Form 8-K
8-K — WhiteFiber, Inc.
Accession: 0001213900-26-084223
Filed: 2026-08-03
Period: 2026-07-30
CIK: 0002042022
SIC: 6199 (FINANCE SERVICES)
Item: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers
Item: Regulation FD Disclosure
Item: Financial Statements and Exhibits
Documents
8-K — ea0299775-8k_whitefiber.htm (Primary)
EX-10.1 — ADVISORY SERVICES AGREEMENT, BY AND BETWEEN WHITEFIBER, INC. AND ERKE HUANG (ea029977501ex10-1.htm)
EX-10.2 — EMPLOYMENT AGREEMENT, BY AND BETWEEN WHITEFIBER, INC. AND JUSTIN ZHU (ea029977501ex10-2.htm)
EX-10.3 — INDEMNIFICATION AGREEMENT, BY AND BETWEEN WHITEFIBER, INC. AND JUSTIN ZHU (ea029977501ex10-3.htm)
EX-10.4 — DIRECTOR AGREEMENT, BY AND BETWEEN WHITEFIBER, INC. AND SAMIR TABAR (ea029977501ex10-4.htm)
EX-10.5 — INDEMNIFICATION AGREEMENT BY AND BETWEEN WHITEFIBER, INC. AND SAMIR TABAR (ea029977501ex10-5.htm)
EX-10.6 — DIRECTOR AGREEMENT, BY AND BETWEEN WHITEFIBER, INC. AND MICHAEL RULF (ea029977501ex10-6.htm)
EX-10.7 — INDEMNIFICATION AGREEMENT BY AND BETWEEN WHITEFIBER, INC. AND MICHAEL RULF (ea029977501ex10-7.htm)
EX-10.8 — PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN WHITEFIBER, INC. AND RASTERWERK LLC (MICHAEL RULF) (ea029977501ex10-8.htm)
EX-10.9 — AMENDMENT TO DIRECTOR AGREEMENT BY AND BETWEEN WHITEFIBER, INC. AND PRUITT HALL (ea029977501ex10-9.htm)
XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K — CURRENT REPORT
8-K (Primary)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported):
July 30, 2026
WHITEFIBER, INC.
(Exact name of Registrant as specified in its charter)
Cayman Islands
001-42780
61-2222606
(State or Other Jurisdiction
of Incorporation)
(Commission File Number)
(IRS Employer
Identification No.)
31 Hudson Yards, Floor 11, Suite 30
New York, NY 10001
(646) 801-0779
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant’s Principal Executive Offices)
Not Applicable
(Former name or former address, if
changed since last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading
Symbol
Name of each exchange on which registered
Ordinary Shares, par value $0.01 per share
WYFI
The Nasdaq Stock Market LLC
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
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. ☐
Item 5.02 Departure of Directors or Certain
Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Resignation of Erke Huang as Chief Financial Officer, Principal
Financial Officer, Principal Accounting Officer and Director
On July 30, 2026, Erke Huang notified the
Board of Directors (the “Board”) of WhiteFiber, Inc. (the “Company”) that he would resign as the Company’s Principal
Financial Officer, Principal Accounting Officer and Chief Financial Officer, effective August 1, 2026.
On July 30, 2026, Mr. Huang notified the Board
that he will also step down as a member of the Board of the Company, effective August 1, 2026, but will transition to Senior Advisor
to the Company and a non-voting observer to the Board, effective August 1, 2026. Upon Mr. Huang’s resignation, his director agreement
with the Company, entered into on May 14, 2025 (the “Director Agreement”) automatically terminated. Mr. Huang will remain
as the Chief Financial Officer of Bit Digital, Inc. Mr. Huang’s transition did not result from any disagreement with the Company
on any matter relating to the Company’s operations, policies or practices. This transition occurred pursuant to the terms and conditions
of the Transition Services Agreement dated July 30, 2025 by and between Bit Digital and the Company which will generally terminate in
August 2027.
Huang Advisory Services Agreement
On July 30, 2026, in connection with Mr.
Huang’s appointment as Senior Advisor to the Company and a non-voting observer to the Board, the Company entered into an Advisory
Services Agreement with Mr. Huang (the “Advisory Services Agreement”). Pursuant to the Advisory Services Agreement, Mr. Huang
will retain Restricted Share Units (“RSUs”) previously awarded to him by the Board, which will vest immediately once certain
specified performance criteria are satisfied during 2026.
Under the Advisory Services Agreement, Mr. Huang
shall be entitled to attend all meetings of the Board and any of its Committees in a non-voting advisory capacity. Mr. Huang will not
receive any additional compensation as an observer to the Board. The Advisory Services Agreement also provides that Mr. Huang will continue
to comply with the Company’s confidentiality policies, insider trading policies, codes of business conduct, and applicable federal
securities laws governing officers of a publicly traded company.
The foregoing is a summary of the Advisory Services Agreement and is
not intended to be a complete description. It is qualified in its entirety by reference to the full text of the Advisory Services Agreement,
which is filed as Exhibit 10.1 hereto, as well as the Director Agreement, the Transition Services Agreement, WhiteFiber 2025 Omnibus Equity Incentive
Plan (the “2025 Plan”) and the related form Restricted Stock Unit Award Agreement, previously filed as exhibits to the Company’s
reports with the Securities and Exchange Commission and incorporated herein by reference in their entirety.
Appointment of Justin Zhu as Chief Financial Officer, Principal
Financial Officer and Principal Accounting Officer
On July 30, 2026, the Board appointed Justin
Zhu, age 45, as the Company’s Chief Financial Officer, Principal Financial Officer, and Principal Accounting Officer effective August 1,
2026. Upon Mr. Zhu’s appointment as Chief Financial Officer of the Company, he resigned from his positions with Bit Digital, described
below.
Mr. Zhu has served as Senior Vice President of
Finance and Chief Accounting Officer of the Company upon completion of the Company’s initial public offering in August 2025. Until
his resignation as of August 1, 2026, Mr. Zhu served as Vice President of Finance with Bit Digital since July 2021 and, effective
as of July 2025, he was also appointed as Principal Financial Officer and Chief Accounting Officer of Bit Digital. From 2015 until July 2021,
Mr. Zhu was a Senior Manager at Ernst & Young US LLP, where he advised Fortune 500 clients on accounting, reporting, and
transaction-related regulatory requirements. He started his career at PricewaterhouseCoopers, LLP, from 2012 to 2015, focusing on
public company audits. Mr. Zhu holds a Bachelor of Business Administration (Honors) in Accounting and a Master of Science in Taxation
from Baruch College. He is a Certified Public Accountant in New York.
Other than as otherwise disclosed herein, there
are no arrangements or understandings between Mr. Zhu and any other persons pursuant to which he was appointed as an officer, no family
relationships requiring disclosure under Item 401(d) of Regulation S-K, and no related-party transactions with Mr. Zhu requiring disclosure
under Item 404(a) of Regulation S-K.
1
Zhu Employment Agreement and Indemnification
Agreement
On July 30, 2026, in connection with the
appointment of Mr. Zhu as the Company’s Chief Financial Officer, Principal Financial Officer and Principal Accounting Officer, the
Company entered into a new employment agreement with Mr. Zhu (the “Employment Agreement”), effective August 1, 2026. Pursuant
to the Employment Agreement, Mr. Zhu will receive $450,000 per annum, with such compensation commencing on August 1, 2026. Mr. Zhu will
be eligible for a cash bonus each calendar year based on such targets and performance criteria as shall be established by the Board of
Directors in its discretion after consultation with Mr. Zhu. The agreement is for a term ending on July 31, 2028 and will renew automatically
for a successive period of one year unless terminated by either party on at least 90 days prior written notice. Mr. Zhu was awarded
a signing bonus of RSUs valued at $100,000 in ordinary shares of the Company. Mr. Zhu shall be entitled to three (3) months’ Base
Salary, plus a pro-rated portion of his most recent annual bonus, in the event he is terminated by the Company without Cause (as defined
in the Employment Agreement), or by Mr. Zhu for Good Reason (as defined in the Employment Agreement), or as a result of expiration of
the employment agreement by the Company’s non-renewal, or upon a Change of Control (as defined in the Employment Agreement).
In addition, pursuant to the Employment Agreement,
Mr. Zhu is entitled to receive RSUs, which will vest immediately once certain specified performance criteria are satisfied during 2026.
The Employment Agreement also provides that Mr.
Zhu will continue to comply with the Company’s confidentiality policies, insider trading policies, codes of business conduct, and
applicable federal securities laws governing officers of a publicly traded company.
On July 30, 2026, effective August 1,
2026, the Company and Mr. Zhu entered into an Indemnification Agreement, as a supplement to and in furtherance of the Company’s
Articles of Association and Certificate of Incorporation and any resolutions adopted pursuant thereto.
The foregoing is a summary of the Employment Agreement
and Indemnification Agreement and is not intended to be a complete description. It is qualified in its entirety by reference to the full
text of the Employment Agreement and Indemnification Agreement, which are filed as Exhibits 10.2 and 10.3 hereto, respectively, as well
as the 2025 Plan and the related form Restricted Stock Unit Award Agreement, previously filed as exhibits to the Company’s reports
with the Securities and Exchange Commission and incorporated herein by reference in their entirety.
Resignation of Director, David Andre
On July 30, 2026, David Andre notified the Company of his
resignation as a member of the Company’s Board, Audit Committee (the “Audit Committee”), Compensation Committee (the
“Compensation Committee”), and Nominating Committee (the “Nominating Committee”), effective August 1, 2026.
Upon Mr. Andre’s resignation, his Director Agreement with the Company, entered into on April 15, 2025, automatically terminated.
Mr. Andre’s resignation did not result from any disagreement with the Company on any matter relating to the Company’s operations,
policies or practices.
Election of Director, Sam Tabar
On July 30, 2026, the Board elected
Sam Tabar to serve as director of the Company, effective August 1, 2026, until the Company’s next annual meeting
of shareholders and until his successor is duly elected and qualified.
Mr. Sam Tabar, age 54, has served as WhiteFiber’s
Chief Executive Officer since February 2025. Mr. Tabar served as Chief Strategy Officer of Bit Digital from March 31, 2021
to March 31, 2023, when he was appointed Chief Executive Officer of Bit Digital. Mr. Tabar was an independent contractor for
Centerboard Securities LLC, as a FINRA registered representative, from June 2020 until his resignation on March 31, 2023. Prior
thereto, Mr. Tabar served as the Co-Founder and Chief Strategy Officer of Fluidity from April 2017 to June 2020. Prior
to this, he served as a Partner to FullCycle Fund from December 2015 to April 2017. Prior to this, he served as Director and
Head of Capital Strategy (Asia Pacific Region) for Bank of America Merrill Lynch from February 2011 to January 2013. Prior to
this, he was Co-Head of Marketing at Sparx Group from March 2003 to 2011. Prior to this, he was an associate at Skadden, Arps, Meagher,
Flom LLP & Affiliates from May 2001 to March 2004. Mr. Tabar received his Bachelor of Arts from Oxford University
in 2000 and received his Master of Law (LL.M.) from Columbia University School of Law in 2001. He was associate editor of the Columbia
Law Business Law Journal in 2000, and is a current member of the New York State Bar Association.
Other than as otherwise disclosed herein, there
are no arrangements or understandings between Mr. Tabar and any other persons pursuant to which he was elected as a director,
no family relationships requiring disclosure under Item 401(d) of Regulation S-K, and no transactions requiring disclosure under Item
404(a) of Regulation S-K.
2
Tabar Director Agreement and Indemnification
Agreement
On July 30, 2026, the Board approved a Director
Agreement (“Director Agreement”) with Mr. Tabar, effective August 1, 2026.
On July 30, 2026, effective August 1,
2026, the Company and Mr. Tabar entered into an Indemnification Agreement, as a supplement to and in furtherance of the Company’s
Articles of Association and Certificate of Incorporation and any resolutions adopted pursuant thereto.
The foregoing is a summary of the Director Agreement
and Indemnification Agreement and is not intended to be a complete description. It is qualified in its entirety by reference to the full
text of the Director Agreement and Indemnification Agreement, which are filed hereto as Exhibit 10.4 and Exhibit 10.5, respectively, as
well as the 2025 Plan and the related form Restricted Stock Unit Award Agreement, previously filed as exhibits to the Company’s
reports with the Securities and Exchange Commission and incorporated herein by reference in their entirety.
Election of Director, Michael Rulf
On July 30, 2026, the Board
elected Michael Rulf to serve as an independent director of the Company, effective August 1, 2026, until the
Company’s next annual meeting of shareholders and until his successor is duly elected and qualified. In addition, Mr. Rulf was
also appointed as a member of the Board’s Compensation Committee and Nominating Committee. The Board also determined that Mr.
Rulf does not have a relationship that would interfere with the exercise of independent judgment in carrying out the
responsibilities of a director and that he is independent within the meaning of the Nasdaq Listing Rule 5605(a)(2).
Michael Rulf, age 55, was elected to serve as
an independent director of WhiteFiber on August 1, 2026. Mr. Rulf has served as Chief Solutions Architect of Syntax Systems Ltd. since
December 2025, where he manages product development initiatives for managed services and cloud providers and supports product lines in
excess of $250 million in revenue. He previously served as Syntax Systems Ltd.’s Americas Chief Technology Officer from 2018 to
2025 and as its Chief Technology Officer from 2012 to 2018. From April 2011 to August 2012, Mr. Rulf served as Vice President, Service
Engineering Technology Office at Oracle Corporation, where he was responsible for providing strategic direction and vision for all Oracle
Cloud Services products and development initiatives, including oversight of cross-functional product management and architecture teams
of more than 200 individuals across domestic and international operations. From January 2008 to April 2011, Mr. Rulf served as Executive
Director of Product Development at AT&T Inc., where he provided strategic direction for all Cloud Services products and managed a
cross-functional organization in excess of 500 individuals. From April 2005 to January 2008, Mr. Rulf served as Vice President of Advanced
Engineering at USi Inc., where he was responsible for the strategic direction and management of all product engineering initiatives. From
1998 to 2005, Mr. Rulf served as Vice President of Research and Development at Core Services Corporation, which was later acquired by
Syntax Systems Limited, where he founded and led the company’s information security consulting practice. From 1995 to 1998, Mr.
Rulf served as Information Services Manager at Production Arts, where he managed systems installation and software development across
the company’s U.S. and international offices.
Mr. Rulf received his Bachelor of Arts in Computer
Science and Engineering Applications for Theatre from The College of Wooster in 1993 and his Master of Fine Arts in Theater Engineering
from Purdue University in 1997. In 2007, Mr. Rulf was recognized as Innovator of the Year by the Oracle Applications User Group. Mr. Rulf
is qualified to serve as a member of the Company’s board of directors due to his more than two decades of executive experience leading
cloud services, managed services, and SaaS platform development at major technology organizations, and brings a valuable strategic perspective
applicable to the Company’s AI infrastructure and cloud services businesses.
Other than as otherwise disclosed herein, there
are no arrangements or understandings between Mr. Rulf and any other persons pursuant to which he was elected as a director,
no family relationships requiring disclosure under Item 401(d) of Regulation S-K, and no transactions requiring disclosure under Item
404(a) of Regulation S-K.
3
Rulf Director Agreement, Indemnification Agreement
and Professional Services Agreement
On July 30, 2026, the Board approved a director
agreement (the “Director Agreement”) with Mr. Rulf, effective August 1, 2026. Pursuant to his Director
Agreement, Mr. Rulf will receive $150,000 per annum, paid on a quarterly basis, as compensation for his service on the Board and its Compensation Committee and Nominating
Committee. On July 30, 2026, the Company and Mr. Rulf entered into an Indemnification Agreement, effective August 1, 2026,
as a supplement to and in furtherance of the Company’s Articles of Association and Certificate of Incorporation and any resolutions
adopted pursuant thereto. On July 30, 2026, the Company and Rasterwerk LLC, a Maryland limited liability company, owned by Michael Rulf,
entered into a Professional Services Agreement, effective August 1, 2026 (the “PSA”). Mr. Rulf will provide consulting services
on an as needed basis at standard rates when services are rendered. The PSA may be terminated by either party upon thirty (30) days’
prior written notice.
The foregoing is a summary of the Director Agreement,
the Indemnification Agreement and the PSA and is not intended to be a complete description. It is qualified in its entirety by reference
to the full text of the Director Agreement, the Indemnification Agreement and the PSA, which are filed hereto as Exhibits 10.6, 10.7 and
10.8, respectively, as well as the 2025 Plan and the related form Restricted Stock Unit Award Agreement, previously filed as exhibits
to the Company’s reports with the Securities and Exchange Commission and incorporated herein by reference in their entirety.
Amendment to Pruitt Hall Director Agreement
Pruitt Hall is a continuing independent
member of the Board and the Audit Committee, Compensation Committee and Nominating Committee. On July 30, 2026, the Board
approved an Amendment to the Director Agreement entered into between the Company and Mr. Hall on May 5, 2025, with the Amendment
having an effective date of August 1, 2026 (the “Amendment”). Pursuant to the Amendment, Mr. Hall’s
director’s compensation was increased from $150,000 to $270,000 per annum paid on a monthly basis. On July 30, 2026, in
connection with Mr. Hall’s continued participation on the Company’s Audit Committee the Professional Services Agreement, by and between Mr. Hall and the Company, entered into in August 2025 was terminated. His Directorship Term (as defined in the Amendment) is for a one-year term automatically renewable
for additional one-year terms, if not otherwise terminated by either party within three months prior to the expiration.
The Board determined that Mr. Hall qualifies for
Audit Committee membership under Nasdaq Listing Rule 5605(a)(2) and the heightened independence standard for Audit Committee members
set out in Rule 10A-3 of the Securities Exchange Act of 1934, as amended. The foregoing is a summary of the Amendment to the Director Agreement and is not intended to be a complete description. It is qualified
in its entirety by reference to the full text of the Amendment to the Director Agreement, which is filed hereto as Exhibit 10.9, as well
as the Director Agreement and the Professional Services Agreement previously filed as exhibits to the Company’s reports with the
Securities and Exchange Commission and incorporated herein by reference in their entirety.
Item 7.01 Regulation FD Disclosure.
The information contained in this Item 7.01 of
this Current Report shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be incorporated
by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific
reference in such filing.
Forward-Looking Statements
This Current Report and the exhibits hereto contain
“forward-looking” statements within the meaning of the federal securities laws that are based on management’s beliefs
and assumptions and on information currently available to management. Forward-looking statements involve known and unknown risks, uncertainties
and other factors that may cause actual events to differ, including those described under “Risk Factors” in the Company’s
Annual Report on Form 10-K for the year ended December 31, 2025 filed with the SEC on March 26, 2026, and in the Company’s subsequent
filings. The Company assumes no obligation to update these statements except as required by law.
4
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits:
Number
Description
10.1
Advisory Services Agreement, by and between WhiteFiber, Inc. and Erke Huang
10.2
Employment Agreement, by and between WhiteFiber, Inc. and Justin Zhu
10.3
Indemnification Agreement, by and between WhiteFiber, Inc. and Justin Zhu
10.4
Director Agreement, by and between WhiteFiber, Inc. and Samir Tabar
10.5
Indemnification Agreement by and between WhiteFiber, Inc. and Samir Tabar
10.6
Director Agreement, by and between WhiteFiber, Inc. and Michael Rulf
10.7
Indemnification Agreement by and between WhiteFiber, Inc. and Michael Rulf
10.8
Professional Services Agreement by and between
WhiteFiber, Inc. and Rasterwerk LLC (Michael Rulf)
10.9
Amendment to Director Agreement by and between WhiteFiber, Inc. and Pruitt Hall
104
Cover Page Interactive Data File (formatted in Inline XBRL and included as Exhibit 101).
5
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
WHITEFIBER, INC.
Date: August 3, 2026
By:
/s/ Samir Tabar
Samir Tabar
Chief Executive Officer
6
EX-10.1 — ADVISORY SERVICES AGREEMENT, BY AND BETWEEN WHITEFIBER, INC. AND ERKE HUANG
EX-10.1
Filename: ea029977501ex10-1.htm · Sequence: 2
Exhibit 10.1
ADVISORY SERVICES AGREEMENT
THIS AGREEMENT is dated the 30th day of July, 2026, and shall become
effective as of the 1st day of August, 2026: (the “Effective Date”)
BETWEEN:
WHITEFIBER, INC., a company organized
under the laws of the Cayman Islands, with its principal place of business at 31 Hudson Yards, 11th Floor, Suite 30, New York, NY 10001
(the “Company”)
- and -
ERKE HUANG. With an address at
6A, 3 Macdonnel Road, Mid-Levels, Hong Kong (the “Advisor”)
WHEREAS: The Company and the Advisor wish
to set out the terms and conditions pursuant to which the Company will engage the services of the Advisor, and the Advisor will provide
such services.
