) or circumstance(s) constituting reason(s) or potential reason(s) for such termination hereunder.
(d)By Company Other than for Cause or by Executive for Good Reason. Company may terminate Executive’s employment hereunder other than for Cause at any time upon thirty (30) days’ written notice to Executive and Executive may terminate Executive’s employment hereunder for Good Reason at any time upon thirty (30) days’ written notice to Company.
(i)In the event of a termination of Executive’s employment under this Section 5(d), in addition to the Final Compensation, Executive shall receive:
(1)payment of applicable Base Salary for the period of (a) six (6) months from the date of termination, when the said termination is effected after first anniversary of the Effective Date, or (b) twelve (12) months from the date of termination, when the said termination is effected after second anniversary of the Effective Date; payable in accordance with the Company’s regular payroll practices, less applicable withholdings, commencing at the conclusion of the period set forth in Section 5(d)(iii); and
(2) if the date of termination occurs after the end of a calendar year but prior to the date on which a Bonus is paid under Section 4(b), payment of such Bonus as determined under Section 4(b) shall be at the time proscribed by Section 4(b); and
(3)-payment of a pro-rata portion of the amount of Executive’s Bonus for the year in which termination occurs that would have been payable based on actual performance determined under the terms of the Bonus as then in effect for such year, with such pro-rata portion calculated by multiplying the amount of such bonus for the year in which such termination occurs (as determined by the Board based on actual performance for such year) by a number: (x) the numerator of which is the number of days worked by Executive during the year of such termination, and (y) the denominator of which is three hundred sixty-five (365), with such payment to be made after the determination of the Bonus pursuant to Section 4(b).
(ii)If the Executive timely and properly elects health continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for himself and his dependents. Such reimbursement shall be paid to the Executive on the 1st day of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of:
(1)the first anniversary of the date of termination (provided, however, if the date of termination is after the first anniversary of the Effective Date, the period pursuant to this subsection shall be six (6) months after the date of termination);
(2)the date the Executive is no longer eligible to receive COBRA continuation coverage; and
(3)the date on which the Executive receives substantially similar coverage from another employer or other source.
(iii)Any obligation of Company to Executive under this Section 5(d) (other than for the Final Compensation or for benefits required by law) is conditioned upon Executive’s execution and delivery to Company and the expiration of all applicable statutory revocation periods of a release of claims in the form attached hereto as Exhibit A (the “Executive Release”), provided, that the terms of such Executive Release shall be subject to modification to the extent necessary to comply with: (a) the fact that Company is simultaneously terminating more than one executive as part of a group termination decision or (b) changes in applicable law, if any, occurring after the date hereof, and prior to the date such Executive Release is executed.
(e)By Executive Other than for Good Reason. Executive may terminate Executive’s employment hereunder other than for Good Reason upon thirty (30) days’ written notice to Company; provided, that Company may, in its sole and absolute discretion, by written notice accelerate such date of termination. In the event of a termination of Executive’s employment under this Section 5(e), Executive will receive the Final Compensation. Company shall have no further obligation hereunder to Executive upon termination of Executive’s employment under this Section 5(e).
4
Exhibit 10.2
(f)Change in Control Severance. Except as otherwise set forth herein, if a Change in Control occurs, and on, or at any time during the 6 months following, the Change in Control, (x) the Company terminates Executive’s employment for any reason other than Cause or Disability, or (y) Executive terminates Executive’s employment for Good Reason, Executive shall be entitled to the following benefits:
(i)Company shall pay Executive, in a lump sum within 60 days following termination of Executive’s employment, severance equal to two times the sum of Executive’s Base Salary.
(ii)Executive also shall be entitled to receive any and all vested benefits accrued under any other incentive plans to the date of termination of employment, the amount, entitlement to, form, and time of payment of such benefits to be determined by the terms of such incentive plans. For purposes of calculating Executive’s benefits under the incentive plans, Executive’s employment shall be deemed to have terminated under circumstances that have the most favorable result for Executive under the applicable incentive plan.
(iii)If, upon the date of termination of Executive’s employment, Executive holds any awards with respect to securities of the Company, (A) all such awards that are restricted stock units/options shall immediately become vested and exercisable upon such date and shall be exercisable thereafter until the earlier of the third (3rd) year anniversary of Executive’s termination of employment or the expiration of the full term of the restricted stock units/options; (B) all restrictions on any such awards of restricted stock, restricted stock units or other awards shall terminate or lapse, and all such awards of restricted stock, restricted stock units or other awards shall be vested and payable; and (C) all performance goals applicable to any such performance-based awards that are “in cycle” (i.e., the performance period is not yet complete) shall be deemed satisfied at the “target” level (assuming 100% payout), and (D) all such awards shall be paid in accordance with the terms of the applicable award agreement. The provisions of this subsection shall be subject (and defer) to the provisions of any incentive plan, award agreement or other agreement as it relates to an individual award to the extent such provisions provide treatment that is more favorable to Executive than the treatment described in this subsection and such more favorable provisions in such incentive plan, award agreement or other agreement shall supersede any inconsistent or contrary provision of this subsection. All of Executive’s awards with respect to securities of the Company that are outstanding upon the date of termination of Executive’s employment shall continue to be subject to, and enjoy the benefits and protections under, the terms of the incentive plan, the award agreement and any other plan, agreement, policy or other arrangement to which such awards are subject as of the effective date of Executive’s participation, including any employment security agreement or other written compensation arrangement (even if the remaining terms thereof are waived), without application of this subsection.
(iv)Executive and Executive’s spouse and other qualified beneficiaries shall be eligible for continued coverage as follows:
(A)If the Executive, Executive’s spouse and/or Executive’s other qualified beneficiaries are enrolled under a group health plan as defined by COBRA, on the date of termination of Executive’s employment, Executive, Executive’s spouse and/or Executive’s qualified beneficiaries may elect to continue such coverage under COBRA, except that the maximum coverage period shall be extended to no less than the Severance Period (but no more than 1 year) for that Executive, unless, after electing COBRA, the individual attains age 65 and becomes eligible for Medicare, in which case COBRA shall end for that individual. If Executive, Executive’s spouse and/or Executive’s other qualified beneficiaries elect COBRA coverage, the Company shall pay a portion of the COBRA costs for the Severance Period for that Executive (subject to any earlier termination of COBRA). The portion to be paid by the Company shall equal the amount necessary so that the total of the COBRA costs paid by Executive is equal to the costs that would have been paid by Executive for such coverage as an active employee immediately prior to termination of Executive’s employment or, if less, prior to the Change in Control. The cost of COBRA coverage paid by the Company may be taxable income to the Executive and reported on Executive’s Internal Revenue Service Form W-2. Executive, Executive’s spouse and/or Executive’s qualified beneficiaries may continue coverage under COBRA after the Severance Period for that Executive, provided they pay the full COBRA costs and COBRA otherwise remains available.
(B)The benefits and/or extended coverage provided under this subsection shall cease prior to the date such benefits and/or extended coverage would otherwise end under subsection if and when Executive (1) obtains employment with another employer during the Severance Period and becomes eligible for coverage under any substantially similar plan provided by his/her new
5
Exhibit 10.2
employer or (2) fails to pay the required active employee portion of the cost of coverage provided under this subsection in the time and manner specified by the Company or its designee.
(v)Executive shall be entitled to payment for any accrued but unused vacation in accordance with the Company’s policy in effect at the time of termination of Executive’s employment, in a lump sum within 60 days following such termination.
(vi)Executive shall not be entitled to receive any payments or other compensation attributable to vacation that would have been earned had Executive’s employment continued during the Severance Period, and Executive waives any right to receive any such compensation.
(vii)The Company shall, at the Company’s expense, provide Executive with 12 months of executive outplacement services with a professional outplacement firm selected by the Company; provided that Executive must use the outplacement services by no later than the end of the second calendar year following the calendar year in which the termination of Executive’s employment occurred and the total cost of such outplacement services must not exceed any per individual cap on such amounts in the Company’s agreement with the professional outplacement firm selected by the Company. Executive shall not be entitled to reimbursement for any other fringe benefits or perquisite payments during the Severance Period, including but not limited to dues and expenses related to club memberships, automobile, cell phone, expenses for professional services, executive physicals, and other similar perquisites. The Company shall pay as incurred (within ten calendar days following the Company’s receipt of an invoice from Executive) Executive’s out-of-pocket expenses, including attorneys’ fees, incurred by Executive at any time from the date of this Agreement through Executive’s remaining lifetime or, if longer, the statute of limitations for contract claims under applicable state law, in connection with any action taken to enforce the Executive’s rights under this Agreement or construe or determine the validity of this Agreement or otherwise in connection herewith, including any claim or legal action or proceeding, whether brought by Executive or the Company or another party; provided, Executive must be successful through judgment in his/her favor with respect to such action in order to recover fees under this Section 5(f)(viii); provided further, that Executive shall have submitted an invoice for such fees and expenses at least fifteen calendar days before the end of the calendar year next following the calendar year in which such fees and expenses were incurred. The amount of such legal fees and expenses that the Company is obligated to pay in any given calendar year shall not affect the legal fees and expenses that the Company is obligated to pay in any other calendar year, and Executive’s right to have the Company pay such legal fees and expenses may not be liquidated or exchanged for any other benefit. The Company’s obligation to pay Executive’s eligible legal fees and expenses under this Section 5(f)(viii) shall not be conditioned upon the termination of Executive’s employment.
6.Effect of Termination.
(a)Upon termination of Executive’s employment hereunder and subject to the provisions of Section 5 and Section 6(c), Company’s entire obligation to Executive shall be payment of Final Compensation.
(b)In connection with the cessation of Executive’s service as Chief Financial Officer of Company for any reason, except as may otherwise be requested by the Company in writing and agreed upon in writing by Executive, Executive shall be deemed to have resigned from any and all directorships, committee memberships, and any other positions Executive holds with the Company or any other member of the Company Group. Executive hereby agrees that no further action is required by Executive or any of the preceding to make the transitions and resignations provided for in this paragraph effective, but Executive nonetheless agrees to execute any documentation Company reasonably requests at the time to confirm it and to not reassume any such service or position without the written consent of Company.
(c)Except as otherwise required by Consolidated Omnibus Budget Reconciliation Act or any similar federal or state law, benefits shall continue or terminate pursuant to the terms of the applicable benefit plan or agreement, without regard to any continuation of Base Salary or other payment to Executive following such date of termination.
(d)The provisions of this Section 6 shall apply to any termination of employment. Provisions of this Agreement will survive any termination if so provided herein or if necessary or desirable to accomplish the purposes of other surviving provisions, including, without limitation, the obligations of Executive under Section 7 through Section 9.
6
Exhibit 10.2
(e)Any termination of Executive’s employment with Company under this Agreement shall automatically be deemed to be simultaneous resignation of all other positions and titles (including any director positions) that Executive holds with Company and any Affiliate or subsidiary thereof. This Section 6(e) shall constitute a resignation notice for such purposes.
(f)Upon termination of the Executive’s employment or upon the Company’s request at any other time, the Executive will deliver to the Company all of the Company’s property, equipment, and documents, together with all copies thereof, and any other material containing or disclosing any Intellectual Property or Confidential Information and certify in writing that the Executive has fully complied with the foregoing obligation. The Executive agrees that the Executive will not copy, delete, or alter any Company computer equipment information before the Executive returns it to the Company. In addition, if the Executive has used any personal computer, server, or email system to receive, store, review, prepare or transmit any Company information, including but not limited to, Confidential Information, the Executive agrees to provide the Company with a computer-usable copy of all such Confidential Information and then permanently delete and expunge such Confidential Information from those systems; and the Executive agrees to provide the Company access to the Executive’s system as reasonably requested to verify that the necessary copying and/or deletion is completed.
7.Confidential Information.
(a)Executive acknowledges that Company continually develops Confidential Information, that Executive may develop Confidential Information for Company and that Executive may learn of Confidential Information during the course of employment with Company. Executive will comply with the policies and procedures of Company for protecting Confidential Information and shall not disclose to any Person or use, other than as required by applicable law, regulation or process or for the proper performance of Executive’s duties and responsibilities to Company, or with the express written permission of the Board, any Confidential Information obtained by Executive incidental to Executive’s employment or other association with Company. Executive understands that this restriction shall continue to apply after Executive’s employment terminates, regardless of the reason for such termination.
(b)Notwithstanding anything contained in this Section 7 to the contrary, nothing contained herein shall prevent Executive from disclosing any Confidential Information required by law, subpoena, court order or other legal processes to be disclosed; provided, that, Executive shall give prompt written notice to Company of such requirement, disclose no more information than is so required and cooperate, at Company’s cost and expense, with any attempt by Company to obtain a protective order or similar treatment with respect to such information.
(c)Pursuant to the Defend Trade Secrets Act of 2016, Executive understands that:
(i)Executive may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a suspected violation of law; or is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding; and
(ii)if Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the employer’s trade secrets to Executive’s attorney and use the trade secret information in the court proceeding if Executive files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
8.Assignment of Rights to Intellectual Property. Executive shall promptly and fully disclose to Company all Intellectual Property developed for the benefit of Company in the course of Executive’s employment by Company. Executive hereby assigns and agrees to assign to Company (or as otherwise directed by Company) Executive’s full right, title, and interest in and to all such Intellectual Property. Executive agrees to execute any and all applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without limitation the execution and delivery of instruments of further assurance or confirmation) requested by Company (at Company’s expense) to assign to Company the Intellectual Property developed for the benefit of Company in the course of Executive’s employment by Company and to permit Company to enforce any patents, copyrights or other proprietary rights to the Intellectual Property. Executive will not charge Company for time spent in complying with these obligations. All copyrightable works that Executive creates developed for the benefit of Company in the course of Executive’s employment by Company shall be considered “work made for hire.”
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Exhibit 10.2
9.Restricted Activities. Executive agrees that the restrictions on Executive’s activities during and after Executive’s employment set forth below are necessary to protect the goodwill, Confidential Information and other legitimate interests of Company and its successors and assigns:
(a)During the Term of this Agreement and during the Restricted Period following termination of employment, Executive will not, without the prior written consent of Company, directly or indirectly, and whether as principal or investor or as an Executive, officer, director, manager, partner, consultant, agent, or otherwise, alone or in association with any other Person, firm, corporation, or other business organization, engage or otherwise become involved in a Competing Business (as defined below) in any country in which the Company conducted business during the Term; provided, however, that the provisions of this Section 9 shall apply solely to those activities of a Competing Business which are congruent with those activities with which Executive was personally involved or for which Executive was responsible while employed by the Company or its subsidiaries during the twelve (12) month period preceding termination of Executive’s employment. This Section 9 will not be violated, however, by Executive’s investment of up to $500,000 in the aggregate in one or more publicly traded companies that engage in a Competing Business. “Competing Business” means a business or enterprise (other than Company or its subsidiaries) engaged in the commercial mortgage brokerage, commercial mortgage marketplace, and any other business directly competing with the business of the Company as currently conducted or otherwise conducted by the Company during the Term (the “Restricted Activities”). “Restricted Period” means twenty-four (24) months.
(b)During the Term of this Agreement and during the Restricted Period (as defined above), Executive will not engage in any Wrongful Solicitation. A “Wrongful Solicitation” shall be deemed to occur when Executive directly or indirectly (except in the course of Executive’s employment with Company), for the purpose of conducting or engaging in a Competing Business, calls upon, solicits, advises or otherwise does, or attempts to do, business with any Person who is, or was, during the then most recent 12-month period, a customer of Company or any of its subsidiaries, or takes away or interferes or attempts to take away or interfere with any custom, trade, business, patronage or affairs of Company or any of its subsidiaries, or hires or attempts to hire any Person who is, or was during the most recent 12-month period, an Executive, officer, representative or agent of Company or any of its subsidiaries, or solicits, induces, or attempts to solicit or induce any Person who is an Executive, officer, representative or agent of Company or any of its subsidiaries to leave the employ or agency of the Company or any of its subsidiaries, or violate the terms of their contract, or any employment consulting or agent agreement, with it.
(c)It is expressly understood and agreed that although Executive and Company consider the restrictions contained in this Section 9 to be reasonable if a court makes a final judicial determination of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as the court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(d)Executive expressly understands that in the event of a violation of any period specified in this Section 9, such period shall be extended by a period of time equal to that period beginning with the commencement of any such violation and ending when such violation shall have been finally terminated in good faith.
10.Enforcement of Covenants. Executive acknowledges that Executive has carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed upon Executive pursuant to Sections 7, 8 and 9, and Executive agrees that these restraints are necessary for the reasonable and proper protection of Company and its successors and assigns and that each and every one of the restraints is reasonable in respect to the subject matter, length of time and geographic area. Executive further acknowledges that, were Executive to breach any of the covenants in Section 7, Section 8 and/or Section 9 the damage to the Company would be irreparable. Executive therefore agrees that Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by Executive of any of the covenants herein, without any requirement to post a bond or similar security. The Parties further agree that in the event that any provision of Section 7, Section 8 and/or Section 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.
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Exhibit 10.2
11.Definitions. Words or phrases that are initially capitalized or within quotation marks shall have the meanings provided in this Section 11 and as provided elsewhere. For purposes of this Agreement, the following definitions apply:
(a)“$” refers to U.S. Dollars.
(b)“Affiliate” means, with respect to any specified Person, any other Person which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person for the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to either: (i) direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise, or (ii) vote at least fifty percent (50%) or more of the securities having voting power for the election of a majority of the directors (or Persons performing similar functions) of such Person.
(c)“Cause” means if Executive is discharged by Company on account of the occurrence of one or more of the following events:
(i)Executive’s continued refusal or failure to perform (other than by reason of Disability) Executive’s material duties and responsibilities to Company if such refusal or failure is not cured within thirty (30) days following written notice of such refusal or failure by Company to Executive, or Executive’s continued refusal or failure to follow any reasonable lawful direction of the Board if such refusal or failure is not cured within thirty (30) days following written notice of such refusal or failure by Company to Executive;
(ii)willful, grossly negligent or unlawful misconduct by Executive which causes material harm to Company or its reputation;
(iii)the Company is directed in writing by regulatory or governmental authorities to terminate the employment of Executive or Executive engages in activities that: (A) are not approved or authorized by the Board, and (B) cause actions to be taken by regulatory or governmental authorities that have a material adverse effect on Company; or a conviction, plea of guilty, or plea of nolo contendere by Executive, of or with respect to a criminal offense which is a felony or other crime involving dishonesty, disloyalty, fraud, embezzlement, theft, or similar action(s) (including, without limitation, acceptance of bribes, kickbacks or self-dealing), or the material breach of Executive’s fiduciary duties with respect to Company.
(d)“Change in Control” means the occurrence, in a single transaction or in a series of related transactions, of any one or more of the following events:
(i)A transaction or series of transactions (other than an offering of common stock to the general public through a registration statement filed by the Company with the Securities and Exchange Commission) whereby any “Person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company, any of its subsidiaries, an Executive benefit plan maintained by the Company or any of its subsidiaries or a “Person” that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13(d)(3) under the Exchange Act) of securities of the Company possessing more than fifty percent (50%) of the total combined voting power of the Company’s securities outstanding immediately after such acquisition;
(ii)The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination, or (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions:
(A)which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent either by remaining outstanding or by being converted into voting securities of the Company or the Person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such Person, the “Successor Entity”) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and
9
Exhibit 10.2
(B)after which no Person or group beneficially owns voting securities representing fifty percent (50%) or more of the combined voting power of the Successor Entity; provided, however, that no Person or group shall be treated for purposes of this Section 11(d) as beneficially owning fifty percent (50%) or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction.
A transaction shall not constitute a Change in Control if its sole purpose is to change the State of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction.
(e)“Code” means the Internal Revenue Code of 1986, as amended.
(f) “Company” has the meaning ascribed to it in the preamble of this Agreement.
(g)“Company Group” shall mean the Company together with any of its direct or indirect subsidiaries.
(h)“Compensation Committee” shall mean the committee of the Board designated to make compensation decisions relating to senior executive officers of the Company.
(i) “Confidential Information” means any and all nonpublic information of the Company. Confidential Information includes, without limitation, such information relating to (i) the development, research, testing, manufacturing, marketing, and financial activities of the Company, (ii) the Services, (iii) the costs, sources of supply, financial performance, and strategic and/or business plans of Company, (iv) the identity and special needs of the customers and prospective customers of Company, and (v) the people and organizations with whom Company has business relationships and those relationships. Confidential Information also includes any information that Company has received, or may receive hereafter, belonging to customers or others with any understanding, express or implied, that the information would not be disclosed. Notwithstanding the foregoing, “Confidential Information” does not include (x) any information that is or becomes generally known to the industry or the public through no wrongful act of Executive or any representative of Executive and (y) any information that is made legitimately available to Executive by a third Party without breach of any confidentiality obligation.
(j)“Disability” means Executive’s inability, due to any illness, injury, accident or condition of either a physical or psychological nature, to substantially perform Executive’s duties and responsibilities hereunder for a period of one hundred twenty (120) consecutive days, or for any one hundred and eighty (180) days during any period of three hundred and sixty-five (365) consecutive calendar days, exclusive of any leave Executive may take under the Family and Medical Leave Act, 29 U.S.C. § 12101 et seq. (“FMLA”) or as a reasonable accommodation under the Americans with Disabilities Act, 29 U.S.C. § 2601 et seq. (“ADA”).
(k)“Final Compensation” means the amount equal to the sum of: (i) the Base Salary earned but not paid through the date of termination of employment, payable not later than the next scheduled payroll date, (ii) any business and related expenses and allowances incurred by Executive or to which Executive is entitled under Section 4(g) but unreimbursed on the date of termination of employment; provided that with respect to business expenses unreimbursed under Section 4(g), such expenses and required substantiation and documentation are submitted within one hundred eighty (180) days of termination in the case of termination on account of Executive’s death, or thirty (30) days on account of termination for any reason other than death, and that such expenses are reimbursable under Company’s applicable reimbursement policy, and (iii) any other supplemental compensation, insurance, retirement or other benefits due and payable or otherwise required to be provided under Section 4 in accordance with the terms and conditions of the applicable plan or agreement.
(l)“Good Reason” means, without Executive’s express written consent: (i) a material reduction in the Base Salary, then in effect, except a material diminution generally affecting all of the members of the Company’s management, (ii) a material reduction in job title, position or responsibility, or (iii) a material breach of any term or condition contained in this Agreement. However, none of the foregoing events or conditions will constitute Good Reason unless (i) Executive provides Company with written notice of the existence of Good Reason within ninety (90) days following the occurrence thereof, (ii) Company does not reverse or otherwise cure the event or condition within thirty (30) days of receiving that written notice, and (iii) Executive resigns Executive’s employment within thirty (30) days following the expiration of that cure period.
