As filed with the Securities and Exchange Commission
on November 24, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
BIT BROTHER LIMITED
(Exact name of registrant as specified in its charter)
British Virgin Islands |
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N/A |
(State or Other Jurisdiction of
Incorporation or Organization) |
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(I.R.S. Employer
Identification No.) |
15/F, Block A, Kineer Business Centre
53 Binjiang Road, Yuelu District
Changsha, Hunan Province, China 410023
(Address, Including Zip Code, of Registrant’s
Principal Executive Offices)
2023 Equity Incentive Plan
(Full Title of the Plan)
Puglisi & Associates
850 Library Avenue
Suite 204
Newark, Delaware 19711
Tel: (302) 738-6680
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Joan Wu Esq.
Hunter Taubman Fischer & Li, LLC
48 Wall Street, Suite 1100
New York, NY 10005
Tel: (212) 530-2208
Facsimile: (212) 202-6380
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large
accelerated filer,” “accelerated filer,” “smaller reporting company” or an emerging growth company. See
the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and
“emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
☐ |
Accelerated filer |
☐ |
Non-accelerated filer |
☐ |
Smaller reporting company |
☒ |
Emerging growth company |
☐ |
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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 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY NOTE
This Registration Statement
is being filed by the Registrant in accordance with the requirements of Form S-8 under the Securities Act in order to register 58,000,000
Class A Ordinary Shares issuable pursuant to the Bit Brother Limited 2023 Equity Incentive Plan, (the “2023 Plan”) adopted
by the Board of Directors of the Company.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* |
The documents containing the information specified in this Part I of Form S-8 (Plan Information and Registration Information and Employee Plan Annual Information) will be sent or given to recipients of the grants under the 2023 Plan as specified by the Commission pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not required to be and are not filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. The Registrant will provide a written statement to participants advising them of the availability without charge, upon written or oral request, of the documents incorporated by reference in Item 3 of Part II hereof and including the statement in the preceding sentence. The written statement to all participants will indicate the availability without charge, upon written or oral request, of other documents required to be delivered pursuant to Rule 428(b), and will include the address and telephone number to which the request is to be directed. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Bit Brother Limited (the “Company”)
is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the “1934 Act”) and, accordingly,
files periodic reports and other information with the Commission. Reports and other information concerning the Company filed with the
Commission may be inspected and copies may be obtained (at prescribed rates) at the Commission’s Public Reference Section, Room
1024, 100 F Street, N.E., Room 1580, Washington, D.C. 20549. The Commission also maintains a Web site that contains reports, proxy and
information statements and other information regarding registrants that file electronically with the Commission, including the Company.
The address for the Commission’s Web site is “http://www.sec.gov”. The following documents are incorporated by reference
in this Registration Statement:
(a) The Company’s Annual Report on Form 20-F for the fiscal year ended June 30, 2023 filed with the Commission on October 12, 2023.
(b) The Company’s Current Reports on Form
6-K furnished to the Commission on July 21, 2023, August 2, 2023, and October 31, 2023; and
(c) The description of our ordinary shares incorporated
by reference in our registration statement on Form 8-A, as amended (File No. 001-35755) filed with the SEC on June 1, 2015, including
any amendment and report subsequently filed for the purpose of updating that description.
Except to the extent such
information is deemed furnished and not filed pursuant to securities laws and regulations, all documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and,
to the extent specifically designated therein, reports on Form 6-K furnished by the Company to the Commission, in each case, prior to
the filing of a post-effective amendment to this Registration Statement indicating that all securities offered under this Registration
Statement have been sold, or deregistering all securities then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing or furnishing of such documents.
Any statement contained herein
or in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
British Virgin Islands law
does not limit the extent to which a company’s Amended and Restated Memorandum and Articles of Association may provide for indemnification
of officers and directors, except to the extent any such provision may be held by the British Virgin Islands courts to be contrary to
public policy, such as to provide indemnification against civil fraud or the consequences of committing a crime. Our Articles of Association
provides for indemnification of our officers and directors for any liability incurred in their capacities as such, except through their
own fraud or dishonesty.
Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing
provisions, we have been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is theretofore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
EXHIBIT INDEX
Item 9. Undertakings.
(a) |
The undersigned registrant hereby undertakes: |
| (1) | To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
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(i) |
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
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(ii) |
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement. |
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(iii) |
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. |
provided, however, that paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in
a form of prospectus filed pursuant to Rule 424(b).