NOW THEREFORE in consideration of the mutual
covenants and agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Engagement of Services
Upon his resignation as Chief Financial
Officer, the Company has requested the Advisor and the Advisor has agreed to act as a Senior Advisor to the Company and as a non-voting
observer to the Board of Directors of the Company (the “Board”) for an indefinite term commencing on August 1, 2026 (the “Term”).
(a ) The
Advisor shall be entitled to attend all meetings of the Board and any of its Committees (whether in person, telephonic or other) in a
non-voting, advisor capacity. The Company will also give notice of Board and Committee meetings to the Advisor at the same time and in
the same manner that it gives notice to Board members and give the Advisor all documents furnished to any Board member in connection with
any Board or Committee meeting. The Company shall allow the Advisor to attend Board or Committee meetings either in person or by telephone
or electronic communication, as the Advisor may elect in its sole discretion.
(b) The
Advisor shall use reasonable efforts to attend all other meetings as requested from time-to-time by the Company’s senior management, and
to render advice, on issues discussed at such meetings. In addition, the Advisor will provide advice to the Company on global expansion,
business development, product, technology, ecosystem development, strategic partnerships, provide strategic introductions, and advise
the Company on finance and other similar matters as they may rise (the “Advisory Services”). When providing the Advisory
Services, Advisor may work from any location Advisor desires (including without limitation Advisor’s home office).
(c) The
Company shall provide the Advisor copies of all notices, minutes, consents and other materials that it provides to the members of the
Board (or Committee, as applicable), except materials that relate to executive sessions of the Board (collectively, “Board Materials”),
including any draft versions, proposed written consents, and exhibits and annexes to any such materials, at the same time and in the same
manner as such information is delivered to the Board members (or Committee members, as applicable), except to the extent the Advisor has
been excluded therefrom pursuant to clause (d) below.
(d) Notwithstanding
anything herein to the contrary, the Company may exclude the Advisor from access to any Board Materials, meeting or portion thereof if
the Board concludes, acting in good faith, upon advice of the Company’s counsel, that (i) such exclusion is reasonably necessary
to preserve the attorney-client or work product privilege between the Company or its affiliates and its counsel; provided, however,
that any such exclusion shall only apply to such portion of such material or meeting which would be required to preserve such privilege;
or (ii) such Board Materials or discussion relates to an existing or potential conflict of interest between the Company or any of
its affiliates and Advisor’s affiliates; or (iii) such portion of a meeting is an executive session limited solely to independent
director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Advisor (assuming such Advisor
were a member of the Board) would not meet the then-applicable standards for independence adopted by the Nasdaq Stock Market LLC, or such
other exchange on which the Company’s securities are then traded.
2. Compensation
As compensation for the performance of the Advisory Services,
the Advisor shall retain Restricted Share Units (“RSUs”) previously awarded to him which will vest immediately once the following
performance criteria are satisfied:
Milestone
Test
WYFI Shares Award (USD)
Market Cap—Level 1
USD 1.0B market cap (last five trading day average in 3rd or 4th quarters)
USD 100,000
Market Cap—Level 2
USD 1.4B market cap (last five trading days average Year End)
USD 300,000
Market Cap—Level 3
USD 2.0B market cap (last five trading day average Year End)
Additional USD 500,000
Financing Activity
Per every USD 5M financing raised (tested in 3rd and 4th quarter
USD 25,000 per tranche
2
The Company will reimburse Advisor for
reasonable business, commuting, travel and lodging expenses incurred in connection with attending meetings or while performing Advisory
Services for the Company. Nothing in this Agreement precludes Advisor and Company entering into a separate agreement should the parties
mutually agree.
3. Termination
Following the Effective Date, this Agreement,
including the Advisory Services provided hereunder, may be terminated by either party hereto for any reason upon written notice to the
other party hereto. If this Agreement is terminated by the Company pursuant to this Section 3, the Advisor shall receive immediate vesting
of any equity compensation granted during the Term.
4. Confidential Information
All information,
including verbal information and written materials, provided to an Advisor in accordance with Sections 1(a), 1(b) and 1(c) shall
be treated as Confidential Information (as defined below). The Company shall be entitled to receive Confidential Information from the
Advisor and the Company agrees not to disclose any Confidential Information to any person, except as set forth below.
Advisor hereby agrees at all times during
and after the Term, to hold in the strictest confidence, and not to use, except for the benefit of the Company, or to disclose to any
person, corporation or other entity without prior written consent of the Company, any Confidential Information, except as authorized by
the Company. “Confidential Information” for this purpose means any proprietary or confidential information of the Company, its
affiliates, or their respective clients, customers or partners, including, without limitation, technical data, trade secrets, research
and development information, product plans, services, customer lists and customers, supplier lists and suppliers, software developments,
inventions, processes, formulas, technology, designs, hardware, configuration information, personnel information, marketing, finances,
information about the suppliers, joint ventures, franchisees, distributors and other persons with whom the Company does business, information
regarding the skills and compensation of employees of the Company or other business information disclosed to Advisor by or obtained by
Advisor from the Company, its affiliates, or their respective clients, customers or partners, either directly or indirectly, in writing,
orally or otherwise, if specifically indicated to be confidential or reasonably expected to be confidential. Notwithstanding the foregoing,
Confidential Information shall not include information that: (i) was or is known to Advisor prior to the Effective Date (or prior
to disclosure, if later); (ii) prior to disclosure, is or was known or generally available to the public; (iii) after disclosure,
become known to the public through no act or omission of Advisor or any other person or entity with an obligation of confidentiality to
the Company; (iv) is or was independently developed by Advisor, without the use of or reference to Confidential Information of the
Company; or (v) is required to be disclosed pursuant to an applicable law, rule, regulation, government requirement or court order,
or the rules of any stock exchange (provided however, Advisor shall advise the Company of such required disclosure promptly upon learning
thereof in order to afford the Company a reasonable opportunity to contest, limit and/or assist Advisor in crafting such disclosure and
shall cooperate with the Company concerning any such attempt to contest, limit or craft the disclosure).
3
5. Property of the Company
Advisor understands that all documents
(including computer records, facsimile and e-mail but excluding Advisor’s personal email and other electronic communication and messaging
accounts) and materials created, received or transmitted in connection with its Advisory Services or using the facilities of the Company
are property of the Company and subject to inspection by the Company at any time. Upon request of the Company following termination of
this Agreement, Advisor will promptly deliver to the Company all material documents pertaining to its Advisory Services to the Company.
Advisor is authorized to use all work product, intellectual property and materials created, received or transmitted in connection with
his work or using the facilities of the Company and will not be restricted from or owe any royalties or other compensation as a result
of Advisor’s incorporation of such materials in his work.
6. Nature of Relationship
The parties acknowledge and agree
as follows: The relationship of the Advisor to the Company is that of independent contractor: the Advisor is no longer an
officer, employee or agent of the Company; the Advisor and its Representative have no express or implied executive duties or powers,
have no ability to bind the Company to any agreement or undertaking, and owe no fiduciary duties to the Company or its shareholders;
and the Advisor is not a partner with the Company. Nothing herein will be construed so as to make the Company and the Advisor
partners or joint venturers; to make the Advisor an officer, employee or agent of the Company; or to impose any liability as
partner, joint venturers, employer or employee or principal or agent on the Advisor or the Company.
7. Notice
Any written notice required or permitted
under this Agreement shall be given to the other party at the following address:
If to the Company:
WhiteFiber, Inc.
31 Hudson Yards, 11th Floor, Suite 30
New York, NY 10001
If to the advisor, to the address for notice on the Preamble
to this Agreement.
4
8. Public Affiliation
The Advisor agrees and consents to being
named as a Senior Advisor and as a member of the Company’s board of advisors on the Company website and other promotional materials, which
may include a picture and biography of the Advisor. The Company agrees and consents that Advisor can post or publicize his relationship
with the Company and can publicly use the title Senior Advisor.
9. Conflicts with this Agreement
By signing this Agreement, the Advisor
represents and warrants that the Advisor is not bound by any restrictive covenant or other legal obligation with its current employer,
any former employer or any other third party that would prevent the Advisor from accepting these terms and conditions or that would reasonably
interfere with the Advisor’s ability to perform the Advisory Services. Any restrictive covenant or other legal obligation to the Company
that would, or would appear to, interfere with Advisor’s ability to perform the Advisory Services is hereby expressly waived by the Company,
and this representation and warranty will not apply to any conflict or apparent conflict of the Advisor’s obligations under this Agreement
with any other obligation of the Advisor to the Company.
10. Limit Liability
In no event shall either party to this
Agreement be liable to the other party or to any third party for any indirect, incidental, special or consequential damages, or damages
for lost profits or loss of business, however caused and under any theory of liability, whether based in contract, tort or other theory
of liability, regardless of whether such party was advised of the possibility of such damage and notwithstanding the failure of essential
purpose of any limited remedy. In no event shall the Advisor’s liability arising out of or in connection with this Agreement exceed the
amounts paid by the Company to the Advisor under this Agreement for the services, deliverables or work product giving rise to such liability.
The Company shall maintain a directors’
and officers’ liability insurance policy covering the Advisor in an amount and on terms and conditions (including without limitation,
with respect to scope, exclusions, sub-amounts and deductibles) reasonably acceptable to the Advisor and comparable to coverage for officers
of the Company.
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11. Representations and Warranties
The Advisor represents, warrants, and
covenants that (i) the Advisory Services will not infringe or misappropriate any intellectual property right of any person or entity;
(ii) the Advisor has the full power and authority to enter into this Agreement; and (iii) the Advisor will comply with all laws
in performing its obligations under this Agreement.
12. Assignment
Neither party to this Agreement may
assign any of their rights, benefits or obligations in this Agreement without the prior written consent of the other party. This Agreement
shall be binding upon and inure to the benefit of the legal representatives, successors, and permitted assignees of the parties hereto.
13. Headings
The inclusion of headings in this Agreement is for convenience
of reference only and will not affect the construction or interpretation hereof.
14. Invalidity of Provisions
The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability of any other provision of the Agreement and the balance
of the Agreement shall be construed as though such invalid or unenforceable provision were severed and omitted.
15. Entire Agreement
This Agreement contains the entire understanding
between the Company and the Advisor with respect to the subject matter hereof, and supersedes any prior agreement, undertaking, representation
or notification whether oral or in writing.
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16. Waiver, Amendment
Except as expressly provided in this
Agreement, no amendment or waiver of this Agreement will be binding unless executed in writing by the party to be bound thereby. No waiver
of any provision of this Agreement will constitute a waiver of any other provision nor will any waiver of any provision of this Agreement
constitute a continuing waiver unless otherwise expressly provided.
17. Governing Law
This Agreement will be governed by the
laws of New York and all disputes related to this Agreement shall be subject to the exclusive jurisdiction of Federal and State courts
of New York.
18. Survival
Upon termination of this Agreement,
the terms and conditions that impose obligations that extend beyond the termination of this Agreement shall survive and can be enforced
by the Company in a court of competent jurisdiction.
19. Counterparts
This Agreement may be signed in counterparts
and each of such counterparts will constitute an original document and such counterparts, taken together, will constitute one and the
same instrument.
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IN WITNESS WHEREOF the Company and the Advisor have
executed this Agreement as of the date first above written.
WHITEFIBER, INC.
By:
/s/ Samir Tabar
Name:
Samir Tabar
Title:
Chief Executive Officer
Advisor
By:
/s/ Erke Huang
Erke Huang
[Signature page to Erke Huang Advisory Services
Agreement]
8
EX-10.2 — EMPLOYMENT AGREEMENT, BY AND BETWEEN WHITEFIBER, INC. AND JUSTIN ZHU
EX-10.2
Filename: ea029977501ex10-2.htm · Sequence: 3
Exhibit 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement
(“Agreement”) is entered into effective as of August 1, 2026 (the “Effective Date”)
by and between WhiteFiber, Inc., incorporated under the laws of the Cayman Islands (the “Company”), and Justin
Zhu (“Executive”). For purposes of this Agreement, the Company and Executive are each a “party”
and, collectively, the “parties”. In consideration of the mutual promises and covenants contained in this Agreement,
the parties agree as follows:
1. Agreement
to Employ. The Company desires to secure the services of Executive as its Chief Financial Officer (“CFO”).
The Company and Executive desire to enter into this Agreement to, among other things, set forth the terms of Executive’s employment
with the Company.
2. Term
of Agreement. Subject to earlier termination pursuant to Section 8 below, the employment relationship created hereunder shall
continue from the Effective Date until July 31, 2028 (the “Initial Term”). The term of employment shall, on
each annual anniversary of the Effective Date thereafter, be deemed to be automatically renewed and extended, upon the same terms and
conditions, for a successive period of one year (each a “Renewal Term”), unless either party, at least ninety
(90) calendar days prior to the expiration of the Initial Term or any Renewal Term, shall give written notice to the other of its or his
intention not to renew such employment term (a “Non-Renewal Notice”). The period during which Executive is employed
under this Agreement (including any Renewal Terms) will be referred to as the “Employment Period.”
3. Surviving
Agreement Provisions. Notwithstanding any provision of this Agreement to the contrary, the parties’ respective rights and
obligations under Sections 6 through 12 shall survive any termination or expiration of this Agreement or the termination of Executive’s
employment for any reason whatsoever.
4. Services
to be Provided by Executive.
(a) Position
and Responsibilities. Subject to the Agreement’s terms, Executive agrees to serve the Company as its CFO. The Board of Directors
of the Company (the “Board”) shall take all action necessary to appoint Executive as CFO effective as of the
Effective Date. Executive shall have the duties and privileges customarily associated with an executive occupying such role at a publicly-traded
company, and shall have all powers and authority customarily associated with such role, or necessary and/or desirable to protect and advance
the best interests of the Company. Unless agreed to in writing by Executive, Executive shall also be Chief Financial Officer of each of
the Company’s subsidiaries. During the Term, Executive shall be permitted to engage in such other business, personal, charitable,
civic and other activities as Executive desires; provided that such activities do not directly compete with the business of the Company.
(b) Executive’s
Office Location. Executive’s primary office location shall be New York, NY; provided, however, that Executive may work out of
any location Executive desires (including without limitation Executive’s home).
5. Compensation
for Services. As compensation for the services Executive will perform under this Agreement during the Employment Period, the Company
will pay Executive the following:
(a) Base
Salary. Executive shall receive an annual salary of four hundred fifty thousand dollars ($450,000), payable no less frequently
than semi-monthly in accordance with the Company’s regular payroll practices (the “Base Salary”).
The Base Salary may be increased in the discretion of the Board, but not decreased. If increased, the increased amount shall
constitute Base Salary for purposes of this Agreement. During the Renewal Term, Executive shall receive the same rate of Base Salary
as in effect immediately prior to the commencement of such Renewal Term. Executive’s compensation shall be subject to all
appropriate federal and state withholding taxes.
(b) Bonuses.
Executive shall be eligible for a cash bonus each calendar year during the Employment Period (each a “Bonus Year”)
based on a bonus program to be established by the Board with input from Executive. It is expected that such bonus program will provide
Executive a cash bonus each Bonus Year, in the discretion of the Board, based on such targets and performance criteria as shall be established
by the Board in its discretion after consultation with Executive. Any bonus with respect to a Bonus Year shall be paid to Executive no
later than April 15th of the year following the Bonus Year.
(c) Equity
Award. Executive is hereby awarded $100,000 in value of restricted stock units (“RSUs”) valued at
the closing price of the Company’s ordinary share on the date prior to the Effective Date, which shall be subject to the terms and
conditions of the restricted stock unit award agreement attached hereto as Exhibit A (the “RSU Award Agreement”).
Executive shall also be awarded the following RSU awards for the third and fourth calendar quarters of 2026, which shall vest immediately
once granted:
Milestone
Test
WYFI Shares
Award (USD)
Market Cap—Level 1
USD 1.0B market cap (last five trading day average (tested quarterly))
USD 100,000
Financing Activity
Per every USD 10M financing raised (tested quarterly)
USD 25,000 per tranche
(d) Vacation.
Executive shall accrue four (4) weeks’ vacation on the Effective Date and on the first day of each calendar year during the Employment
Period thereafter. Vacation days shall be taken at such times and intervals as shall be determined by Executive, subject to the reasonable
business needs of the Company.
(e) Reimbursement
of Ordinary Business Expenses. The Company shall reimburse Executive for all reasonable business expenses in accordance with Company
policies and procedures as may be in effect from time to time.
(f) Life
Insurance. During the Employment Period, the Company will pay or reimburse Executive for the cost of a life insurance policy having
a face amount of $2,000,000. Executive shall be the owner of such policy and shall be entitled to name the beneficiary(ies) thereof.
(g) Other
Benefits and Perquisites. As soon as practicable following the Effective Date, the Company shall establish, and Executive shall be
entitled to participate in, health, dental and vision coverage plans reasonably acceptable to Executive. Executive shall be entitled to
participate in all benefit plans and arrangements provided by the Company for all employees generally, and for the Company’s executive
employees, including plans and arrangements providing health, disability, dental, vision and retirement benefits or coverage.
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6. Confidential
Information.
(a) Confidential
Information. Executive hereby agrees at all times during and after the Employment Period, to hold in the strictest confidence, and
not to use, except for the benefit of the Company, or to disclose to any person, corporation or other entity without prior written consent
of the Company, any Confidential Information. “Confidential Information” for this purpose means any proprietary
or confidential information of the Company, its affiliates, or their respective clients, customers or partners, including, without limitation,
technical data, trade secrets, research and development information, product plans, services, customer lists and customers, supplier lists
and suppliers, software developments, inventions, processes, formulas, technology, designs, hardware, configuration information, personnel
information, marketing, finances, information about the suppliers, joint ventures, franchisees, distributors and other persons with whom
the Company does business, information regarding the skills and compensation of other employees of the Company or other business information
disclosed to Executive by or obtained by Executive from the Company, its affiliates, or their respective clients, customers or partners,
either directly or indirectly, in writing, orally or otherwise, if specifically indicated to be confidential or reasonably expected to
be confidential. Notwithstanding the foregoing, Confidential Information shall not include information that: (i) prior to disclosure,
is or was known or generally available to the public; (ii) after disclosure, become known to the public through no act or omission
of Executive or any other person or entity with an obligation of confidentiality to the Company; (iii) is or was independently developed
by Executive, without the use of or reference to Confidential Information of the Company; or (iv) is required to be disclosed pursuant
to an applicable law, rule, regulation, government requirement or court order, or the rules of any stock exchange (provided however, Executive
shall advise the Company of such required disclosure promptly upon learning thereof in order to afford the Company a reasonable opportunity
to contest, limit and/or assist Executive in crafting such disclosure and shall cooperate with the Company concerning any such attempt
to contest, limit or craft the disclosure).
(b) Company
Property. Executive understands that all documents (including computer records, facsimile and e-mail but excluding Executive’s
personal email and other electronic communication and messaging accounts) and materials created, received or transmitted in connection
with his work or using the facilities of the Company are property of the Company and subject to inspection by the Company at any time.
Upon request of the Company following termination of Executive’s employment with the Company, Executive will promptly deliver to
the Company all material documents pertaining to his work with the Company.
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7. Non-Solicitation.
In consideration for (i) the Company’s promise to provide Confidential Information to Executive and Executive’s return
promise to hold the Company’s Confidential Information in trust, (ii) the substantial economic investment made by the Company
in the Confidential Information and goodwill of the Company, and the business opportunities disclosed or entrusted to Executive, (iii) the
compensation and other benefits provided by the Company to Executive, and (iv) the Company’s employment of Executive pursuant
to this Agreement, and to protect the Company’s Confidential Information, customer relationships, and goodwill, Executive agrees
that, during the Employment Period and for a period of twelve (12) months immediately following the date of Executive’s termination
from employment, other than in connection with his authorized duties under this Agreement, Executive shall not, directly or indirectly,
either as a principal, manager, agent, employee, consultant, officer, director, stockholder, partner, investor, owner, or lender or in
any other capacity, and whether personally or through other persons or entities:
(i) Solicit
business from, interfere with, attempt to solicit business with, or do business with any customer of the Company with whom the Company
did business or who the Company solicited within the preceding twelve (12) months, and who or which Executive contacted, called on, serviced
or did business with during Executive’s employment at the Company (and not at any time prior to commencement of the Employment Period).
This restriction in this Section 7(a)(i) only prohibits soliciting, attempting to solicit or transacting business for any person or entity,
other than the Company, engaged in the business of mining bitcoin; or
(ii) Solicit,
induce or attempt to solicit or induce, engage or hire, on behalf of himself or any other person or entity, any person who is an employee
or consultant of the Company or who was employed by the Company within the preceding twelve (12) months (general advertisements and similar
solicitations not directed at any specific individuals shall not be considered solicitation for this purpose).