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Exhibit 10.2
(m)“Intellectual Property” means inventions, discoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets) conceived, made, created, developed or reduced to practice by Executive (whether alone or with others, whether or not during normal business hours or on or off Company premises) during Executive’s employment that relate to either the Services or any prospective activity of Company or that make use of Confidential Information or any of the equipment or facilities of Company.
(n)“Person” means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a trust, and any other entity or organization other than Company.
(o)“Sale of Company” means the sale of Company to an independent third Party or group of independent third Parties pursuant to which such Party or Parties acquire: (i) equity interests possessing the voting power under normal circumstances to elect a majority of the Board of Directors or similar governing body of Company (whether by merger, consolidation or sale or transfer of such equity interests), or (ii) all or substantially all of Company’s assets determined on a consolidated basis.
(p)“Services” means all services planned, researched, developed, tested, manufactured, sold, licensed, leased or otherwise distributed or put into use by Company, together with all products provided or planned by Company, during Executive’s employment.
(q)“Severance Period” shall mean that number of years or partial years following termination of Executive’s employment equal to the number of years or partial years of Base Salary that the Executive receives under Section 5(f).
(r)“Term End Date” shall mean the last day of the Term of this Employment Agreement.
12.Withholding. All payments made by Company under this Agreement may be reduced by any tax or other amounts required to be withheld by Company under applicable law or by any amounts authorized in writing by Executive.
13.Assignment. Neither Company nor Executive may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other; provided, however, that Company may assign its rights and obligations under this Agreement without the consent of Executive in the event of a Sale of Company. This Agreement shall inure to the benefit of and be binding upon Company and Executive, their respective successors, executors, administrators, heirs and permitted assigns.
14.Compliance with Code Section 409A.
(a)Notwithstanding any provision of this Agreement to the contrary, Executive’s employment will be deemed to have terminated on the date of Executive “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with Company.
(b)It is intended that this Agreement will comply with Section 409A of the Code, and any regulations and guideline issued thereunder (“Section 409A”) to the extent that any compensation and benefits provided hereunder constitute deferred compensation subject to Section 409A. This Agreement shall be interpreted on a basis consistent with this intent. The Parties will negotiate in good faith to amend this Agreement as necessary to comply with Section 409A in a manner that preserves the original intent of the Parties to the extent reasonably possible. No action or failure to act, pursuant to this Section 14 shall subject Company to any claim, liability, or expense, and Company shall not have any obligation to indemnify or otherwise protect Executive from the obligation to pay any taxes pursuant to Section 409A of the Code.
(c)For purposes of the application of Treas. Reg. § 1.409A-1(b)(4) (or any successor provision), each payment in a series of payments will be deemed a separate payment.
(d)Notwithstanding anything in this Agreement to the contrary, if any amount or benefit that would constitute non-exempt “deferred compensation” for purposes of Section 409A of the Code would otherwise be payable or distributable under this Agreement by reason of Executive’s separation from service during a period in which Executive is a “specified Executive” (as defined under Code Section 409A and the final regulations thereunder), then, subject to any permissible acceleration of payment by Company under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic relations order), (j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment of employment taxes):
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Exhibit 10.2
(i)if the payment or distribution is payable in a lump sum, the Executive’s right to receive payment or distribution of such non-exempt deferred compensation will be delayed until the earlier of Executive’s death or the first day of the seventh month following Executive’s separation from service; and
(ii)if the payment or distribution is payable over time, the amount of such non-exempt deferred compensation that would otherwise be payable during the six months immediately following Executive’s separation from service will be accumulated, and the Executive’s right to receive payment or distribution of such accumulated amount will be delayed until the earlier of Executive’s death or the first day of the seventh month following Executive’s separation from service, whereupon the accumulated amount will be paid or distributed to Executive and the normal payment or distribution schedule for any remaining payments or distributions will resume.
This Section 14(d) should not be construed to prevent the application of Treas. Reg § 1.409A-1(b)(9)(iii) (or any successor provision) to amounts payable hereunder (or any portion thereof).
15.Golden Parachute Limitation. Notwithstanding anything in this Section or elsewhere in this Agreement to the contrary, in the event the payments and benefits payable hereunder to or on behalf of Executive (which the Parties agree will not include any portion of payments allocated to the non-competition and non-solicitation provisions of Section 9) that are classified as payments of reasonable compensation for purposes of Section 280G of the Code, when added to all other amounts and benefits payable to or on behalf of Executive, would result in the loss of a deduction under Code Section 280G, or the imposition of an excise tax under Code Section 4999, the amounts and benefits payable hereunder shall be reduced to such extent as may be necessary to avoid such loss of deduction or imposition of excise tax. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Code Section 409A and where two or more economically equivalent amounts are subject to reduction, but payable at different times, such amounts shall be reduced on a pro-rata basis. All calculations required to be made under this subsection will be made by the Company’s independent public accountants, subject to the right of Executive’s professional advisors to review the same. The Parties recognize that the actual implementation of the provisions of this subsection are complex and agree to deal with each other in good faith to resolve any questions or disagreements arising hereunder.
16.Successors.
(a)Company’s Successors. Subject to Section 5(f), any successor to the Company (whether direct or indirect and whether by purchase, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company’s business and/or assets shall assume the obligations under this Agreement and agree expressly to perform the obligations under this Agreement in.the same manner and to the same extent as the Company would be required to perform such obligations in the absence of a succession. For all purposes under this Agreement, the term “Company” shall include any successor to the Company’s business and/or assets which executes and delivers the assumption agreement described in this Section 16 or which becomes bound by the terms of this Agreement by operation of law.
(b)Executive’s Successors. The terms of this Agreement and all rights of Executive hereunder shall inure to the benefit of, and be enforceable by, Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributes, devisees and legatees.
17.Clawback Provisions. Any amounts payable under this Agreement are subject to any policy (whether in existence as of the Effective Date or later adopted) established by the Company providing for clawback or recovery of amounts that were paid to the Executive. The Company will make any determination for clawback or recovery in its sole discretion and in accordance with any applicable law or regulation.
18.Indemnification. Company will indemnify Executive to the fullest extent permitted by law, for all amounts (including, without limitation, judgments, fines, settlement payments, expenses and reasonable out-of-pocket attorneys’ fees) incurred or paid by Executive in connection with any action, suit, investigation or proceeding, or threatened action, suit, investigation or proceeding, arising out of or relating to the performance by Executive of services for, or the acting by Executive as a director, officer or Executive of, Company, or any subsidiary of Company. Any fees or other necessary expenses incurred by Executive in defending any such action, suit, investigation or proceeding shall be paid by Company in advance, subject to Company’s right to seek repayment from Executive if a determination is made that Executive was not entitled to indemnification.
19.Severability. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in the circumstances other than those as to which it is so declared illegal or
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Exhibit 10.2
unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
20.Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving Party. The failure of either Party to require the performance of any term or obligation of this Agreement, or the waiver by either Party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
21.Survival. Section 6 through and including Section 32 shall survive and continue in full force in accordance with their terms notwithstanding the termination of Executive’s employment (and hence the Term of this Agreement) for any reason.
22.Notices. Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing and shall be effective when delivered in Person, with respect to notices delivered personally, or upon confirmed receipt when delivered by facsimile or deposited with a reputable, nationally recognized overnight courier service and addressed or faxed to Executive at Executive’s last known address on the books of Company or, in the case of Company, at its principal place of business, attention: Secretary, Board of Directors.
23.Entire Agreement. This Agreement constitutes the entire agreement between the Parties (including with respect to Company, its successors and assigns) with respect to Executive’s employment and supersedes all prior communications, agreements and understandings, written or oral, with respect to the terms and conditions of Executive’s employment.
24.Amendment. This Agreement may be amended or modified only by a written instrument signed by Executive and by an expressly authorized representative of Company.
25.Headings. The headings and captions in this Agreement are for convenience only and in no way define or describe the scope or content of any provision of this Agreement.
26.Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. Furthermore, the delivery of a copy of such signature by facsimile transmission or other electronic exchange methodology shall constitute a valid and binding execution and delivery of this Agreement by such Party, and such electronic copy shall constitute an enforceable original document. Counterpart signatures need not be on the same page and shall be deemed effective upon receipt.
27.Additional Obligations. Without implication that the contrary would otherwise be true, Executive’s obligations under Section 7, Section 8 and Section 9 are in addition to, and not in limitation of, any obligations that Executive may have under applicable law (including any law regarding trade secrets, duty of loyalty, fiduciary duty, unfair competition, unjust enrichment, slander, libel, conversion, misappropriation and fraud).
28.Attorneys’ Fees. In any action or proceeding brought to enforce any provision of this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, costs, and expenses from the other Party to the action or proceeding. For purposes of this Agreement, the “prevailing Party” shall be deemed to be that Party who obtains substantially the result sought, whether by settlement, mediation, judgment or otherwise, and “attorneys’ fees” shall include, without limitation, the reasonable out-of-pocket attorneys’ fees incurred in retaining counsel for advice, negotiations, suit, appeal or other legal proceeding, including mediation and arbitration.
29.Confidentiality. The Parties acknowledge and agree that this Agreement and each of its provisions are and shall be treated strictly confidential. During the Term and thereafter, Executive shall not disclose any terms of this Agreement to any Person or entity without the prior written consent of Company, with the exception of Executive’s tax, legal or accounting advisors or for legitimate business purposes of Executive, or as otherwise required by law.
30.No Rule of Construction. This Agreement shall be construed to be neither against nor in favor of any Party hereto based upon any Party’s role in drafting this Agreement, but rather in accordance with the fair meaning hereof.
31.Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the state of Florida.
13
Exhibit 10.2
32.WAIVER OF JURY TRIAL. EXECUTIVE AND THE COMPANY EXPRESSLY WAIVE ANY RIGHT EITHER MAY HAVE TO A JURY TRIAL CONCERNING ANY CIVIL ACTION THAT MAY ARISE FROM THIS AGREEMENT OR THE RELATIONSHIP OF THE PARTIES HERETO.
33.Conditions. This Agreement and the Executive’s continued employment hereunder is conditional on the Company’s satisfaction (determined in the Company’s sole discretion) that the Executive has met the legal requirements to perform the Executive’s role, including but not limited to satisfactory results of a background and/or credit search or any other applicable security clearance checks and criminal record checks and other reference checks that the Company performs. The Executive acknowledges and agrees that in signing this Agreement, and providing the Company with the necessary documentation to perform the checks required for the Executive’s role and with references, the Executive is providing consent to the Company or its agent, to performs such checks and contact the references the Executive provided to the Company.
34.Prior Restrictions. By signing below, the Executive represents that the Executive is not bound by the terms of any agreement with any Person which restricts in any way the Executive’s hiring by the Company and the performance of the Executive’s expected job duties; the Executive also represents that, during the Executive’s employment with the Company, the Executive shall not disclose or make use of any confidential information of any other persons or entities in violation of any of their applicable policies or agreements and/or applicable law.
35.Independent Legal Counsel. By signing below, the Executive hereby acknowledges that the Executive has been encouraged to obtain independent legal advice regarding the execution of this Agreement, and that the Executive has either obtained such advice or voluntarily chosen not to do so, and hereby waives any objections or claims the Executive may make resulting from any failure on the Executive’s part to obtain such advice.
36.Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original when executed, but all of which taken together shall constitute the same Agreement. Delivery of an executed counterpart of a signature page to this Agreement by electronic transmission, including in portable document format (.pdf), shall be deemed as effective as delivery of an original executed counterpart of this Agreement.
[SIGNATURE PAGE FOLLOWS]
14
Exhibit 10.2
IN WITNESS WHEREOF, this Agreement has been executed by Company (by its duly authorized representative) and by Executive, as of the date first above written.
DEFI DEVELOPMENT CORP. | ||
/s/ Joseph Onorati | ||
Name: Joseph Onorati Title: Chief Executive Officer | ||
EXECUTIVE: | ||
/s/ Fei (John) Han | ||
FEI (JOHN) HAN | ||
15
Exhibit 10.2
EXHIBIT A
Release of Claims
FOR AND IN CONSIDERATION OF the benefits to be provided me in connection with the termination of my employment, as set forth in that certain Amended and Restated Employment Agreement, dated as of January 1, 2026 (the “Agreement”), between me and DeFi Development Corp. (the “Company”), or under any severance pay plan applicable to me, which benefits are conditioned on my signing this Release of Claims and to which I am not otherwise entitled, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, I, on my own behalf and on behalf of my heirs, executors, administrators, beneficiaries, representatives and assigns, and all others connected with me, hereby release and forever discharge Company and any of its subsidiaries and Affiliates (as that term is defined in Section 11(b) of the Agreement) and all of their respective past, present and future officers, directors, trustees, equity holders, executives, agents, managers, joint venturers, representatives, successors and assigns, and all others connected with any of them (collectively, the “Released Parties”), both individually and in their official capacities, from any and all causes of action, rights and claims of any type or description, known or unknown, which I have had in the past, now have, or might now have, through the date of my signing of this Release of Claims, in any way resulting from, arising out of or connected with my employment by the Company or any of its Affiliates or the termination of that employment, including, but not limited to, any allegation, claim or violation arising under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended (including the Older Worker Benefit Protection Act); the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification Act; Executive Retirement Income Security Act of 1974; the Fair Labor Standards Act; any applicable Executive Orders; or their state or local counterparts; or under any other federal, state or local civil or human rights law, or under any other federal, state or local law, regulation or ordinance; or under any public policy, contract or tort, or under common law; or arising under any policies, practices or procedures of the Company; or any claim for wrongful discharge, breach of contract, intentional infliction of emotional distress or defamation; or any claim for costs, fees or other expenses, including attorneys’ fees incurred in these matters (all of the foregoing collectively referred to herein as “Claims”), other than (i) the right to payment of any vested or accrued benefits under any supplemental compensation, insurance, retirement and/or other benefit plan or agreement applicable to Executive, (ii) the right to payment of any amounts owed to me by Company pursuant to Section 5 of the Agreement, (iii) any rights under applicable workers compensation or unemployment compensation laws, (iv) any rights that survive termination of my employment pursuant to an restricted stock units/options grant agreement or certificate to purchase the Company’s (or an Affiliate’s) capital stock, (v) any rights with respect to the Company’s (or an Affiliate’s) capital stock owned by Executive, or (vi) any rights to indemnification under the Agreement, the Company’s by-laws or any other applicable law.
In signing this Release of Claims, I acknowledge my understanding that I may not sign it prior to the termination of my employment, but that I may consider the terms of this Release of Claims for up to twenty-one (21) days (or such longer period as the Company may specify) from the later of the date my employment with the Company terminates or the date I receive this Release of Claims. I also acknowledge that I am advised by the Company and its Affiliates to seek the advice of an attorney prior to signing this Release of Claims; that I have had sufficient time to consider this Release of Claims and to consult with an attorney, if I wished to do so, or to consult with any other Person of my choosing before signing; and that I am signing this Release of Claims voluntarily and with a full understanding of its terms.
I represent that I have not filed against the Released Parties any complaints, charges, or lawsuits arising out of my employment, or any other matter arising on or prior to the date of this Release of Claims, and covenant and agree that I will never individually or with any Person file, or commence the filing of, any charges, lawsuits, complaints or proceedings with any governmental agency, or against the Released Parties with respect to any of the matters released by me pursuant to this Release of Claims.
I further acknowledge that, in signing this Release of Claims, I have not relied on any promises or representations, express or implied, that are not set forth expressly in the Agreement. I understand that I may revoke this Release of
A-1
Exhibit 10.2
Claims at any time within seven (7) days of the date of my signing by written notice to the Secretary, Board of Directors of the Company (or such other Person as the Company may specify by notice to me given in accordance with the Agreement) and that this Release of Claims will take effect only upon the expiration of such seven-day revocation period and only if I have not timely revoked it.
Intending to be legally bound, I have signed this Release of Claims as of the date written below.
Signature: __________________________________________ | ||
Name: _____________________________________________ | ||
Date Signed: ________________________________________ | ||
A-2
Exhibit 10.3
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the “Agreement”), dated for reference purposes as of January 1, 2026 (the “Effective Date”), is made and entered into by and between DeFi Development Corp., formerly Janover Inc., a Delaware corporation (the “Company”), and Parker White (the “Executive” and together with the Company, the “Parties” and individually a “Party”). This Agreement replaces and supersedes the employment agreement between the Parties dated as of April 15, 2025. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in Section 11.
RECITALS
WHEREAS, subject to the amended and restated terms and conditions hereinafter set forth, Company wishes to continue to employ Executive as its Chief Operating Officer and Chief Investment Officer and Executive wishes to continue to be employed by Company as its Chief Operating Officer and Chief Investment Officer.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises, terms, provisions, and conditions set forth in this Agreement, the adequacy and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:
AGREEMENT
1.Employment. Subject to the terms and conditions set forth in this Agreement, Company hereby offers, and Executive hereby accepts, continued employment with Company.
2.Term. The Executive’s employment hereunder shall be effective as of the Effective Date and shall remain in effect until it is terminated in accordance with Sections 5 and 6 below (the “Term”).
3.Capacity and Performance.
(a)During the Term, the Executive shall be employed by Company on a full-time basis as its Chief Operating Officer and Chief Investment Officer. Executive shall perform such duties and responsibilities as directed by the Board of Directors of the Company (the “Board”), consistent with Executive’s position on behalf of Company.
(b)Executive shall devote his full business time, attention, skill, and best efforts to the performance of his duties under this Agreement and shall not engage in any other business or occupation during the Term, including, without limitation, any activity that: (x) conflicts with the interests of the Company or any other member of the Company Group, (y) interferes with the proper and efficient performance of Executive’s duties for the Company, or (z) interferes with Executive’s exercise of judgment in the Company’s best interests. Notwithstanding the foregoing, nothing herein shall preclude Executive from: (i) serving, with the prior written consent of the Board, as a member of the Board of Directors or Advisory Board (or the equivalent in the case of a non-corporate entity) of a noncompeting for-profit business and one or more charitable organizations, (ii) developing, consulting for, or providing services to a noncompeting business, with the prior written consent of the Board; (iii) engaging in charitable activities and community affairs, and (iv) managing Executive’s personal investments and affairs; provided, however, that the activities set out in clauses (i), (ii), (iii), and (iv) shall be limited by Executive so as not to materially interfere, individually or in the aggregate, with the performance of his duties and responsibilities hereunder.
(c)Executive’s employment with Company shall be exclusive with respect to the business of Company. Accordingly, during the Term, Executive shall devote Executive’s full business time and Executive’s best efforts, business judgment, skill and knowledge to the advancement of the business and interests of Company and the discharge of Executive’s duties and responsibilities hereunder, except for permitted vacation (and other paid time off) periods, reasonable periods of illness or incapacity, time spent on activities expressly permitted under Section 3(b), and reasonable and customary time spent on civic,
Exhibit 10.3
charitable and religious activities; provided, however, that in each case such activities shall not interfere in any material respect with Executive’s duties and responsibilities hereunder.
(d)During the Term, the Executive will report directly to the Chief Executive Officer.
(e)The Board appointed Executive as the Chief Operating Officer and Chief Investment Officer on April 4, 2025.
4.Compensation and Benefits.
(a)Base Salary. For services performed by Executive under this Agreement, Company shall pay Executive an annual base salary of $443,000, minus applicable withholdings and deductions, payable at the same times as salaries are payable to other executives of Company (the “Base Salary”). During the Term, the Base Salary shall be reviewed by the Compensation Committee and/or the Board each year, and the Board may, from time to time, increase or decrease such Base Salary and any reference to “Base Salary” herein shall refer to such Base Salary, as increased.
(b)Annual Bonus. For each fiscal year of the Company during the Term, the Company shall afford Executive the opportunity to earn an incentive bonus (“Bonus”) as described in this Section 4(b). The aggregate target Bonus payable to Executive under such program(s) shall be 65% of the Base Salary or any other amount set by the Compensation Committee of the Board in its discretion, and shall be payable to the extent the applicable performance goals are achieved (which goals and payment matrices shall be set by the Compensation Committee of the Board in its discretion). The amount of the Bonus will be determined by certification by the Board that the applicable goals have been achieved, and the Board shall promptly provide such certification following the achievement of the applicable goals.
(c)Equity Awards. During the Term, the Executive shall be entitled to receive equity awards (the “Equity Awards”) either now or in the future, on terms and conditions similar to those applicable to other executive officers of the Company generally, inside or outside of any established equity plan. The amount and terms of the Equity Awards awarded to the Executive shall be set by the Compensation Committee in its discretion. The Equity Awards will be evidenced by a restricted stock unit award agreement, a stock option agreement, or any other form of equity award agreement under the Company’s Equity Incentive Plan (the “Equity Plan”), and will be subject to the terms and conditions of such agreements and the Equity Plan.
(d)Change in Control. To the extent not already vested, the Equity Awards granted to Executive will fully vest upon (i) a Change of Control Severance Event (as defined below) or (ii) a Change in Control followed by a change in job title or position.
(e)Other Executive Benefits. During the Term, the Executive shall be entitled to participate in all executive benefit plans, including health and 401(k) plans, from time to time generally in effect for Company’s executives (collectively, “Benefit Plans”). Such participation and receipt of benefits under any such Benefit Plans shall be on the same terms (including cost-sharing between Company and Executive) as are applicable to other Company executives and shall be subject to the terms of the applicable plan documents and generally applicable Company policies. The Company may alter, modify, add to or delete the Benefit Plans in a manner nondiscriminatory to Executive at any time in accordance with applicable plan rules.
(f)Vacation. The Executive shall be entitled to an annual vacation of 20 days plus ten established holiday days per full calendar year of his employment with the Company hereunder. Any unused vacation in one accrued calendar year may not be carried over to any subsequent calendar year.
(g)Business and Travel Expenses. Company shall pay or reimburse Executive for all reasonable, customary and necessary business expenses (including travel, lodging, networking, and entertainment expenses) which are correctly documented and incurred or paid by Executive in the performance of Executive’s duties and responsibilities hereunder, subject to the rules, regulations, and procedures of Company and in effect from time to time.
2
Exhibit 10.3
5.Termination of Employment; Severance Benefits. Notwithstanding the provisions of Section 2, the Executive’s employment hereunder shall terminate under the following circumstances:
(a)Death. If Executive’s dies during the Term, Executive’s employment hereunder shall immediately and automatically terminate. In such event, Company shall pay to Executive’s designated beneficiary or, if no beneficiary has been selected by Executive, to Executive’s estate, the Final Compensation. Company shall have no further obligation hereunder to Executive, Executive’s beneficiary, or Executive’s estate upon the termination of Executive’s employment under this Section 5(a) including, specifically, that the provisions of Section 5(d) shall not apply.
(b)Disability.
(i)Company may terminate Executive’s employment hereunder due to Executive’s Disability during the Term by giving Executive thirty (30) days’ written notice of its intent to terminate, but in no event shall such termination be effective prior to the expiration of the time periods in the definition of Disability. Notwithstanding the foregoing, Company will, after engaging in an interactive process with Executive to discern whether reasonable accommodation(s) can be provided without undue hardship upon Company, offer Executive reasonable accommodation(s) to enable Executive to perform the essential functions of Executive’s position to the extent required by applicable law (if any) before terminating Executive’s employment hereunder. Executive may decline such reasonable accommodation, in which case Executive’s employment hereunder will terminate as provided in this subsection.