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(2) |
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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(3) |
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
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(4) |
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
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(i) |
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
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(ii) |
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
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(5) |
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
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(i) |
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
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(ii) |
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
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(iii) |
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
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(iv) |
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) |
That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(c) |
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
Signatures
The Registrant. Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in Hunan, China, on November 24, 2023.
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BIT BROTHER LIMITED |
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By: |
/s/ Xianlong
Wu |
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Xianlong Wu |
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Chief Executive Officer, |
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Chairman of the Board of Directors |
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(Principal Executive Officer) |
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By: |
/s/ Lingyin
Li |
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Lingyin Li |
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Chief Financial Officer, Director |
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(Principal Financial and Accounting Officer) |
The Plan. Pursuant
to the requirements of the Securities Act of 1933, the trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Hunan China, on November
24, 2023.
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BOARD OF DIRECTORS OF
BIT BROTHER LIMITED |
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By: |
/s/ Xianlong Wu |
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Xianlong Wu |
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Chief Executive Officer, |
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Chairman of the Board of Directors |
POWER OF ATTORNEY
Each person whose signature
appears below hereby appoints Xianlong Wu and Lingyin Li, and each of them severally, acting alone and without the other, his or her true
and lawful attorney-in-fact with full power of substitution or re-substitution, for such person and in such person’s name, place
and stead, in any and all capacities, to sign on such person’s behalf, individually and in each capacity stated below, any and all
amendments, including post-effective amendments to this Registration Statement, and to sign any and all additional registration statements
relating to the same offering of securities of the Registration Statement that are filed pursuant to Rule 462 of the Securities Act of
1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact, full power and authority to do and perform each and every act and thing requisite or necessary to
be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates
indicated.
Signature |
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Title |
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Date |
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/s/ Xianlong Wu |
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Chief Executive Officer |
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November 24, 2023 |
Name: Xianlong Wu |
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(principal executive officer) and Executive Director |
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/s/ Lingyin Li |
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Chief Financial Officer |
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November 24, 2023 |
Name: Lingyin Li |
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(principal financial officer and principal accounting officer) and Executive Director |
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/s/ Diyu Jiang |
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Director |
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November 24, 2023 |
Name: Diyu Jiang |
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/s/ Zhihua Liao |
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Director |
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November 24, 2023 |
Name: Zhihua Liao |
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/s/ Anatoly Danilitskiy |
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Director |
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November 24, 2023 |
Name: Anatoly Danilitskiy |
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SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE
UNITED STATES
Pursuant to the Securities Act of 1933 as amended,
the undersigned, the duly authorized representative in the United States of America, has signed this registration statement thereto in
Newark, DE on November 24, 2023.
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Puglisi & Associates |
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By: |
/s/ Donald J. Puglisi |
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Name: |
Donald J. Puglisi |
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Title: |
Managing Director |
II-6
Exhibit 4.1
BIT BROTHER LIMITED
2023 EQUITY INCENTIVE PLAN
1. Purpose.
The purpose of the Bit Brother Limited 2023 Equity Incentive Plan is to provide a means through which the Company and its Affiliates may
attract and retain key personnel and to provide a means whereby directors, officers, managers, employees, consultants and advisors (and
prospective directors, officers, managers, employees, consultants and advisors) of the Company and its Affiliates can acquire and maintain
an equity interest in the Company, or be paid incentive compensation, which may (but need not) be measured by reference to the value of
Common Shares, thereby strengthening their commitment to the welfare of the Company and its Affiliates and aligning their interests with
those of the Company’s stockholders.
2. Definitions.
The following definitions shall be applicable throughout this Plan:
(a) “Affiliate”
means (i) any person or entity that directly or indirectly controls, is controlled by or is under common control with the Company and/or
(ii) to the extent provided by the Committee, any person or entity in which the Company has a significant interest as determined by the
Committee in its discretion. The term “control” (including, with correlative meaning, the terms “controlled by”
and “under common control with”), as applied to any person or entity, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such person or entity, whether through the ownership of voting
or other securities, by contract or otherwise.
(b) “Award”
means, individually or collectively, any Incentive Stock Option, Nonqualified Stock Option, Stock Appreciation Right, Restricted Stock,
Restricted Stock Unit, Stock Bonus Award and Performance Compensation Award granted under this Plan.
(c) “Board”
means the Board of Directors of the Company.
(d) “Business
Combination” has the meaning given such term in the definition of “Change in Control.”
(e) “Business
Day” means any day other than a Saturday, a Sunday or a day on which banking institutions in New York City are authorized
or obligated by federal law or executive order to be closed.