The provisions contained in
this Section 7 are considered reasonable by Executive and the Company. In the event that any such provisions should be found to be void
under applicable laws but would be valid if some part thereof was deleted or the period or area of application reduced, such provisions
shall apply with such modification as may be necessary to make them valid and effective. In the event Executive breaches this Section
7, Executive acknowledges that there will be no adequate remedy at law, and the Company shall be entitled to injunctive relief and/or
a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate). In any event, the
Company shall have right to seek all remedies permissible under applicable law.
8. Termination
of Agreement. The employment relationship between Executive and the Company created under this Agreement shall terminate
before the expiration of the stated term of this Agreement upon the occurrence of any one of the following events:
(a) Death.
Executive’s employment shall be terminated effective on the death of Executive.
(b) Termination
by the Company for Cause. The Company may terminate Executive’s employment hereunder for Cause at any time, subject to the notice
requirements below. For purposes of this Agreement, the term “Cause” shall mean any of the following:
(i) Executive
shall have been convicted of, or have entered a plea of nolo contendere or the equivalent in respect of a charge of, any criminal act
constituting a felony under the laws of the United States or any state or political subdivision thereof;
(ii) any
conduct, action or behavior by Executive involving gross negligence or willful misconduct that has a material adverse effect on the reputation
or interests of the Company; or
(iii) any
action or behavior by Executive involving fraud against the Company or to which the Company is a party.
(iv) the
Executive’s repeated or willful failure to perform his material duties as may be required by the Company, which has not been remedied
within thirty (30) days receipt of written notice of such breach;
(v) a
material breach by the Executive of this Agreement;
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(vi) the
Executive’s unauthorized use, misappropriation, destruction or diversion of any tangible or intangible asset or property by the
Executive of property belonging to the Company and/or any of its clients, or of any corporate opportunity of the Company (including, without
limitation, the Executive’s improper use or disclosure of confidential or proprietary information of the Company and the Company’s
trading/working capital or other funds, whether or not allocated to the Executive);
(vii) the
Executive’s intoxication with alcohol or drugs while on Company premises during its regular business hours to such a degree that,
in the Company’s sole but reasonable discretion, the Executive is abusive or incapable of performing his duties and responsibilities
under this Agreement;
For purposes hereof,
an act or omission shall not be deemed to be willful if taken or omitted in the good faith belief that such act or omission was in, or
not opposed to, the best interests of the Company. Anything herein to the contrary notwithstanding, the Executive’s employment shall
not be terminated for Cause, within the meaning of clause (ii) above unless written notice stating the basis for the termination is provided
to the Executive and the Executive (together with his own counsel) has an opportunity to be heard before the Board and, after such hearing,
a majority of the Board duly votes to terminate him for Cause. No event or condition under clauses (i) or (ii) above shall constitute
Cause unless such written notice is provided to Executive within thirty (30) days after any member of the Board first has knowledge of
such event or condition. No assertion of Cause under clauses (ii) or (iii) may be made while a basis for the Executive to resign for Good
Reason (as defined below) exists or on or after Executive has notified the Company that a basis for resignation for Good Reason exists.
(c) Termination
by the Company Without Cause. The Company may terminate Executive’s employment at any time upon thirty (30) days written notice
to Executive without Cause.
(d) Termination
by Executive. Executive may terminate his employment for any reason at any time upon thirty (30) days written notice to the Company.
The Executive may also terminate his employment for “Good Reason” (as defined herein). For purposes of this Agreement, the
term “Good Reason” shall mean the occurrence of any of the following without the Executive’s prior written
consent:
(i) a
material diminution of the Executive’s duties or responsibilities as set forth herein;
(ii) a
material interference with the Executive’s ability to carry out his duties and responsibilities hereunder, including without limitation
the Company’s failure or refusal to provide Executive with sufficient resources to carry out his duties and responsibilities hereunder;
(iii) Executive’s
inability to certify any financial statements or governmental filing due to the Company’s failure or refusal to provide adequate
accounting, legal or other professional resources;
(iv) the
assignment to the Executive of duties which are materially inconsistent with his duties or which materially impair the Executive’s
ability to function as the CFO;
5
(v) a
change in the reporting structure so that (A) the Executive does not report solely and directly to the Board or (B) any employee of the
Company or any of the Company’s subsidiaries does not report directly or indirectly to the Executive; or
(vi) any
breach (not otherwise included or specified in this Section 8(d)) by the Company of any material provision of this Agreement, the RSU
Award Agreement, the Indemnification Agreement set forth as Exhibit B hereto, or any other agreement between the Company and Executive,
including without limitation the failure of the Company to pay or provide the compensation and benefits provided under Section 5 hereof
or a failure of the Company to timely fulfill its obligations under Section 10(j) of this Agreement or Section 11 of the Indemnification
Agreement.
Notwithstanding
anything contained herein to the contrary, the Executive’s employment shall not be terminated for Good Reason unless (i) the
Executive provides written notice to the Company of the event or condition alleged to constitute Good Reason stating the basis of such
termination and the Company is given thirty (30) days after receipt of such notice to cure the action that is the basis of such claim,
and if the Company fails to cure such action to the reasonable satisfaction of Executive within such thirty (30) day period, the Executive
actually terminates his employment within thirty (30) days following such thirty (30) day period.
(e) Notice
of Termination. Any termination of the Executive’s employment hereunder (other than as a result of the death of the Executive
or as a result of the expiration of the Initial Term or any Renewal Term if either party has given a Non-Renewal Notice to the other),
whether by the Company or by the Executive, shall be communicated by written Notice of Termination to the other party hereto. For purposes
of this Agreement, a “Notice of Termination” shall mean a written notice that shall indicate (i) the specific
termination provision in this Agreement relied upon and, other than in the case of a resignation by the Executive without Good Reason,
shall set forth in reasonable detail the basis for termination of the Executive’s employment under the provision so indicated and
(ii) the date of termination.
9. Compensation
Upon Termination for Any Reason. Upon the termination of Executive’s employment under this Agreement, Executive shall
be entitled to the following:
(a) Termination
by the Company for Cause or as a Result of the Resignation of Executive. In the event that Executive’s employment is terminated
by the Company for Cause, or as a result of Executive’s resignation, the Company shall, in addition to any benefits provided under
any employee benefit plan or program of the Company, pay the following amounts to Executive (or his estate or other legal representative,
as the case may be) within the time period required by applicable law (and in all events within thirty (30) days of such termination):
(i) any
accrued but unpaid Base Salary (as determined pursuant to Section 5(a) hereof) for services rendered to the date of termination;
(ii) any
earned, but unpaid, bonus for services rendered during the year preceding the date of termination;
(iii) any
accrued, unused vacation or paid time off; and
(iv) any
accrued but unpaid expenses required to be reimbursed pursuant to Section 5(e) hereof.
The amounts described
in clauses (i) through (iv) above, together with benefits provided under any employee benefit plan or program of the Company, shall be
referred to herein as the “Accrued Obligations.”
(b) Termination
by Reason of Death of Executive. In the event that Executive’s employment is terminated by reason of Executive’s death,
the Company shall pay the Accrued Obligations to Executive’s estate within the time period required by applicable law.
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(c) Termination
by the Company Without Cause, or by the Executive for Good Reason, or Upon Non-Renewal by the Company or Upon a Change of Control.
In the event that Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason, or as a
result of expiration of the Employment Period by reason of the Company’s issuance of a Non-Renewal Notice, or upon a Change of Control
the Company shall pay and/or provide the following amounts to Executive:
(i) the
Accrued Obligations within the time period required by applicable law (and in all events within thirty (30) days of such termination),
except for employee benefits that shall be provided in accordance with the terms applicable to such benefits; and
(ii) all
of the following:
(1) The
Company shall pay Executive a single lump sum cash amount on the next regularly scheduled payroll date following Executive’s date
of termination, in an amount equal to three (3) months of Base Salary.
(2) The
Company shall pay Executive a single lump sum cash amount on the next regularly scheduled payroll date following Executive’s date
of termination equal to a pro-rata portion (based on the number of days elapsed in the applicable fiscal year of the Company until the
date of Executive’s date of termination divided by 365) of Executive’s most recent annual bonus, if any.
(3) All
equity awards granted to Executive, including without limitation the RSUs awarded pursuant to Section 5(c) hereof, shall be fully and
immediately vested, to the extent not previously vested. To the extent that Executive holds any stock options or other stock rights issued
by the Company, such options or rights shall remain exercisable for the full (10-year) term thereof. Shares with respect to RSUs that
become vested hereunder shall be delivered to Executive within ten (10) days following Executive’s date of termination.
(4) The
Company shall provide Executive with continued healthcare coverage under the Company’s group health plan (or comparable coverage)
for twelve (12) months following Executive’s date of termination; provided, however, that if the Executive’s employment terminates
under the circumstances of this Section 9(c) in connection with, or within twelve (12) months following, a Change in Control, then the
Company shall provide Executive with continued healthcare coverage under the Company’s group health plan (or comparable coverage)
for a period of twenty-four (24) months following Executive’s date of termination.
Provided, however,
that Executive will only receive the benefits discussed in Section 9(c)(ii) following his execution (and non-revocation, if applicable)
of a valid, customary release agreement in a form reasonably acceptable to the Company and Employee (a “Release Agreement”).
For purposes of this Agreement:
(i) a
“Change of Control” shall be deemed to have occurred if any one of the following events shall occur:
(1) Any
“Person” (as defined below) becomes the beneficial owner (as defined in Rule 13(d)-3 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”)) of shares of Common Stock representing more than 50% of the total number
of votes that may be cast for the election of directors of the Company;
(2) The
consummation of any merger or other business combination of the Company, sale of all or substantially all of the Company’s assets
or combination of the foregoing transactions (a “Transaction”), other than a Transaction involving only the
Company and one or more of its subsidiaries, or a Transaction immediately following which the shareholders of the Company immediately
prior to the Transaction continue to have a majority of the voting power in the resulting entity;
(3) Within
any 12-month period beginning on or after the Effective Date, the persons who were directors of the Company immediately before the beginning
of such period (the “Incumbent Directors”) shall cease (for any reason other than death) to constitute at least
a majority of the Board (or the board of directors of any successor to the Company); provided that any director who was not a director
as of the date hereof shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation
of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually or by prior
operation of the foregoing unless such election, recommendation or approval was the result of an actual or threatened election contest
of the type contemplated by Rule 14a-11 promulgated under the Exchange Act or any successor provision; or
(4) the
shareholders of the Company approve a plan of complete liquidation or dissolution of the Company.
(ii) “Person”
shall mean any individual, partnership, firm, trust, corporation, limited liability company or other similar entity. When two or more
Persons act as a partnership, limited partnership, syndicate or other group for the purpose of acquiring, holding or disposing of Common
Stock, such partnership, limited partnership, syndicate or group shall be deemed a “Person”.
7
10. Other
Provisions.
(a) Remedies;
Legal Fees. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement, specifically, to recover
damages by reason of any breach of any provision of this Agreement and to exercise all other rights existing in its favor. The prevailing
party shall be entitled to reasonable attorney’s fees.
(b) Limitations
on Assignment. No rights or obligations of the Company under this Agreement may be assigned or transferred by the Company without
the Executive’s prior written consent.
(c) No
Mitigation or Offset. In the event of termination of the Executive’s employment for any reason, the Executive shall be under
no obligation to seek other employment and there shall be no offset against amounts due to him on account of any remuneration or benefits
from any subsequent employment that he may obtain.
(d) Notices.
Any notice or other communication required, permitted or desired to be given under this Agreement shall be deemed delivered when personally
delivered; the business day, if delivered by overnight courier; the same day, if transmitted by facsimile on a business day before noon,
Eastern Standard Time; the next business day, if otherwise transmitted by facsimile; and the third business day after mailing, if mailed
by prepaid certified mail, return receipt requested, as addressed or transmitted as follows (as applicable):
If to Executive,
at the address set forth below Executive’s signature hereto.
If to the Company:
WhiteFiber, Inc.
31 Hudson Yards, 11th Floor,
Suite 30
New York, New York
10003
Attn: Sam Tabar
Tel: (646) 801-0779
Email: sam@whitefiber.com
With a copy to:
Elliot H. Lutzker,
Esq.
Davidoff Hutcher &
Citron LLP
605 Third Avenue,
34th Floor
New York, New York
10158
Tel: (646) 428-3210
Fax: (212) 286-1884
Email: ehl@dhclegal.com
(e) GOVERNING
LAW; VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving
effect to the conflict of laws (rules) or choice of laws (rules) thereof. The exclusive venue for all suits or proceedings arising from
or related to this Agreement shall be in a court of competent jurisdiction located in New York City, New York.
(f) Waiver.
A party’s waiver of any breach or violation of any Agreement provisions shall not operate as, or be construed to be, a waiver of
any later breach of the same or other Agreement provision.
(g) Entire
Agreement, Amendment, Binding Effect. This Agreement constitutes the entire agreement between the parties concerning the subject
matter in this Agreement. No oral statements or prior written material not specifically incorporated in this Agreement shall be of any
force and effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated in this Agreement by written
amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by each party
to this Agreement. This Agreement will be binding on and inure to the benefit of the parties hereto and their respective successors, heirs,
legal representatives, and permitted assigns (if any). This Agreement supersedes any prior agreements between Executive and the Company
concerning the subject matter of this Agreement.
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(h) Company’s
Non-Disclosure Obligation. The Company shall, and shall cause its and its affiliates’ and their respective directors, officers,
employees, agents and representatives, to keep and maintain this Agreement and the Exhibits hereto confidential and shall not, without
the advance written consent of Executive, disclose the Agreement and such Exhibits except (i) to the extent required to be disclosed
pursuant to an applicable law, rule, regulation, government requirement or court order, or the rules of any stock exchange, or (ii) as
reasonably required to administer and effectuate the terms hereof or thereof or to enforce the terms hereof or thereof; provided, however,
that the Company may disclose the terms of this Agreement and the Exhibits hereto to members of the Board, the Company’s Chief Financial
Officer, the Company’s attorneys, accountants and other professionals and anyone else from whom the Company obtains a written non-disclosure
agreement, provided that all such individuals (and their firms if applicable) are subject to written confidentiality obligations with
respect to the Agreement and such Exhibits that are at least as strong as those set forth herein.
(i) Counterparts.
This Agreement may be executed in counterparts, with the same effect as if both parties had signed the same document. All such counterparts
shall be deemed an original, shall be construed together and shall constitute one and the same instrument.
(j) Indemnification;
D&O Coverage. The Company and Executive shall enter into and execute the Indemnification Agreement set forth in Exhibit B
hereto. The Company shall maintain a directors’ and officers’ liability insurance policy covering Executive in an amount and
on terms and conditions (including without limitation, with respect to scope, exclusions, sub-amounts and deductibles) reasonably acceptable
to Executive. The Company shall further secure its obligations under the Indemnification Agreement through such means as the Executive
reasonably requires, and in such sums as Indemnitee shall reasonably require, including without limitation through an irrevocable bank
line of credit, letter(s) of credit, surety bond, funded trust or other collateral or retainer to counsel of Executive’s choosing.
The Company shall bear all costs incurred by the Company and Executive in connection with establishing any such arrangements. Any such
security, once provided, may not be revoked or released without the prior written consent of Executive. The Company shall provide such
security within sixty (60) days after a request for such security is made by Executive.
(k) Attorney’s
Fees. The Company agrees to pay or reimburse Executive for reasonable attorney’s fees incurred by Executive in connection with
this Agreement and the related agreements and matters. Such payment will be made promptly following execution of this Agreement.
11. Transferable
Shares. The Company shall take all measures needed to ensure that all ordinary shares delivered by the Company to Executive upon
vesting of the RSUs or in connection with any other equity awards made to Executive by the Company shall (i) not contain any legends,
and (ii) shall be freely transferable (including in publicly traded open market transactions) by Executive upon receipt.
9
12. Section
280G of the Code.
(a) Notwithstanding
any other provision of this Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits
provided or to be provided by the Company or its affiliates to Executive or for Executive's benefit pursuant to the terms of this Agreement
or otherwise, including without limitation the RSU Award Agreement (“Covered Payments”) constitute parachute
payments (“Parachute Payments”) within the meaning of Section 280G of the Internal Revenue Code of 1986, as
amended (the “Code”) and will be subject to the excise tax imposed under Section 4999 of the Code (or any successor
provision thereto) or any interest or penalties with respect to such excise tax (collectively, the “Excise Tax”),
then the Company shall pay to Executive, no later than the time the Excise Tax is required to be paid by Executive or withheld by the
Company, an additional amount (the “Gross-up Payment”) equal to the sum of the Excise Tax payable by Executive,
plus the amount necessary to put Executive in the same after-tax position (taking into account any and all applicable federal, state,
local and foreign income, employment and excise taxes (including the Excise Tax and any income and employment taxes imposed on the Gross-up
Payment)) that Executive would have been in if Executive had not incurred any tax liability under Section 4999 of the Code.
(b) The
determination of whether a Gross-up Payment will be required, and of the amount of such Gross-up Payment, shall initially be made (at
the Company’s expense) by a nationally recognized registered public accounting firm reasonably acceptable to the Company and Executive
prior to the time the Excise Tax is required to be paid by Executive or withheld by the Company, and shall be made applying the assumptions
that Executive will pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the
calendar year in which the Gross-up Payment is to be made, and state and local income taxes at the highest marginal rates of individual
taxation in the state and locality of Executive’s residence at the time. In light of the uncertainty in applying Sections 280G and
4999 of the Code, if it is subsequently determined that the Gross-up Payment is not sufficient to put Executive in the same after-tax
position (taking into account any and all applicable federal, state, local and foreign income, employment and excise taxes (including
the Excise Tax and such taxes imposed on the Gross-up Payment)) that Executive would have been in if Executive had not incurred the Excise
Tax, then the Company shall promptly pay to or for the benefit of Executive such additional amounts necessary to put Executive in the
same after-tax position that Executive would have been in if the Excise Tax had not been imposed. In the event that a written ruling of
the Internal Revenue Service (“IRS”) is obtained by or on behalf of the Company or Executive, which provides
that Executive is not required to pay, or is entitled to a refund with respect to, all or a portion of the Excise Tax, then Executive
shall reimburse the Company in an amount equal to the Gross-up Payment, less any amounts which remain payable by or are not refunded to
Executive, within sixty (60) days of the date of the IRS determination or the date Executive receives the refund, as applicable. Executive
and the Company shall reasonably cooperate with each other in connection with any administrative or judicial proceedings concerning the
existence or amount of liability for the Excise Tax; provided that, if the Company decides to contest a claim by the IRS relating to the
Excise Tax, then the Company shall bear and pay directly or indirectly all costs and expenses (including any additional interest and penalties
and any legal and accounting fees and expenses) incurred in connection with such action and shall indemnify and hold Executive harmless,
on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of
the Company’s action.
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13. Section
409A of the Code.
(a) The
parties hereto intend that all payments and benefits to be made or provided to Executive hereunder and under any Plan (as defined in clause
(g) below) will either be exempt from Section 409A (as defined in clause (g) below) or be paid or provided in compliance with all applicable
requirements of Section 409A, and the provisions of this Agreement and of each Plan (to the extent they relate to Executive’s entitlements
under such Plan) shall be construed and administered in accordance with such intent. In furtherance of the foregoing, the provisions set
forth below shall apply notwithstanding any other provision in this Agreement, or (where applicable) any provision in any Plan, to the
contrary.
(b) All
payments to be made to Executive hereunder or under any Plan, to the extent they constitute a deferral of compensation subject to the
requirements of Section 409A (after taking into account all exclusions applicable to such payments under Section 409A), shall be made
no later, and shall not be made any earlier, than at the time or times specified herein or in any Plan for such payments to be made, except
as otherwise permitted or required under Section 409A.
(c) The
date of Executive’s "separation from service", as defined in Section 409A (and as determined by applying the default presumptions
in Treas. Reg. §1.409A-1(h)(1)(ii)), shall be treated as the date of his termination of employment for purposes of determining the
time of payment of any amount that becomes payable to Executive hereunder and under any Plan upon his termination of employment and that
is properly treated as a deferral of compensation subject to Section 409A after taking into account all exclusions applicable to such
payment under Section 409A.