(ii)In the event of such termination for Disability, Executive will receive Executive’s Final Compensation. Company shall have no further obligation hereunder to Executive upon termination of Executive’s employment under this Section 5(d), including, specifically, that the provisions of Section 5(d) shall not apply.
(iii)Subject to Executive’s rights under the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”), Company may designate another Executive to act in Executive’s place during any period of Executive’s Disability during which Executive is unable to perform the essential functions of Executive’s position with or without reasonable accommodation. Notwithstanding any such designation, Executive shall continue to receive the Base Salary in accordance with Section 4(a) and coverage under the Benefit Plans in accordance with Section 4(b), to the extent permitted by the then-current terms of the applicable benefit plans and as provided under the FMLA, if applicable, until the earliest to occur of: (A) the end of the Term, (B) Executive becomes eligible for disability income benefits under Company’s disability income plan, or (C) the termination of Executive’s employment.
(iv)While receiving disability income payments under Company’s disability income plan (if applicable), Company will continue to pay to Executive Executive’s Base Salary under Section 4(a), but may offset any such disability income payments Executive receives against the Base Salary payments. Executive will also continue to participate in the Benefit Plans in accordance with Section 4(b) and the terms of such Benefit Plans, until the end of the Term or until the termination of Executive’s employment, whichever occurs first.
(v)If any question arises as to whether during any period Executive has a Disability as defined herein, Executive may, and at the request of Company shall, submit to a medical examination by a qualified, unbiased physician selected by Company and reasonably acceptable to Executive or Executive’s duly appointed guardian, if any, to determine whether Executive has a Disability and such determination shall for the purposes of this Agreement be conclusive of the issue.
(c)By Company for Cause. Company may terminate Executive’s employment hereunder for Cause, as defined in Section 11(c), at any time upon notice to Executive setting forth in reasonable detail the nature of such Cause. Upon the giving of notice of termination of Executive’s employment hereunder for Cause, Executive will receive Executive’s Final Compensation. Except as provided herein, Company will have no further obligation to Executive upon termination of Executive’s employment under this Section 5(c). Any notice of termination of Executive’s employment hereunder for Cause, or any notice to Executive regarding
3
Exhibit 10.3
any event, condition or circumstance that, if not cured, if applicable, in accordance with the above, could give rise to a termination of Executive’s employment hereunder for Cause, shall set forth in detail the applicable event(s), condition(s) or circumstance(s) constituting reason(s) or potential reason(s) for such termination hereunder.
(d)By Company Other than for Cause or by Executive for Good Reason. Company may terminate Executive’s employment hereunder other than for Cause at any time upon thirty (30) days’ written notice to Executive and Executive may terminate Executive’s employment hereunder for Good Reason at any time upon thirty (30) days’ written notice to Company.
(i)In the event of a termination of Executive’s employment under this Section 5(d), in addition to the Final Compensation, Executive shall receive payment of such Bonus as determined under Section 4(b) shall be at the time proscribed by Section 4(b), if the date of termination occurs after the end of a calendar year but prior to the date on which a Bonus is paid under Section 4(b).
(ii)Any obligation of Company to Executive under this Section 5(d) (other than for the Final Compensation or for benefits required by law) is conditioned upon Executive’s execution and delivery to Company and the expiration of all applicable statutory revocation periods of a release of claims in the form attached hereto as Exhibit A (the “Executive Release”), provided, that the terms of such Executive Release shall be subject to modification to the extent necessary to comply with: (a) the fact that Company is simultaneously terminating more than one executive as part of a group termination decision or (b) changes in applicable law, if any, occurring after the date hereof, and prior to the date such Executive Release is executed.
(e)[intentionally omitted]
(f)Change in Control Severance. Except as otherwise set forth herein, if a Change in Control occurs, and on, or at any time during the 6 months following, the Change in Control, (i) the Company terminates Executive’s employment for any reason other than Cause or Disability, or (ii) Executive terminates Executive’s employment for Good Reason (a “Change of Control Severance Event”), Executive shall be entitled to the following benefits:
(i)The Company shall pay Executive, in a lump sum within 60 days following termination of Executive’s employment, severance equal to two times the sum of Executive’s Base Salary.
(ii)Executive also shall be entitled to receive any and all vested benefits accrued under any other incentive plans to the date of termination of employment, the amount, entitlement to, form, and time of payment of such benefits to be determined by the terms of such incentive plans. For purposes of calculating Executive’s benefits under the incentive plans, Executive’s employment shall be deemed to have terminated under circumstances that have the most favorable result for Executive under the applicable incentive plan.
(iii)If, upon the date of termination of Executive’s employment, Executive holds any awards with respect to securities of the Company, (A) all such awards that are restricted stock units/options shall immediately become vested and exercisable upon such date and shall be exercisable thereafter until expiration of the full term of the restricted stock units/options; (B) all restrictions on any such awards of restricted stock, restricted stock units or other awards shall terminate or lapse, and all such awards of restricted stock, restricted stock units or other awards shall be vested and payable; and (C) all performance goals applicable to any such performance-based awards that are “in cycle” (i.e., the performance period is not yet complete) shall be deemed satisfied at the “target” level (assuming 100% payout), and (D) all such awards shall be paid in accordance with the terms of the applicable award agreement. The provisions of this subsection shall be subject (and defer) to the provisions of any incentive plan, award agreement or other agreement as it relates to an individual award to the extent such provisions provide treatment that is more favorable to Executive than the treatment described in this subsection and such more favorable provisions in such incentive plan, award agreement or other agreement shall supersede any inconsistent or contrary provision of this subsection. All of Executive’s awards with respect to securities of the Company that are outstanding upon the date of termination of Executive’s employment shall continue to be subject to, and enjoy the benefits and protections under,
4
Exhibit 10.3
the terms of the incentive plan, the award agreement and any other plan, agreement, policy or other arrangement to which such awards are subject as of the effective date of Executive’s participation, including any employment security agreement or other written compensation arrangement (even if the remaining terms thereof are waived), without application of this subsection.
(iv)Executive and Executive’s spouse and other qualified beneficiaries shall be eligible for continued coverage as follows:
(A)If the Executive, Executive’s spouse and/or Executive’s other qualified beneficiaries are enrolled under a group health plan as defined by COBRA, on the date of termination of Executive’s employment, Executive, Executive’s spouse and/or Executive’s qualified beneficiaries may elect to continue such coverage under COBRA, except that the maximum coverage period shall be extended to no less than the Severance Period (but no more than 1 year) for that Executive, unless, after electing COBRA, the individual attains age 65 and becomes eligible for Medicare, in which case COBRA shall end for that individual. If Executive, Executive’s spouse and/or Executive’s other qualified beneficiaries elect COBRA coverage, the Company shall pay a portion of the COBRA costs for the Severance Period for that Executive (subject to any earlier termination of COBRA). The portion to be paid by the Company shall equal the amount necessary so that the total of the COBRA costs paid by Executive is equal to the costs that would have been paid by Executive for such coverage as an active employee immediately prior to termination of Executive’s employment or, if less, prior to the Change in Control. The cost of COBRA coverage paid by the Company may be taxable income to the Executive and reported on Executive’s Internal Revenue Service Form W-2. Executive, Executive’s spouse and/or Executive’s qualified beneficiaries may continue coverage under COBRA after the Severance Period for that Executive, provided they pay the full COBRA costs and COBRA otherwise remains available.
(B)The benefits and/or extended coverage provided under this subsection shall cease prior to the date such benefits and/or extended coverage would otherwise end under subsection if and when Executive (1) obtains employment with another employer during the Severance Period and becomes eligible for coverage under any substantially similar plan provided by his/her new employer or (2) fails to pay the required active employee portion of the cost of coverage provided under this subsection in the time and manner specified by the Company or its designee.
(v)Executive shall be entitled to payment for any accrued but unused vacation in accordance with the Company’s policy in effect at the time of termination of Executive’s employment, in a lump sum within sixty (60) days following such termination. Executive shall not be entitled to receive any payments or other compensation attributable to vacation that would have been earned had Executive’s employment continued during the Severance Period, and Executive waives any right to receive any such compensation.
(vi)Executive shall not be entitled to reimbursement for any other fringe benefits or perquisite payments during the Severance Period, including but not limited to dues and expenses related to club memberships, automobile, cell phone, expenses for professional services, executive physicals, and other similar perquisites.
6.Effect of Termination.
(a)Upon termination of Executive’s employment hereunder and subject to the provisions of Section 5 and Section 6(c), Company’s entire obligation to Executive shall be payment of Final Compensation.
(b)In connection with the cessation of Executive’s service as Chief Operating Officer and Chief Investment Officer of Company for any reason, except as may otherwise be requested by the Company in writing and agreed upon in writing by Executive, Executive shall be deemed to have resigned from any and all directorships, committee memberships, and any other positions Executive holds with the Company or any other member of the Company Group. Executive hereby agrees that no further action is required by Executive or any of the preceding to make the transitions and resignations provided for in this paragraph
5
Exhibit 10.3
effective, but Executive nonetheless agrees to execute any documentation Company reasonably requests at the time to confirm it and to not reassume any such service or position without the written consent of Company.
(c)Except as otherwise required by Consolidated Omnibus Budget Reconciliation Act or any similar federal or state law, benefits shall continue or terminate pursuant to the terms of the applicable benefit plan or agreement, without regard to any continuation of Base Salary or other payment to Executive following such date of termination.
(d)The provisions of this Section 6 shall apply to any termination of employment. Provisions of this Agreement will survive any termination if so provided herein or if necessary or desirable to accomplish the purposes of other surviving provisions, including, without limitation, the obligations of Executive under Section 7 through Section 9.
(e)Any termination of Executive’s employment with Company under this Agreement shall automatically be deemed to be simultaneous resignation of all other positions and titles (including any director positions) that Executive holds with Company and any Affiliate or subsidiary thereof. This Section 6(e) shall constitute a resignation notice for such purposes.
(f)Upon termination of the Executive’s employment or upon the Company’s request at any other time, the Executive will deliver to the Company all of the Company’s property, equipment, and documents, together with all copies thereof, and any other material containing or disclosing any Intellectual Property or Confidential Information and certify in writing that the Executive has fully complied with the foregoing obligation. The Executive agrees that the Executive will not copy, delete, or alter any Company computer equipment information before the Executive returns it to the Company. In addition, if the Executive has used any personal computer, server, or email system to receive, store, review, prepare or transmit any Company information, including but not limited to, Confidential Information, the Executive agrees to provide the Company with a computer-usable copy of all such Confidential Information and then permanently delete and expunge such Confidential Information from those systems; and the Executive agrees to provide the Company access to the Executive’s system as reasonably requested to verify that the necessary copying and/or deletion is completed.
7.Confidential Information.
(a)Executive acknowledges that Company continually develops Confidential Information, that Executive may develop Confidential Information for Company and that Executive may learn of Confidential Information during the course of employment with Company. Executive will comply with the policies and procedures of Company for protecting Confidential Information and shall not disclose to any Person or use, other than as required by applicable law, regulation or process, for the proper performance of Executive’s duties and responsibilities to Company, or with the express written permission of the Board, any Confidential Information obtained by Executive incidental to Executive’s employment or other association with Company. Executive understands that this restriction shall continue to apply after Executive’s employment terminates, regardless of the reason for such termination.
(b)Notwithstanding anything contained in this Section 7 to the contrary, nothing contained herein shall prevent Executive from disclosing any Confidential Information required by law, subpoena, court order or other legal processes to be disclosed; provided, that, Executive shall give prompt written notice to Company of such requirement, disclose no more information than is so required and cooperate, at Company’s cost and expense, with any attempt by Company to obtain a protective order or similar treatment with respect to such information.
(c)Pursuant to the Defend Trade Secrets Act of 2016, Executive understands that:
(i)Executive may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a
6
Exhibit 10.3
suspected violation of law; or is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding; and
(ii)if Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the employer’s trade secrets to Executive’s attorney and use the trade secret information in the court proceeding if Executive files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
8.Assignment of Rights to Intellectual Property. Executive shall promptly and fully disclose to Company all Intellectual Property developed for the benefit of Company in the course of Executive’s employment by Company. Executive hereby assigns and agrees to assign to Company (or as otherwise directed by Company) Executive’s full right, title, and interest in and to all such Intellectual Property. Executive agrees to execute any and all applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without limitation the execution and delivery of instruments of further assurance or confirmation) requested by Company (at Company’s expense) to assign to Company the Intellectual Property developed for the benefit of Company in the course of Executive’s employment by Company and to permit Company to enforce any patents, copyrights or other proprietary rights to the Intellectual Property. Executive will not charge Company for time spent in complying with these obligations. All copyrightable works that Executive creates developed for the benefit of Company in the course of Executive’s employment by Company shall be considered “work made for hire.”
9.Restricted Activities. Executive agrees that the restrictions on Executive’s activities during and after Executive’s employment set forth below are necessary to protect the goodwill, Confidential Information and other legitimate interests of Company and its successors and assigns:
(a)During the Term of this Agreement and during the Restricted Period following termination of employment, Executive will not, without the prior written consent of Company, directly or indirectly, and whether as principal or investor or as an Executive, officer, director, manager, partner, consultant, agent, or otherwise, alone or in association with any other Person, firm, corporation, or other business organization, engage or otherwise become involved in a Competing Business (as defined below) in any country in which the Company conducted business during the Term; provided, however, that the provisions of this Section 9 shall apply solely to those activities of a Competing Business which are congruent with those activities with which Executive was personally involved or for which Executive was responsible while employed by the Company or its subsidiaries during the twelve (12) month period preceding termination of Executive’s employment. This Section 9 will not be violated, however, by Executive’s investment of up to $500,000 in the aggregate in one or more publicly traded companies that engage in a Competing Business. “Competing Business” means a business or enterprise (other than Company or its subsidiaries) engaged in the commercial mortgage brokerage, commercial mortgage marketplace, and any other business directly competing with the business of the Company as currently conducted or otherwise conducted by the Company during the Term (the “Restricted Activities”). “Restricted Period” means twenty-four (24) months.
(b)During the Term of this Agreement and during the Restricted Period (as defined above), Executive will not engage in any Wrongful Solicitation. A “Wrongful Solicitation” shall be deemed to occur when Executive directly or indirectly (except in the course of Executive’s employment with Company), for the purpose of conducting or engaging in a Competing Business, calls upon, solicits, advises or otherwise does, or attempts to do, business with any Person who is, or was, during the then most recent 12-month period, a customer of Company or any of its subsidiaries, or takes away or interferes or attempts to take away or interfere with any custom, trade, business, patronage or affairs of Company or any of its subsidiaries, or hires or attempts to hire any Person who is, or was during the most recent 12-month period, an Executive, officer, representative or agent of Company or any of its subsidiaries, or solicits, induces, or attempts to solicit or induce any Person who is an Executive, officer, representative or agent of Company or any of its subsidiaries to leave the employ or agency of the Company or any of its subsidiaries, or violate the terms of their contract, or any employment consulting or agent agreement, with it.
7
Exhibit 10.3
(c)It is expressly understood and agreed that although Executive and Company consider the restrictions contained in this Section 9 to be reasonable if a court makes a final judicial determination of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as the court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(d)Executive expressly understands that in the event of a violation of any period specified in this Section 9, such period shall be extended by a period of time equal to that period beginning with the commencement of any such violation and ending when such violation shall have been finally terminated in good faith.
10.Enforcement of Covenants. Executive acknowledges that Executive has carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed upon Executive pursuant to Sections 7, 8 and 9, and Executive agrees that these restraints are necessary for the reasonable and proper protection of Company and its successors and assigns and that each and every one of the restraints is reasonable in respect to the subject matter, length of time and geographic area. Executive further acknowledges that, were Executive to breach any of the covenants in Section 7, Section 8 and/or Section 9 the damage to the Company would be irreparable. Executive therefore agrees that Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by Executive of any of the covenants herein, without any requirement to post a bond or similar security. The Parties further agree that in the event that any provision of Section 7, Section 8 and/or Section 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.
11.Definitions. Words or phrases that are initially capitalized or within quotation marks shall have the meanings provided in this Section 11 and as provided elsewhere. For purposes of this Agreement, the following definitions apply:
(a)“$” refers to U.S. Dollars.
(b)“Affiliate” means, with respect to any specified Person, any other Person which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person (for the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to either:(i) direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise, or (ii) vote at least fifty percent (50%) or more of the securities having voting power for the election of a majority of the directors (or Persons performing similar functions) of such Person.
(c)“Cause” means if Executive is discharged by Company on account of the occurrence of one or more of the following events:
(i)Executive’s continued refusal or failure to perform (other than by reason of Disability) Executive’s material duties and responsibilities to Company if such refusal or failure is not cured within thirty (30) days following written notice of such refusal or failure by Company to Executive, or Executive’s continued refusal or failure to follow any reasonable lawful direction of the Board if such refusal or failure is not cured within thirty (30) days following written notice of such refusal or failure by Company to Executive;
(ii)willful, grossly negligent or unlawful misconduct by Executive which causes material harm to Company or its reputation;
8
Exhibit 10.3
(iii)the Company is directed in writing by regulatory or governmental authorities to terminate the employment of Executive or Executive engages in activities that: (x) are not approved or authorized by the Board, and (y) cause actions to be taken by regulatory or governmental authorities that have a material adverse effect on Company; or
(iv)a conviction, plea of guilty, or plea of nolo contendere by Executive, of or with respect to a criminal offense which is a felony or other crime involving dishonesty, disloyalty, fraud, embezzlement, theft, or similar action(s) (including, without limitation, acceptance of bribes, kickbacks or self-dealing), or the material breach of Executive’s fiduciary duties with respect to Company.
(d)“Change in Control” means the occurrence, in a single transaction or in a series of related transactions, of any one or more of the following events:
(i)A transaction or series of transactions (other than an offering of common stock to the general public through a registration statement filed by the Company with the Securities and Exchange Commission) whereby any “Person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company, any of its subsidiaries, an Executive benefit plan maintained by the Company or any of its subsidiaries or a “Person” that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13(d)(3) under the Exchange Act) of securities of the Company possessing more than fifty percent (50%) of the total combined voting power of the Company’s securities outstanding immediately after such acquisition;
(ii)The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination, or (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions:
(A) which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the Person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such Person, the “Successor Entity”) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and
(B)after which no Person or group beneficially owns voting securities representing fifty percent (50%) or more of the combined voting power of the Successor Entity; provided, however, that no Person or group shall be treated for purposes of this Section 11(d) as beneficially owning fifty percent (50%) or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction.
A transaction shall not constitute a Change in Control if its sole purpose is to change the State of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction.
(e)“Code” means the Internal Revenue Code of 1986, as amended.
(f)“Company” has the meaning ascribed to it in the preamble of this Agreement.
(g)“Company Group” shall mean the Company together with any of its direct or indirect subsidiaries.
(h)“Compensation Committee” shall mean the committee of the Board designated to make compensation decisions relating to senior executive officers of the Company.
(i)“Confidential Information” means any and all nonpublic information of the Company. Confidential Information includes, without limitation, such information relating to (i) the development, research, testing, manufacturing, marketing, and financial activities of the Company, (ii) the Services, (iii) the costs, sources of supply, financial performance, and strategic and/or business plans of Company, (iv) the identity and
9
Exhibit 10.3
special needs of the customers and prospective customers of Company, and (v) the people and organizations with whom Company has business relationships and those relationships. Confidential Information also includes any information that Company has received, or may receive hereafter, belonging to customers or others with any understanding, express or implied, that the information would not be disclosed. Notwithstanding the foregoing, “Confidential Information” does not include (x) any information that is or becomes generally known to the industry or the public through no wrongful act of Executive or any representative of Executive and (y) any information that is made legitimately available to Executive by a third Party without breach of any confidentiality obligation.
(j)“Disability” means Executive’s inability, due to any illness, injury, accident or condition of either a physical or psychological nature, to substantially perform Executive’s duties and responsibilities hereunder for a period of one hundred twenty (120) consecutive days, or for any one hundred and eighty (180) days during any period of three hundred and sixty-five (365) consecutive calendar days, exclusive of any leave Executive may take under the Family and Medical Leave Act, 29 U.S.C. § 12101 et seq. (“FMLA”) or as a reasonable accommodation under the Americans with Disabilities Act, 29 U.S.C. § 2601 et seq. (“ADA”).
(k)“Final Compensation” means the amount equal to the sum of: (i) the Base Salary earned but not paid through the date of termination of employment, payable not later than the next scheduled payroll date, (ii) any business and related expenses and allowances incurred by Executive or to which Executive is entitled under Section 4(g) but unreimbursed on the date of termination of employment; provided that with respect to business expenses unreimbursed under Section 4(g), such expenses and required substantiation and documentation are submitted within one hundred eighty (180) days of termination in the case of termination on account of Executive’s death, or thirty (30) days on account of termination for any reason other than death, and that such expenses are reimbursable under Company’s applicable reimbursement policy, and (iii) any other supplemental compensation, insurance, retirement or other benefits due and payable or otherwise required to be provided under Section 4 in accordance with the terms and conditions of the applicable plan or agreement.
(l)“Good Reason” means, without Executive’s express written consent: (i) a material reduction in the Base Salary, then in effect, except a material diminution generally affecting all of the members of the Company’s management, (ii) a material reduction in job title, position or responsibility, or (iii) a material breach of any term or condition contained in this Agreement. However, none of the foregoing events or conditions will constitute Good Reason unless (i) Executive provides Company with written notice of the existence of Good Reason within ninety (90) days following the occurrence thereof, (ii) Company does not reverse or otherwise cure the event or condition within thirty (30) days of receiving that written notice, and (iii) Executive resigns Executive’s employment within thirty (30) days following the expiration of that cure period.
(m)“Intellectual Property” means inventions, discoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets) conceived, made, created, developed or reduced to practice by Executive (whether alone or with others, whether or not during normal business hours or on or off Company premises) during Executive’s employment that relate to either the Services or any prospective activity of Company or that make use of Confidential Information or any of the equipment or facilities of Company.
(n)“Person” means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a trust, and any other entity or organization other than Company.
(o)“Sale of Company” means the sale of Company to an independent third Party or group of independent third Parties pursuant to which such Party or Parties acquire: (i) equity interests possessing the voting power under normal circumstances to elect a majority of the Board of Directors or similar governing body of Company (whether by merger, consolidation or sale or transfer of such equity interests), or (ii) all or substantially all of Company’s assets determined on a consolidated basis.
(p)“Services” means all services planned, researched, developed, tested, manufactured, sold, licensed, leased or otherwise distributed or put into use by Company, together with all products provided or planned by Company, during Executive’s employment.