(d) To
the extent any payment or delivery otherwise required to be made to Executive hereunder or under any Plan on account of his separation
from service is properly treated as a deferral of compensation subject to Section 409A after taking into account all exclusions applicable
to such payment and delivery under Section 409A, and if the Executive is a "specified employee" under Section 409A at the time
of his separation from service, then such payment and delivery shall not be made until the first business day after the earlier of (i) the
expiration of six months from the date of Executive’s separation from service, or (ii) the date of his death (such first business
day, the “Delayed Payment Date”). On the Delayed Payment Date, there shall be paid or delivered to the Executive
or, if he has died, to his estate, in a single payment or delivery (as applicable) all entitlements so delayed, and in the case of cash
payments, in a single cash lump sum, an amount equal to aggregate amount of all payments delayed pursuant to the preceding sentence, plus
interest thereon at the Delayed Payment Interest Rate (as defined below) computed from the date on which each such delayed payment otherwise
would have been made to Executive until the Delayed Payment Date. For purposes of the foregoing, the “Delayed Payment Interest
Rate” shall mean the national average annual rate of interest payable on jumbo six-month bank certificates of deposit, as
quoted in the business section of the most recently published Sunday edition of The New York Times preceding the Executive’s date
of termination.
(e) In
the case of any amounts payable to Executive under this Agreement, or under any Plan, that may be treated as payable in the form of “a
series of installment payments”, as defined in Treas. Reg. §1.409A-2(b)(2)(iii), (A) Executive’s right to receive such
payments shall be treated as a right to receive a series of separate payments for purposes of Treas. Reg. §1.409A-2(b)(2)(iii), and
(B) to the extent any such existing Plan does not already so provide, it is hereby amended to so provide, with respect to amounts that
may become payable to Executive thereunder.
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(f) The
Company agrees that at all times during the Term, it will maintain each Plan in documentary and operational compliance with all requirements
under Section 409A, in so far as such requirements are applicable to the payments or benefits to be made or provided to Executive under
such Plan. The Company further agrees that to the extent permitted under 409A, this Agreement, and the terms of any Plan (to the extent
they relate to the Executive’s entitlements under such Plan) shall be modified, as reasonably requested by the Executive, to the
extent necessary to comply with all applicable requirements of, and to avoid the imposition of any additional tax, interest and penalties
under, Section 409A in connection with, the benefits and payments to be provided or paid to Executive hereunder or under such Plan. Any
such modification shall maintain the original intent and economic benefit to Executive of the applicable provision of this Agreement or
such Plan, to the maximum extent possible without violating any applicable requirement of Section 409A. Any such modification to the terms
of any Plan may be made by means of a separate written agreement between the Company and Executive so as to limit the applicability of
such modification to just the payments or benefits to be provided to Executive under such Plan.
(g) For
purposes of the foregoing, the following terms shall have the following meanings:
(1) “Plan”
shall mean any plan, program, agreement (other than this Agreement) or other arrangement maintained by the Company or any of its affiliates
that is a “nonqualified deferred compensation plan” within the meaning of Section 409A and under which any payments or benefits
are to be made or provided to Executive, to the extent they constitute a deferral of compensation subject to the requirements of Section
409A after taking into account all exclusions applicable to such payments under Section 409A.
(2) “Section
409A” shall mean section 409A of the Code, the regulations issued thereunder and all notices, rulings and other guidance
issued by the Internal Revenue Service interpreting same.
[SIGNATURE
PAGE FOLLOWS]
12
IN WITNESS WHEREOF, the parties
have executed this Agreement as of the date first indicated above.
THE COMPANY:
WHITEFIBER, INC.
By:
/s/ Samir Tabar
Name:
Samir Tabar
Title:
Chief Executive Officer
EXECUTIVE:
/s/ Justin Zhu
Justin Zhu
Address:
[Signature page to Justin Zhu Employment Agreement]
EXHIBIT A
RESTRICTED SHARE UNIT AWARD AGREEMENT
EXHIBIT B
INDEMNIFICATION AGREEMENT
EX-10.3 — INDEMNIFICATION AGREEMENT, BY AND BETWEEN WHITEFIBER, INC. AND JUSTIN ZHU
EX-10.3
Filename: ea029977501ex10-3.htm · Sequence: 4
Exhibit 10.3
Indemnification
Agreement
THIS INDEMNIFICATION AGREEMENT
(this “Agreement”) is made and entered into as of August 1st, 2026, by and between WhiteFiber, Inc.,
incorporated under the laws of the Cayman Islands (the “Company”) and Justin Zhu (“Indemnitee”).
RECITALS
WHEREAS, the Company
desires to employ Indemnitee as its Chief Financial Officer (“CFO”);
WHEREAS, Indemnitee
would not be willing to accept such employment in the absence of this Agreement;
WHEREAS, the Company
is willing to provide this Agreement in order to induce Indemnitee to accept such employment as the Company’s CFO and to enter into
that certain Employment Agreement dated the date hereof between the Company and Indemnitee;
WHEREAS, (i) the
Articles of Association of the Company (as may be amended or restated from time to time, the “Articles”) require
indemnification of the officers and directors of the Company, (ii) Indemnitee may also be entitled to indemnification pursuant to
the laws of the Company’s state or country of incorporation and/or the Certificate of Incorporation of the Company (as may be amended
or restated from time to time, (the “Certificate of Incorporation”);
WHEREAS, this Agreement
is a supplement to and in furtherance of the Articles and Certificate of Incorporation (and any resolutions adopted pursuant thereto)
and any such laws, and such Articles, Certificate of Incorporation, resolutions and other laws shall not be deemed a substitute therefor,
nor to diminish or abrogate any rights of Indemnitee thereunder;
WHEREAS, Indemnitee
does not regard the protection available under the organizational documents of the Company and any insurance policies maintained by the
Company as adequate in the present circumstances, and Indemnitee may not be willing to continue to serve in his capacity as a director
or officer of the Company without the additional protections set forth in this Agreement;
WHEREAS, the Board
of Directors of the Company (the “Board”) has determined that, on the basis of the foregoing, it is reasonable,
prudent and necessary for the Company to obligate itself contractually to indemnify, and to advance expenses on behalf of, Indemnitee
to the fullest extent permitted by applicable law so that Indemnitee will serve or continue to serve the Company free from undue concern
that he will not be so indemnified; and
WHEREAS, this Agreement
is a supplement to and in furtherance of the organizational documents of the Company and any resolutions adopted pursuant thereto, and
shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder;
NOW, THEREFORE, in
consideration of the mutual promises and agreements herein contained, and intending to be legally bound, the parties hereto agree as follows:
AGREEMENT
1. INDEMNIFICATION
OF INDEMNITEE. The Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest extent permitted by applicable law,
as such may be amended from time to time. In furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a) Indemnitee
shall be entitled to the rights of indemnification provided in this Section 1(a) if, by reason of his Corporate Status (as defined
in Section 14(a)), the Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding (as defined in Section
14(f)) other than a Proceeding by or in the right of the Company. Pursuant to this Section 1(a), Indemnitee shall be indemnified
against all Expenses (as defined in Section 14(d)), judgments, penalties, fines and amounts paid in settlement actually and reasonably
incurred by him, or on his behalf, in connection with such Proceeding or any claim, issue or matter therein, if the Indemnitee acted in
good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and with respect
to any criminal Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful.
(b) Indemnitee
shall be entitled to the rights of indemnification provided in this Section 1(b) if, by reason of his Corporate Status, the Indemnitee
is, or is threatened to be made, a party to or participant in any Proceeding brought by or in the right of the Company. Pursuant to this
Section 1(b), Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee, or on the
Indemnitee’s behalf, in connection with such Proceeding if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company; provided, however, that if applicable law so provides,
no indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee
shall have been adjudged to be liable to the Company unless and to the extent that a court of competent jurisdiction shall determine that
such indemnification may be made.
(c) Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, he shall be indemnified to the maximum extent permitted by law, as such may be amended
from time to time, against all Expenses actually and reasonably incurred by him, or on his behalf, in connection therewith. If Indemnitee
is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims,
issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by
him, or on his behalf, in connection with each successfully resolved claim, issue or matter. For purposes of this Section 1(c)
and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall
be deemed to be a successful result as to such claim, issue or matter.
2
(d) For
avoidance of doubt, the indemnification provided by this Agreement shall apply, without limitation, with respect to any Proceeding or
matter that relates to a period prior to the date of this Agreement or arises with respect to acts, omissions, events or conditions that
are alleged to have occurred prior to the date of this Agreement.
2. ADDITIONAL
INDEMNITY. In addition to, and without regard to any limitations on, the indemnification provided for in Section 1 of this
Agreement, the Company shall and hereby does indemnify and hold harmless Indemnitee against all Expenses, judgments, penalties, fines
and amounts paid in settlement actually and reasonably incurred by him, or on his behalf if, by reason of his Corporate Status, he is,
or is threatened to be made, a party to or participant in any Proceeding (including a Proceeding by or in the right of the Company), including,
without limitation, all liability arising out of the negligence or active or passive wrongdoing of Indemnitee. The only limitation that
shall exist upon the Company’s obligations pursuant to this Agreement shall be that the Company shall not be obligated to make any
payment to Indemnitee that is finally determined (under the procedures, and subject to the presumptions, set forth in Sections 6
and 7 hereof) to be unlawful.
3. CONTRIBUTION.
(a) Whether
or not the indemnification provided in Sections 1 and 2 hereof is available, in respect of any Proceeding in which the Company
is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company shall pay, in the first instance, the entire
amount of any judgment or settlement of such Proceeding without requiring Indemnitee to contribute to such payment and the Company hereby
waives and relinquishes any right of contribution it may have against Indemnitee. The Company shall not enter into any settlement of any
Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides
for a full and final release of all claims asserted against Indemnitee.
(b) Without
diminishing or impairing the obligations of the Company set forth in Section 3(a), if, for any reason, Indemnitee shall elect or
be required to pay all or any portion of any judgment or settlement in any Proceeding in which the Company is jointly liable with Indemnitee
(or would be if joined in such Proceeding), the Company shall contribute to the amount of Expenses, judgments, fines and amounts paid
in settlement actually and reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the
Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would
be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction from which such Proceeding
arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to
conform to law, be further adjusted by reference to the relative fault of the Company and all officers, directors or employees of the
Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and
Indemnitee, on the other hand, in connection with the events that resulted in such expenses, judgments, fines or settlement amounts, as
well as any other equitable considerations which the Law may require to be considered. The relative fault of the Company and all officers,
directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such Proceeding),
on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their
actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and
the degree to which their conduct is active or passive.
3
(c) The
Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution which may be brought by officers,
directors or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.
(d) To
the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee
for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether
for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim
relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances
of such Proceeding in order to reflect: (i) the relative benefits received by the Company and Indemnitee as a result of the event(s)
and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers,
employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
4. INDEMNIFICATION
FOR EXPENSES OF A WITNESS. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his
Corporate Status, a witness, or is made (or asked to) respond to discovery requests, in any Proceeding to which Indemnitee is not a party,
he shall be indemnified against all Expenses actually and reasonably incurred by him, or on his behalf, in connection therewith.
5. ADVANCEMENT
OF EXPENSES. Notwithstanding any other provision of this Agreement, the Company shall advance all Expenses incurred by or on behalf
of Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate Status within thirty (30) days after the receipt
by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or
after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee
and shall include or be preceded or accompanied by a written undertaking by or on behalf of Indemnitee to repay any Expenses advanced
if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses. Any advances and undertakings
to repay pursuant to this Section 5 shall be unsecured and interest free.
6. PROCEDURES AND PRESUMPTIONS
FOR DETERMINING ENTITLEMENT TO INDEMNIFICATION. It is the intent of this Agreement to secure for Indemnitee rights of indemnification
that are as favorable as may be permitted under applicable law. Accordingly, the parties agree that the following procedures and presumptions
shall apply in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) To
obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith
such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what
extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification,
advise the Board in writing that Indemnitee has requested indemnification. Notwithstanding the foregoing, any failure of Indemnitee to
provide such a request to the Company, or to provide such a request in a timely fashion, shall not relieve the Company of any liability
that it may have to Indemnitee unless, and to the extent that, such failure actually and materially prejudices the interests of the Company.
4
(b) Upon
written request by Indemnitee for indemnification pursuant to the first sentence of Section 6(a) hereof, a determination with respect
to Indemnitee’s entitlement thereto shall be made in the specific case by one of the following four methods, which shall be at the
election of the Board: (i) by a majority vote of the Disinterested Directors (as defined in Section 14(b)), even though less
than a quorum; (ii) by a committee of those Disinterested Directors designated by a majority vote of the Disinterested Directors,
even though less than a quorum; or (iii) if there are no Disinterested Directors or if the Disinterested Directors so direct, by Independent
Counsel (as defined in Section 14(e)) in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee;
provided, however, that, if requested at any time by Indemnitee, notwithstanding the foregoing, any determination with respect
to Indemnitee’s entitlement to indemnification hereunder shall be made solely by Independent Counsel in a written opinion to the
Board, a copy of which shall be delivered concurrently to the Indemnitee.
(c) If
the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(b) hereof, the Independent
Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by the Board, subject to
written approval of Indemnitee. If, within twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant
to Section 6(a) hereof, no Independent Counsel shall have been selected with the written approval of the Indemnitee, either the
Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the
Indemnitee to the Company’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected
by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved
or the person so appointed shall act as Independent Counsel under Section 6(b) hereof. The Company shall pay any and all reasonable
fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 6(b)
hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c).
(d) In
making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination
shall presume that Indemnitee is entitled to indemnification under this Agreement. Anyone seeking to overcome this presumption shall have
the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its
directors or independent legal counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement
that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination
by the Company (including by its directors or independent legal counsel) that Indemnitee has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
5
(e) Indemnitee
shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise
(as defined in Section 14(c)), including financial statements, or on information supplied to Indemnitee by the officers of the
Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports
made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care
by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent, consultant or employee
of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether
or not the foregoing provisions of this Section 6(e) are satisfied, it shall in any event be presumed that Indemnitee has at all
times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone
seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(f) If
the person, persons or entity empowered or selected under this Section 6 to determine whether Indemnitee is entitled to indemnification
shall not have made a determination within sixty (60) days after receipt by the Company of the request therefor, the requisite determination
of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification absent a
prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for
a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making such determination with respect
to entitlement to indemnification in good faith requires.
(g) Indemnitee
shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification,
including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged
or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination.
Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee’s
entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys’ fees and disbursements) incurred
by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective
of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee
harmless therefrom.
(h) The
Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense,
delay, distraction, disruption and uncertainty. In the event that any Proceeding to which Indemnitee is a party is resolved in any manner
other than by adverse judgment against Indemnitee (including, without limitation, settlement of such Proceeding with or without payment
of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such Proceeding.
Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
6
(i) The
termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the
right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
7. REMEDIES
OF INDEMNITEE.
(a) In
the event that: (i) a determination is made pursuant to Section 6 of this Agreement that Indemnitee is not entitled to indemnification
under this Agreement; (ii) advancement of Expenses is not timely made pursuant to Section 5 of this Agreement; (iii) no
determination of entitlement to indemnification is made pursuant to Section 6(b) of this Agreement within ninety (90) days after
receipt by the Company of the request for indemnification; (iv) payment of indemnification is not made pursuant to this Agreement
within ten (10) days after receipt by the Company of a written request therefor; or (v) payment of indemnification is not made within
ten (10) days after a determination has been made that Indemnitee is entitled to indemnification or such determination is deemed to have
been made pursuant to Section 6 of this Agreement, Indemnitee shall be entitled to an adjudication in any court of competent jurisdiction
of Indemnitee’s entitlement to such indemnification. Indemnitee shall commence such proceeding seeking an adjudication within one
hundred eighty (180) days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section
7(a). The Company shall not oppose Indemnitee’s right to seek any such adjudication.
(b) In
the event that a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is not entitled
to indemnification, any judicial proceeding commenced pursuant to this Section 7 shall be conducted in all respects as a de novo
trial on the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination under Section 6(b).
(c) If
a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is entitled to indemnification,
the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 7, absent: (i) a
misstatement by Indemnitee of a material fact or an omission of a material fact necessary to make Indemnitee’s misstatement not
materially misleading in connection with the application for indemnification; or (ii) a prohibition of such indemnification under
applicable law.
(d) In
the event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication of his rights under, or to recover damages
for breach of, this Agreement, or to recover under any directors’ and officers’ liability insurance policies maintained by
the Company, the Company shall pay on his behalf, in advance, any and all expenses (of the types described in the definition of “Expenses”
in Section 14(d) of this Agreement) actually and reasonably incurred by him in such judicial adjudication, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery.
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(e) The
Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 7 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound
by all the provisions of this Agreement. The Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee,
shall (within ten (10) days after receipt by the Company of a written request therefor) advance, to the extent not prohibited by law,
such expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification
or advance of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policies
maintained by the Company, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement
of Expenses or insurance recovery, as the case may be.
(f) Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required
to be made prior to the final disposition of the Proceeding.
8. NON-EXCLUSIVITY,
SURVIVAL OF RIGHTS, ETC.
(a) The
rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any
time be entitled under applicable law, the organizational documents of the Company, any other agreement with the Company, a vote of the
Company’s stockholders, a resolution of the Board or otherwise. No amendment, alteration or repeal of this Agreement or of any provision
hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee
in his Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in any applicable law, whether by statute
or judicial decision, permits greater indemnification than would be afforded currently under the Company’s organizational documents
and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded
by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and
remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.
(b) To
the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees,
or agents, consultants or fiduciaries of the Company or of any other Enterprise, Indemnitee shall be covered by such policy or policies
in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary
under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has directors’
and officers’ liability insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the
insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable
action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance with
the terms of such policies.
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(c) In
the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery
of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce such rights.
(d) The
Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent
that Indemnitee has otherwise actually received payment of such amounts under any insurance policy, contract, other agreement or otherwise.
(e) The
Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company
as a director, officer, employee, agent, consultant or fiduciary of any Enterprise other than the Company shall be reduced by any amount
Indemnitee has actually received as indemnification or advancement of expenses from such other Enterprise.
9. EXCEPTION
TO RIGHT OF INDEMNIFICATION. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement
to provide any indemnification in connection with any claim made against Indemnitee: (i) for which payment has actually been made
to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount
paid under any insurance policy or other indemnity provision, provided that the foregoing shall not affect the rights of Indemnitee; (ii) for
an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the
meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended or similar provisions of state statutory law or common law;
or (iii) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or
any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless
(A) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (B) the Company provides
the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law.
10. DURATION
OF AGREEMENT. All agreements and obligations of the Company contained herein shall continue until the date that is ten (10) years
after the date upon which Indemnitee’s Corporate Status terminates and shall continue thereafter so long as Indemnitee shall be
subject to any Proceeding (or any proceeding commenced under Section 7 hereof) by reason of his Corporate Status, whether or not
he is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided
under this Agreement. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their
respective successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially
all of the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal representatives.
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11. SECURITY.
If requested by Indemnitee, the Company shall from time to time provide security to Indemnitee for the Company’s obligations hereunder,
in such sums as Indemnitee shall reasonably require to secure all possible obligations under this Agreement, through an irrevocable bank
line of credit, letter(s) of credit, surety bond, funded trust or other collateral or retainer to counsel of Indemnitee’s choosing.
Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of the Indemnitee. The
Company shall provide the security required under this Section 11 within sixty (60) days after a request for such security is made
by Indemnitee.
12. ENFORCEMENT.
The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in
order to induce Indemnitee to serve as an officer of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement
in serving as an officer of the Company. The Company shall not seek from a court, or agree to, a “bar order” that would have
the effect of prohibiting or limiting Indemnitee’s rights to receive advancement of Expenses under this Agreement.
13. INTENTIONALLY
OMITTED.
14. DEFINITIONS.
For purposes of this Agreement:
(a) “Corporate
Status” describes the status of a person who is or was at any time (including, without limitation, any time prior to the
date of this Agreement) a director, officer, employee, agent, consultant or fiduciary of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise that such person is or was serving at the express written request of the
Company or pursuant to agreement with the Company, including without limitation as a shareholder, member, officer, employee, consultant
or independent contractor of Wellington.
(b) “Disinterested
Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification
is sought by Indemnitee.
(c) “Enterprise”
shall mean the Company and any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that Indemnitee
is or was serving at the express written request of the Company or pursuant to agreement with the Company as a director, officer, employee,
agent, consultant or fiduciary (including without limitation as a shareholder, member, officer, employee, consultant or independent contractor
of Wellington).
(d) “Expenses”
shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses
of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating,
or being or preparing to be a witness in a Proceeding, or responding to, or objecting to, a request to provide discovery in any Proceeding.
Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding and any federal, state, local
or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including
without limitation the premium, security for, and other costs relating to any cost bond, supersede as bond, or other appeal bond or its
equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against
Indemnitee.
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(e) “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently
is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such
party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification
agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above
and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement
or its engagement pursuant hereto.
(f) “Proceeding”
includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed proceeding (including one pending on or before the date of this Agreement
but excluding one initiated by an Indemnitee pursuant to Section 7 of this Agreement to enforce his rights under this Agreement),
whether brought by or in the right of the Company or otherwise and whether civil, criminal, administrative or investigative, in which
Indemnitee was, is or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was an officer or director
of, or a consultant to, the Company (including without limitation as a shareholder, member, officer, employee, consultant or independent
contractor of Wellington), by reason of any action taken by him or of any inaction on his part while acting as an officer or director
of the Company, or by reason of the fact that he is or was serving at the request of the Company or pursuant to agreement with the Company
as a director, officer, employee, agent, consultant or fiduciary of another corporation, partnership, joint venture, trust or other Enterprise
(including without limitation as a shareholder, member, officer, employee, consultant or independent contractor of Wellington), in each
case whether or not he is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification
can be provided under this Agreement.
15. SEVERABILITY.
The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision.
Without limiting the generality of the foregoing, this Agreement is intended to confer upon Indemnitee indemnification rights to the fullest
extent permitted by applicable laws. In the event any provision hereof conflicts with any applicable law, such provision shall be deemed
modified, consistent with the aforementioned intent, to the extent necessary to resolve such conflict.
16. MODIFICATION
AND WAIVER. No supplement, modification, termination or amendment of this Agreement shall be binding unless executed in writing by
both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
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17. NOTICE
BY INDEMNITEE. Indemnitee agrees to promptly notify the Company in writing upon being served with or otherwise receiving any summons,
citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to
indemnification covered hereunder. The failure to so notify the Company shall not relieve the Company of any obligation which it may have
to Indemnitee under this Agreement or otherwise unless and only to the extent that such failure or delay materially prejudices the Company.
18. NOTICES.
All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given:
(i) upon personal delivery to the party to be notified; (ii) when sent by confirmed electronic mail or facsimile if sent during
normal business hours of the recipient, and if not so confirmed, then on the next business day; (iii) five (5) business days after
having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one business (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All notices and other
communications shall be sent:
(a) To
Indemnitee at the address set forth below Indemnitee’s signature hereto.
(b) To
the Company at:
WhiteFiber, Inc.
31 Hudson Yards,
11th Floor, Suite 30
New York, New York
10001
Attention: Sam Tabar,
CEO
or to such other address as
may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.
19. HEADINGS.
The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
20. APPLICABLE
LAW AND CONSENT TO JURISDICTION. This Agreement and the legal relations among the parties shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules that would require the application
of any other laws. The Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising
out of or in connection with this Agreement shall be brought only in the Chancery Court of the State of Delaware and any state appellate
court therefrom within the State of Delaware (unless the Chancery Court declines to accept jurisdiction over a particular matter, in which
case, in any Delaware state or federal court within the State of Delaware) (the “Chosen Courts”), and not in
any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the
exclusive jurisdiction of the Chosen Courts for purposes of any action or proceeding arising out of or in connection with this Agreement,
(iii) waive any objection to the laying of venue of any such action or proceeding in the Chosen Courts, and (iv) waive, and
agree not to plead or to make, any claim that any such action or proceeding brought in the Chosen Courts has been brought in an improper
or inconvenient forum.
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21. ENTIRE
AGREEMENT. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject
matter hereof.
22. COUNTERPARTS.
This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same Agreement. This Agreement may also be executed and delivered by facsimile signature (or other similar electronic
means) and in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one
and the same instrument.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF,
the parties have caused this Agreement to be signed as of the date and year first above written.
WHITEFIBER, INC.
By:
/s/ Sam Tabar
Name:
Sam Tabar
Title:
Chief Executive Officer
INDEMNITEE
By:
/s/ Justin Zhu
Name:
Justin Zhu
Address:
[Signature page to Justin
Zhu Indemnification Agreement]
EX-10.4 — DIRECTOR AGREEMENT, BY AND BETWEEN WHITEFIBER, INC. AND SAMIR TABAR
EX-10.4
Filename: ea029977501ex10-4.htm · Sequence: 5
Exhibit 10.4
DIRECTOR
AGREEMENT
This
DIRECTOR AGREEMENT is made as of this 30th day of July 2026 (the “Agreement”), by and between WhiteFiber, Inc., a company
organized under the laws of the Cayman Islands (the “Company”) and Samir Tabar, an individual with his principal address
at [Intentionally left blank] (the “Director”).
WHEREAS,
the Company wishes to appoint the Director as a member of the Board of Directors of the Company effective August 1, 2026 (the “Effective
Date”) and enter into this agreement with the Director with respect to such appointment; and
WHEREAS,
the Director wishes to accept such appointment and to serve the Company on the terms set forth herein, and in accordance with, the provisions
of this Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.
Position. Subject to the terms and provisions of this Agreement the Company shall cause the Director to be appointed as a member
of the Board of Directors (the “Board”) on the Effective Date to fill a directorship then being vacated by Erke Huang and
the Director hereby agrees to serve the Company in that position upon the terms and conditions hereinafter set forth herein; provided,
however, that the Director’s continued service on the Board shall be subject to the terms set forth in Section 5 below.
2.
Duties. During the Directorship Term (as defined in Section 5 hereof), the Director shall serve as a member of the Board, and
the Director shall make reasonable business efforts to attend all Board meetings, serve on subcommittees, if permitted, and make himself
available to the Company at mutually convenient times and places, attend external meetings and presentations, as appropriate and convenient,
and perform such duties, services and responsibilities and have such authority as commensurate with such position (collectively, the
“Duties”). During the term of this Agreement, Director shall attend and participate in such number of meetings of the Board
and of any committee(s) of which Director is a member as regularly or specially called. Director may attend and participate at each such
meeting, via teleconference, video conference or in person. Director shall consult with the other members of the Board and committee(s)
regularly and as necessary via telephone, electronic mail or other forms of correspondence.
The
Director will use his best efforts to promote the interests of the Company. The Director will not, without the prior notification to
the Board, engage in any other business activity which could materially interfere with the performance of his duties, services and responsibilities
hereunder or which is in violation of the reasonable policies his activities on behalf of the Company, Bit Digital and their affiliates.
3.
[INTENTIONALLY LEFT BLANK]
4.
Remuneration.
(a)
Director shall be eligible for the grant of equity compensation as a Director, from time to time, at the discretion of the Board of Directors
or a compensation committee thereof. Notwithstanding the foregoing, if the Director ceases to be a member of Board at any time during
the vesting period for any reason (such as resignation, withdrawal, death, disability or any other reason), then any unvested shares
shall be irrefutably forfeited. Furthermore, the Director agrees that the shares shall be subject to any “lock up” agreement
required to be signed by the Company’s officers in connection with any financing.
(b)
All payments and other consideration made or provided to the Director under this Section 4 shall be made or provided without withholding
or deduction of any kind, and the Director shall assume sole responsibility for discharging all tax or other obligations associated therewith.
(c)
During the Directorship Term, the Company shall reimburse the Director for all reasonable out-of-pocket expenses incurred by the Director
in attending any in-person meetings, provided that the Director complies with the generally applicable policies, practices and procedures
of the Company for submission of expense reports, receipts or similar documentation of such expenses. Any reimbursements for allocated
expenses (as compared to out-of-pocket expenses of the Director in excess of $500) must be approved in advance by the Company.
5.
Directorship Term. The “Directorship Term”, as used in this Agreement, shall mean the period commencing on the Effective
Date hereof and terminating on the earliest of the following to occur:
(a)
one (1) year from the Effective Date and renewed automatically for additional one-year terms subject to re-election by a majority of
the shareholders of the Company. Bit Digital, as the majority shareholder of the Company, will vote its shares at all times in favor
of election of the Director at the Annual General Meeting of Shareholders;
(b)
the death of the Director (“Death”);
(c)
the termination of the Director from the position of member of the Board by the mutual agreement of the Company and the Director;
(d)
the resignation by the Director from the Board if after the date hereof, Director’s continued service on the Board conflicts with
his fiduciary obligations to her current affiliation (a “Fiduciary Resignation”); and
(e)
this Agreement shall automatically renew for one-year periods, unless cancelled by either party upon written notice at least 60 days
prior to the end of the Directorship Term.
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6.
Director’s Representation and Acknowledgment. The Director represents to the Company that its execution and performance
of this Agreement shall not be in violation of any agreement or obligation (whether or not written) that he may have with or to any
person or entity, including without limitation, any prior employer. The Director hereby acknowledges and agrees that this Agreement (and
any other agreement or obligation referred to herein) shall be an obligation solely of the Company, and the Director shall have no recourse
whatsoever against any officer, director or stockholder of the Company or any of their respective affiliates with regard to this Agreement.
7.
Director Covenants.
(a)
Unauthorized Disclosure. The Director agrees and understands that in the Director’s position with the Company, the Director
has been and will be exposed to and receive information relating to the confidential affairs of the Company, including, but not limited
to, technical information, business and marketing plans, strategies, customer information, other information concerning the Company’s
products, promotions, development, financing, expansion plans, business policies and practices, and other forms of information considered
by the Company to be confidential and in the nature of trade secrets. The Director agrees that during the Directorship Term and thereafter,
the Director will keep such information confidential and will not disclose such information, either directly or indirectly, to any third
person or entity without the prior written consent of the Company; provided, however, that (i) the Director shall have no such obligation
to the extent such information is or becomes publicly known or generally known in the Company’s industry other than as a result
of the Director’s breach of her obligations hereunder and (ii) the Director may, after giving prior notice to the Company
to the extent practicable under the circumstances, disclose such information to the extent required by applicable laws or governmental
regulations or judicial or regulatory process. This confidentiality covenant has no temporal, geographical or territorial restriction.
Upon termination of the Directorship Term, the Director will promptly return to the Company all property, keys, notes, memoranda, writings,
lists, files, reports, customer lists, correspondence, tapes, disks, cards, surveys, maps, logs, machines, technical data or any other
tangible product or document which has been produced by, received by or otherwise submitted to the Director in the course or otherwise
as a result of the Director’s position with the Company during or prior to the Directorship Term, provided that, the Company shall
retain such materials and make them available to the Director if requested by him in connection with any litigation against the Director
under circumstances in which (i) the Director demonstrates to the reasonable satisfaction of the Company that the materials are
necessary to his defense in the litigation, and (ii) the confidentiality of the materials is preserved to the reasonable satisfaction
of the Company.
(b)
Non-Solicitation. During the Directorship Term and for a period of three (3) years thereafter, the Director shall not interfere
with the Company’s relationship with, or endeavor to entice away from the Company, any person who, on the date of the termination
of the Directorship Term, was an employee or customer of the Company or otherwise had a material business relationship with the Company.
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(c)
Non-Compete. Subject to the applicable provisions of this Agreement, the Director shall not, so long as he is a member of the
Board and for a period of 12 months following termination of this Agreement for whatever reason, directly or indirectly as owner, partner,
joint venture, stockholder, employee, broker, agent principal, corporate officer, director, licensor or in any other capacity whatsoever,
engage in, become financially interested in, be employed by, or have any connection with any business or venture that is engaged in any
activities involving services or products which compete, directly or indirectly, with the services or products provided or proposed to
be provided by the Company or its subsidiaries or affiliates; provided, however, that the Director may own securities of any public corporation
which is engaged in such business but in an amount not to exceed at any one time, three (3%) percent of any class of stock or securities
of such company, so long as the Director has no active role in the publicly owned company as director, employee, consultant or otherwise.
(d)
Insider Trading Guidelines. Director agrees to execute the Company’s Insider Trading Guidelines in the form previously approved
by the Board.
(e)
Remedies. The Director agrees that any breach of the terms of this Section 7 would result in irreparable injury and damage to
the Company for which the Company would have no adequate remedy at law; the Director therefore also agrees that in the event of said
breach or any threat of breach, the Company shall be entitled to an immediate injunction and restraining order to prevent such breach
and/or threatened breach and/or continued breach by the Director and/or any and all entities acting for and/or with the Director, without
having to prove damages, in addition to any other remedies to which the Company may be entitled at law or in equity. The terms of this
paragraph shall not prevent the Company from pursuing any other available remedies for any breach or threatened breach hereof, including
but not limited to the recovery of damages from the Director. The Director acknowledges that the Company would not have entered into
this Agreement had the Director not agreed to the provisions of this Section 7.
The
provisions of this Section 7 shall survive any termination of the Directorship Term, and the existence of any claim or cause of action
by the Director against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of the covenants and agreements of this Section 7.
8.
Indemnification. The Company agrees to indemnify the Director for her activities as a director of the Company to the fullest extent
permitted by law, and to cover the Director under a directors and officers liability insurance obtained by the Company. Further, the
Company and the Director agree to enter into an indemnification agreement substantially in the form of agreement entered into by the
Company and its other Board members.
9.
Non-Waiver of Rights. The failure to enforce at any time the provisions of this Agreement or to require at any time performance
by the other party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect either
the validity of this Agreement or any part hereof, or the right of either party to enforce each and every provision in accordance with
its terms. No waiver by either party hereto of any breach by the other party hereto of any provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar provisions at that time or at any prior or subsequent time.
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10.
Notices. Every notice relating to this Agreement shall be in writing and shall be given by personal delivery or by registered
or certified mail, postage prepaid, return receipt requested, to:
If to the
Company:
WhiteFiber,
Inc.
31 Hudson
Yards, 11th Floor, Suite 30, New York, NY 10001, Attn: [•]
If to the
Director:
Samir
Tabar—to the address set forth in the Preamble.
Either
of the parties hereto may change their address for purposes of notice hereunder by giving notice in writing to such other party pursuant
to this Section 10.
11.
Binding Effect/Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective
heirs, executors, personal representatives, estates, successors (including, without limitation, by way of merger) and assigns. Notwithstanding
the provisions of the immediately preceding sentence, neither the Director nor the Company shall assign all or any portion of this Agreement
without the prior written consent of the other party.
12.
Entire Agreement. This Agreement (together with the other agreements referred to herein) sets forth the entire understanding of
the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, written or oral, between them as to
such subject matter.
13.
Severability. I f any provision of this Agreement, or any application thereof to any circumstances, is invalid, in whole or in
part, such provision or application shall to that extent be severable and shall not affect other provisions or applications of this Agreement.
14.
Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York,
without reference to the principles of conflict of laws. All actions and proceedings arising out of or relating to this Agreement shall
be heard and determined in any New York state or federal court and the parties hereto hereby consent to the jurisdiction of such courts
in any such action or proceeding; provided, however, that neither party shall commence any such action or proceeding unless prior thereto
the parties have in good faith attempted to resolve the claim, dispute or cause of action which is the subject of such action or proceeding
through mediation by an independent third party.
15.
Legal Fees. The parties hereto agree that the non-prevailing party in any dispute, claim, action or proceeding between the parties
hereto arising out of or relating to the terms and conditions of this Agreement or any provision thereof (a “Dispute”), shall
reimburse the prevailing party for reasonable attorney’s fees and expenses incurred by the prevailing party in connection with
such Dispute; provided, however, that the Director shall only be required to reimburse the Company for its fees and expenses incurred
in connection with a Dispute, if the Director’s position in such Dispute was found by the court, arbitrator or other person or
entity presiding over such Dispute to be frivolous or advanced not in good faith.
5
16.
Modifications. Neither this Agreement nor any provision hereof may be modified, altered, amended or waived except by an instrument
in writing duly signed by the party to be charged.
17.
Tense and Headings. Whenever any words used herein are in the singular form, they shall be construed as though they were also
used in the plural form in all cases where they would so apply. The headings contained herein are solely for the purposes of reference,
are not part of this Agreement and shall not in any way affect the meaning or interpretation of this Agreement.
18.
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but
all of which together shall constitute one and the same instrument.
[The remainder of this
page is intentionally left blank]
6
IN WITNESS
WHEREOF, the Company has caused this Director Agreement to be executed by authority of its Board of Directors, and the Director has hereunto
set his hand, on the day and year first above written.
WHITEFIBER, INC.
By:
/s/ Erke Huang
Name:
Erke Huang
Title:
Chief Financial Officer
/s/ Samir Tabar
Samir Tabar
[Signature page to
Samir Tabar Director Agreement]
EX-10.5 — INDEMNIFICATION AGREEMENT BY AND BETWEEN WHITEFIBER, INC. AND SAMIR TABAR
EX-10.5
Filename: ea029977501ex10-5.htm · Sequence: 6
Exhibit 10.5
Indemnification
Agreement
THIS INDEMNIFICATION AGREEMENT
(this “Agreement”) is made and entered into as of August 1, 2026, by and between WhiteFiber Inc., incorporated
under the laws of the Cayman Islands (the “Company”) and Samir Tabar (“Indemnitee”).
RECITALS
WHEREAS, the Company
desires to have Indemnitee serve as on its Board of Directors;
WHEREAS, Indemnitee
would not be willing to accept such appointment in the absence of this Agreement;
WHEREAS, the Company
is willing to provide this Agreement in order to induce Indemnitee to accept such service as a director of the Company and to enter into
those certain Director Agreement and Professional Services Agreement dated the date hereof between the Company and Indemnitee;
WHEREAS, (i) the
Articles of Association of the Company (as may be amended or restated from time to time, the “Articles”) require
indemnification of the officers and directors of the Company, (ii) Indemnitee may also be entitled to indemnification pursuant to
the laws of the Company’s state or country of incorporation and/or the Certificate of Incorporation of the Company (as may be amended
or restated from time to time, (the “Certificate of Incorporation”);
WHEREAS, this Agreement
is a supplement to and in furtherance of the Articles and Certificate of Incorporation (and any resolutions adopted pursuant thereto)
and any such laws, and such Articles, Certificate of Incorporation, resolutions and other laws shall not be deemed a substitute therefor,
nor to diminish or abrogate any rights of Indemnitee thereunder;
WHEREAS, Indemnitee
does not regard the protection available under the organizational documents of the Company and any insurance policies maintained by the
Company as adequate in the present circumstances, and Indemnitee may not be willing to continue to serve in his capacity as a director
of the Company without the additional protections set forth in this Agreement;
WHEREAS, the Board
of Directors of the Company (the “Board”) has determined that, on the basis of the foregoing, it is reasonable,
prudent and necessary for the Company to obligate itself contractually to indemnify, and to advance expenses on behalf of, Indemnitee
to the fullest extent permitted by applicable law so that Indemnitee will serve or continue to serve the Company free from undue concern
that he will not be so indemnified; and
WHEREAS, this Agreement
is a supplement to and in furtherance of the organizational documents of the Company and any resolutions adopted pursuant thereto, and
shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder;
NOW, THEREFORE, in
consideration of the mutual promises and agreements herein contained, and intending to be legally bound, the parties hereto agree as follows:
AGREEMENT
1. INDEMNIFICATION
OF INDEMNITEE. The Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest extent permitted by applicable law,
as such may be amended from time to time. In furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a) Indemnitee
shall be entitled to the rights of indemnification provided in this Section 1(a) if, by reason of his Corporate Status (as defined
in Section 14(a)), the Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding (as defined in Section
14(f)) other than a Proceeding by or in the right of the Company. Pursuant to this Section 1(a), Indemnitee shall be indemnified
against all Expenses (as defined in Section 14(d)), judgments, penalties, fines and amounts paid in settlement actually and reasonably
incurred by him, or on his behalf, in connection with such Proceeding or any claim, issue or matter therein, if the Indemnitee acted in
good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and with respect
to any criminal Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful.
(b) Indemnitee
shall be entitled to the rights of indemnification provided in this Section 1(b) if, by reason of his Corporate Status, the Indemnitee
is, or is threatened to be made, a party to or participant in any Proceeding brought by or in the right of the Company. Pursuant to this
Section 1(b), Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee, or on the
Indemnitee’s behalf, in connection with such Proceeding if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company; provided, however, that if applicable law so provides,
no indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee
shall have been adjudged to be liable to the Company unless and to the extent that a court of competent jurisdiction shall determine that
such indemnification may be made.
(c) Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, he shall be indemnified to the maximum extent permitted by law, as such may be amended
from time to time, against all Expenses actually and reasonably incurred by him, or on his behalf, in connection therewith. If Indemnitee
is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims,
issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by
him, or on his behalf, in connection with each successfully resolved claim, issue or matter. For purposes of this Section 1(c)
and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall
be deemed to be a successful result as to such claim, issue or matter.
(d) For
avoidance of doubt, the indemnification provided by this Agreement shall apply, without limitation, with respect to any Proceeding or
matter that relates to a period prior to the date of this Agreement or arises with respect to acts, omissions, events or conditions that
are alleged to have occurred prior to the date of this Agreement.
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2. ADDITIONAL
INDEMNITY. In addition to, and without regard to any limitations on, the indemnification provided for in Section 1 of this
Agreement, the Company shall and hereby does indemnify and hold harmless Indemnitee against all Expenses, judgments, penalties, fines
and amounts paid in settlement actually and reasonably incurred by him, or on his behalf if, by reason of his Corporate Status, he is,
or is threatened to be made, a party to or participant in any Proceeding (including a Proceeding by or in the right of the Company), including,
without limitation, all liability arising out of the negligence or active or passive wrongdoing of Indemnitee. The only limitation that
shall exist upon the Company’s obligations pursuant to this Agreement shall be that the Company shall not be obligated to make any
payment to Indemnitee that is finally determined (under the procedures, and subject to the presumptions, set forth in Sections 6
and 7 hereof) to be unlawful.