10
Exhibit 10.3
(q)“Severance Period” shall mean that number of years or partial years following termination of Executive’s employment equal to the number of years or partial years of Base Salary that the Executive receives under Section 5(f).
(r)“Term End Date” shall mean the last day of the Term of this Employment Agreement.
12.Withholding. All payments made by Company under this Agreement may be reduced by any tax or other amounts required to be withheld by Company under applicable law or by any amounts authorized in writing by Executive.
13.Assignment. Neither Company nor Executive may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other; provided, however, that Company may assign its rights and obligations under this Agreement without the consent of Executive in the event of a Sale of Company. This Agreement shall inure to the benefit of and be binding upon Company and Executive, their respective successors, executors, administrators, heirs and permitted assigns.
14.Compliance with Code Section 409A.
(a)Notwithstanding any provision of this Agreement to the contrary, Executive’s employment will be deemed to have terminated on the date of Executive “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with Company.
(b)It is intended that this Agreement will comply with Section 409A of the Code, and any regulations and guideline issued thereunder (“Section 409A”) to the extent that any compensation and benefits provided hereunder constitute deferred compensation subject to Section 409A. This Agreement shall be interpreted on a basis consistent with this intent. The Parties will negotiate in good faith to amend this Agreement as necessary to comply with Section 409A in a manner that preserves the original intent of the Parties to the extent reasonably possible. No action or failure to act, pursuant to this Section 14 shall subject Company to any claim, liability, or expense, and Company shall not have any obligation to indemnify or otherwise protect Executive from the obligation to pay any taxes pursuant to Section 409A of the Code.
(c)For purposes of the application of Treas. Reg. § 1.409A-1(b)(4)(or any successor provision), each payment in a series of payments will be deemed a separate payment.
(d)Notwithstanding anything in this Agreement to the contrary, if any amount or benefit that would constitute non-exempt “deferred compensation” for purposes of Section 409A of the Code would otherwise be payable or distributable under this Agreement by reason of Executive’s separation from service during a period in which Executive is a “specified Executive” (as defined under Code Section 409A and the final regulations thereunder), then, subject to any permissible acceleration of payment by Company under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic relations order), (j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment of employment taxes):
(i)if the payment or distribution is payable in a lump sum, the Executive’s right to receive payment or distribution of such non-exempt deferred compensation will be delayed until the earlier of Executive’s death or the first day of the seventh month following Executive’s separation from service; and
(ii)if the payment or distribution is payable over time, the amount of such non-exempt deferred compensation that would otherwise be payable during the six months immediately following Executive’s separation from service will be accumulated, and the Executive’s right to receive payment or distribution of such accumulated amount will be delayed until the earlier of Executive’s death or the first day of the seventh month following Executive’s separation from service, whereupon the accumulated amount will be paid or distributed to Executive and the normal payment or distribution schedule for any remaining payments or distributions will resume.
This Section 14(d) should not be construed to prevent the application of Treas. Reg § 1.409A-1(b)(9)(iii) (or any successor provision) to amounts payable hereunder (or any portion thereof).
11
Exhibit 10.3
15.Golden Parachute Limitation. Notwithstanding anything in this Section or elsewhere in this Agreement to the contrary, in the event the payments and benefits payable hereunder to or on behalf of Executive (which the Parties agree will not include any portion of payments allocated to the non-competition and non-solicitation provisions of Section 9) that are classified as payments of reasonable compensation for purposes of Section 280G of the Code, when added to all other amounts and benefits payable to or on behalf of Executive, would result in the loss of a deduction under Code Section 280G, or the imposition of an excise tax under Code Section 4999, the amounts and benefits payable hereunder shall be reduced to such extent as may be necessary to avoid such loss of deduction or imposition of excise tax. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Code Section 409A and where two or more economically equivalent amounts are subject to reduction, but payable at different times, such amounts shall be reduced on a pro-rata basis. All calculations required to be made under this subsection will be made by the Company’s independent public accountants, subject to the right of Executive’s professional advisors to review the same. The Parties recognize that the actual implementation of the provisions of this subsection are complex and agree to deal with each other in good faith to resolve any questions or disagreements arising hereunder.
16.Successors.
(a)Company’s Successors. Subject to Section 5(f), any successor to the Company (whether direct or indirect and whether by purchase, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company’s business and/or assets shall assume the obligations under this Agreement and agree expressly to perform the obligations under this Agreement in the same manner and to the same extent as the Company would be required to perform such obligations in the absence of a succession. For all purposes under this Agreement, the term “Company” shall include any successor to the Company’s business and/or assets which executes and delivers the assumption agreement described in this Section 16 or which becomes bound by the terms of this Agreement by operation of law.
(b)Executive’s Successors. The terms of this Agreement and all rights of Executive hereunder shall inure to the benefit of, and be enforceable by, Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees
17.Clawback Provisions. Any amounts payable under this Agreement are subject to any policy (whether in existence as of the Effective Date or later adopted) established by the Company providing for clawback or recovery of amounts that were paid to the Executive. The Company will make any determination for clawback or recovery in its sole discretion and in accordance with any applicable law or regulation.
18.Indemnification. Company will indemnify Executive to the fullest extent permitted by law, for all amounts (including, without limitation, judgments, fines, settlement payments, expenses and reasonable out-of-pocket attorneys’ fees) incurred or paid by Executive in connection with any action, suit, investigation or proceeding, or threatened action, suit, investigation or proceeding, arising out of or relating to the performance by Executive of services for, or the acting by Executive as a director, officer or Executive of, Company, or any subsidiary of Company. Any fees or other necessary expenses incurred by Executive in defending any such action, suit, investigation or proceeding shall be paid by Company in advance, subject to Company’s right to seek repayment from Executive if a determination is made that Executive was not entitled to indemnification.
19.Severability. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in the circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
20.Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving Party. The failure of either Party to require the performance of any term or obligation of this Agreement, or the waiver by either Party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
12
Exhibit 10.3
21.Survival. Section 6 through and including Section 32 shall survive and continue in full force in accordance with their terms notwithstanding the termination of Executive’s employment (and hence the Term of this Agreement) for any reason.
22.Notices. Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing and shall be effective when delivered in Person, with respect to notices delivered personally, or upon confirmed receipt when delivered by facsimile or deposited with a reputable, nationally recognized overnight courier service and addressed or faxed to Executive at Executive’s last known address on the books of Company or, in the case of Company, at its principal place of business, attention: Secretary, Board of Directors.
23.Entire Agreement. This Agreement constitutes the entire agreement between the Parties (including with respect to Company, its successors and assigns) with respect to Executive’s employment and supersedes all prior communications, agreements and understandings, written or oral, with respect to the terms and conditions of Executive’s employment.
24.Amendment. This Agreement may be amended or modified only by a written instrument signed by Executive and by an expressly authorized representative of Company.
25.Headings. The headings and captions in this Agreement are for convenience only and in no way define or describe the scope or content of any provision of this Agreement.
26.Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. Furthermore, the delivery of a copy of such signature by facsimile transmission or other electronic exchange methodology shall constitute a valid and binding execution and delivery of this Agreement by such Party, and such electronic copy shall constitute an enforceable original document. Counterpart signatures need not be on the same page and shall be deemed effective upon receipt.
27.Additional Obligations. Without implication that the contrary would otherwise be true, Executive’s obligations under Section 7, Section 8 and Section 9 are in addition to, and not in limitation of, any obligations that Executive may have under applicable law (including any law regarding trade secrets, duty of loyalty, fiduciary duty, unfair competition, unjust enrichment, slander, libel, conversion, misappropriation and fraud).
28.Attorneys’ Fees. In any action or proceeding brought to enforce any provision of this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, costs, and expenses from the other Party to the action or proceeding. For purposes of this Agreement, the “prevailing Party” shall be deemed to be that Party who obtains substantially the result sought, whether by settlement, mediation, judgment or otherwise, and “attorneys’ fees” shall include, without limitation, the reasonable out-of-pocket attorneys’ fees incurred in retaining counsel for advice, negotiations, suit, appeal or other legal proceeding, including mediation and arbitration.
29.Confidentiality. The Parties acknowledge and agree that this Agreement and each of its provisions are and shall be treated strictly confidential. During the Term and thereafter, Executive shall not disclose any terms of this Agreement to any Person or entity without the prior written consent of Company, with the exception of Executive’s tax, legal or accounting advisors or for legitimate business purposes of Executive, or as otherwise required by law.
30.No Rule of Construction. This Agreement shall be construed to be neither against nor in favor of any Party hereto based upon any Party’s role in drafting this Agreement, but rather in accordance with the fair meaning hereof.
31.Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the state of Florida.
32.WAIVER OF JURY TRIAL. EXECUTIVE AND THE COMPANY EXPRESSLY WAIVE ANY RIGHT EITHER MAY HAVE TO A JURY TRIAL CONCERNING ANY CIVIL ACTION THAT MAY ARISE FROM THIS AGREEMENT OR THE RELATIONSHIP OF THE PARTIES HERETO.
13
Exhibit 10.3
33.Conditions. This Agreement and the Executive’s continued employment hereunder is conditional on the Company’s satisfaction (determined in the Company’s sole discretion) that the Executive has met the legal requirements to perform the Executive’s role, including but not limited to satisfactory results of a background and/or credit search or any other applicable security clearance checks and criminal record checks and other reference checks that the Company performs. The Executive acknowledges and agrees that in signing this Agreement, and providing the Company with the necessary documentation to perform the checks required for the Executive’s role and with references, the Executive is providing consent to the Company or its agent, to performs such checks and contact the references the Executive provided to the Company.
34.Prior Restrictions. By signing below, the Executive represents that the Executive is not bound by the terms of any agreement with any Person which restricts in any way the Executive’s hiring by the Company and the performance of the Executive’s expected job duties; the Executive also represents that, during the Executive’s employment with the Company, the Executive shall not disclose or make use of any confidential information of any other persons or entities in violation of any of their applicable policies or agreements and/or applicable law.
35.Independent Legal Counsel. By signing below, the Executive hereby acknowledges that the Executive has been encouraged to obtain independent legal advice regarding the execution of this Agreement, and that the Executive has either obtained such advice or voluntarily chosen not to do so, and hereby waives any objections or claims the Executive may make resulting from any failure on the Executive’s part to obtain such advice.
36.Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original when executed, but all of which taken together shall constitute the same Agreement. Delivery of an executed counterpart of a signature page to this Agreement by electronic transmission, including in portable document format (.pdf), shall be deemed as effective as delivery of an original executed counterpart of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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Exhibit 10.3
IN WITNESS WHEREOF, this Agreement has been executed by Company (by its duly authorized representative) and by Executive, as of the date first above written.
DEFI DEVELOPMENT CORP. | ||||||||
By: | /s/ Joseph Onorati | |||||||
Name: Joseph Onorati | ||||||||
Title: Chief Executive Officer | ||||||||
EXECUTIVE: | ||||||||
/s/ Parker White | ||||||||
PARKER WHITE | ||||||||
15
Exhibit 10.3
EXHIBIT A
Release of Claims
FOR AND IN CONSIDERATION OF the benefits to be provided me in connection with the termination of my employment, as set forth in that certain Amended and Restated Employment Agreement, dated as of January 1, 2026 (the “Agreement”), between me and DeFi Development Corp. (the “Company”), or under any severance pay plan applicable to me, which benefits are conditioned on my signing this Release of Claims and to which I am not otherwise entitled, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, I, on my own behalf and on behalf of my heirs, executors, administrators, beneficiaries, representatives and assigns, and all others connected with me, hereby release and forever discharge Company and any of its subsidiaries and Affiliates (as that term is defined in Section 11(b) of the Agreement) and all of their respective past, present and future officers, directors, trustees, equity holders, executives, agents, managers, joint venturers, representatives, successors and assigns, and all others connected with any of them (collectively, the “Released Parties”), both individually and in their official capacities, from any and all causes of action, rights and claims of any type or description, known or unknown, which I have had in the past, now have, or might now have, through the date of my signing of this Release of Claims, in any way resulting from, arising out of or connected with my employment by the Company or any of its Affiliates or the termination of that employment, including, but not limited to, any allegation, claim or violation arising under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended (including the Older Worker Benefit Protection Act); the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification Act; Executive Retirement Income Security Act of 1974; the Fair Labor Standards Act; any applicable Executive Orders; or their state or local counterparts; or under any other federal, state or local civil or human rights law, or under any other federal, state or local law, regulation or ordinance; or under any public policy, contract or tort, or under common law; or arising under any policies, practices or procedures of the Company; or any claim for wrongful discharge, breach of contract, intentional infliction of emotional distress or defamation; or any claim for costs, fees or other expenses, including attorneys’ fees incurred in these matters (all of the foregoing collectively referred to herein as “Claims”), other than (i) the right to payment of any vested or accrued benefits under any supplemental compensation, insurance, retirement and/or other benefit plan or agreement applicable to Executive, (ii) the right to payment of any amounts owed to me by Company pursuant to Section 5 of the Agreement, (iii) any rights under applicable workers compensation or unemployment compensation laws, (iv) any rights that survive termination of my employment pursuant to an restricted stock units/options grant agreement or certificate to purchase the Company’s (or an Affiliate’s) capital stock, (v) any rights with respect to the Company’s (or an Affiliate’s) capital stock owned by Executive, or (vi) any rights to indemnification under the Agreement, the Company’s by-laws or any other applicable law.
In signing this Release of Claims, I acknowledge my understanding that I may not sign it prior to the termination of my employment, but that I may consider the terms of this Release of Claims for up to twenty-one (21) days (or such longer period as the Company may specify) from the later of the date my employment with the Company terminates or the date I receive this Release of Claims. I also acknowledge that I am advised by the Company and its Affiliates to seek the advice of an attorney prior to signing this Release of Claims; that I have had sufficient time to consider this Release of Claims and to consult with an attorney, if I wished to do so, or to consult with any other Person of my choosing before signing; and that I am signing this Release of Claims voluntarily and with a full understanding of its terms.
I represent that I have not filed against the Released Parties any complaints, charges, or lawsuits arising out of my employment, or any other matter arising on or prior to the date of this Release of Claims, and covenant and agree that I will never individually or with any Person file, or commence the filing of, any charges, lawsuits, complaints or proceedings with any governmental agency, or against the Released Parties with respect to any of the matters released by me pursuant to this Release of Claims.
I further acknowledge that, in signing this Release of Claims, I have not relied on any promises or representations, express or implied, that are not set forth expressly in the Agreement. I understand that I may revoke this Release of
A-1
Exhibit 10.3
Claims at any time within seven (7) days of the date of my signing by written notice to the Secretary, Board of Directors of the Company (or such other Person as the Company may specify by notice to me given in accordance with the Agreement) and that this Release of Claims will take effect only upon the expiration of such seven-day revocation period and only if I have not timely revoked it.
Intending to be legally bound, I have signed this Release of Claims as of the date written below.
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A-2
Exhibit 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the “Agreement”), dated for reference purposes as of January 1, 2026 (the “Effective Date”), is made and entered into by and between DeFi Development Corp., a Delaware corporation (“Company”), and Daniel Kang (the “Executive” and together with the Company, the “Parties” and each individually a “Party”). This Agreement replaces and supersedes the employment agreement between the Parties dated as of September 19, 2025. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in Section 11.
RECITALS
WHEREAS, subject to the amended and restated terms and conditions hereinafter set forth, Company wishes to continue to employ Executive as its Chief Strategy Officer and Executive wishes to continue to be employed by Company as its Chief Strategy Officer.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises, terms, provisions, and conditions set forth in this Agreement, the adequacy and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:
AGREEMENT
1.Employment. Subject to the terms and conditions set forth in this Agreement, Company hereby offers, and Executive hereby accepts, continued employment with Company.
2.Term. At-Will Employment. The Executive’s employment hereunder shall be effective as of the Effective Date and shall remain in effect until it is terminated in accordance with Sections 5 and 6 below (the “Term”). Executive’s employment with the Company will be “at will.”
3.Capacity and Performance.
(a)During the Term, the Executive shall be employed by Company on a full-time basis as its Chief Strategy Officer. Executive shall perform such duties and responsibilities as directed by the Board of Directors of the Company (the “Board”), consistent with Executive’s position on behalf of Company.
(b)Executive shall devote his full business time, attention, skill, and best efforts to the performance of his duties under this Agreement and shall not engage in any other business or occupation during the Term, including, without limitation, any activity that: (x) conflicts with the interests of the Company or any other member of the Company Group, (y) interferes with the proper and efficient performance of Executive’s duties for the Company, or (z) interferes with Executive’s exercise of judgment in the Company’s best interests. Notwithstanding the foregoing, nothing herein shall preclude Executive from: (i) serving, with the prior written consent of the Board, as a member of the Board of Directors or Advisory Board (or the equivalent in the case of a non-corporate entity) of a noncompeting for-profit business and one or more charitable organizations, (ii) developing, consulting for, or providing services to a noncompeting business, with the prior written consent of the Board; (iii) engaging in charitable activities and community affairs, and (iv) managing Executive’s personal investments and affairs; provided, however, that the activities set out in clauses (i), (ii), (iii), and (iv) shall be limited by Executive so as not to materially interfere, individually or in the aggregate, with the performance of his duties and responsibilities hereunder.
(c)Executive’s employment with Company shall be exclusive with respect to the business of Company. Accordingly, during the Term, Executive shall devote Executive’s full business time and Executive’s best efforts, business judgment, skill and knowledge to the advancement of the business and interests of Company and the discharge of Executive’s duties and responsibilities hereunder, except for permitted vacation (and other paid time off) periods, reasonable periods of illness or incapacity, time spent on activities expressly permitted under Section 3(b), and reasonable and customary time spent on civic,
Exhibit 10.4
charitable and religious activities, provided, however, that in each case such activities shall not interfere in any material respect with Executive’s duties and responsibilities hereunder.
(d)During the Term, the Executive will report directly to the Chief Executive Officer.
(e)The Board appointed Executive as the Chief Strategy Officer on September 19, 2025.
4.Compensation and Benefits.
(a)Base Salary. For services performed by Executive under this Agreement, Company shall pay Executive an annual base salary of $460,000, minus applicable withholdings and deductions, payable at the same times as salaries are payable to other executives of Company (the “Base Salary”). During the Term, the Base Salary shall be reviewed by the Compensation Committee of the Board (the “Compensation Committee”) and/or the Board each year, and the Compensation Committee and/or the Board may, from time to time, increase or decrease such Base Salary and any reference to “Base Salary” herein shall refer to such Base Salary, as increased or decreased.
(b)Annual Bonus. For each fiscal year of the Company during the Term, the Company shall afford Executive the opportunity to earn an incentive bonus (“Bonus”) as described in this Section 4(b). The aggregate target Bonus payable to Executive under such program(s) shall be 65% of the Base Salary for 2025, and for future years, shall be any other target amount set by the Board or the Compensation Committee in its discretion. The Bonus shall be payable to the extent the applicable performance goals are achieved (which goals and payment matrices shall be set by the Board and/or the Compensation Committee of the Board in its discretion and for 2025 are based on growth in Solana per Share structure approved by the Board on May 14, 2025). The amount of the Bonus will be determined by certification by the Board and/or the Compensation Committee that the applicable goals have been achieved, and the Board and/or the Compensation Committee shall promptly provide such certification following the achievement of the applicable goals. Any Bonus achieved will be earned by Executive if Executive remains employed with the Company through the last day of the performance period to which the Bonus relates (April 30, 2026 for the 2025 Bonus opportunity) and shall be paid at the same time paid to other participating executives in the bonus program, but in no event later than March 15th of the calendar year following the calendar year to which the Bonus relates .
(c)Equity Awards. Subject to approval by the Compensation Committee, Executive shall be granted an award of 57,500 stock options of the Company (the “Options”), which Options shall vest twenty-five percent (25%) on the one-year anniversary of the vesting commencement date of September 19, 2025 and thereafter over the ensuing three (3) years in a series of thirty-six (36) successive equal monthly installments, subject to Executive’s continuous service on each vesting date. The Options shall be subject to the terms of the Company’s 2023 Equity Incentive Plan, as amended from time to time (or any successor plan thereto) (the “Equity Plan”), and the Company’s standard form of Option agreement. In addition, during the Term, the Executive shall be entitled to receive equity awards (the “Other Equity Awards”) either now or in the future, on terms and conditions similar to those applicable to other executive officers of the Company generally. The amount and terms of the Equity Awards awarded to the Executive shall be set by the Compensation Committee in its discretion. The Equity Awards will be evidenced by a restricted stock unit award agreement, a stock option agreement, or any other form of equity award agreement under the Equity Plan, and will be subject to the terms and conditions of such agreements and the Equity Plan.
(d)Change in Control. To the extent not already vested, the Options and Other Equity Awards granted to Executive will fully vest upon (i) a Change of Control Severance Event (as defined below) or (ii) a Change in Control followed by a change in job title or position. For the avoidance of doubt and notwithstanding anything herein to the contrary, if unvested Options or Other Equity Awards are not assumed or substituted in connection with the Change in Control, then the value of the unvested Options and Other Equity Awards as of the consummation of the Change in Control (determined as though such Options and Other Equity Awards were vested as of immediately prior to the Change in Control) will be payable to Executive upon either of the triggers described in the previous sentence.
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Exhibit 10.4
(e)Other Executive Benefits. During the Term, the Executive shall be entitled to participate in all executive benefit plans, including health and 401(k) plans, from time to time generally in effect for Company’s executives (collectively, “Benefit Plans”). Such participation and receipt of benefits under any such Benefit Plans shall be on the same terms (including cost-sharing between Company and Executive) as are applicable to other Company executives and shall be subject to the terms of the applicable plan documents and generally applicable Company policies. The Company may alter, modify, add to or delete the Benefit Plans in a manner nondiscriminatory to Executive at any time in accordance with applicable plan rules.
(f)Vacation. The Executive shall be entitled to an annual vacation of 20 days plus ten established holiday days per full calendar year of his employment with the Company hereunder. Any unused vacation in one accrued calendar year may not be carried over to any subsequent calendar year. Notwithstanding the foregoing, if the Company adopts a PTO policy or practice that would provide more favorable terms to Executive than those provided in the previous sentences of this subsection (f) if Executive were eligible to participate in such PTO policy or practice, then the more favorable terms of such policy or practice shall also apply to Executive.
(g)Business and Travel Expenses. Company shall pay or reimburse Executive for all reasonable, customary and necessary business expenses (including travel, lodging, networking, and entertainment expenses) which are correctly documented and incurred or paid by Executive in the performance of Executive’s duties and responsibilities hereunder, subject to the rules, regulations, and procedures of Company and in effect from time to time.
5.Termination of Employment; Severance Benefits. Notwithstanding the provisions of Section 2, the Executive’s employment hereunder shall terminate under the following circumstances:
(a)Death. If Executive’s dies during the Term, Executive’s employment hereunder shall immediately and automatically terminate. In such event, Company shall pay to Executive’s designated beneficiary or, if no beneficiary has been selected by Executive, to Executive’s estate, the Final Compensation. Company shall have no further obligation hereunder to Executive, Executive’s beneficiary, or Executive’s estate upon the termination of Executive’s employment under this Section 5(a) including, specifically, that the provisions of Section 5(d) shall not apply.