3. CONTRIBUTION.
(a) Whether
or not the indemnification provided in Sections 1 and 2 hereof is available, in respect of any Proceeding in which the Company
is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company shall pay, in the first instance, the entire
amount of any judgment or settlement of such Proceeding without requiring Indemnitee to contribute to such payment and the Company hereby
waives and relinquishes any right of contribution it may have against Indemnitee. The Company shall not enter into any settlement of any
Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides
for a full and final release of all claims asserted against Indemnitee.
(b) Without
diminishing or impairing the obligations of the Company set forth in Section 3(a), if, for any reason, Indemnitee shall elect or
be required to pay all or any portion of any judgment or settlement in any Proceeding in which the Company is jointly liable with Indemnitee
(or would be if joined in such Proceeding), the Company shall contribute to the amount of Expenses, judgments, fines and amounts paid
in settlement actually and reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the
Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would
be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction from which such Proceeding
arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to
conform to law, be further adjusted by reference to the relative fault of the Company and all officers, directors or employees of the
Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and
Indemnitee, on the other hand, in connection with the events that resulted in such expenses, judgments, fines or settlement amounts, as
well as any other equitable considerations which the Law may require to be considered. The relative fault of the Company and all officers,
directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such Proceeding),
on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their
actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and
the degree to which their conduct is active or passive.
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(c) The
Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution which may be brought by officers,
directors or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.
(d) To
the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee
for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether
for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim
relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances
of such Proceeding in order to reflect: (i) the relative benefits received by the Company and Indemnitee as a result of the event(s)
and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers,
employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
4. INDEMNIFICATION
FOR EXPENSES OF A WITNESS. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his
Corporate Status, a witness, or is made (or asked to) respond to discovery requests, in any Proceeding to which Indemnitee is not a party,
he shall be indemnified against all Expenses actually and reasonably incurred by him, or on his behalf, in connection therewith.
5. ADVANCEMENT
OF EXPENSES. Notwithstanding any other provision of this Agreement, the Company shall advance all Expenses incurred by or on behalf
of Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate Status within thirty (30) days after the receipt
by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or
after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee
and shall include or be preceded or accompanied by a written undertaking by or on behalf of Indemnitee to repay any Expenses advanced
if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses. Any advances and undertakings
to repay pursuant to this Section 5 shall be unsecured and interest free.
6. PROCEDURES AND PRESUMPTIONS
FOR DETERMINING ENTITLEMENT TO INDEMNIFICATION. It is the intent of this Agreement to secure for Indemnitee rights of indemnification
that are as favorable as may be permitted under applicable law. Accordingly, the parties agree that the following procedures and presumptions
shall apply in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) To
obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith
such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what
extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification,
advise the Board in writing that Indemnitee has requested indemnification. Notwithstanding the foregoing, any failure of Indemnitee to
provide such a request to the Company, or to provide such a request in a timely fashion, shall not relieve the Company of any liability
that it may have to Indemnitee unless, and to the extent that, such failure actually and materially prejudices the interests of the Company.
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(b) Upon
written request by Indemnitee for indemnification pursuant to the first sentence of Section 6(a) hereof, a determination with respect
to Indemnitee’s entitlement thereto shall be made in the specific case by one of the following four methods, which shall be at the
election of the Board: (i) by a majority vote of the Disinterested Directors (as defined in Section 14(b)), even though less
than a quorum; (ii) by a committee of those Disinterested Directors designated by a majority vote of the Disinterested Directors,
even though less than a quorum; or (iii) if there are no Disinterested Directors or if the Disinterested Directors so direct, by Independent
Counsel (as defined in Section 14(e)) in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee;
provided, however, that, if requested at any time by Indemnitee, notwithstanding the foregoing, any determination with respect
to Indemnitee’s entitlement to indemnification hereunder shall be made solely by Independent Counsel in a written opinion to the
Board, a copy of which shall be delivered concurrently to the Indemnitee.
(c) If
the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(b) hereof, the Independent
Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by the Board, subject to
written approval of Indemnitee. If, within twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant
to Section 6(a) hereof, no Independent Counsel shall have been selected with the written approval of the Indemnitee, either the
Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the
Indemnitee to the Company’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected
by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved
or the person so appointed shall act as Independent Counsel under Section 6(b) hereof. The Company shall pay any and all reasonable
fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 6(b)
hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c).
(d) In
making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination
shall presume that Indemnitee is entitled to indemnification under this Agreement. Anyone seeking to overcome this presumption shall have
the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its
directors or independent legal counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement
that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination
by the Company (including by its directors or independent legal counsel) that Indemnitee has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(e) Indemnitee
shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise
(as defined in Section 14(c)), including financial statements, or on information supplied to Indemnitee by the officers of the
Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports
made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care
by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent, consultant or employee
of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether
or not the foregoing provisions of this Section 6(e) are satisfied, it shall in any event be presumed that Indemnitee has at all
times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone
seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
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(f) If
the person, persons or entity empowered or selected under this Section 6 to determine whether Indemnitee is entitled to indemnification
shall not have made a determination within sixty (60) days after receipt by the Company of the request therefor, the requisite determination
of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification absent a
prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for
a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making such determination with respect
to entitlement to indemnification in good faith requires.
(g) Indemnitee
shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification,
including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged
or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination.
Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee’s
entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys’ fees and disbursements) incurred
by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective
of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee
harmless therefrom.
(h) The
Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense,
delay, distraction, disruption and uncertainty. In the event that any Proceeding to which Indemnitee is a party is resolved in any manner
other than by adverse judgment against Indemnitee (including, without limitation, settlement of such Proceeding with or without payment
of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such Proceeding.
Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(i) The
termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the
right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
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7. REMEDIES
OF INDEMNITEE.
(a) In
the event that: (i) a determination is made pursuant to Section 6 of this Agreement that Indemnitee is not entitled to indemnification
under this Agreement; (ii) advancement of Expenses is not timely made pursuant to Section 5 of this Agreement; (iii) no
determination of entitlement to indemnification is made pursuant to Section 6(b) of this Agreement within ninety (90) days after
receipt by the Company of the request for indemnification; (iv) payment of indemnification is not made pursuant to this Agreement
within ten (10) days after receipt by the Company of a written request therefor; or (v) payment of indemnification is not made within
ten (10) days after a determination has been made that Indemnitee is entitled to indemnification or such determination is deemed to have
been made pursuant to Section 6 of this Agreement, Indemnitee shall be entitled to an adjudication in any court of competent jurisdiction
of Indemnitee’s entitlement to such indemnification. Indemnitee shall commence such proceeding seeking an adjudication within one
hundred eighty (180) days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section
7(a). The Company shall not oppose Indemnitee’s right to seek any such adjudication.
(b) In
the event that a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is not entitled
to indemnification, any judicial proceeding commenced pursuant to this Section 7 shall be conducted in all respects as a de novo
trial on the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination under Section 6(b).
(c) If
a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is entitled to indemnification,
the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 7, absent: (i) a
misstatement by Indemnitee of a material fact or an omission of a material fact necessary to make Indemnitee’s misstatement not
materially misleading in connection with the application for indemnification; or (ii) a prohibition of such indemnification under
applicable law.
(d) In
the event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication of his rights under, or to recover damages
for breach of, this Agreement, or to recover under any directors’ and officers’ liability insurance policies maintained by
the Company, the Company shall pay on his behalf, in advance, any and all expenses (of the types described in the definition of “Expenses”
in Section 14(d) of this Agreement) actually and reasonably incurred by him in such judicial adjudication, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery.
(e) The
Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 7 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound
by all the provisions of this Agreement. The Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee,
shall (within ten (10) days after receipt by the Company of a written request therefor) advance, to the extent not prohibited by law,
such expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification
or advance of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policies
maintained by the Company, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement
of Expenses or insurance recovery, as the case may be.
(f) Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required
to be made prior to the final disposition of the Proceeding.
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8. NON-EXCLUSIVITY,
SURVIVAL OF RIGHTS, ETC.
(a) The
rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any
time be entitled under applicable law, the organizational documents of the Company, any other agreement with the Company, a vote of the
Company’s stockholders, a resolution of the Board or otherwise. No amendment, alteration or repeal of this Agreement or of any provision
hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee
in his Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in any applicable law, whether by statute
or judicial decision, permits greater indemnification than would be afforded currently under the Company’s organizational documents
and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded
by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and
remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.
(b) To
the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees,
or agents, consultants or fiduciaries of the Company or of any other Enterprise, Indemnitee shall be covered by such policy or policies
in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary
under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has directors’
and officers’ liability insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the
insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable
action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance with
the terms of such policies.
(c) In
the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery
of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce such rights.
(d) The
Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent
that Indemnitee has otherwise actually received payment of such amounts under any insurance policy, contract, other agreement or otherwise.
(e) The
Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company
as a director, officer, employee, agent, consultant or fiduciary of any Enterprise other than the Company shall be reduced by any amount
Indemnitee has actually received as indemnification or advancement of expenses from such other Enterprise.
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9. EXCEPTION
TO RIGHT OF INDEMNIFICATION. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement
to provide any indemnification in connection with any claim made against Indemnitee: (i) for which payment has actually been made
to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount
paid under any insurance policy or other indemnity provision, provided that the foregoing shall not affect the rights of Indemnitee; (ii) for
an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the
meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended or similar provisions of state statutory law or common law;
or (iii) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or
any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless
(A) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (B) the Company provides
the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law.
10. DURATION
OF AGREEMENT. All agreements and obligations of the Company contained herein shall continue until the date that is ten (10) years
after the date upon which Indemnitee’s Corporate Status terminates and shall continue thereafter so long as Indemnitee shall be
subject to any Proceeding (or any proceeding commenced under Section 7 hereof) by reason of his Corporate Status, whether or not
he is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided
under this Agreement. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their
respective successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially
all of the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal representatives.
11. SECURITY.
If requested by Indemnitee, the Company shall from time to time provide security to Indemnitee for the Company’s obligations hereunder,
in such sums as Indemnitee shall reasonably require to secure all possible obligations under this Agreement, through an irrevocable bank
line of credit, letter(s) of credit, surety bond, funded trust or other collateral or retainer to counsel of Indemnitee’s choosing.
Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of the Indemnitee. The
Company shall provide the security required under this Section 11 within sixty (60) days after a request for such security is made
by Indemnitee.
12. ENFORCEMENT.
The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in
order to induce Indemnitee to serve as a director of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement
in serving as a director of the Company. The Company shall not seek from a court, or agree to, a “bar order” that would have
the effect of prohibiting or limiting Indemnitee’s rights to receive advancement of Expenses under this Agreement.
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13. INTENTIONALLY
OMITTED.
14. DEFINITIONS.
For purposes of this Agreement:
(a) “Corporate
Status” describes the status of a person who is or was at any time (including, without limitation, any time prior to the
date of this Agreement) a director, officer, employee, agent, consultant or fiduciary of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise that such person is or was serving at the express written request of the
Company or pursuant to agreement with the Company, including without limitation as a shareholder, member, officer, employee, consultant
or independent contractor.
(b) “Disinterested
Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification
is sought by Indemnitee.
(c) “Enterprise”
shall mean the Company and any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that Indemnitee
is or was serving at the express written request of the Company or pursuant to agreement with the Company as a director, officer, employee,
agent, consultant or fiduciary (including without limitation as a shareholder, member, officer, employee, consultant or independent contractor).
(d) “Expenses”
shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses
of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating,
or being or preparing to be a witness in a Proceeding, or responding to, or objecting to, a request to provide discovery in any Proceeding.
Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding and any federal, state, local
or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including
without limitation the premium, security for, and other costs relating to any cost bond, supersede as bond, or other appeal bond or its
equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against
Indemnitee.
(e) “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently
is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such
party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification
agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above
and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement
or its engagement pursuant hereto.
(f) “Proceeding”
includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed proceeding (including one pending on or before the date of this Agreement
but excluding one initiated by an Indemnitee pursuant to Section 7 of this Agreement to enforce his rights under this Agreement),
whether brought by or in the right of the Company or otherwise and whether civil, criminal, administrative or investigative, in which
Indemnitee was, is or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was an officer or director
of, or a consultant to, the Company (including without limitation as a shareholder, member, officer, employee, consultant or independent
contractor ), by reason of any action taken by him or of any inaction on his part while acting as an officer or director of the Company,
or by reason of the fact that he is or was serving at the request of the Company or pursuant to agreement with the Company as a director,
officer, employee, agent, consultant or fiduciary of another corporation, partnership, joint venture, trust or other Enterprise (including
without limitation as a shareholder, member, officer, employee, consultant or independent contractor), in each case whether or not he
is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under
this Agreement.
15. SEVERABILITY.
The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision.
Without limiting the generality of the foregoing, this Agreement is intended to confer upon Indemnitee indemnification rights to the fullest
extent permitted by applicable laws. In the event any provision hereof conflicts with any applicable law, such provision shall be deemed
modified, consistent with the aforementioned intent, to the extent necessary to resolve such conflict.
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16. MODIFICATION
AND WAIVER. No supplement, modification, termination or amendment of this Agreement shall be binding unless executed in writing by
both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
17. NOTICE
BY INDEMNITEE. Indemnitee agrees to promptly notify the Company in writing upon being served with or otherwise receiving any summons,
citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to
indemnification covered hereunder. The failure to so notify the Company shall not relieve the Company of any obligation which it may have
to Indemnitee under this Agreement or otherwise unless and only to the extent that such failure or delay materially prejudices the Company.
18. NOTICES.
All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given:
(i) upon personal delivery to the party to be notified; (ii) when sent by confirmed electronic mail or facsimile if sent during
normal business hours of the recipient, and if not so confirmed, then on the next business day; (iii) five (5) business days after
having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one business (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All notices and other
communications shall be sent:
(a) To
Indemnitee at the address set forth below Indemnitee’s signature hereto.
(b) To
the Company at:
WhiteFiber Inc.
31 Hudson Yards,
11th Floor, Suite 30
New York, New York
10001
Attention: Justin Zhu,
Chief Financial Office
or to such other address as
may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.
19. HEADINGS.
The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
20. APPLICABLE
LAW AND CONSENT TO JURISDICTION. This Agreement and the legal relations among the parties shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules that would require the application
of any other laws. The Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising
out of or in connection with this Agreement shall be brought only in the Chancery Court of the State of Delaware and any state appellate
court therefrom within the State of Delaware (unless the Chancery Court declines to accept jurisdiction over a particular matter, in which
case, in any Delaware state or federal court within the State of Delaware) (the “Chosen Courts”), and not in
any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the
exclusive jurisdiction of the Chosen Courts for purposes of any action or proceeding arising out of or in connection with this Agreement,
(iii) waive any objection to the laying of venue of any such action or proceeding in the Chosen Courts, and (iv) waive, and
agree not to plead or to make, any claim that any such action or proceeding brought in the Chosen Courts has been brought in an improper
or inconvenient forum.
21. ENTIRE
AGREEMENT. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject
matter hereof.
22. COUNTERPARTS.
This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same Agreement. This Agreement may also be executed and delivered by facsimile signature (or other similar electronic
means) and in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one
and the same instrument.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF,
the parties have caused this Agreement to be signed as of the date and year first above written.
WHITEFIBER INC.
By:
/s/ Erke Huang
Name:
Erke Huang
Title:
Chief Financial Officer
INDEMNITEE
/s/ Samir Tabar
Name:
Samir Tabar
Address:
[Signature page to Samir Tabar
Indemnification Agreement]
EX-10.6 — DIRECTOR AGREEMENT, BY AND BETWEEN WHITEFIBER, INC. AND MICHAEL RULF
EX-10.6
Filename: ea029977501ex10-6.htm · Sequence: 7
Exhibit 10.6
DIRECTOR AGREEMENT
This DIRECTOR AGREEMENT
(the “Agreement”) is made as of this 30th day of July 2026 (the “Date of Grant”), by and between WhiteFiber,
Inc., an exempted company organized under the laws of the Cayman Islands (the “Company”) and Michael Rulf, an individual with
his principal address at [Intentionally left blank] (the “Director”).
WHEREAS, the Company wishes
to appoint the Director as an independent member of the Board of Directors of the Company effective August 1, 2026 (the
“Effective Date”) and enter into this agreement with the Director with respect to such appointment; and
WHEREAS, the Director wishes
to accept such appointment and to serve the Company on the terms set forth herein, and in accordance with, the provisions of this Agreement.
NOW, THEREFORE, in consideration
of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Position.
Subject to the terms and provisions of this Agreement, the Director is hereby appointed as an independent member of the Board of Directors
(the “Board”) as of the Effective Date, and the Director hereby agrees to serve the Company in that position upon the terms
and conditions hereinafter set forth.
2. Duties.
During the Directorship Term (as defined in Section 5 hereof), the Director shall serve as a member of the Board, and the Director shall
make reasonable business efforts to attend all Board meetings, serve on subcommittees, the Board’s Compensation Committee and Nominating
and Corporate Governance Committees reasonably requested by the Board, make himself available to the Company at mutually convenient times
and places, attend external meetings and presentations, as appropriate and convenient, and perform such duties, services and responsibilities
and have the authority commensurate to such position (collectively, the “Duties”). During the term of this Agreement, Director
shall attend and participate in such number of meetings of the Board and of the committee(s) of which Director is a member as regularly
or specially called. Director may attend and participate at each such meeting, via teleconference, video conference or in person. Director
shall consult with the other members of the Board and committee(s) regularly and as necessary via telephone, electronic mail or other
forms of correspondence.
The Director will use his
best efforts to promote the interests of the Company. The Company recognizes that the Director (i) is a full-time member of other
entities and that his responsibilities to such entities must have priority. As of the Effective Date, the Director’s “Current
Affiliation” for purposes of this Agreement is Syntax Systems USA LP. The Director’s Current Affiliation shall be deemed automatically
updated, without amendment of this Agreement, to refer to any successor employer of the Director, and all references in this Agreement
to the Director’s “current affiliation” or “current affiliate” shall be construed to include the Director’s
employer at the time in question together with the client engagements and professional responsibilities assigned to the Director by such
employer. Notwithstanding same, the Director will use reasonable business efforts
to coordinate his respective commitments so as to fulfill his obligations to the Company and, in any event, will fulfill his legal obligations
as a director. The Director will not, without the prior written approval of the Board, engage in any business activity which could materially
interfere with the performance of his duties, services and responsibilities hereunder or which is in violation of the reasonable policies
established from time to time by the Company, provided that the foregoing shall in no way limit the Director’s activities on behalf
of his Current Affiliation.
3. Services
for Others. Director shall be free to represent or perform services for other persons during the directorship term (as defined below)
of this Agreement. However, Director agrees that he does not presently perform and does not intend to perform, during the Directorship
Term (as defined below) of this Agreement, similar Duties, consulting or other services for companies whose businesses are or would be,
in any way, directly or indirectly, competitive with the Company (except for companies previously disclosed by Director and approved by
the Company in writing). For the avoidance of doubt, the Director’s existing engagement with Syntax Systems USA LP and any work
performed through or in connection with Coverden, including without limitation any work relating to Enovum Data Centers Corp., are hereby
disclosed by the Director and approved by the Company, and shall not be subject to the restrictions of this Section 3. Should Director
propose to perform similar Duties, consulting or other services for any such other company, Director agrees to notify the Company in writing
in advance (specifying the name of the organization for whom Director proposes to perform such services) and to provide information to
the Company sufficient to allow it to determine if the performance of such services would conflict with areas of interest to the Company.
4. Remuneration.
Director’s compensation as an independent director shall be $150,000 per annum, paid on a quarterly basis. Notwithstanding the foregoing,
in the event this Agreement is terminated for any reason (other than for cause) the Director shall be entitled to three (3) months’
severance consisting of the director’s fee of $37,500. Director shall be eligible for the grant of equity compensation, from time
to time, at the discretion of the Board of Directors, or a compensation committee thereof.
Director shall be reimbursed
for reasonable expenses incurred by Director in connection with the performance of his Duties (including reasonable travel expenses for
in-person meetings).
The Company will evaluate the
Director’s service on the Board prior to the end of the first year of the Directorship Term and in good faith discussions make the
Director eligible to receive equity grants and participate in any long-term equity incentive programs at levels commensurate with other
non-officer directors as determined by the Company’s Compensation Committee.
5. Directorship
Term. The “Directorship Term,” as used in this Agreement, shall mean the period commencing on the Effective Date hereof
and terminating on the earliest of the following to occur:
(a) the
earlier of one (1) year from the Effective Date, subject to re-election after the first year by a majority of the shareholders of the
Company, Bit Digital, as the majority shareholder of the Company will vote its shares in favor of re-election of the Director at the Annual
General Meeting of Shareholders.
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(b) the
death of the Director (“Death”);
(c) the
termination of the Director from the position of member of the Board by the mutual agreement of the Company and the Director;
(d) the
resignation by the Director from the Board if after the date hereof, Director’s continued service on the Board conflicts with his
fiduciary obligations to his current affiliation (a “Fiduciary Resignation”).
6. Director’s
Representation and Acknowledgment. The Director represents to the Company that his execution and performance of this Agreement
shall not be in violation of any agreement or obligation (whether or not written) that he may have with or to any person or entity, including
without limitation, any current or prior employer. The Director hereby acknowledges and agrees that this Agreement (and any other agreement
or obligation referred to herein) shall be an obligation solely of the Company, and the Director shall have no recourse whatsoever against
any officer, director or stockholder of the Company or any of their respective affiliates with regard to this Agreement.
7. Director
Covenants.
(a) Unauthorized
Disclosure. The Director agrees and understands that in the Director’s position with the Company, the Director has been and will
be exposed to and receive information relating to the confidential affairs of the Company, including, but not limited to, technical information,
business and marketing plans, strategies, customer information, other information concerning the Company’s products, promotions,
development, financing, expansion plans, business policies and practices, and other forms of information considered by the Company to
be confidential and in the nature of trade secrets. The Director agrees that during the Directorship Term and thereafter, the Director
will keep such information confidential and will not disclose such information, either directly or indirectly, to any third person or
entity without the prior written consent of the Company; provided, however, that (i) the Director shall have no such obligation
to the extent such information is or becomes publicly known or generally known in the Company’s industry other than as a result
of the Director’s breach of his obligations hereunder and (ii) the Director may, after giving prior notice to the Company to
the extent practicable under the circumstances, disclose such information to the extent required by applicable laws or governmental regulations
or judicial or regulatory process. This confidentiality covenant has no temporal, geographical or territorial restriction. Upon termination
of the Directorship Term, the Director will promptly return to the Company all property, keys, notes, memoranda, writings, lists, files,
reports, customer lists, correspondence, tapes, disks, cards, surveys, maps, logs, machines, technical data or any other tangible product
or document which has been produced by, received by or otherwise submitted to the Director in the course or otherwise as a result of the
Director’s position with the Company during or prior to the Directorship Term, provided that, the Company shall retain such materials
and make them available to the Director if requested by him in connection with any litigation against the Director under circumstances
in which (i) the Director demonstrates to the reasonable satisfaction of the Company that the materials are necessary to his defense
in the litigation, and (ii) the confidentiality of the materials is preserved to the reasonable satisfaction of the Company.
3
(b) Non-Solicitation.
During the Directorship Term and for a period of three (3) years thereafter, the Director shall not interfere with the Company’s
relationship with, or endeavor to entice away from the Company, any person who, on the date of the termination of the Directorship Term,
was an employee or customer of the Company or otherwise had a material business relationship with the Company.
(c) Non-Compete.
The Director shall not, so long as he is a member of the Board and for a period of 12 months following termination of this Agreement for
whatever reason, directly or indirectly as owner, partner, joint venture, stockholder, employee, broker, agent principal, corporate officer,
director, licensor or in any other capacity whatsoever, engage in, become financially interested in, be employed by, or have any connection
with any business or venture that is engaged in any activities involving services or products which compete, directly or indirectly, with
the services or products provided or proposed to be provided by the Company or its subsidiaries or affiliates; provided, however, that
the Director may own securities of any public corporation which is engaged in such business but in an amount not to exceed at any one
time, three (3) percent of any class of stock or securities of such company, so long as the Director has no active role in the publicly
owned company as director, employee, consultant or otherwise. Notwithstanding the foregoing, in the event the Director’s service
on the Board terminates as a result of a Fiduciary Resignation (as defined in Section 5(d)), the restrictions set forth in this Section
7(c) shall not apply with respect to the business activity, affiliation, or engagement that gave rise to such Fiduciary Resignation.
(d) Remedies.
The Director agrees that any breach of the terms of this Section 7 would result in irreparable injury and damage to the Company for which
the Company would have no adequate remedy at law; the Director therefore also agrees that in the event of said breach or any threat of
breach, the Company shall be entitled to an immediate injunction and restraining order to prevent such breach and/or threatened breach
and/or continued breach by the Director and/or any and all entities acting for and/or with the Director, without having to prove damages,
in addition to any other remedies to which the Company may be entitled at law or in equity. The terms of this paragraph shall not prevent
the Company from pursuing any other available remedies for any breach or threatened breach hereof, including but not limited to the recovery
of damages from the Director. The Director acknowledges that the Company would not have entered into this Agreement had the Director not
agreed to the provisions of this Section 7.
The provisions of this Section
7 shall survive any termination of the Directorship Term, and the existence of any claim or cause of action by the Director against the
Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of the covenants
and agreements of this Section 7.
8. Indemnification.
The Company agrees to indemnify the Director for his activities as a director of the Company to the fullest extent permitted by law, and
to cover the Director under a directors and officers liability insurance obtained by the Company. Further, the Company and the Director
agree to enter into an indemnification agreement substantially in the form of agreement entered into by the Company and its other Board
members.
4
9. Non-Waiver
of Rights. The failure to enforce at any time the provisions of this Agreement or to require at any time performance by the
other party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect either the validity
of this Agreement or any part hereof, or the right of either party to enforce each and every provision in accordance with its terms. No
waiver by either party hereto of any breach by the other party hereto of any provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions at that time or at any prior or subsequent time.
10. Notices.
Every notice relating to this Agreement shall be in writing and shall be given by personal delivery or by registered or certified mail,
postage prepaid, return receipt requested, to:
If to the Company:
WhiteFiber, Inc.
31 Hudson Yards, 11th Floor, Suite 30, New York,
New York 10001, Attn: Sam Tabar, CEO
If to the Director:
Michael Rulf, [Intentionally left blank]
Either of the parties hereto may change their
address for purposes of notice hereunder by giving notice in writing to such other party pursuant to this Section 10.
11. Binding
Effect/Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective
heirs, executors, personal representatives, estates, successors (including, without limitation, by way of merger) and assigns. Notwithstanding
the provisions of the immediately preceding sentence, neither the Director nor the Company shall assign all or any portion of this Agreement
without the prior written consent of the other party.
12. Entire
Agreement. This Agreement (together with the other agreements referred to herein) sets forth the entire understanding of the
parties hereto with respect to the subject matter hereof and supersedes all prior agreements, written or oral, between them as to such
subject matter.
13. Severability.
If any provision of this Agreement, or any application thereof to any circumstances, is invalid, in whole or in part, such provision or
application shall to that extent be severable and shall not affect other provisions or applications of this Agreement.
14. Governing
Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without reference
to the principles of conflict of laws. All actions and proceedings arising out of or relating to this Agreement shall be heard and determined
in any New York state or federal court and the parties hereto hereby consent to the jurisdiction of such courts in any such action or
proceeding; provided, however, that neither party shall commence any such action or proceeding unless prior thereto the parties have in
good faith attempted to resolve the claim, dispute or cause of action which is the subject of such action or proceeding through mediation
by an independent third party.
5
15. Legal
Fees. The parties hereto agree that the non-prevailing party in any dispute, claim, action or proceeding between the parties hereto
arising out of or relating to the terms and conditions of this Agreement or any provision thereof (a “Dispute”), shall reimburse
the prevailing party for reasonable attorney’s fees and expenses incurred by the prevailing party in connection with such Dispute;
provided, however, that the Director shall only be required to reimburse the Company for its fees and expenses incurred in connection
with a Dispute, if the Director’s position in such Dispute was found by the court, arbitrator or other person or entity presiding
over such Dispute to be frivolous or advanced not in good faith.
16. Modifications.
Neither this Agreement nor any provision hereof may be modified, altered, amended or waived except by an instrument in writing duly signed
by the party to be charged.
17. Tense
and Headings. Whenever any words used herein are in the singular form, they shall be construed as though they were also used in the
plural form in all cases where they would so apply. The headings contained herein are solely for the purposes of reference, are not part
of this Agreement and shall not in any way affect the meaning or interpretation of this Agreement.
18. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together
shall constitute one and the same instrument.
(REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK)
6
IN WITNESS WHEREOF, the Company
has caused this Director Agreement to be executed by authority of its Board of Directors, and the Director has hereunto set his hand,
on the day and year first above written.
WHITEFIBER, INC.
/s/ Sam Tabar
Name:
Sam Tabar
Title:
Chief Executive Officer
/s/ Michael Rulf
Michael Rulf
[Signature page to Michael Rulf Director Agreement]
EX-10.7 — INDEMNIFICATION AGREEMENT BY AND BETWEEN WHITEFIBER, INC. AND MICHAEL RULF
EX-10.7
Filename: ea029977501ex10-7.htm · Sequence: 8
Exhibit 10.7
Indemnification
Agreement
THIS INDEMNIFICATION
AGREEMENT (this “Agreement”) is made and entered into as of July 30, 2026, by and between WhiteFiber Inc.,
incorporated under the laws of the Cayman Islands (the “Company”) and Michael Rulf (“Indemnitee”).
RECITALS
WHEREAS, the Company
desires to have Indemnitee serve as on its Board of Directors;
WHEREAS, Indemnitee
would not be willing to accept such appointment in the absence of this Agreement;
WHEREAS, the Company
is willing to provide this Agreement in order to induce Indemnitee to accept such service as a director of the Company and to enter into
those certain Director Agreement and Professional Services Agreement dated the date hereof between the Company and Indemnitee;
WHEREAS, (i) the
Articles of Association of the Company (as may be amended or restated from time to time, the “Articles”) require
indemnification of the officers and directors of the Company, (ii) Indemnitee may also be entitled to indemnification pursuant to
the laws of the Company’s state or country of incorporation and/or the Certificate of Incorporation of the Company (as may be amended
or restated from time to time, (the “Certificate of Incorporation”);
WHEREAS, this Agreement
is a supplement to and in furtherance of the Articles and Certificate of Incorporation (and any resolutions adopted pursuant thereto)
and any such laws, and such Articles, Certificate of Incorporation, resolutions and other laws shall not be deemed a substitute therefor,
nor to diminish or abrogate any rights of Indemnitee thereunder;
WHEREAS, Indemnitee
does not regard the protection available under the organizational documents of the Company and any insurance policies maintained by the
Company as adequate in the present circumstances, and Indemnitee may not be willing to continue to serve in his capacity as a director
of the Company without the additional protections set forth in this Agreement;
WHEREAS, the Board
of Directors of the Company (the “Board”) has determined that, on the basis of the foregoing, it is reasonable,
prudent and necessary for the Company to obligate itself contractually to indemnify, and to advance expenses on behalf of, Indemnitee
to the fullest extent permitted by applicable law so that Indemnitee will serve or continue to serve the Company free from undue concern
that he will not be so indemnified; and
WHEREAS, this Agreement
is a supplement to and in furtherance of the organizational documents of the Company and any resolutions adopted pursuant thereto, and
shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder;
NOW, THEREFORE, in
consideration of the mutual promises and agreements herein contained, and intending to be legally bound, the parties hereto agree as follows:
AGREEMENT
1. INDEMNIFICATION
OF INDEMNITEE. The Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest extent permitted by applicable law,
as such may be amended from time to time. In furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a) Indemnitee
shall be entitled to the rights of indemnification provided in this Section 1(a) if, by reason of his Corporate Status (as defined
in Section 14(a)), the Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding (as defined in Section
14(f)) other than a Proceeding by or in the right of the Company. Pursuant to this Section 1(a), Indemnitee shall be indemnified
against all Expenses (as defined in Section 14(d)), judgments, penalties, fines and amounts paid in settlement actually and reasonably
incurred by him, or on his behalf, in connection with such Proceeding or any claim, issue or matter therein, if the Indemnitee acted in
good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and with respect
to any criminal Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful.
(b) Indemnitee
shall be entitled to the rights of indemnification provided in this Section 1(b) if, by reason of his Corporate Status, the Indemnitee
is, or is threatened to be made, a party to or participant in any Proceeding brought by or in the right of the Company. Pursuant to this
Section 1(b), Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee, or on the
Indemnitee’s behalf, in connection with such Proceeding if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company; provided, however, that if applicable law so provides,
no indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee
shall have been adjudged to be liable to the Company unless and to the extent that a court of competent jurisdiction shall determine that
such indemnification may be made.
(c) Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, he shall be indemnified to the maximum extent permitted by law, as such may be amended
from time to time, against all Expenses actually and reasonably incurred by him, or on his behalf, in connection therewith. If Indemnitee
is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims,
issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by
him, or on his behalf, in connection with each successfully resolved claim, issue or matter. For purposes of this Section 1(c)
and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall
be deemed to be a successful result as to such claim, issue or matter.
(d) For
avoidance of doubt, the indemnification provided by this Agreement shall apply, without limitation, with respect to any Proceeding or
matter that relates to a period prior to the date of this Agreement or arises with respect to acts, omissions, events or conditions that
are alleged to have occurred prior to the date of this Agreement.
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2. ADDITIONAL
INDEMNITY. In addition to, and without regard to any limitations on, the indemnification provided for in Section 1 of this
Agreement, the Company shall and hereby does indemnify and hold harmless Indemnitee against all Expenses, judgments, penalties, fines
and amounts paid in settlement actually and reasonably incurred by him, or on his behalf if, by reason of his Corporate Status, he is,
or is threatened to be made, a party to or participant in any Proceeding (including a Proceeding by or in the right of the Company), including,
without limitation, all liability arising out of the negligence or active or passive wrongdoing of Indemnitee. The only limitation that
shall exist upon the Company’s obligations pursuant to this Agreement shall be that the Company shall not be obligated to make any
payment to Indemnitee that is finally determined (under the procedures, and subject to the presumptions, set forth in Sections 6
and 7 hereof) to be unlawful.
3. CONTRIBUTION.
(a) Whether
or not the indemnification provided in Sections 1 and 2 hereof is available, in respect of any Proceeding in which the Company
is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company shall pay, in the first instance, the entire
amount of any judgment or settlement of such Proceeding without requiring Indemnitee to contribute to such payment and the Company hereby
waives and relinquishes any right of contribution it may have against Indemnitee. The Company shall not enter into any settlement of any
Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides
for a full and final release of all claims asserted against Indemnitee.
(b) Without
diminishing or impairing the obligations of the Company set forth in Section 3(a), if, for any reason, Indemnitee shall elect or
be required to pay all or any portion of any judgment or settlement in any Proceeding in which the Company is jointly liable with Indemnitee
(or would be if joined in such Proceeding), the Company shall contribute to the amount of Expenses, judgments, fines and amounts paid
in settlement actually and reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the
Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would
be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction from which such Proceeding
arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to
conform to law, be further adjusted by reference to the relative fault of the Company and all officers, directors or employees of the
Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and
Indemnitee, on the other hand, in connection with the events that resulted in such expenses, judgments, fines or settlement amounts, as
well as any other equitable considerations which the Law may require to be considered. The relative fault of the Company and all officers,
directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such Proceeding),
on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their
actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and
the degree to which their conduct is active or passive.
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(c) The
Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution which may be brought by officers,
directors or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.
(d) To
the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee
for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether
for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim
relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances
of such Proceeding in order to reflect: (i) the relative benefits received by the Company and Indemnitee as a result of the event(s)
and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers,
employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
4. INDEMNIFICATION
FOR EXPENSES OF A WITNESS. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his
Corporate Status, a witness, or is made (or asked to) respond to discovery requests, in any Proceeding to which Indemnitee is not a party,
he shall be indemnified against all Expenses actually and reasonably incurred by him, or on his behalf, in connection therewith.
5. ADVANCEMENT
OF EXPENSES. Notwithstanding any other provision of this Agreement, the Company shall advance all Expenses incurred by or on behalf
of Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate Status within thirty (30) days after the receipt
by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or
after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee
and shall include or be preceded or accompanied by a written undertaking by or on behalf of Indemnitee to repay any Expenses advanced
if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses. Any advances and undertakings
to repay pursuant to this Section 5 shall be unsecured and interest free.
6. PROCEDURES AND PRESUMPTIONS
FOR DETERMINING ENTITLEMENT TO INDEMNIFICATION. It is the intent of this Agreement to secure for Indemnitee rights of indemnification
that are as favorable as may be permitted under applicable law. Accordingly, the parties agree that the following procedures and presumptions
shall apply in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) To
obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith
such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what
extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification,
advise the Board in writing that Indemnitee has requested indemnification. Notwithstanding the foregoing, any failure of Indemnitee to
provide such a request to the Company, or to provide such a request in a timely fashion, shall not relieve the Company of any liability
that it may have to Indemnitee unless, and to the extent that, such failure actually and materially prejudices the interests of the Company.
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(b) Upon
written request by Indemnitee for indemnification pursuant to the first sentence of Section 6(a) hereof, a determination with respect
to Indemnitee’s entitlement thereto shall be made in the specific case by one of the following four methods, which shall be at the
election of the Board: (i) by a majority vote of the Disinterested Directors (as defined in Section 14(b)), even though less
than a quorum; (ii) by a committee of those Disinterested Directors designated by a majority vote of the Disinterested Directors,
even though less than a quorum; or (iii) if there are no Disinterested Directors or if the Disinterested Directors so direct, by Independent
Counsel (as defined in Section 14(e)) in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee;
provided, however, that, if requested at any time by Indemnitee, notwithstanding the foregoing, any determination with respect
to Indemnitee’s entitlement to indemnification hereunder shall be made solely by Independent Counsel in a written opinion to the
Board, a copy of which shall be delivered concurrently to the Indemnitee.
(c) If
the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(b) hereof, the Independent
Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by the Board, subject to
written approval of Indemnitee. If, within twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant
to Section 6(a) hereof, no Independent Counsel shall have been selected with the written approval of the Indemnitee, either the
Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the
Indemnitee to the Company’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected
by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved
or the person so appointed shall act as Independent Counsel under Section 6(b) hereof. The Company shall pay any and all reasonable
fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 6(b)
hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c).
(d) In
making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination
shall presume that Indemnitee is entitled to indemnification under this Agreement. Anyone seeking to overcome this presumption shall have
the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its
directors or independent legal counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement
that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination
by the Company (including by its directors or independent legal counsel) that Indemnitee has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
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(e) Indemnitee
shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise
(as defined in Section 14(c)), including financial statements, or on information supplied to Indemnitee by the officers of the
Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports
made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care
by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent, consultant or employee
of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether
or not the foregoing provisions of this Section 6(e) are satisfied, it shall in any event be presumed that Indemnitee has at all
times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone
seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(f) If
the person, persons or entity empowered or selected under this Section 6 to determine whether Indemnitee is entitled to indemnification
shall not have made a determination within sixty (60) days after receipt by the Company of the request therefor, the requisite determination
of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification absent a
prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for
a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making such determination with respect
to entitlement to indemnification in good faith requires.
(g) Indemnitee
shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification,
including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged
or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination.
Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee’s
entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys’ fees and disbursements) incurred
by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective
of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee
harmless therefrom.
(h) The
Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense,
delay, distraction, disruption and uncertainty. In the event that any Proceeding to which Indemnitee is a party is resolved in any manner
other than by adverse judgment against Indemnitee (including, without limitation, settlement of such Proceeding with or without payment
of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such Proceeding.
Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
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(i) The
termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the
right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
7. REMEDIES
OF INDEMNITEE.
(a) In
the event that: (i) a determination is made pursuant to Section 6 of this Agreement that Indemnitee is not entitled to indemnification
under this Agreement; (ii) advancement of Expenses is not timely made pursuant to Section 5 of this Agreement; (iii) no
determination of entitlement to indemnification is made pursuant to Section 6(b) of this Agreement within ninety (90) days after
receipt by the Company of the request for indemnification; (iv) payment of indemnification is not made pursuant to this Agreement
within ten (10) days after receipt by the Company of a written request therefor; or (v) payment of indemnification is not made within
ten (10) days after a determination has been made that Indemnitee is entitled to indemnification or such determination is deemed to have
been made pursuant to Section 6 of this Agreement, Indemnitee shall be entitled to an adjudication in any court of competent jurisdiction
of Indemnitee’s entitlement to such indemnification. Indemnitee shall commence such proceeding seeking an adjudication within one
hundred eighty (180) days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section
7(a). The Company shall not oppose Indemnitee’s right to seek any such adjudication.