(b)Disability.
(i)Company may terminate Executive’s employment hereunder due to Executive’s Disability during the Term by giving Executive thirty (30) days’ written notice of its intent to terminate, but in no event shall such termination be effective prior to the expiration of the time periods in the definition of Disability. Notwithstanding the foregoing, Company will, after engaging in an interactive process with Executive to discern whether reasonable accommodation(s) can be provided without undue hardship upon Company, offer Executive reasonable accommodation(s) to enable Executive to perform the essential functions of Executive’s position to the extent required by applicable law (if any) before terminating Executive’s employment hereunder. Executive may decline such reasonable accommodation, in which case Executive’s employment hereunder will terminate as provided in this subsection.
(ii)In the event of such termination for Disability, Executive will receive Executive’s Final Compensation. Company shall have no further obligation hereunder to Executive upon termination of Executive’s employment under this Section 5(d), including, specifically, that the provisions of Section 5(d) shall not apply.
(iii)Subject to Executive’s rights under the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”), Company may designate another Executive to act in Executive’s place during any period of Executive’s Disability during which Executive is unable to perform the essential functions of Executive’s position with or without reasonable accommodation. Notwithstanding any such designation, Executive shall continue to receive the Base Salary in accordance with Section 4(a) and coverage under the Benefit Plans in accordance with Section 4(b), to the extent permitted by the then-current terms of the applicable benefit plans and as provided under the FMLA, if applicable, until
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Exhibit 10.4
the earliest to occur of: (A) Executive becomes eligible for disability income benefits under Company’s disability income plan, or (B) the termination of Executive’s employment.
(iv)While receiving disability income payments under Company’s disability income plan (if applicable), Company will continue to pay Executive’s Base Salary under Section 4(a), but may offset any such disability income payments Executive receives against the Base Salary payments. Executive will also continue to participate in the Benefit Plans in accordance with Section 4(e) and the terms of such Benefit Plans, until the termination of Executive’s employment.
(v)If any question arises as to whether during any period Executive has a Disability as defined herein, Executive may, and at the request of Company shall, submit to a medical examination by a qualified, unbiased physician selected by Company and reasonably acceptable to Executive or Executive’s duly appointed guardian, if any, to determine whether Executive has a Disability and such determination shall for the purposes of this Agreement be conclusive of the issue.
(c)By Company for Cause. Company may terminate Executive’s employment hereunder for Cause at any time upon notice to Executive setting forth in reasonable detail the nature of such Cause. Upon the giving of notice of termination of Executive’s employment hereunder for Cause, Executive will receive Executive’s Final Compensation. Except as provided herein, Company will have no further obligation to Executive upon termination of Executive’s employment under this Section 5(c). Any notice of termination of Executive’s employment hereunder for Cause, or any notice to Executive regarding any event, condition or circumstance that, if not cured, if applicable, in accordance with the above, could give rise to a termination of Executive’s employment hereunder for Cause, shall set forth in detail the applicable event(s), condition(s) or circumstance(s) constituting reason(s) or potential reason(s) for such termination hereunder.
(d)By Company Other than for Cause or by Executive for Good Reason. Company may terminate Executive’s employment hereunder other than for Cause at any time upon thirty (30) days’ written notice to Executive and Executive may terminate Executive’s employment hereunder for Good Reason at any time upon thirty (30) days’ written notice to Company.
(i)In the event of a termination of Executive’s employment under this Section 5(d), in addition to the Final Compensation, Executive shall receive payment of such Bonus as determined under Section 4(b) shall be at the time proscribed by Section 4(b), if the date of termination occurs after the end of a calendar year but prior to the date on which a Bonus is paid under Section 4(b).
(ii)Any obligation of Company to Executive under this Section 5(d) (other than for the Final Compensation or for benefits required by law) is conditioned upon Executive’s execution and delivery to Company and the expiration of all applicable statutory revocation periods of a release of claims, to become effective within sixty (60) days of termination of Executive’s employment, in the form attached hereto as Exhibit A (the “Executive Release”), provided, that the terms of such Executive Release shall be subject to modification to the extent necessary to comply with: (A) the fact that Company is simultaneously terminating more than one executive as part of a group termination decision or (B) changes in applicable law, if any, occurring after the date hereof, and prior to the date such Executive Release is executed.
(e) By Executive Other than for Good Reason. Executive may terminate Executive’s employment hereunder other than for Good Reason at any time upon thirty (30) days’ written notice to the Company, and in such case Executive shall be entitled only to the Final Compensation, and will forfeit (i) payment of any Bonus under Section 4(b) and (ii) all Equity Awards, awards of restricted stock, restricted stock units, or other awards that have not been vested until such termination date.
(f)Change in Control Severance. Except as otherwise set forth herein, if a Change in Control occurs, and on, or at any time during the 6 months following, the Change in Control, (x) the Company terminates Executive’s employment for any reason other than Cause or Disability, or (y) Executive terminates Executive’s employment for Good Reason (a “Change of Control Severance Event”), Executive shall be entitled to the following benefits:
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Exhibit 10.4
(i)The Company or its successor shall pay Executive, in a lump sum within 60 days following termination of Executive’s employment, severance equal to two times the sum of Executive’s Base Salary.
(ii)Executive also shall be entitled to receive any and all vested benefits accrued under any other incentive plans to the date of termination of employment, the amount, entitlement to, form, and time of payment of such benefits to be determined by the terms of such incentive plans. For purposes of calculating Executive’s benefits under the incentive plans, Executive’s employment shall be deemed to have terminated under circumstances that have the most favorable result for Executive under the applicable incentive plan.
(iii)If, upon the date of termination of Executive’s employment, Executive holds any awards with respect to securities of the Company, (A) all such awards that are restricted stock units/options shall immediately become vested and exercisable upon such date and shall be exercisable thereafter until expiration of the full term of the restricted stock units/options; (B) all restrictions on any such awards of restricted stock, restricted stock units or other awards shall terminate or lapse, and all such awards of restricted stock, restricted stock units or other awards shall be vested and payable; and (C) all performance goals applicable to any such performance-based awards that are “in cycle” (i.e., the performance period is not yet complete) shall be deemed satisfied at the “target” level (assuming 100% payout), and (D) all such awards shall be paid in accordance with the terms of the applicable award agreement. The provisions of this subsection shall be subject (and defer) to the provisions of any incentive plan, award agreement or other agreement as it relates to an individual award to the extent such provisions provide treatment that is more favorable to Executive than the treatment described in this subsection and such more favorable provisions in such incentive plan, award agreement or other agreement shall supersede any inconsistent or contrary provision of this subsection. All of Executive’s awards with respect to securities of the Company that are outstanding upon the date of termination of Executive’s employment shall otherwise continue to be subject to, and enjoy the benefits and protections under, the terms of the incentive plan, the award agreement and any other plan, agreement, policy or other arrangement to which such awards are subject as of the effective date of Executive’s participation, including any employment security agreement or other written compensation arrangement (even if the remaining terms thereof are waived), without application of this subsection.
(iv)Executive and Executive’s spouse and other qualified beneficiaries shall be eligible for continued coverage as follows:
(A)If the Executive, Executive’s spouse and/or Executive’s other qualified beneficiaries are enrolled under a group health plan as defined by the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), on the date of termination of Executive’s employment, Executive, Executive’s spouse and/or Executive’s qualified beneficiaries may elect to continue such coverage under COBRA, except that the maximum coverage period shall be extended to no less than the Severance Period (but no more than 1 year) for that Executive, unless, after electing COBRA, the individual attains age 65 and becomes eligible for Medicare, in which case COBRA shall end for that individual. If Executive, Executive’s spouse and/or Executive’s other qualified beneficiaries elect COBRA coverage, the Company shall pay a portion of the COBRA costs for the Severance Period for that Executive (subject to any earlier termination of COBRA). The portion to be paid by the Company shall equal the amount necessary so that the total of the COBRA costs paid by Executive is equal to the costs that would have been paid by Executive for such coverage as an active employee immediately prior to termination of Executive’s employment or, if less, prior to the Change in Control. The cost of COBRA coverage paid by the Company may be taxable income to the Executive and reported on Executive’s Internal Revenue Service Form W-2. Executive, Executive’s spouse and/or Executive’s qualified beneficiaries may continue coverage under COBRA after the Severance Period for that Executive, provided they pay the full COBRA costs and COBRA otherwise remains available.
(B)The benefits and/or extended coverage provided under this subsection shall cease prior to the date such benefits and/or extended coverage would otherwise end under subsection if and when
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Exhibit 10.4
Executive (x) obtains employment with another employer during the Severance Period and becomes eligible for coverage under any substantially similar plan provided by his/her new employer or (y) fails to pay the required active employee portion of the cost of coverage provided under this subsection in the time and manner specified by the Company or its designee.
(v)Executive shall be entitled to payment for any accrued but unused vacation in accordance with the Company’s policy in effect at the time of termination of Executive’s employment, in a lump sum within 60 days following such termination. Executive shall not be entitled to receive any payments or other compensation attributable to vacation that would have been earned had Executive’s employment continued during the Severance Period, and Executive waives any right to receive any such compensation.
(vi)Executive shall not be entitled to reimbursement for any other fringe benefits or perquisite payments during the Severance Period, including but not limited to dues and expenses related to club memberships, automobile, cell phone, expenses for professional services, executive physicals, and other similar perquisites.
6.Effect of Termination.
(a)Upon termination of Executive’s employment hereunder and subject to the provisions of Section 5 and Section 6(c), Company’s entire obligation to Executive shall be payment of Final Compensation.
(b)In connection with the cessation of Executive’s service as Chief Strategy Officer of Company for any reason, except as may otherwise be requested by the Company in writing and agreed upon in writing by Executive, Executive shall be deemed to have resigned from any and all directorships, committee memberships, and any other positions Executive holds with the Company or any other member of the Company Group and any Affiliate or subsidiary thereof. Executive hereby agrees that no further action is required by Executive or any of the preceding to make the transitions and resignations provided for in this paragraph effective, but Executive nonetheless agrees to execute any documentation Company reasonably requests at the time to confirm it and to not reassume any such service or position without the written consent of Company.
(c)Except as otherwise required by COBRA or any similar federal or state law, benefits shall continue or terminate pursuant to the terms of the applicable benefit plan or agreement, without regard to any continuation of Base Salary or other payment to Executive following such date of termination. The provisions of this Section 6 shall apply to any termination of employment. Provisions of this Agreement will survive any termination if so provided herein or if necessary or desirable to accomplish the purposes of other surviving provisions, including, without limitation, the obligations of Executive under Section 7 through Section 9.
(d)Upon termination of the Executive’s employment or upon the Company’s request at any other time, the Executive will deliver to the Company all of the Company’s property, equipment, and documents, together with all copies thereof, and any other material containing or disclosing any Intellectual Property or Confidential Information and certify in writing that the Executive has fully complied with the foregoing obligation. The Executive agrees that the Executive will not copy, delete, or alter any Company computer equipment information before the Executive returns it to the Company. In addition, if the Executive has used any personal computer, server, or email system to receive, store, review, prepare or transmit any Company information, including but not limited to, Confidential Information, the Executive agrees to provide the Company with a computer-usable copy of all such Confidential Information and then permanently delete and expunge such Confidential Information from those systems; and the Executive agrees to provide the Company access to the Executive’s system as reasonably requested to verify that the necessary copying and/or deletion is completed.
7.Confidential Information.
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Exhibit 10.4
(a)Executive acknowledges that Company continually develops Confidential Information, that Executive may develop Confidential Information for Company and that Executive may learn of Confidential Information during the course of employment with Company. Executive will comply with the policies and procedures of Company for protecting Confidential Information and shall not disclose to any Person or use, other than as required by applicable law, regulation or process or for the proper performance of Executive’s duties and responsibilities to Company, or with the express written permission of the Board, and except to the extent Executive is engaged in legally protected whistleblower activity, any Confidential Information obtained by Executive incidental to Executive’s employment or other association with Company. Executive understands that this restriction shall continue to apply after Executive’s employment terminates, regardless of the reason for such termination.
(b)Notwithstanding anything contained in this Section 7 to the contrary, nothing contained herein shall limit Executive’s rights to engage in protected whistleblower activity under Section 21F of the Exchange Act or prevent Executive from disclosing any Confidential Information required by law, subpoena, court order or other legal processes to be disclosed; provided, that, except to the extent Executive is engaging in protected whistleblower activity, Executive shall give prompt written notice to Company of such requirement, disclose no more information than is so required and cooperate, at Company’s cost and expense, with any attempt by Company to obtain a protective order or similar treatment with respect to such information.
(c)Pursuant to the Defend Trade Secrets Act of 2016, Executive understands that:
(i)Executive may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a suspected violation of law; or is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding; and
(ii)if Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the employer’s trade secrets to Executive’s attorney and use the trade secret information in the court proceeding if Executive files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
8.Assignment of Rights to Intellectual Property. Executive shall promptly and fully disclose to Company all Intellectual Property developed for the benefit of Company in the course of Executive’s employment by Company. Executive hereby assigns and agrees to assign to Company (or as otherwise directed by Company) Executive’s full right, title, and interest in and to all such Intellectual Property. Executive agrees to execute any and all applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without limitation the execution and delivery of instruments of further assurance or confirmation) requested by Company (at Company’s expense) to assign to Company the Intellectual Property developed for the benefit of Company in the course of Executive’s employment by Company and to permit Company to enforce any patents, copyrights or other proprietary rights to the Intellectual Property. Executive will not charge Company for time spent in complying with these obligations. All copyrightable works that Executive creates developed for the benefit of Company in the course of Executive’s employment by Company shall be considered “work made for hire.”
9.Restricted Activities. Executive agrees that the restrictions on Executive’s activities during and after Executive’s employment set forth below are necessary to protect the goodwill, Confidential Information and other legitimate interests of Company and its successors and assigns:
(a)During the Term of this Agreement and during the Restricted Period following termination of employment, Executive will not, without the prior written consent of Company, directly or indirectly, and whether as principal or investor or as an Executive, officer, director, manager, partner, consultant, agent, or otherwise, alone or in association with any other Person, firm, corporation, or other business organization, engage or otherwise become involved in a Competing Business (as defined below) in any country in which the Company conducted business during the Term; provided, however, that the provisions of this Section 9 shall apply solely to those activities of a Competing Business which are congruent with those activities with which Executive was personally involved or for which Executive was responsible while employed by the
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Exhibit 10.4
Company or its subsidiaries during the twelve (12) month period preceding termination of Executive’s employment. This Section 9 will not be violated, however, by Executive’s investment of up to $500,000 in the aggregate in one or more publicly-traded companies that engage in a Competing Business. “Competing Business” means a business or enterprise (other than Company or its subsidiaries) engaged in a Solana treasury accumulation strategy for which Solana constitutes, or is intended to constitute, a significant asset under such strategy, and any other business directly competing with the business of the Company as currently conducted or otherwise conducted by the Company during the Term (the “Restricted Activities”). “Restricted Period” means twenty-four (24) months.
(b)During the Term of this Agreement and during the Restricted Period (as defined above), Executive will not engage in any Wrongful Solicitation. A “Wrongful Solicitation” shall be deemed to occur when Executive directly or indirectly (except in the course of Executive’s employment with Company), for the purpose of conducting or engaging in a Competing Business, calls upon, solicits, advises or otherwise does, or attempts to do, business with any Person who is, or was, during the then most recent 12-month period, a customer of Company or any of its subsidiaries, or takes away or interferes or attempts to take away or interfere with any custom, trade, business, patronage or affairs of Company or any of its subsidiaries, or hires or attempts to hire any Person who is, or was during the most recent 12-month period, an executive, officer, representative or agent of Company or any of its subsidiaries, or solicits, induces, or attempts to solicit or induce any Person who is an executive, officer, representative or agent of Company or any of its subsidiaries to leave the employ or agency of the Company or any of its subsidiaries, or violate the terms of their contract, or any employment consulting or agent agreement, with it.
(c)It is expressly understood and agreed that although Executive and Company consider the restrictions contained in this Section 9 to be reasonable if a court makes a final judicial determination of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as the court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(d)Executive expressly understands that in the event of a violation of any period specified in this Section 9, such period shall be extended by a period of time equal to that period beginning with the commencement of any such violation and ending when such violation shall have been finally terminated in good faith.
10.Enforcement of Covenants. Executive acknowledges that Executive has carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed upon Executive pursuant to Sections 7, 8 and 9, and Executive agrees that these restraints are necessary for the reasonable and proper protection of Company and its successors and assigns and that each and every one of the restraints is reasonable in respect to the subject matter, length of time and geographic area. Executive further acknowledges that, were Executive to breach any of the covenants in Section 7, Section 8 and/or Section 9 the damage to the Company would be irreparable. Executive therefore agrees that Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by Executive of any of the covenants herein, without any requirement to post a bond or similar security. The Parties further agree that in the event that any provision of Section 7, Section 8 and/or Section 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.
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Exhibit 10.4
11.Definitions. Words or phrases that are initially capitalized or within quotation marks shall have the meanings provided in this Section 11 and as provided elsewhere. For purposes of this Agreement, the following definitions apply:
(a)“$” refers to U.S. Dollars.
(b)“Affiliate” means, with respect to any specified Person, any other Person which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person (for the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to either: (i) direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise, or (ii) vote at least fifty percent (50%) or more of the securities having voting power for the election of a majority of the directors (or Persons performing similar functions) of such Person.
(c)“Cause” means if Executive is discharged by Company on account of the occurrence of one or more of the following events:
(i)Executive’s continued refusal or failure to perform (other than by reason of Disability) Executive’s material duties and responsibilities to Company if such refusal or failure is not cured within thirty (30) days following written notice of such refusal or failure by Company to Executive, or Executive’s continued refusal or failure to follow any reasonable lawful direction of the Board if such refusal or failure is not cured within thirty (30) days following written notice of such refusal or failure by Company to Executive;
(ii)willful, grossly negligent or unlawful misconduct by Executive which causes material harm to Company or its reputation;
(iii)the Company is directed in writing by regulatory or governmental authorities to terminate the employment of Executive or Executive engages in activities that: (A) are not approved or authorized by the Board, and (B) cause actions to be taken by regulatory or governmental authorities that have a material adverse effect on Company; or
(iv)a conviction, plea of guilty, or plea of nolo contendere by Executive, of or with respect to a criminal offense which is a felony or other crime involving dishonesty, disloyalty, fraud, embezzlement, theft, or similar action(s) (including, without limitation, acceptance of bribes, kickbacks or self-dealing), or the material breach of Executive’s fiduciary duties with respect to Company.
(d)“Change in Control” means the occurrence, in a single transaction or in a series of related transactions, of any one or more of the following events:
(i)A transaction or series of transactions (other than an offering of common stock to the general public through a registration statement filed by the Company with the Securities and Exchange Commission) whereby any “Person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company, any of its subsidiaries, an Executive benefit plan maintained by the Company or any of its subsidiaries or a “Person” that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13(d)(3) under the Exchange Act) of securities of the Company possessing more than fifty percent (50%) of the total combined voting power of the Company’s securities outstanding immediately after such acquisition;
(ii)The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination, or (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions:
(A) which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting
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Exhibit 10.4
securities of the Company or the Person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such Person, the “Successor Entity”) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and
(B)after which no Person or group beneficially owns voting securities representing fifty percent (50%) or more of the combined voting power of the Successor Entity; provided, however, that no Person or group shall be treated for purposes of this Section 11(d) as beneficially owning fifty percent (50%) or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction.
A transaction shall not constitute a Change in Control if its sole purpose is to change the State of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction.
(e)“Code” means the Internal Revenue Code of 1986, as amended.
(f)“Company” has the meaning ascribed to it in the preamble of this Agreement.
(g)“Company Group” shall mean the Company together with any of its direct or indirect subsidiaries.
(h)“Compensation Committee” shall mean the committee of the Board designated to make compensation decisions relating to senior executive officers of the Company.
(i)“Confidential Information” means any and all nonpublic information of the Company. Confidential Information includes, without limitation, such information relating to (i) the development, research, testing, manufacturing, marketing, and financial activities of the Company, (ii) the Services, (iii) the costs, sources of supply, financial performance, and strategic and/or business plans of Company, (iv) the identity and special needs of the customers and prospective customers of Company, and (v) the people and organizations with whom Company has business relationships and those relationships. Confidential Information also includes any information that Company has received, or may receive hereafter, belonging to customers or others with any understanding, express or implied, that the information would not be disclosed. Notwithstanding the foregoing, Confidential Information does not include (x) any information that is or becomes generally known to the industry or the public through no wrongful act of Executive or any representative of Executive and (y) any information that is made legitimately available to Executive by a third Party without breach of any confidentiality obligation.
(j)“Disability” means Executive’s inability, due to any illness, injury, accident or condition of either a physical or psychological nature, to substantially perform Executive’s duties and responsibilities hereunder for a period of one hundred twenty (120) consecutive days, or for any one hundred and eighty (180) days during any period of three hundred and sixty-five (365) consecutive calendar days, exclusive of any leave Executive may take under the Family and Medical Leave Act, 29 U.S.C. § 12101 et seq. (“FMLA”) or as a reasonable accommodation under the Americans with Disabilities Act, 29 U.S.C. § 2601 et seq. (“ADA”).
(k)“Final Compensation” means the amount equal to the sum of: (i) the Base Salary earned but not paid through the date of termination of employment, payable not later than the next scheduled payroll date, (ii) any business and related expenses and allowances incurred by Executive or to which Executive is entitled under Section 4(g) but unreimbursed on the date of termination of employment; provided that with respect to business expenses unreimbursed under Section 4(g), such expenses and required substantiation and documentation are submitted within one hundred eighty (180) days of termination in the case of termination on account of Executive’s death, or thirty (30) days on account of termination for any reason other than death, and that such expenses are reimbursable under Company’s applicable reimbursement policy, and (iii) any earned but unpaid Bonus under Section 4(f) and (iv) any other supplemental compensation, insurance, retirement or other benefits due and payable or otherwise required to be provided under Section 4 in accordance with the terms and conditions of the applicable plan or agreement.
10
Exhibit 10.4
(l)“Good Reason” means, without Executive’s express written consent: (i) a material reduction in the Base Salary, then in effect, except a material diminution generally affecting all of the members of the Company’s management, (ii) a material reduction in job title, position or responsibility, or (iii) a material breach of any term or condition contained in this Agreement. However, none of the foregoing events or conditions will constitute Good Reason unless (A) Executive provides Company with written notice of the existence of Good Reason within ninety (90) days following the occurrence thereof, (B) Company does not reverse or otherwise cure the event or condition within thirty (30) days of receiving that written notice, and (C) Executive resigns Executive’s employment within thirty (30) days following the expiration of that cure period.