(b) In
the event that a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is not entitled
to indemnification, any judicial proceeding commenced pursuant to this Section 7 shall be conducted in all respects as a de novo
trial on the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination under Section 6(b).
(c) If
a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is entitled to indemnification,
the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 7, absent: (i) a
misstatement by Indemnitee of a material fact or an omission of a material fact necessary to make Indemnitee’s misstatement not
materially misleading in connection with the application for indemnification; or (ii) a prohibition of such indemnification under
applicable law.
(d) In
the event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication of his rights under, or to recover damages
for breach of, this Agreement, or to recover under any directors’ and officers’ liability insurance policies maintained by
the Company, the Company shall pay on his behalf, in advance, any and all expenses (of the types described in the definition of “Expenses”
in Section 14(d) of this Agreement) actually and reasonably incurred by him in such judicial adjudication, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery.
7
(e) The
Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 7 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound
by all the provisions of this Agreement. The Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee,
shall (within ten (10) days after receipt by the Company of a written request therefor) advance, to the extent not prohibited by law,
such expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification
or advance of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policies
maintained by the Company, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement
of Expenses or insurance recovery, as the case may be.
(f) Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required
to be made prior to the final disposition of the Proceeding.
8. NON-EXCLUSIVITY,
SURVIVAL OF RIGHTS, ETC.
(a) The
rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any
time be entitled under applicable law, the organizational documents of the Company, any other agreement with the Company, a vote of the
Company’s stockholders, a resolution of the Board or otherwise. No amendment, alteration or repeal of this Agreement or of any provision
hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee
in his Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in any applicable law, whether by statute
or judicial decision, permits greater indemnification than would be afforded currently under the Company’s organizational documents
and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded
by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and
remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.
(b) To
the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees,
or agents, consultants or fiduciaries of the Company or of any other Enterprise, Indemnitee shall be covered by such policy or policies
in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary
under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has directors’
and officers’ liability insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the
insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable
action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance with
the terms of such policies.
8
(c) In
the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery
of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce such rights.
(d) The
Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent
that Indemnitee has otherwise actually received payment of such amounts under any insurance policy, contract, other agreement or otherwise.
(e) The
Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company
as a director, officer, employee, agent, consultant or fiduciary of any Enterprise other than the Company shall be reduced by any amount
Indemnitee has actually received as indemnification or advancement of expenses from such other Enterprise.
9. EXCEPTION
TO RIGHT OF INDEMNIFICATION. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement
to provide any indemnification in connection with any claim made against Indemnitee: (i) for which payment has actually been made
to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount
paid under any insurance policy or other indemnity provision, provided that the foregoing shall not affect the rights of Indemnitee; (ii) for
an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the
meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended or similar provisions of state statutory law or common law;
or (iii) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or
any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless
(A) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (B) the Company provides
the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law.
10. DURATION
OF AGREEMENT. All agreements and obligations of the Company contained herein shall continue until the date that is ten (10) years
after the date upon which Indemnitee’s Corporate Status terminates and shall continue thereafter so long as Indemnitee shall be
subject to any Proceeding (or any proceeding commenced under Section 7 hereof) by reason of his Corporate Status, whether or not
he is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided
under this Agreement. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their
respective successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially
all of the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal representatives.
9
11. SECURITY.
If requested by Indemnitee, the Company shall from time to time provide security to Indemnitee for the Company’s obligations hereunder,
in such sums as Indemnitee shall reasonably require to secure all possible obligations under this Agreement, through an irrevocable bank
line of credit, letter(s) of credit, surety bond, funded trust or other collateral or retainer to counsel of Indemnitee’s choosing.
Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of the Indemnitee. The
Company shall provide the security required under this Section 11 within sixty (60) days after a request for such security is made
by Indemnitee.
12. ENFORCEMENT.
The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in
order to induce Indemnitee to serve as a director of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement
in serving as a director of the Company. The Company shall not seek from a court, or agree to, a “bar order” that would have
the effect of prohibiting or limiting Indemnitee’s rights to receive advancement of Expenses under this Agreement.
13. INTENTIONALLY
OMITTED.
14. DEFINITIONS.
For purposes of this Agreement:
(a) “Corporate
Status” describes the status of a person who is or was at any time (including, without limitation, any time prior to the
date of this Agreement) a director, officer, employee, agent, consultant or fiduciary of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise that such person is or was serving at the express written request of the
Company or pursuant to agreement with the Company, including without limitation as a shareholder, member, officer, employee, consultant
or independent contractor.
(b) “Disinterested
Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification
is sought by Indemnitee.
(c) “Enterprise”
shall mean the Company and any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that Indemnitee
is or was serving at the express written request of the Company or pursuant to agreement with the Company as a director, officer, employee,
agent, consultant or fiduciary (including without limitation as a shareholder, member, officer, employee, consultant or independent contractor).
(d) “Expenses”
shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses
of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating,
or being or preparing to be a witness in a Proceeding, or responding to, or objecting to, a request to provide discovery in any Proceeding.
Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding and any federal, state, local
or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including
without limitation the premium, security for, and other costs relating to any cost bond, supersede as bond, or other appeal bond or its
equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against
Indemnitee.
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(e) “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently
is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such
party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification
agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above
and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement
or its engagement pursuant hereto.
(f) “Proceeding”
includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed proceeding (including one pending on or before the date of this Agreement
but excluding one initiated by an Indemnitee pursuant to Section 7 of this Agreement to enforce his rights under this Agreement),
whether brought by or in the right of the Company or otherwise and whether civil, criminal, administrative or investigative, in which
Indemnitee was, is or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was an officer or director
of, or a consultant to, the Company (including without limitation as a shareholder, member, officer, employee, consultant or independent
contractor ), by reason of any action taken by him or of any inaction on his part while acting as an officer or director of the Company,
or by reason of the fact that he is or was serving at the request of the Company or pursuant to agreement with the Company as a director,
officer, employee, agent, consultant or fiduciary of another corporation, partnership, joint venture, trust or other Enterprise (including
without limitation as a shareholder, member, officer, employee, consultant or independent contractor), in each case whether or not he
is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under
this Agreement.
15. SEVERABILITY.
The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision.
Without limiting the generality of the foregoing, this Agreement is intended to confer upon Indemnitee indemnification rights to the fullest
extent permitted by applicable laws. In the event any provision hereof conflicts with any applicable law, such provision shall be deemed
modified, consistent with the aforementioned intent, to the extent necessary to resolve such conflict.
16. MODIFICATION
AND WAIVER. No supplement, modification, termination or amendment of this Agreement shall be binding unless executed in writing by
both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
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17. NOTICE
BY INDEMNITEE. Indemnitee agrees to promptly notify the Company in writing upon being served with or otherwise receiving any summons,
citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to
indemnification covered hereunder. The failure to so notify the Company shall not relieve the Company of any obligation which it may have
to Indemnitee under this Agreement or otherwise unless and only to the extent that such failure or delay materially prejudices the Company.
18. NOTICES.
All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given:
(i) upon personal delivery to the party to be notified; (ii) when sent by confirmed electronic mail or facsimile if sent during
normal business hours of the recipient, and if not so confirmed, then on the next business day; (iii) five (5) business days after
having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one business (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All notices and other
communications shall be sent:
(a) To Indemnitee at the address set forth below Indemnitee’s
signature hereto.
(b) To the Company at:
WhiteFiber Inc.
31 Hudson Yards,
11th Floor, Suite 30
New York, New York
10001
Attention: Sam Tabar,
CEO
or to such other address as
may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.
19. HEADINGS.
The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
20. APPLICABLE
LAW AND CONSENT TO JURISDICTION. This Agreement and the legal relations among the parties shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules that would require the application
of any other laws. The Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising
out of or in connection with this Agreement shall be brought only in the Chancery Court of the State of Delaware and any state appellate
court therefrom within the State of Delaware (unless the Chancery Court declines to accept jurisdiction over a particular matter, in which
case, in any Delaware state or federal court within the State of Delaware) (the “Chosen Courts”), and not in
any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the
exclusive jurisdiction of the Chosen Courts for purposes of any action or proceeding arising out of or in connection with this Agreement,
(iii) waive any objection to the laying of venue of any such action or proceeding in the Chosen Courts, and (iv) waive, and
agree not to plead or to make, any claim that any such action or proceeding brought in the Chosen Courts has been brought in an improper
or inconvenient forum.
21. ENTIRE
AGREEMENT. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject
matter hereof.
22. COUNTERPARTS.
This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same Agreement. This Agreement may also be executed and delivered by facsimile signature (or other similar electronic
means) and in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one
and the same instrument.
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12
IN WITNESS WHEREOF,
the parties have caused this Agreement to be signed as of the date and year first above written.
WHITEFIBER INC.
By:
/s/ Sam Tabar
Name:
Sam Tabar
Title:
Chief Executive Officer
INDEMNITEE
/s/ Michael Rulf
Name:
Michael Rulf
Address:
[Signature page
to Michael Rulf Indemnification Agreement]
EX-10.8 — PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN WHITEFIBER, INC. AND RASTERWERK LLC (MICHAEL RULF)
EX-10.8
Filename: ea029977501ex10-8.htm · Sequence: 9
Exhibit 10.8
PROFESSIONAL SERVICES
AGREEMENT (PSA)_________________PSA No. _______________
This
Professional Services Agreement (PSA) is by and between WhiteFiber,
Inc. having a principal place of business at: 31 Hudson Yards, Suite 1130, New York, New York 10001 (hereinafter
referred to as the “CLIENT”), and Rasterwerk LLC, a Maryland limited liability company, having a principal place of
business at______________________, (hereinafter referred to as “Rasterwerk”).
This Agreement
sets forth the terms and conditions under which Rasterwerk will provide services to CLIENT for professional services made available by
Rasterwerk to CLIENT.
1.
SERVICES. Rasterwerk agrees to perform and CLIENT agrees to pay Rasterwerk for professional services as may be described
in one or more Engagement Authorizations signed by the parties (hereinafter the “Services”). Services may be performed at
either the CLIENT site or at Rasterwerk’s .
2.
FEES. CLIENT agrees to pay for the Services, including billable travel time, travel, lodging, meals, long distance telephone
calls, data service charges and supplies in accordance with Rasterwerk’s established charges, and rates in effect when the Services
are rendered. All charges are subject to change by Rasterwerk upon thirty days’ written notice. Fees for Services rendered will
be invoiced monthly, and will be due upon receipt of invoice, and payable within ten (10) business days of receipt of invoice without
withholding, deduction or offset of any amounts for any purpose. CLIENT shall pay all applicable taxes.
3.
SERVICE PRICING. Rasterwerk will provide in the Engagement Authorization a written description of charges for Services,
but such description shall not convert this Agreement or the respective Engagement Authorization into a fixed price contract with respect
to such Services unless agreed upon by CLIENT. If Rasterwerk determines that any estimate or description of services will be materially
exceeded, it shall, within five (5) days notify CLIENT. In such event, CLIENT may elect to terminate, by notice in writing to Rasterwerk,
the Services with respect to which the description of services was given under the provisions of paragraph 11. Termination of Specific
Services under this provision shall not terminate this Agreement, unless CLIENT so specifies.
4. WORK SCHEDULES;
PERSONNEL. Engagement Authorizations may include agree-to work schedules of Rasterwerk personnel. Rasterwerk will use
reasonable efforts to provide personnel in accordance with such schedules. Rasterwerk will make every reasonable effort consistent
with sound business practices to honor the specific requests of the CLIENT with regard to the assignment of Rasterwerk’s
employees. However, Rasterwerk reserves the sole right to determine the assignment of its employees.
5. CONTROL
AND SUPERVISION. Each Engagement Authorization shall designate a CLIENT contact and a Rasterwerk contact who shall be
responsible for directing the specific activities of their respective employees and have sufficient authority to represent CLIENT
and Rasterwerk, respectively, on all technical, administrative and supervisory matters arising in connection with the performance of
the respective Services. Either party may replace its contact upon reasonable notice to the other party.
Confidential between CLIENT and Rasterwerk LLC Page 1
6.
CONFIDENTIALITY. Nondisclosure of Confidential Information. Each party acknowledges that it will have access to certain
confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, and other
information held in confidence by the other party (“Confidential Information”). Confidential Information will include
all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure,
should be considered confidential. Confidential Information will also include, but not be limited to, Rasterwerk Technology, CLIENT Technology,
and the terms and conditions of this PSA and all documents incorporated by reference into this PSA. Each party agrees that it will not
use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes
of, this PSA, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors
as reasonably necessary), any of the other party’s Confidential Information. Each party also agrees that it will take reasonable precautions
to protect the confidentiality of the other party’s Confidential Information, at least as stringent as it takes to protect its own Confidential
Information.
Exceptions.
Information will not be deemed Confidential Information under this PSA if such information: (i) is known to the receiving party prior
to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the
disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly
from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise
ceases to be secret or confidential, except through a breach of this PSA by the receiving party; or (iv) is independently developed by
the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or
by operation of law, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party
to contest such disclosure.
7.
TITLE. All original printed and recorded written materials, and ideas, concepts, know-how or techniques relating to Services
developed during the course of this Agreement in whole or in substantial part by Rasterwerk personnel shall belong to Rasterwerk, provided,
however that CLIENT shall be authorized on a non-exclusive basis to use any such materials, ideas, concepts, know-how, or techniques as
part of professional services rendered by Rasterwerk. CLIENT shall not sell, disclose, or sublicense to third parties such materials,
ideas, concepts, know-how, or techniques without the prior written approval of Rasterwerk, which approval may or may not be granted, at
Rasterwerk’s exclusive direction.
Confidential between CLIENT and Rasterwerk LLC Page 2
8. EMPLOYEE
/ CONTRACTOR SOLICITATION. Rasterwerk shall not without CLIENT’S written consent employ or offer employment to any CLIENT
employee.
9. WARRANTY;
LIMITATION OF LIABILITY. This is a Services Agreement and Rasterwerk warrants that the Services shall be performed in a
professional manner. In the event of a breach of this warranty, Rasterwerk shall cause to be performed correctly the Services where
the warranty has been breached. Any claim for breach of Rasterwerk’s warranty hereunder must be made by written notice to
Rasterwerk within two weeks following the date of completion of the Services in for which the claim is made.
THE FOREGOING
WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OR MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
Rasterwerk’s
liability for damages, regardless of the form of the action, including gross negligence is limited to the fees received under this Agreement
in the calendar year the Services were performed. In no event shall Rasterwerk be liable for any consequential damages, even if Rasterwerk
has been advised of the possibility of such damages. Rasterwerk shall not be responsible for failure to provide Services due to causes
beyond Rasterwerk’s control.
10.
TAXES. CLIENT agrees to pay, when due, any use or sales taxes resulting from this Agreement or any action hereunder.
11. TERM.
This Agreement may be terminated (i) by either Rasterwerk or CLIENT, with or without cause, upon thirty days prior written notice;
or (ii) by Rasterwerk immediately upon CLIENT’s bankruptcy (voluntary or involuntary), insolvency or assignment for the
benefit of its creditors, or the appointment of a receiver for all or substantial part of CLIENT’s assets. In the event this
Agreement is terminated, (i) CLIENT shall promptly pay all fees payable to Rasterwerk in respect of Services performed through the
date of termination; and (ii) each party shall return or destroy, at the direction of the other party all confidential or
proprietary data and information of the other party then in its possession. The covenants and rights of the parties under paragraphs
6,7,8 and 9 of this Agreement shall survive the termination of this Agreement for the full duration of such covenants and rights
under applicable law.
Confidential between CLIENT and Rasterwerk LLC Page 3
12.
ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns,
except as follows. Neither this Agreement nor any rights or obligations hereunder may be assigned or otherwise transferred by CLIENT without
the prior written consent of Rasterwerk.
13.
GOVERNING LAWS. This Agreement, shall be governed by the laws of the State of New York, United States of America.
14.
[RESERVED]
15.
COVERDEN ARRANGEMENT. Nothing in this Agreement shall be construed to limit or supersede any separate consulting or subcontracting
arrangement between the parties or their affiliates, including without limitation any arrangement between WhiteFiber, Inc. or Enovum Data
Centers Corp. and Coverden, through which the consultant may also provide services. For the avoidance of doubt, this clause applies equally
to any services provided through Rasterwerk LLC.
16.
SCOPE OF OBLIGATIONS. The obligations set forth in this Agreement, including without limitation those relating to confidentiality
(Section 6) and title to work product (Section 7), apply solely with respect to Services performed by the consultant through Rasterwerk
pursuant to this Agreement. Nothing herein shall be construed to affect the rights or obligations of any party with respect to services
performed outside the scope of such documents, including services performed through or in connection with Coverden or Rasterwerk LLC.
17.
TERMINATION AND NON-COMPETE. Termination of this Agreement shall not, by itself, trigger or accelerate any non-compete,
non-solicitation, or restrictive covenant obligations under any separate Director Agreement between the parties. Any work in progress
by Rasterwerk executed prior to notice of termination may be completed pursuant to the terms of such document notwithstanding termination
of this Agreement, unless CLIENT elects to terminate specific Services under Section 11 hereof. For the avoidance of doubt, Rasterwerk
LLC is the contracting entity under this Agreement, and the obligations and protections of this Section apply equally to Rasterwerk LLC
and to any services performed by Michael Rulf through Rasterwerk LLC.
18.
SEVERABILITY. If any terms or provisions of the Agreement shall be found by a competent jurisdiction to be illegal or otherwise
unenforceable, the same shall not invalidate the whole of this Agreement, but such term or provision shall be deemed modified to the extent
necessary in the court’s opinion to render such term enforceable, and the rights and obligations of the parties shall be construed
and enforced accordingly preserving the fullest permissible extent the intent and agreements of the CLIENT and Rasterwerk.
Confidential between CLIENT and Rasterwerk LLC Page 4
Further, CLIENT and Rasterwerk agree that this
Agreement is the complete statement of terms and conditions agreed to by the parties, and this Agreement may be modified only by a written
instrument signed by both parties.
For CLIENT:
/s/ Sam Tabar
Title
Chief Executive Officer
authorized signature
Sam Tabar
Date
July 30, 2026
(typed or printed name)
For Rasterwerk LLC:
/s/ Michael Rulf
Title
Principal
authorized signature
Michael Rulf
Date
July 30, 2026
(typed or printed name)
Confidential between CLIENT and Rasterwerk LLC Page 5
EX-10.9 — AMENDMENT TO DIRECTOR AGREEMENT BY AND BETWEEN WHITEFIBER, INC. AND PRUITT HALL
EX-10.9
Filename: ea029977501ex10-9.htm · Sequence: 10
Exhibit 10.9
AMENDMENT TO
DIRECTOR AGREEMENT
AMENDMENT
TO DIRECTOR AGREEMENT dated as of July 30, 2026, with an effective date of August 1, 2026 (the “Effective Date”) by and between
WhiteFiber, Inc., a Cayman Islands exempted company, with its principal business at 31 Hudson Yards, Floor 11, Suite 30, New York, New
York 10001 (the “Company”) and Mr. Pruitt Hall, with an address at [Intentionally left blank] (the “Director”).
W I T N E S S
E T H :
WHEREAS,
the Company and the Director entered into a Director Agreement dated as of May 5, 2025 (the “Agreement”); and
WHEREAS,
the Agreement provided for the Directorship Term to be one (1) year from the commencement of trading of the Company’s Ordinary
Shares on the Nasdaq Capital Market.
NOW,
THEREFORE, in consideration of the mutual premises and covenants and agreements contained herein and for other good and valuable
consideration by each of the parties, the parties hereby agree as follows:
1. Section
4 Remuneration of the Director Agreement is hereby amended to read as follows: Director’s compensation as an independent director
shall be $270,000 per annum, paid on a monthly basis.
2. Section
5(a) of the Director Agreement. is hereby amended to read as follows:
“Directorship
Term. The “Directorship Term”, as used in this Agreement, shall mean the period commencing on the Effective Date hereof
and terminating on the earliest of the following to occur:
(a)
the earlier of one (1) year from the Effective date, subject to re-election by a majority of
the shareholders of the Company. Bit Digital, as the majority shareholder of the Company will vote its shares in favor of re-election
of the Director at the Annual General Meeting of Shareholders. The Agreement will be renewed automatically for additional one-year terms
if neither the Company nor the Director provides a notice of termination of services on the Board of Directors to the other party, or
otherwise within three months prior to the expiration of the applicable term.”
Except
as set forth herein, the Agreement remains unchanged and in full force and effect.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the 30th day of July 2026.
“DIRECTOR”
WHITEFIBER, INC.
/s/ Pruitt Hall
By:
/s/ Sam Tabar
Pruitt Hall
Name:
Sam Tabar
Title:
Chief Executive Officer
[SIGNATURE
PAGE TO PRUITT HALL AMENDED DIRECTOR AGREEMENT]
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