(m)“Intellectual Property” means inventions, discoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets) conceived, made, created, developed or reduced to practice by Executive (whether alone or with others, whether or not during normal business hours or on or off Company premises) during Executive’s employment that relate to either the Services or any prospective activity of Company or that make use of Confidential Information or any of the equipment or facilities of Company.
(n)“Person” means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a trust, and any other entity or organization other than Company.
(o)“Sale of Company” means the sale of Company to an independent third Party or group of independent third Parties pursuant to which such Party or Parties acquire: (i) equity interests possessing the voting power under normal circumstances to elect a majority of the Board of Directors or similar governing body of Company (whether by merger, consolidation or sale or transfer of such equity interests), or (ii) all or substantially all of Company’s assets determined on a consolidated basis.
(p)“Services” means all services planned, researched, developed, tested, manufactured, sold, licensed, leased or otherwise distributed or put into use by Company, together with all products provided or planned by Company, during Executive’s employment.
(q)“Severance Period” shall mean that number of years or partial years following termination of Executive’s employment equal to the number of years or partial years of Base Salary that the Executive receives under Section 5(f).
12.Withholding. All payments made by Company under this Agreement may be reduced by any tax or other amounts required to be withheld by Company under applicable law or by any amounts authorized in writing by Executive.
13.Assignment. Neither Company nor Executive may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other; provided, however, that Company may assign its rights and obligations under this Agreement without the consent of Executive in the event of a Sale of Company. This Agreement shall inure to the benefit of and be binding upon Company and Executive, their respective successors, executors, administrators, heirs and permitted assigns.
14.Compliance with Code Section 409A.
(a)Notwithstanding any provision of this Agreement to the contrary, Executive’s employment will be deemed to have terminated on the date of Executive “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with Company.
(b)It is intended that all compensation, benefits, and other amounts payable or provide to Executive under this Agreement first be exempt from the requirements of Section 409A of the Code, and any regulations and guideline issued thereunder (“Section 409A”) to the maximum permissible extent. To the extent that any compensation and benefits provided hereunder constitute deferred compensation subject to Section 409A, then all such payments are intended to be paid or provided in compliance with Section 409A such that there will be no adverse tax consequences, interest, or penalties for Executive. This Agreement shall be interpreted on a basis consistent with this intent. The Parties will negotiate in good faith to amend this Agreement as necessary to comply with Section 409A in a manner that preserves the original intent of the
11
Exhibit 10.4
Parties to the extent reasonably possible. No action or failure to act, pursuant to this Section 14 shall subject Company to any claim, liability, or expense, and Company shall not have any obligation to indemnify or otherwise protect Executive from the obligation to pay any taxes pursuant to Section 409A of the Code.
(c)For purposes of the application of Treas. Reg. § 1.409A-1(b)(4)(or any successor provision), each payment in a series of payments will be deemed a separate payment.
(d)To the extent any payment under this Agreement is deferred compensation subject to Section 409A and is contingent upon Executive signing and not revoking a general release of claims, and if the specified period during which such release of claims may be returned and become effective spans two calendar years, then no such payments shall be paid earlier than the first day of the second calendar year.
(e)Notwithstanding anything in this Agreement to the contrary, if any amount or benefit that would constitute deferred compensation for purposes of Section 409A of the Code would otherwise be payable or distributable under this Agreement by reason of Executives separation from service during a period in which Executive is a “specified Executive” (as defined under Code Section 409A and the final regulations thereunder), then, subject to any permissible acceleration of payment by Company under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic relations order), (j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment of employment taxes):
(i)if the payment or distribution is payable in a lump sum, the Executive’s right to receive payment or distribution of such non-exempt deferred compensation will be delayed until the earlier of Executive’s death or the first day of the seventh month following Executive’s separation from service; and
(ii)if the payment or distribution is payable over time, the amount of such non-exempt deferred compensation that would otherwise be payable during the six months immediately following Executive’s separation from service will be accumulated, and the Executive’s right to receive payment or distribution of such accumulated amount will be delayed until the earlier of Executive’s death or the first day of the seventh month following Executive’s separation from service, whereupon the accumulated amount will be paid or distributed to Executive and the normal payment or distribution schedule for any remaining payments or distributions will resume.
This Section 14(d) should not be construed to prevent the application of Treas. Reg § 1.409A-1(b)(9)(iii) (or any successor provision) to amounts payable hereunder (or any portion thereof).
15.Golden Parachute Limitation. Notwithstanding anything in this Section or elsewhere in this Agreement to the contrary, in the event the payments and benefits payable hereunder to or on behalf of Executive (which the Parties agree will not include any portion of payments allocated to the non-competition and non-solicitation provisions of Section 9) that, when added to all other amounts and benefits payable to or on behalf of Executive, would result in the loss of a deduction under Code Section 280G, or the imposition of an excise tax under Code Section 4999, but for this Section 15, the amounts and benefits payable hereunder shall be reduced to the minimum extent necessary to avoid such loss of deduction or imposition of excise tax, provided, however, that such reduction shall only occur if, after taking into account the applicable federal, state and local income taxes and the excise tax imposed by Code Section 4999, such reduction results in Executive’s receipt, on an after-tax basis, of a greater amount of payments, notwithstanding that all or some portion of such payments may be taxable under Section 4999. In applying this principle, any reduction shall be made in a manner consistent with the requirements of Code Section 409A and where two or more economically equivalent amounts are subject to reduction, but payable at different times, such amounts shall be reduced on a pro-rata basis. All calculations required to be made under this subsection will be made by the Company’s independent public accountants, subject to the right of Executive’s professional advisors to review the same. Notwithstanding the foregoing, if at the relevant time the Company is eligible for the shareholder approval exemption described in Code Section 280G(b)(5), then if requested by Executive, the Company shall seek approval from the Company’s shareholders of the portion of Executive’s payments that would or may exceed one dollar less than three times Executive’s “base amount” (as such term is defined in Code Section 280G(b)(3)) in accordance with the requirements of Code Section 280G(b)(5) and Treasury Regulation Section 1.280G-1, Q&A 7. The Parties recognize that the
12
Exhibit 10.4
actual implementation of the provisions of this subsection are complex and agree to deal with each other in good faith to resolve any questions or disagreements arising hereunder.
16.Successors.
(a)Company’s Successors. Subject to Section 5(f), any successor to the Company (whether direct or indirect and whether by purchase, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company’s business and/or assets shall assume the obligations under this Agreement and agree expressly to perform the obligations under this Agreement in the same manner and to the same extent as the Company would be required to perform such obligations in the absence of a succession. For all purposes under this Agreement, the term “Company” shall include any successor to the Company’s business and/or assets which executes and delivers the assumption agreement described in this Section 16 or which becomes bound by the terms of this Agreement by operation of law.
(b)Executive’s Successors. The terms of this Agreement and all rights of Executive hereunder shall inure to the benefit of, and be enforceable by, Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
17.Clawback Provisions. Any amounts payable under this Agreement are subject to any policy (whether in existence as of the Effective Date or later adopted) established by the Company providing for clawback or recovery of amounts that were paid to the Executive. The Company will make any determination for clawback or recovery in its reasonable, good faith discretion and in accordance with any applicable policy, law or regulation.
18.Indemnification. Company will indemnify Executive to the fullest extent permitted by law, for all amounts (including, without limitation, judgments, fines, settlement payments, expenses and reasonable out-of-pocket attorneys’ fees) incurred or paid by Executive in connection with any action, suit, investigation or proceeding, or threatened action, suit, investigation or proceeding, arising out of or relating to the performance by Executive of services for, or the acting by Executive as a director, officer or Executive of, Company, or any subsidiary of Company, including, without limitation, with respect to services to other companies relating in any way to the DFDV Treasury Accelerator initiative. Any fees or other necessary expenses incurred by Executive in defending any such action, suit, investigation or proceeding shall be paid by Company in advance, subject to Company’s right to seek repayment from Executive if a determination is made that Executive was not entitled to indemnification.
19.Severability. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in the circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
20.Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving Party. The failure of either Party to require the performance of any term or obligation of this Agreement, or the waiver by either Party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
21.Survival. Section 6 through and including Section 32 shall survive and continue in full force in accordance with their terms notwithstanding the termination of Executive’s employment (and hence the Term of this Agreement) for any reason.
22.Notices. Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing and shall be effective when delivered in Person, with respect to notices delivered personally, or upon confirmed receipt when delivered by facsimile or deposited with a reputable, nationally recognized overnight courier service and addressed or faxed to Executive at Executive’s last known address on the books of Company or, in the case of Company, at its principal place of business, attention: Secretary, Board of Directors.
13
Exhibit 10.4
23.Entire Agreement. This Agreement constitutes the entire agreement between the Parties (including with respect to Company, its successors and assigns) with respect to Executive’s employment and supersedes all prior communications, agreements and understandings, written or oral, with respect to the terms and conditions of Executive’s employment.
24.Amendment. This Agreement may be amended or modified only by a written instrument signed by Executive and by an expressly authorized representative of Company.
25.Headings. The headings and captions in this Agreement are for convenience only and in no way define or describe the scope or content of any provision of this Agreement.
26.Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. Furthermore, the delivery of a copy of such signature by facsimile transmission or other electronic exchange methodology shall constitute a valid and binding execution and delivery of this Agreement by such Party, and such electronic copy shall constitute an enforceable original document. Counterpart signatures need not be on the same page and shall be deemed effective upon receipt.
27.Additional Obligations. Without implication that the contrary would otherwise be true, Executive’s obligations under Section 7, Section 8 and Section 9 are in addition to, and not in limitation of, any obligations that Executive may have under applicable law (including any law regarding trade secrets, duty of loyalty, fiduciary duty, unfair competition, unjust enrichment, slander, libel, conversion, misappropriation and fraud).
28.Attorneys’ Fees. In any action or proceeding brought to enforce any provision of this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, costs, and expenses from the other Party to the action or proceeding. For purposes of this Agreement, the “prevailing Party” shall be deemed to be that Party who obtains substantially the result sought, whether by settlement, mediation, judgment or otherwise, and “attorneys’ fees” shall include, without limitation, the reasonable out-of-pocket attorneys’ fees incurred in retaining counsel for advice, negotiations, suit, appeal or other legal proceeding, including mediation and arbitration.
29.Confidentiality. The Parties acknowledge and agree that this Agreement and each of its provisions are and shall be treated strictly confidential. During the Term and thereafter, Executive shall not disclose any terms of this Agreement to any Person or entity without the prior written consent of Company, with the exception of Executive’s tax, legal or accounting advisors or for legitimate business purposes of Executive, or as otherwise required by law.
30.No Rule of Construction. This Agreement shall be construed to be neither against nor in favor of any Party hereto based upon any Party’s role in drafting this Agreement, but rather in accordance with the fair meaning hereof.
31.Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the state of Florida.
32.WAIVER OF JURY TRIAL. EXECUTIVE AND THE COMPANY EXPRESSLY WAIVE ANY RIGHT EITHER MAY HAVE TO A JURY TRIAL CONCERNING ANY CIVIL ACTION THAT MAY ARISE FROM THIS AGREEMENT OR THE RELATIONSHIP OF THE PARTIES HERETO.
33.Conditions. This Agreement and the Executive’s continued employment hereunder is conditional on the Company’s satisfaction (determined in the Company’s sole discretion) that the Executive has met the legal requirements to perform the Executive’s role, including but not limited to satisfactory results of a background and/or credit search or any other applicable security clearance checks and criminal record checks and other reference checks that the Company performs. The Executive acknowledges and agrees that in signing this Agreement, and providing the Company with the necessary documentation to perform the checks required for the Executive’s role and with references, the Executive is providing consent to the Company or its agent, to performs such checks and contact the references the Executive provided to the Company.
14
Exhibit 10.4
34.Prior Restrictions. By signing below, the Executive represents that the Executive is not bound by the terms of any agreement with any Person which restricts in any way the Executive’s hiring by the Company and the performance of the Executive’s expected job duties; the Executive also represents that, during the Executive’s employment with the Company, the Executive shall not disclose or make use of any confidential information of any other persons or entities in violation of any of their applicable policies or agreements and/or applicable law.
35.Independent Legal Counsel. By signing below, the Executive hereby acknowledges that the Executive has been encouraged to obtain independent legal advice regarding the execution of this Agreement, and that the Executive has either obtained such advice or voluntarily chosen not to do so, and hereby waives any objections or claims the Executive may make resulting from any failure on the Executive’s part to obtain such advice.
36.Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original when executed, but all of which taken together shall constitute the same Agreement. Delivery of an executed counterpart of a signature page to this Agreement by electronic transmission, including in portable document format (.pdf), shall be deemed as effective as delivery of an original executed counterpart of this Agreement.
[SIGNATURE PAGE FOLLOWS]
15
Exhibit 10.4
IN WITNESS WHEREOF, this Agreement has been executed by Company (by its duly authorized representative) and by Executive, as of the date first above written.
DEFI DEVELOPMENT CORP. | ||||||||
By: | /s/ Joseph Onorati | |||||||
Name: Joseph Onorati | ||||||||
Title: Chief Executive Officer | ||||||||
EXECUTIVE: | ||||||||
/s/ Daniel Kang | ||||||||
DANIEL KANG | ||||||||
16
Exhibit 10.4
EXHIBIT A
Release of Claims
FOR AND IN CONSIDERATION OF the benefits to be provided me in connection with the termination of my employment, as set forth in that certain Employment Agreement, dated as of January 1, 2026 (the “Agreement”), between me and DeFi Development Corp. (the “Company”), or under any severance pay plan applicable to me, which benefits are conditioned on my signing this Release of Claims and to which I am not otherwise entitled, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, I, on my own behalf and on behalf of my heirs, executors, administrators, beneficiaries, representatives and assigns, and all others connected with me, hereby release and forever discharge Company and any of its subsidiaries and Affiliates (as that term is defined in Section 11(b) of the Agreement) and all of their respective past, present and future officers, directors, trustees, equity holders, executives, agents, managers, joint venturers, representatives, successors and assigns, and all others connected with any of them (collectively, the “Released Parties”), both individually and in their official capacities, from any and all causes of action, rights and claims of any type or description, known or unknown, which I have had in the past, now have, or might now have, through the date of my signing of this Release of Claims, in any way resulting from, arising out of or connected with my employment by the Company or any of its Affiliates or the termination of that employment, including, but not limited to, any allegation, claim or violation arising under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended (including the Older Worker Benefit Protection Act); the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification Act; Executive Retirement Income Security Act of 1974; the Fair Labor Standards Act; any applicable Executive Orders; or their state or local counterparts; or under any other federal, state or local civil or human rights law, or under any other federal, state or local law, regulation or ordinance; or under any public policy, contract or tort, or under common law; or arising under any policies, practices or procedures of the Company; or any claim for wrongful discharge, breach of contract, intentional infliction of emotional distress or defamation; or any claim for costs, fees or other expenses, including attorneys’ fees incurred in these matters (all of the foregoing collectively referred to herein as “Claims”), other than (i) the right to payment of any vested or accrued benefits under any supplemental compensation, insurance, retirement and/or other benefit plan or agreement applicable to Executive, (ii) the right to payment of any amounts owed to me by Company pursuant to Section 5 of the Agreement, (iii) any rights under applicable workers compensation or unemployment compensation laws, (iv) any rights that survive termination of my employment pursuant to an restricted stock units/options grant agreement or certificate to purchase the Company’s (or an Affiliate’s) capital stock, (v) any rights with respect to the Company’s (or an Affiliate’s) capital stock owned by Executive, or (vi) any rights to indemnification under the Agreement, the Company’s by-laws or any other applicable law.
In signing this Release of Claims, I acknowledge my understanding that I may not sign it prior to the termination of my employment, but that I may consider the terms of this Release of Claims for up to twenty-one (21) days (or such longer period as the Company may specify) from the later of the date my employment with the Company terminates or the date I receive this Release of Claims. I also acknowledge that I am advised by the Company and its Affiliates to seek the advice of an attorney prior to signing this Release of Claims; that I have had sufficient time to consider this Release of Claims and to consult with an attorney, if I wished to do so, or to consult with any other Person of my choosing before signing; and that I am signing this Release of Claims voluntarily and with a full understanding of its terms.
I represent that I have not filed against the Released Parties any complaints, charges, or lawsuits arising out of my employment, or any other matter arising on or prior to the date of this Release of Claims, and covenant and agree that I will never individually or with any Person file, or commence the filing of, any charges, lawsuits, complaints or proceedings with any governmental agency, or against the Released Parties with respect to any of the matters released by me pursuant to this Release of Claims.
I further acknowledge that, in signing this Release of Claims, I have not relied on any promises or representations, express or implied, that are not set forth expressly in the Agreement. I understand that I may revoke this Release of Claims at any time within seven (7) days of the date of my signing by written notice to the Secretary, Board of
A-1
Exhibit 10.4
Directors of the Company (or such other Person as the Company may specify by notice to me given in accordance with the Agreement) and that this Release of Claims will take effect only upon the expiration of such seven-day revocation period and only if I have not timely revoked it.
Intending to be legally bound, I have signed this Release of Claims as of the date written below.
Signature: | ||||||||
Name: | ||||||||
Date Signed: | ||||||||
A-2
Exhibit 10.5
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the “Agreement”), dated for reference purposes as of January 1, 2026 (the “Effective Date”) is made and entered into by and between DeFi Development Corp., formerly Janover Inc. (the “Company”), and Bruce Rosenbloom (the “Employee” and together with the Company, the “Parties” and individually a “Party”). ”). This Agreement replaces and supersedes the employment agreement between the Parties dated as of May 30, 2025. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in Section 11.
RECITALS
WHEREAS, the Company and the Employee entered into an employment agreement dated September 7, 2023 (“Employment Agreement”); and
WHEREAS, Employee has resigned his employment with the Company without Good Reason as defined in the Employment Agreement and the Company and Employee have mutually agreed that Employee’s final date of employment as the Chief Financial Officer of the Company was April 17, 2025 (the “End Date”); and
WHEREAS, subject to the amended and restated terms and conditions hereinafter set forth, Company wishes to continue to employ Employee as its Executive Vice-President of Finance and Employee wishes to continue to be employed by Company as its Executive Vice-President of Finance.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises, terms, provisions, and conditions set forth in this Agreement, the adequacy and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:
AGREEMENT
1.Employment. Subject to the terms and conditions set forth in this Agreement, Company hereby offers, and Employee hereby accepts, continued employment with Company.
2.Term. The Employee’s employment hereunder shall be effective as of the Effective Date and shall remain in effect until it is terminated in accordance with Sections 5 and 6 below (the “Term”).
3.Capacity and Performance.
(a)During the Term, the Employee shall be employed by Company on a full-time basis as its Executive Vice-President of Finance. Employee shall perform such duties and responsibilities as directed by the Chief Executive Officer and Chief Financial Officer of the Company consistent with Employee’s position on behalf of Company.
(b)Employee shall devote his full business time, attention, skill, and best efforts to the performance of his duties under this Agreement and shall not engage in any other business or occupation during the Term, including, without limitation, any activity that: (x) conflicts with the interests of the Company or any other member of the Company Group, (y) interferes with the proper and efficient performance of Employee’s duties for the Company, or (z) interferes with Employee’s exercise of judgment in the Company’s best interests. Notwithstanding the foregoing, nothing herein shall preclude Employee from: (i) serving, with the prior written consent of the Board of Directors of the Company (“Board”), as a member of the Board of Directors or Advisory Board (or the equivalent in the case of a non-corporate entity) of a noncompeting for-profit business and one or more charitable organizations, (ii) developing, consulting for, or providing services to a noncompeting business, with the prior written consent of the Board; (iii) engaging in charitable activities and community affairs, and (iv) managing Employee’s personal investments and affairs; provided, however, that the activities set out in clauses (i), (ii), (iii) and (iv) shall be limited by Employee so as not to materially interfere, individually or in the aggregate, with the performance of his duties and responsibilities hereunder.
(c)Employee’s employment with Company shall be exclusive with respect to the business of Company. Accordingly, during the Term, Employee shall devote Employee’s full business time and Employee’s best
Exhibit 10.5
efforts, business judgment, skill and knowledge to the advancement of the business and interests of Company and the discharge of Employee’s duties and responsibilities hereunder, except for permitted vacation (and other paid time off) periods, reasonable periods of illness or incapacity, time spent on activities expressly permitted under Section 3(b), and reasonable and customary time spent on civic, charitable and religious activities, provide3d, however, that in each case such activities shall not interfere in any material respect with Employee’s duties and responsibilities hereunder.
(d)During the Term, the Employee will report directly to the Chief Financial Officer.
4.Compensation and Benefits.
(a)Base Salary. For services performed by Employee under this Agreement, Company shall pay Employee an annual base salary of $330,000, minus applicable withholdings and deductions, payable at the same times as salaries are payable to other employees of Company (the “Base Salary”). During the Term, the Base Salary shall be reviewed by the Compensation Committee and/or the Board each year, and the Board may, from time to time, increase or decrease such Base Salary and any reference to “Base Salary” herein shall refer to such Base Salary, as increased.
(b)Annual Bonus. For each fiscal year of the Company during the Term, the Company shall afford Employee the opportunity to earn an incentive bonus (“Bonus”) as described in this Section 4(b). The aggregate target Bonus payable to Employee under such program(s) shall be 40% of the Base Salary or any other amount set by the Compensation Committee of the Board in its discretion, and shall be payable to the extent the applicable performance goals are achieved (which goals and payment matrices shall be set by the Compensation Committee of the Board in its discretion). The amount of the Bonus will be determined by certification by the Board that the applicable goals have been achieved, and the Board shall promptly provide such certification following the achievement of the applicable goals. As of the date of this Agreement, the bonus structure will be as per the compensation structure for Non-Executive Employees approved by the Board on May 14, 2025.
(c)Equity Awards. On the date on which the Employee executes this Agreement (the “Signing Date”), the Company shall grant the Employee 70,000 restricted stock units of the Company (the “RSUs”) pursuant to the 2023 Equity Incentive Plan as amended from time to time (the “Equity Plan”), with the RSUs vesting 25% on the one-year anniversary of the date of grant, and thereafter over the ensuing 3 years in a series of thirty-six (36) successive equal monthly installments, subject to Employee’s continuous service as of each such date. In addition, during the Term, the Employee shall be entitled to receive equity awards (the “Equity Awards”) in the future, on terms and conditions similar to those applicable to other employees of the Company generally, inside or outside of any established equity plan. The amount and terms of the Equity Awards awarded to the Employee shall be set by the Compensation Committee in its discretion. The Equity Awards will be evidenced by a restricted stock unit award agreement, a stock option agreement, or any other form of equity award agreement under the Equity Plan, and will be subject to the terms and conditions of such agreements and the Equity Plan.
(d)Change in Control. To the extent not already vested, the Equity Awards granted to Employee will fully vest upon (i) a Change of Control Severance Event (as defined below) or (ii) a Change in Control followed by a change in job title or position.
(e)Other Employee Benefits. During the Term, the Employee shall be entitled to participate in all employee benefit plans, including health and 401(k) plans, from time to time generally in effect for Company’s employees (collectively, “Benefit Plans”). Such participation and receipt of benefits under any such Benefit Plans shall be on the same terms (including cost-sharing between Company and Employee) as are applicable to other Company employee and shall be subject to the terms of the applicable plan documents and generally applicable Company policies. The Company may alter, modify, add to or delete the Benefit Plans in a manner nondiscriminatory to Employee at any time in accordance with applicable plan rules.
(f)Vacation. The Employee shall be entitled to an annual vacation of 20 days plus ten established holiday days per full calendar year of his employment with the Company hereunder. Any unused vacation in one accrued calendar year may not be carried over to any subsequent calendar year.
(g)Business and Travel Expenses. Company shall pay or reimburse Employee for all reasonable, customary and necessary business expenses (including travel, lodging, networking, and entertainment expenses) which are correctly documented and incurred or paid by Employee in the performance of Employee’s duties and responsibilities hereunder, subject to the rules, regulations, and procedures of Company and in effect from time to time.
2
Exhibit 10.5
(h)Notwithstanding Employee resigning his employment with the Company without Good Reason under and as defined in the Employment Agreement, the Parties expressly understand and agree that Employee is entitled to the lump-sum payments, severance, awards and benefits set forth in Section 5(f) of the Employment Agreement in the total amount of $630,000.00 pursuant to Section 5(f)(i) of the Employment Agreement, and such lump-sum payments, severance, awards and benefits shall be provided to the Employee on or before 5:00 PM ET on July 3, 2025. For the avoidance of doubt, at the End Date Employee did not have any unvested awards of restricted stock, restricted stock units or other awards with respect to securities of the Company and the termination of the Employment Agreement shall not cause the vesting of any such awards. Upon receipt of such lump-sum payments, severance, awards and benefits, the Employee on his own behalf and on behalf of anyone acting by, under or through Employee including his heirs, assigns, executors, agents and representatives hereby generally releases and discharges the Company and its predecessors, successors (by merger or otherwise), parents, subsidiaries, affiliates and assigns, together with each and every of their present, past and future officers, managers, directors, stockholders, members, general partners, limited partners, employees and agents and the successors, assigns, heirs and executors of same (herein collectively referred to as the “Releasees”) from any and all suits, causes of action, complaints, obligations, demands, common law or statutory claims of any kind, whether in law or in equity, direct or indirect, known or unknown (hereinafter “Claims”), which Employee ever had or now has against the Releasees, or any one of them occurring up to and including the Effective Date including, but not limited to, any Claims arising out of the Employment Agreement, Employee’s employment by the Company under and pursuant to the Employment Agreement, Employee’s termination of employment under and pursuant to the Employment Agreement, or the Employee’s change of responsibilities in connection with his employment with the Company.
5.Termination of Employment; Severance Benefits. Notwithstanding the provisions of Section 2, the Employee’s employment hereunder shall terminate under the following circumstances:
(a)Death. If Employee’s dies during the Term, Employee’s employment hereunder shall immediately and automatically terminate. In such event, Company shall pay to Employee’s designated beneficiary or, if no beneficiary has been selected by Employee, to Employee’s estate, the Final Compensation. Company shall have no further obligation hereunder to Employee, Employee’s beneficiary, or Employee’s estate upon the termination of Employee’s employment under this Section 5(a) including, specifically, that the provisions of Section 5(d) shall not apply.
(b)Disability.
(i)Company may terminate Employee’s employment hereunder due to Employee’s Disability during the Term by giving Employee thirty (30) days’ written notice of its intent to terminate, but in no event shall such termination be effective prior to the expiration of the time periods in the definition of Disability. Notwithstanding the foregoing, Company will, after engaging in an interactive process with Employee to discern whether reasonable accommodation(s) can be provided without undue hardship upon Company, offer Employee reasonable accommodation(s) to enable Employee to perform the essential functions of Employee’s position to the extent required by applicable law (if any) before terminating Employee’s employment hereunder. Employee may decline such reasonable accommodation, in which case Employee’s employment hereunder will terminate as provided in this subsection.
(ii)In the event of such termination for Disability, Employee will receive Employee’s Final Compensation. Company shall have no further obligation hereunder to Employee upon termination of Employee’s employment under this Section 5(d), including, specifically, that the provisions of Section 5(d) shall not apply.
(iii)Subject to Employee’s rights under the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”), Company may designate another Employee to act in Employee’s place during any period of Employee’s Disability during which Employee is unable to perform the essential functions of Employee’s position with or without reasonable accommodation. Notwithstanding any such designation, Employee shall continue to receive the Base Salary in accordance with Section 4(a) and coverage under the Benefit Plans in accordance with Section 4(b), to the extent permitted by the then- current terms of the applicable benefit plans and as provided under the FMLA, if applicable, until the earliest to occur of: (A) the end of the Term, (B) Employee becomes eligible for disability income benefits under Company’s disability income plan, or (C) the termination of Employee’s employment.
(iv)While receiving disability income payments under Company’s disability income plan (if applicable), Company will continue to pay to Employee Employee’s Base Salary under Section 4(a), but may offset
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Exhibit 10.5
any such disability income payments Employee receives against the Base Salary payments. Employee will also continue to participate in the Benefit Plans in accordance with Section 4(b) and the terms of such Benefit Plans, until the end of the Term or until the termination of Employee’s employment, whichever occurs first.
(v)If any question arises as to whether during any period Employee has a Disability as defined herein, Employee may, and at the request of Company shall, submit to a medical examination by a qualified, unbiased physician selected by Company and reasonably acceptable to Employee or Employee’s duly appointed guardian, if any, to determine whether Employee has a Disability and such determination shall for the purposes of this Agreement be conclusive of the issue.
(c)By Company for Cause. Company may terminate Employee’s employment hereunder for Cause, as defined in Section 11(c), at any time upon notice to Employee setting forth in reasonable detail the nature of such Cause. Upon the giving of notice of termination of Employee’s employment hereunder for Cause, Employee will receive Employee’s Final Compensation. Except as provided herein, Company will have no further obligation to Employee upon termination of Employee’s employment under this Section 5(c). Any notice of termination of Employee’s employment hereunder for Cause, or any notice to Employee regarding any event, condition or circumstance that, if not cured, if applicable, in accordance with the above, could give rise to a termination of Employee’s employment hereunder for Cause, shall set forth in detail the applicable event(s), condition(s) or circumstance(s) constituting reason(s) or potential reason(s) for such termination hereunder.
(d)By Company Other than for Cause or by Employee for Good Reason. Company may terminate Employee’s employment hereunder other than for Cause at any time upon thirty (30) days’ written notice to Employee and Employee may terminate Employee’s employment hereunder for Good Reason at any time upon thirty (30) days’ written notice to Company.
(i)In the event of a termination of Employee’s employment under this Section 5(d), in addition to the Final Compensation, Employee shall receive payment of such Bonus as determined under Section 4(b) shall be at the time proscribed by Section 4(b), if the date of termination occurs after the end of a calendar year but prior to the date on which a Bonus is paid under Section 4(b).
(ii)Any obligation of Company to Employee under this Section 5(d) (other than for the Final Compensation or for benefits required by law) is conditioned upon Employee’s execution and delivery to Company and the expiration of all applicable statutory revocation periods of a release of claims in the form attached hereto as Exhibit A (the “Employee Release”), provided, that the terms of such Employee Release shall be subject to modification to the extent necessary to comply with: (a) the fact that Company is simultaneously terminating more than one employee as part of a group termination decision or (b) changes in applicable law, if any, occurring after the date hereof, and prior to the date such Employee Release is executed.
(e)By Employee Other than for Cause or Good Reason. Employee may terminate Employee’s employment hereunder other than for Cause or Good Reason at any time upon thirty (30) days’ written notice to Company, and in such case Employee shall be entitled only to the Final Compensation, and will forfeit (i) payment of any Bonus under Section 4(b) and (ii) all Equity Awards, awards of restricted stock, restricted stock units or other awards that have not been vested until such termination date.
(f)Change in Control Severance. Except as otherwise set forth herein, if a Change in Control occurs, and on, or at any time during the 6 months following, the Change in Control, (x) the Company terminates Employee’s employment for any reason other than Cause or Disability, or (y) Employee terminates Employee’s employment for Good Reason (a “Change of Control Severance Event”), Employee shall be entitled to the following benefits:
(i)The Company shall pay Employee, in a lump sum within 60 days following termination of Employee’s employment, severance equal to two times the sum of Employee’s Base Salary.
(ii)Employee also shall be entitled to receive any and all vested benefits accrued under any other incentive plans to the date of termination of employment, the amount, entitlement to, form, and time of payment of such benefits to be determined by the terms of such incentive plans. For purposes of calculating Employee’s benefits under the incentive plans, Employee’s employment shall be deemed to have terminated under circumstances that have the most favorable result for Employee under the applicable incentive plan.
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Exhibit 10.5
(iii)If, upon the date of termination of Employee’s employment, Employee holds any awards with respect to securities of the Company, (A) all such awards that are restricted stock units/options shall immediately become vested and exercisable upon such date and shall be exercisable thereafter until expiration of the full term of the restricted stock units/options; all restrictions on any such awards of restricted stock, restricted stock units or other awards shall terminate or lapse, and all such awards of restricted stock, restricted stock units or other awards shall be vested and payable; and (B) all performance goals applicable to any such performance-based awards that are “in cycle” (i.e., the performance period is not yet complete) shall be deemed satisfied at the “target” level (assuming 100% payout), and (C) all such awards shall be paid in accordance with the terms of the applicable award agreement. The provisions of this subsection shall be subject (and defer) to the provisions of any incentive plan, award agreement or other agreement as it relates to an individual award to the extent such provisions provide treatment that is more favorable to Employee than the treatment described in this subsection and such more favorable provisions in such incentive plan, award agreement or other agreement shall supersede any inconsistent or contrary provision of this subsection. All of Employee’s awards with respect to securities of the Company that are outstanding upon the date of termination of Employee’s employment shall continue to be subject to, and enjoy the benefits and protections under, the terms of the incentive plan, the award agreement and any other plan, agreement, policy or other arrangement to which such awards are subject as of the effective date of Employee’s participation, including any employment security agreement or other written compensation arrangement (even if the remaining terms thereof are waived), without application of this subsection.
(iv)Employee and Employee’s spouse and other qualified beneficiaries shall be eligible for continued coverage as follows:
(A)If the Employee, Employee’s spouse and/or Employee’s other qualified beneficiaries are enrolled under a group health plan as defined by COBRA, on the date of termination of Employee’s employment, Employee, Employee’s spouse and/or Employee’s qualified beneficiaries may elect to continue such coverage under COBRA, except that the maximum coverage period shall be extended to no less than the Severance Period (but no more than 1 year) for that Employee, unless, after electing COBRA, the individual attains age 65 and becomes eligible for Medicare, in which case COBRA shall end for that individual. If Employee, Employee’s spouse and/or Employee’s other qualified beneficiaries elect COBRA coverage, the Company shall pay a portion of the COBRA costs for the Severance Period for that Employee (subject to any earlier termination of COBRA). The portion to be paid by the Company shall equal the amount necessary so that the total of the COBRA costs paid by Employee is equal to the costs that would have been paid by Employee for such coverage as an active employee immediately prior to termination of Employee’s employment or, if less, prior to the Change in Control. The cost of COBRA coverage paid by the Company may be taxable income to the Employee and reported on Employee’s Internal Revenue Service Form W-2. Employee, Employee’s spouse and/or Employee’s qualified beneficiaries may continue coverage under COBRA after the Severance Period for that Employee, provided they pay the full COBRA costs and COBRA otherwise remains available.
(B)The benefits and/or extended coverage provided under this subsection shall cease prior to the date such benefits and/or extended coverage would otherwise end under subsection if and when Employee (x) obtains employment with another employer during the Severance Period and becomes eligible for coverage under any substantially similar plan provided by his/her new employer or (y) fails to pay the required active employee portion of the cost of coverage provided under this subsection in the time and manner specified by the Company or its designee.
(v)Employee shall be entitled to payment for any accrued but unused vacation in accordance with the Company’s policy in effect at the time of termination of Employee’s employment, in a lump sum within 60 days following such termination.
(vi)Employee shall not be entitled to receive any payments or other compensation attributable to vacation that would have been earned had Employee’s employment continued during the Severance Period, and Employee waives any right to receive any such compensation. Employee shall not be entitled to reimbursement for any other fringe benefits or perquisite payments during the Severance Period, including but not limited to dues and expenses related to club memberships, automobile, cell phone, expenses for professional services, executive physicals, and other similar perquisites.
6.Effect of Termination.
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Exhibit 10.5
(a)Upon termination of Employee’s employment hereunder and subject to the provisions of Section 5 and Section 6(c), Company’s entire obligation to Employee shall be payment of Final Compensation.
(b)In connection with the cessation of Employee’s service as Executive Vice-President of Finance of the Company for any reason, except as may otherwise be requested by the Company in writing and agreed upon in writing by Employee, Employee shall be deemed to have resigned from any and all directorships, committee memberships, and any other positions Employee holds with the Company or any other member of the Company Group. Employee hereby agrees that no further action is required by Employee or any of the preceding to make the transitions and resignations provided for in this paragraph effective, but Employee nonetheless agrees to execute any documentation Company reasonably requests at the time to confirm it and to not reassume any such service or position without the written consent of Company.
(c)Except as otherwise required by Consolidated Omnibus Budget Reconciliation Act or any similar federal or state law, benefits shall continue or terminate pursuant to the terms of the applicable benefit plan or agreement, without regard to any continuation of Base Salary or other payment to Employee following such date of termination. The provisions of this Section 6 shall apply to any termination of employment. Provisions of this Agreement will survive any termination if so provided herein or if necessary or desirable to accomplish the purposes of other surviving provisions, including, without limitation, the obligations of Employee under Section 7 through Section 9.
(d)Any termination of Employee’s employment with Company under this Agreement shall automatically be deemed to be simultaneous resignation of all other positions and titles (including any director positions) that Employee holds with Company and any Affiliate or subsidiary thereof. This Section 6(e) shall constitute a resignation notice for such purposes.
(e)Upon termination of the Employee’s employment or upon the Company’s request at any other time, the Employee will deliver to the Company all of the Company’s property, equipment, and documents, together with all copies thereof, and any other material containing or disclosing any Intellectual Property or Confidential Information and certify in writing that the Employee has fully complied with the foregoing obligation. The Employee agrees that the Employee will not copy, delete, or alter any Company computer equipment information before the Employee returns it to the Company. In addition, if the Employee has used any personal computer, server, or email system to receive, store, review, prepare or transmit any Company information, including but not limited to, Confidential Information, the Employee agrees to provide the Company with a computer-usable copy of all such Confidential Information and then permanently delete and expunge such Confidential Information from those systems; and the Employee agrees to provide the Company access to the Employee’s system as reasonably requested to verify that the necessary copying and/or deletion is completed.
7.Confidential Information.
(a)Employee acknowledges that Company continually develops Confidential Information, that Employee may develop Confidential Information for Company and that Employee may learn of Confidential Information during the course of employment with Company. Employee will comply with the policies and procedures of Company for protecting Confidential Information and shall not disclose to any Person or use, other than as required by applicable law, regulation or process or for the proper performance of Employee’s duties and responsibilities to Company, or with the express written permission of the Board, any Confidential Information obtained by Employee incidental to Employee’s employment or other association with Company. Employee understands that this restriction shall continue to apply after Employee’s employment terminates, regardless of the reason for such termination.
(b)Notwithstanding anything contained in this Section 7 to the contrary, nothing contained herein shall prevent Employee from disclosing any Confidential Information required by law, subpoena, court order or other legal processes to be disclosed; provided, that, Employee shall give prompt written notice to Company of such requirement, disclose no more information than is so required and cooperate, at Company’s cost and expense, with any attempt by Company to obtain a protective order or similar treatment with respect to such information.
(c)Pursuant to the Defend Trade Secrets Act of 2016, Employee understands that:
(i)Employee may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a
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Exhibit 10.5
suspected violation of law; or is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding; and
(ii)if Employee files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Employee may disclose the employer’s trade secrets to Employee’s attorney and use the trade secret information in the court proceeding if Employee files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
8.Assignment of Rights to Intellectual Property. Employee shall promptly and fully disclose to Company all Intellectual Property developed for the benefit of Company in the course of Employee’s employment by Company. Employee hereby assigns and agrees to assign to Company (or as otherwise directed by Company) Employee’s full right, title, and interest in and to all such Intellectual Property. Employee agrees to execute any and all applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without limitation the execution and delivery of instruments of further assurance or confirmation) requested by Company (at Company’s expense) to assign to Company the Intellectual Property developed for the benefit of Company in the course of Employee’s employment by Company and to permit Company to enforce any patents, copyrights or other proprietary rights to the Intellectual Property. Employee will not charge Company for time spent in complying with these obligations. All copyrightable works that Employee creates developed for the benefit of Company in the course of Employee’s employment by Company shall be considered “work made for hire.”
9.Restricted Activities. Employee agrees that the restrictions on Employee’s activities during and after Employee’s employment set forth below are necessary to protect the goodwill, Confidential Information and other legitimate interests of Company and its successors and assigns:
(a)During the Term of this Agreement and during the Restricted Period following termination of employment, Employee will not, without the prior written consent of Company, directly or indirectly, and whether as principal or investor or as an Employee, officer, director, manager, partner, consultant, agent, or otherwise, alone or in association with any other Person, firm, corporation, or other business organization, engage or otherwise become involved in a Competing Business (as defined below) in any country in which the Company conducted business during the Term; provided, however, that the provisions of this Section 9 shall apply solely to those activities of a Competing Business which are congruent with those activities with which Employee was personally involved or for which Employee was responsible while employed by the Company or its subsidiaries during the twelve (12) month period preceding termination of Employee’s employment. This Section 9 will not be violated, however, by Employee’s investment of up to $500,000 in the aggregate in one or more publicly traded companies that engage in a Competing Business. “Competing Business” means a business or enterprise (other than Company or its subsidiaries) engaged in the commercial mortgage brokerage, commercial mortgage marketplace, and any other business directly competing with the business of the Company as currently conducted or otherwise conducted by the Company during the Term (the “Restricted Activities”). “Restricted Period” means twenty-four (24) months.
(b)During the Term of this Agreement and during the Restricted Period (as defined above), Employee will not engage in any Wrongful Solicitation. A “Wrongful Solicitation” shall be deemed to occur when Employee directly or indirectly (except in the course of Employee’s employment with Company), for the purpose of conducting or engaging in a Competing Business, calls upon, solicits, advises or otherwise does, or attempts to do, business with any Person who is, or was, during the then most recent 12-month period, a customer of Company or any of its subsidiaries, or takes away or interferes or attempts to take away or interfere with any custom, trade, business, patronage or affairs of Company or any of its subsidiaries, or hires or attempts to hire any Person who is, or was during the most recent 12-month period, an Employee, officer, representative or agent of Company or any of its subsidiaries, or solicits, induces, or attempts to solicit or induce any Person who is an Executive, officer, representative or agent of Company or any of its subsidiaries to leave the employ or agency of the Company or any of its subsidiaries, or violate the terms of their contract, or any employment consulting or agent agreement, with it.
(c)It is expressly understood and agreed that although Employee and Company consider the restrictions contained in this Section 9 to be reasonable if a court makes a final judicial determination of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Employee, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as the court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction
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Exhibit 10.5
cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(d)Employee expressly understands that in the event of a violation of any period specified in this Section 9, such period shall be extended by a period of time equal to that period beginning with the commencement of any such violation and ending when such violation shall have been finally terminated in good faith.
10.Enforcement of Covenants. Employee acknowledges that Employee has carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed upon Employee pursuant to Sections 7, 8 and 9, and Employee agrees that these restraints are necessary for the reasonable and proper protection of Company and its successors and assigns and that each and every one of the restraints is reasonable in respect to the subject matter, length of time and geographic area. Employee further acknowledges that, were Employee to breach any of the covenants in Section 7, Section 8 and/or Section 9 the damage to the Company would be irreparable. Employee therefore agrees that Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by Employee of any of the covenants herein, without any requirement to post a bond or similar security. The Parties further agree that in the event that any provision of Section 7, Section 8 and/or Section 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.
11.Definitions. Words or phrases that are initially capitalized or within quotation marks shall have the meanings provided in this Section 11 and as provided elsewhere. For purposes of this Agreement, the following definitions apply:
(a) “$” refers to U.S. Dollars.
(b)“Affiliate” means, with respect to any specified Person, any other Person which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person for the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common (control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to either: (i) direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise, or (ii) vote at least fifty percent (50%) or more of the securities having voting power for the election of a majority of the directors (or Persons performing similar functions) of such Person.
(c)“Cause” means if Employee is discharged by Company on account of the occurrence of one or more of the following events:
(i)Employee’s continued refusal or failure to perform (other than by reason of Disability) Employee’s material duties and responsibilities to Company if such refusal or failure is not cured within thirty (30) days following written notice of such refusal or failure by Company to Employee, or Employee’s continued refusal or failure to follow any reasonable lawful direction of the Board if such refusal or failure is not cured within thirty (30) days following written notice of such refusal or failure by Company to Employee;
(ii)willful, grossly negligent or unlawful misconduct by Employee which causes material harm to Company or its reputation;
(iii)the Company is directed in writing by regulatory or governmental authorities to terminate the employment of Employee or Employee engages in activities that: (A) are not approved or authorized by the Board, and (B) cause actions to be taken by regulatory or governmental authorities that have a material adverse effect on Company; or a conviction, plea of guilty, or plea of nolo contendere by Employee, of or with respect to a criminal offense which is a felony or other crime involving dishonesty, disloyalty, fraud, embezzlement, theft, or similar action(s) (including, without limitation, acceptance of bribes, kickbacks or self-dealing), or the material breach of Employee’s fiduciary duties with respect to Company.
(d)“Change in Control” means the occurrence, in a single transaction or in a series of related transactions, of any one or more of the following events:
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Exhibit 10.5
(i)A transaction or series of transactions (other than an offering of common stock to the general public through a registration statement filed by the Company with the Securities and Exchange Commission) whereby any “Person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company, any of its subsidiaries, an Employee benefit plan maintained by the Company or any of its subsidiaries or a “Person” that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13(d)(3) under the Exchange Act) of securities of the Company possessing more than fifty percent (50%) of the total combined voting power of the Company’s securities outstanding immediately after such acquisition;
(ii)The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination, or (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions:
(A)which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent either by remaining outstanding or by being converted into voting securities of the Company or the Person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such Person, the “Successor Entity”) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and after which no Person or group beneficially owns voting securities representing fifty percent (50%) or more of the combined voting power of the Successor Entity; provided, however, that no Person or group shall be treated for
(B)purposes of this Section 11(d) as beneficially owning fifty percent (50%) or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction.
A transaction shall not constitute a Change in Control if its sole purpose is to change the State of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction.
(e)“Code” means the Internal Revenue Code of 1986, as amended.
(f)“Company” has the meaning ascribed to it in the preamble of this Agreement.
(g)“Company Group” shall mean the Company together with any of its direct or indirect subsidiaries.
(h)“Compensation Committee” shall mean the committee of the Board designated to make compensation decisions relating to senior executive officers of the Company.
(i)“Confidential Information” means any and all nonpublic information of the Company. Confidential Information includes, without limitation, such information relating to (i) the development, research, testing, manufacturing, marketing, and financial activities of the Company, (ii) the Services, (iii) the costs, sources of supply, financial performance, and strategic and/or business plans of Company, (iv) the identity and special needs of the customers and prospective customers of Company, and (v) the people and organizations with whom Company has business relationships and those relationships. Confidential Information also includes any information that Company has received, or may receive hereafter, belonging to customers or others with any understanding, express or implied, that the information would not be disclosed. Notwithstanding the foregoing, “Confidential Information” does not include (x) any information that is or becomes generally known to the industry or the public through no wrongful act of Employee or any representative of Employee and (y) any information that is made legitimately available to Employee by a third Party without breach of any confidentiality obligation.
(j)“Disability” means Employee’s inability, due to any illness, injury, accident or condition of either a physical or psychological nature, to substantially perform Employee’s duties and responsibilities hereunder for a period of one hundred twenty (120) consecutive days, or for any one hundred and eighty (180) days during any period of three hundred and sixty-five (365) consecutive calendar days, exclusive of any leave Employee may take under the Family and Medical Leave Act, 29 U.S.C. § 12101 et seq. (“FMLA”) or as a reasonable accommodation under the Americans with Disabilities Act, 29 U.S.C. § 2601 et seq. (“ADA”).
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Exhibit 10.5
(k)“Final Compensation” means the amount equal to the sum of: (i) the Base Salary earned but not paid through the date of termination of employment, payable not later than the next scheduled payroll date, (ii) any business and related expenses and allowances incurred by Employee or to which Employee is entitled under Section 4(g) but unreimbursed on the date of termination of employment; provided that with respect to business expenses unreimbursed under Section 4(g), such expenses and required substantiation and documentation are submitted within one hundred eighty (180) days of termination in the case of termination on account of Employee’s death, or thirty (30) days on account of termination for any reason other than death, and that such expenses are reimbursable under Company’s applicable reimbursement policy, and (iii) any other supplemental compensation, insurance, retirement or other benefits due and payable or otherwise required to be provided under Section 4 in accordance with the terms and conditions of the applicable plan or agreement.
(l)“Good Reason” means, without Employee’s express written consent: (i) a material reduction in the Base Salary, then in effect, except a material diminution generally affecting all of the members of the Company’s management, (ii) a material reduction in job title, position or responsibility, or (iii) a material breach of any term or condition contained in this Agreement. However, none of the foregoing events or conditions will constitute Good Reason unless (x) Employee provides Company with written notice of the existence of Good Reason within ninety (90) days following the occurrence thereof, (y) Company does not reverse or otherwise cure the event or condition within thirty (30) days of receiving that written notice, and (z) Employee resigns Employee’s employment within thirty (30) days following the expiration of that cure period.
(m)“Intellectual Property” means inventions, discoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets) conceived, made, created, developed or reduced to practice by Employee (whether alone or with others, whether or not during normal business hours or on or off Company premises) during Employee’s employment that relate to either the Services or any prospective activity of Company or that make use of Confidential Information or any of the equipment or facilities of Company.
(n)“Person” means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a trust, and any other entity or organization other than Company.
(o)“Sale of Company” means the sale of Company to an independent third Party or group of independent third Parties pursuant to which such Party or Parties acquire: (i) equity interests possessing the voting power under normal circumstances to elect a majority of the Board of Directors or similar governing body of Company (whether by merger, consolidation or sale or transfer of such equity interests), or (ii) all or substantially all of Company’s assets determined on a consolidated basis.
(p)“Services” means all services planned, researched, developed, tested, manufactured, sold, licensed, leased or otherwise distributed or put into use by Company, together with all products provided or planned by Company, during Employee’s employment.
(q)“Severance Period” shall mean that number of years or partial years following termination of Employee’s employment equal to the number of years or partial years of Base Salary that the Employee receives under Section 5(f).
(r)“Term End Date” shall mean the last day of the Term of this Employment Agreement.
12.Withholding. All payments made by Company under this Agreement may be reduced by any tax or other amounts required to be withheld by Company under applicable law or by any amounts authorized in writing by Employee.
13.Assignment. Neither Company nor Employee may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other; provided, however, that Company may assign its rights and obligations under this Agreement without the consent of Employee in the event of a Sale of Company. This Agreement shall inure to the benefit of and be binding upon Company and Employee, their respective successors, executors, administrators, heirs and permitted assigns.
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Exhibit 10.5
14.Compliance with Code Section 409A.
(a)Notwithstanding any provision of this Agreement to the contrary, Employee’s employment will be deemed to have terminated on the date of Employee “separation from service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with Company.
(b)It is intended that this Agreement will comply with Section 409A of the Code, and any regulations and guideline issued thereunder (“Section 409A”) to the extent that any compensation and benefits provided hereunder constitute deferred compensation subject to Section 409A. This Agreement shall be interpreted on a basis consistent with this intent. The Parties will negotiate in good faith to amend this Agreement as necessary to comply with Section 409A in a manner that preserves the original intent of the Parties to the extent reasonably possible. No action or failure to act, pursuant to this Section 14 shall subject Company to any claim, liability, or expense, and Company shall not have any obligation to indemnify or otherwise protect Employee from the obligation to pay any taxes pursuant to Section 409A of the Code. For purposes of the application of Treas. Reg. § 1.409A-1(b)(4)(or any successor provision), each payment in a series of payments will be deemed a separate payment.
(c)Notwithstanding anything in this Agreement to the contrary, if any amount or benefit that would constitute non-exempt “deferred compensation” for purposes of Section 409A of the Code would otherwise be payable or distributable under this Agreement by reason of Employee’s separation from service during a period in which Employee is a “specified Executive” (as defined under Code Section 409A and the final regulations thereunder), then, subject to any permissible acceleration of payment by Company under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic relations order), (j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment of employment taxes):
(i)if the payment or distribution is payable in a lump sum, the Employee’s right to receive payment or distribution of such non-exempt deferred compensation will be delayed until the earlier of Employee’s death or the first day of the seventh month following Employee’s separation from service; and
(ii)if the payment or distribution is payable over time, the amount of such non-exempt deferred compensation that would otherwise be payable during the six months immediately following Employee’s separation from service will be accumulated, and the Employee’s right to receive payment or distribution of such accumulated amount will be delayed until the earlier of Employee’s death or the first day of the seventh month following Employee’s separation from service, whereupon the accumulated amount will be paid or distributed to Employee and the normal payment or distribution schedule for any remaining payments or distributions will resume.
This Section 14(d) should not be construed to prevent the application of Treas. Reg § 1.409A-1(b)(9)(iii) (or any successor provision) to amounts payable hereunder (or any portion thereof).
15.Golden Parachute Limitation. Notwithstanding anything in this Section or elsewhere in this Agreement to the contrary, in the event the payments and benefits payable hereunder to or on behalf of Employee (which the Parties agree will not include any portion of payments allocated to the non-competition and non-solicitation provisions of Section 9) that are classified as payments of reasonable compensation for purposes of Section 280G of the Code, when added to all other amounts and benefits payable to or on behalf of Employee, would result in the loss of a deduction under Code Section 280G, or the imposition of an excise tax under Code Section 4999, the amounts and benefits payable hereunder shall be reduced to such extent as may be necessary to avoid such loss of deduction or imposition of excise tax. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Code Section 409A and where two or more economically equivalent amounts are subject to reduction, but payable at different times, such amounts shall be reduced on a pro-rata basis. All calculations required to be made under this subsection will be made by the Company’s independent public accountants, subject to the right of Employee’s professional advisors to review the same. The Parties recognize that the actual implementation of the provisions of this subsection are complex and agree to deal with each other in good faith to resolve any questions or disagreements arising hereunder.
16.Successors.
(a)Company’s Successors. Subject to Section 5(f), any successor to the Company (whether direct or indirect and whether by purchase, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company’s business and/or assets shall assume the obligations under this Agreement and agree expressly to perform the obligations under this Agreement in the same manner and to the same extent as the Company would be required to perform such obligations in the absence of a succession. For all purposes under this
11
Exhibit 10.5
Agreement, the term “Company” shall include any successor to the Company’s business and/or assets which executes and delivers the assumption agreement described in this Section 16 or which becomes bound by the terms of this Agreement by operation of law.
(b)Employee’s Successors. The terms of this Agreement and all rights of Employee hereunder shall inure to the benefit of, and be enforceable by, Employee’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
17.Clawback Provisions. Any amounts payable under this Agreement are subject to any policy (whether in existence as of the Effective Date or later adopted) established by the Company providing for clawback or recovery of amounts that were paid to the Employee. The Company will make any determination for clawback or recovery in its sole discretion and in accordance with any applicable law or regulation.
18.Indemnification. Company will indemnify Employee to the fullest extent permitted by law, for all amounts (including, without limitation, judgments, fines, settlement payments, expenses and reasonable out-of- pocket attorneys’ fees) incurred or paid by Employee in connection with any action, suit, investigation or proceeding, or threatened action, suit, investigation or proceeding, arising out of or relating to the performance by Employee of services for, or the acting by Employee as a director, officer or Employee of, Company, or any subsidiary of Company. Any fees or other necessary expenses incurred by Employee in defending any such action, suit, investigation or proceeding shall be paid by Company in advance, subject to Company’s right to seek repayment from Employee if a determination is made that Employee was not entitled to indemnification.
19.Severability. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in the circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
20.Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving Party. The failure of either Party to require the performance of any term or obligation of this Agreement, or the waiver by either Party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
21.Survival. Section 6 through and including Section 32 shall survive and continue in full force in accordance with their terms notwithstanding the termination of Employee’s employment (and hence the Term of this Agreement) for any reason.
22.Notices. Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing and shall be effective when delivered in Person, with respect to notices delivered personally, or upon confirmed receipt when delivered by facsimile or deposited with a reputable, nationally recognized overnight courier service and addressed or faxed to Employee at Employee’s last known address on the books of Company or, in the case of Company, at its principal place of business, attention: Secretary, Board of Directors.
23.Entire Agreement. This Agreement constitutes the entire agreement between the Parties (including with respect to Company, 23. its successors and assigns) with respect to Employee’s employment and supersedes all prior communications, agreements and understandings, written or oral, with respect to the terms and conditions of Employee’s employment.
24.Amendment. This Agreement may be amended or modified only by a written instrument signed by Employee and by an expressly authorized representative of Company.
25.Headings. The headings and captions in this Agreement are for convenience only and in no way define or describe the scope or content of any provision of this Agreement.
26.Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. Furthermore, the delivery of a copy of such signature by facsimile transmission or other electronic exchange methodology shall constitute a valid and binding execution and delivery of this Agreement by such Party, and such electronic copy shall constitute an enforceable original document.
12
Exhibit 10.5
27.Additional Obligations. Without implication that the contrary would otherwise be true, Employee’s obligations under Section 7, Section 8 and Section 9 are in addition to, and not in limitation of, any obligations that Employee may have under applicable law (including any law regarding trade secrets, duty of loyalty, fiduciary duty, unfair competition, unjust enrichment, slander, libel, conversion, misappropriation and fraud).
28.Attorneys’ Fees. In any action or proceeding brought to enforce any provision of this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, costs, and expenses from the other Party to the action or proceeding. For purposes of this Agreement, the “prevailing Party” shall be deemed to be that Party who obtains substantially the result sought, whether by settlement, mediation, judgment or otherwise, and “attorneys’ fees” shall include, without limitation, the reasonable out-of-pocket attorneys’ fees incurred in retaining counsel for advice, negotiations, suit, appeal or other legal proceeding, including mediation and arbitration.
29.Confidentiality. The Parties acknowledge and agree that this Agreement and each of its provisions are and shall be treated strictly confidential. During the Term and thereafter, Employee shall not disclose any terms of this Agreement to any Person or entity without the prior written consent of Company, with the exception of Employee’s tax, legal or accounting advisors or for legitimate business purposes of Employee, or as otherwise required by law.
30.No Rule of Construction. This Agreement shall be construed to be neither against nor in favor of any Party hereto based upon any Party’s role in drafting this Agreement, but rather in accordance with the fair meaning hereof.
31.Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the state of Florida.
32.WAIVER OF JURY TRIAL. EMPLOYEE AND THE COMPANY EXPRESSLY WAIVE ANY RIGHT EITHER MAY HAVE TO A JURY TRIAL CONCERNING ANY CIVIL ACTION THAT MAY ARISE FROM THIS AGREEMENT OR THE RELATIONSHIP OF THE PARTIES HERETO.
33.Conditions. This Agreement and the Employee’s continued employment hereunder is conditional on the Company’s satisfaction (determined in the Company’s sole discretion) that the Employee has met the legal requirements to perform the Employee’s role, including but not limited to satisfactory results of a background and/or credit search or any other applicable security clearance checks and criminal record checks and other reference checks that the Company performs. The Employee acknowledges and agrees that in signing this Agreement, and providing the Company with the necessary documentation to perform the checks required for the Employee’s role and with references, the Employee is providing consent to the Company or its agent, to performs such checks and contact the references the Employee provided to the Company.
34.Prior Restrictions. By signing below, the Employee represents that the Employee is not bound by the terms of any agreement with any Person which restricts in any way the Employee’s hiring by the Company and the performance of the Employee’s expected job duties; the Employee also represents that, during the Employee’s employment with the Company, the Employee shall not disclose or make use of any confidential information of any other persons or entities in violation of any of their applicable policies or agreements and/or applicable law.
35.Independent Legal Counsel. By signing below, the Employee hereby acknowledges that the Employee has been encouraged to obtain independent legal advice regarding the execution of this Agreement, and that the Employee has either obtained such advice or voluntarily chosen not to do so, and hereby waives any objections or claims the Employee may make resulting from any failure on the Employee’s part to obtain such advice.
36.Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original when executed, but all of which taken together shall constitute the same Agreement. Delivery of an executed counterpart of a signature page to this Agreement by electronic transmission, including in portable document format (.pdf), shall be deemed as effective as delivery of an original executed counterpart of this Agreement.
[SIGNATURE PAGE FOLLOWS]
13
Exhibit 10.5
IN WITNESS WHEREOF, this Agreement has been executed by Company (by its duly authorized representative) and by Employee, as of the date first above written.
DEFI DEVELOPMENT CORP. | ||
By: /s/ Joseph Onorati | ||
Name: Joseph Onorati Title: Chief Executive Officer | ||
EMPLOYEE: By: /s/Bruce S. Rosenbloom Name: Bruce S. Rosenbloom Title: EVP of Finance | ||
14
Exhibit 10.5
EXHIBIT A
Release of Claims
FOR AND IN CONSIDERATION OF the benefits to be provided me in connection with the termination of my employment, as set forth in that certain Amended and Restated Employment Agreement, dated as of January 1, 2026 (the “Agreement”), between me and DeFi Development Corp. (the “Company”), or under any severance pay plan applicable to me, which benefits are conditioned on my signing this Release of Claims and to which I am not otherwise entitled, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, I, on my own behalf and on behalf of my heirs, executors, administrators, beneficiaries, representatives and assigns, and all others connected with me, hereby release and forever discharge Company and any of its subsidiaries and Affiliates (as that term is defined in Section 11(b) of the Agreement) and all of their respective past, present and future officers, directors, trustees, equity holders, executives, agents, managers, joint venturers, representatives, successors and assigns, and all others connected with any of them (collectively, the “Released Parties”), both individually and in their official capacities, from any and all causes of action, rights and claims of any type or description, known or unknown, which I have had in the past, now have, or might now have, through the date of my signing of this Release of Claims, in any way resulting from, arising out of or connected with my employment by the Company or any of its Affiliates or the termination of that employment, including, but not limited to, any allegation, claim or violation arising under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended (including the Older Worker Benefit Protection Act); the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification Act; Executive Retirement Income Security Act of 1974; the Fair Labor Standards Act; any applicable Executive Orders; or their state or local counterparts; or under any other federal, state or local civil or human rights law, or under any other federal, state or local law, regulation or ordinance; or under any public policy, contract or tort, or under common law; or arising under any policies, practices or procedures of the Company; or any claim for wrongful discharge, breach of contract, intentional infliction of emotional distress or defamation; or any claim for costs, fees or other expenses, including attorneys’ fees incurred in these matters (all of the foregoing collectively referred to herein as “Claims”), other than (i) the right to payment of any vested or accrued benefits under any supplemental compensation, insurance, retirement and/or other benefit plan or agreement applicable to Employee, (ii) the right to payment of any amounts owed to me by Company pursuant to Section 5 of the Agreement, (iii) any rights under applicable workers compensation or unemployment compensation laws, (iv) any rights that survive termination of my employment pursuant to an restricted stock units/options grant agreement or certificate to purchase the Company’s (or an Affiliate’s) capital stock, (v) any rights with respect to the Company’s (or an Affiliate’s) capital stock owned by Employee, or (vi) any rights to indemnification under the Agreement, the Company’s by-laws or any other applicable law.
In signing this Release of Claims, I acknowledge my understanding that I may not sign it prior to the termination of my employment, but that I may consider the terms of this Release of Claims for up to twenty-one (21) days (or such longer period as the Company may specify) from the later of the date my employment with the Company terminates or the date I receive this Release of Claims. I also acknowledge that I am advised by the Company and its Affiliates to seek the advice of an attorney prior to signing this Release of Claims; that I have had sufficient time to consider this Release of Claims and to consult with an attorney, if I wished to do so, or to consult with any other Person of my choosing before signing; and that I am signing this Release of Claims voluntarily and with a full understanding of its terms.
I represent that I have not filed against the Released Parties any complaints, charges, or lawsuits arising out of my employment, or any other matter arising on or prior to the date of this Release of Claims, and covenant and agree that I will never individually or with any Person file, or commence the filing of, any charges, lawsuits, complaints or proceedings with any governmental agency, or against the Released Parties with respect to any of the matters released by me pursuant to this Release of Claims.
I further acknowledge that, in signing this Release of Claims, I have not relied on any promises or representations, express or implied, that are not set forth expressly in the Agreement. I understand that I may revoke this Release of
A-1
Exhibit 10.5
Claims at any time within seven (7) days of the date of my signing by written notice to the Secretary, Board of Directors of the Company (or such other Person as the Company may specify by notice to me given in accordance with the Agreement) and that this Release of Claims will take effect only upon the expiration of such seven-day revocation period and only if I have not timely revoked it.
Intending to be legally bound, I have signed this Release of Claims as of the date written below.
Signature: __________________________________________ | ||
Name: _____________________________________________ | ||
Date Signed: ________________________________________ | ||
A-2
Exhibit 31.1
CERTIFICATION
I, Joseph Onorati, certify that:
1. I have reviewed this quarterly report on Form 10-Q of DeFi Development Corp.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's Board of Directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
| By: | /s/Joseph Onorati | ||||
| Name: | Joseph Onorati | ||||
| Title: | Chief Executive Officer | ||||
| (Principal Executive Officer) | |||||
| Date: | May 19, 2026 | ||||
Exhibit 31.2
CERTIFICATION
I, Fei (John) Han, certify that:
1. I have reviewed this quarterly report on Form 10-Q of DeFi Development Corp.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's Board of Directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
| By: | /s/Fei (John) Han | ||||
| Name: | Fei (John) Han | ||||
| Title: | Chief Financial Officer | ||||
(Principal Financial and Accounting Officer) | |||||
| Date: | May 19, 2026 | ||||
Exhibit 32.1
CERTIFICATION PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
(18 U.S.C. SECTION 1350)
Pursuant to the requirement set forth in Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. § 1350), Joseph Onorati, the Chief Executive Officer, President and Chairman of the Board of Directors of DeFi Development Corp. (the “Company”), hereby certifies that, to the best of his knowledge:
1. The Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2026, to which this Certification is attached as Exhibit 32.1 (the “Periodic Report”), fully complies with the requirements of Section 13(a) or Section 15(d) of the Exchange Act; and
2. The information contained in the Periodic Report fairly presents, in all material respects, the financial condition of the Company at the end of the period covered by the Periodic Report and results of operations of the Company for the period covered by the Periodic Report.
| By: | /s/Joseph Onorati | ||||
| Name: | Joseph Onorati | ||||
| Title: | Chief Executive Officer, President, and Chairman of the Board of Directors | ||||
| (Principal Executive Officer) | |||||
| Date: | May 19, 2026 | ||||
A signed original of this written statement required by Section 906 of 18 U.S.C. § 1350 has been provided to DeFi Development Corp. and will be retained by DeFi Development Corp. and furnished to the Securities and Exchange Commission or its staff upon request.
This certification accompanies the Form 10-Q to which it relates, is not deemed filed with the Securities and Exchange Commission and is not to be incorporated by reference into any filing of the Company under the Securities Act of 1933, as amended, or the Exchange Act (whether made before or after the date of the Form 10-Q), irrespective of any general incorporation language contained in such filing.
Exhibit 32.2
CERTIFICATION PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
(18 U.S.C. SECTION 1350)
Pursuant to the requirement set forth in Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. § 1350), Fei (John) Han, the Chief Financial Officer of DeFi Development Corp. (the “Company”), hereby certifies that, to the best of his knowledge:
1. The Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2026, to which this Certification is attached as Exhibit 32.2 (the “Periodic Report”), fully complies with the requirements of Section 13(a) or Section 15(d) of the Exchange Act; and
2. The information contained in the Periodic Report fairly presents, in all material respects, the financial condition of the Company at the end of the period covered by the Periodic Report and results of operations of the Company for the period covered by the Periodic Report.
| By: | /s/Fei (John) Han | ||||
| Name: | Fei (John) Han | ||||
| Title: | Chief Financial Officer | ||||
| (Principal Financial and Accounting Officer) | |||||
| Date: | May 19, 2026 | ||||
A signed original of this written statement required by Section 906 of 18 U.S.C. § 1350 has been provided to DeFi Development Corp. and will be retained by DeFi Development Corp. and furnished to the Securities and Exchange Commission or its staff upon request.
This certification accompanies the Form 10-Q to which it relates, is not deemed filed with the Securities and Exchange Commission and is not to be incorporated by reference into any filing of the Company under the Securities Act of 1933, as amended, or the Exchange Act (whether made before or after the date of the Form 10-Q), irrespective of any general incorporation language contained in such filing.