(f) “Cause”
means, in the case of a particular Award, unless the applicable Award agreement states otherwise, (i) the Company or an Affiliate having
“cause” to terminate a Participant’s employment or service, as defined in any employment or consulting agreement or
similar document or policy between the Participant and the Company or an Affiliate in effect at the time of such termination or (ii) in
the absence of any such employment or consulting agreement, document or policy (or the absence of any definition of “Cause”
contained therein), (A) a continuing material breach or material default (including, without limitation, any material dereliction of duty)
by Participant of any agreement between the Participant and the Company, except for any such breach or default which is caused by the
physical disability of the Participant (as determined by a neutral physician), or a continuing failure by the Participant to follow the
direction of a duly authorized representative of the Company; (B) gross negligence, willful misfeasance or breach of fiduciary duty by
the Participant; (C) the commission by the Participant of an act of fraud, embezzlement, misappropriation of the Company or its Affiliate’s
assets or any felony or other crime of dishonesty in connection with the Participant’s duties; (D) conviction of the Participant
of a felony or any other crime that would materially and adversely affect: (i) the business reputation of the Company or (ii) the performance
of the Participant’s duties to the Company, or (E) failure by a Participant to follow the lawful directions of a superior officer
or the Board. Any determination of whether Cause exists shall be made by the Committee in its sole discretion.
(g) “Change
in Control” shall, in the case of a particular Award, unless the applicable Award agreement states otherwise or contains
a different definition of “Change in Control,” be deemed to occur upon:
(i) An
acquisition (whether directly from the Company or otherwise) of any voting securities of the Company (the “Voting Securities”)
by any “Person” (as the term person is used for purposes of Section 13(d) or 14(d) of the Securities and Exchange Act of 1934,
as amended (the “Exchange Act”)), immediately after which such Person has ownership of more than two thirds
(2/3) of the combined voting power of the Company’s then outstanding Voting Securities.
(ii) The
individuals who constitute the members of the Board cease, by reason of a financing, merger, combination, acquisition, takeover or other
non-ordinary course transaction affecting the Company, to constitute at least forty percent (40%) of the members of the Board; or
(iii) The
consummation of any of the following events:
(A) A
merger, consolidation or reorganization involving the Company, where either or both of the events described in clauses (i) or (ii) above
would be the result;
(B) A
liquidation or dissolution of or appointment of a receiver, rehabilitator, conservator or similar person for, or the filing by a third
party of an involuntary bankruptcy against, the Company; provided, however, that to the extent necessary to comply with Section 409A of
the Code, the occurrence of an event described in this subsection (B) shall not permit the settlement of Restricted Stock Units granted
under this Plan; or
(C) An
agreement for the sale or other disposition of all or substantially all of the assets of the Company to any Person (other than a transfer
to a subsidiary of the Company).
(h) “Closing
Price” means (A) during such time as the Common Shares are registered under Section 12 of the Exchange Act, the closing
price of the Common Shares as reported by an established stock exchange or automated quotation system on the day for which such value
is to be determined, or, if no sale of the Common Shares shall have been made on any such stock exchange or automated quotation system
that day, on the next preceding day on which there was a sale of such Common Shares, or (B) during any such time as the Common Shares
are not listed upon an established stock exchange or automated quotation system, the mean between dealer “bid” and “ask”
prices of the Common Shares in the over-the-counter market on the day for which such value is to be determined, as reported by the Financial
Industry Regulatory Authority, Inc., or (C) during any such time as the Common Shares cannot be valued pursuant to (A) or (B) above, the
fair market value shall be as determined by the Committee considering all relevant information including, by example and not by limitation,
the services of an independent appraiser.
(i) “Code”
means the Internal Revenue Code of 1986, as amended, and any successor thereto. References in this Plan to any section of the Code shall
be deemed to include any regulations or other interpretative guidance under such section, and any amendments or successor provisions to
such section, regulations or guidance.
(j) “Committee”
means a committee of at least two people as the Board may appoint to administer this Plan or, if no such committee has been appointed
by the Board, the Board. Unless altered by an action of the Board, the Committee shall be the Compensation Committee of the Board.
(k) “Common
Shares” means the Class A ordinary shares, no par value, of the Company (and any stock or other securities into which such
common shares may be converted or into which they may be exchanged).
(l) “Company”
means Bit Brother Limited, a British Virgin Islands corporation, together with its successors and assigns.
(m) “Date
of Grant” means the date on which the granting of an Award is authorized, or such other date as may be specified in such
authorization.
(n) “Disability”
means a “permanent and total” disability incurred by a Participant while in the employ of the Company or an Affiliate. For
this purpose, a permanent and total disability shall mean that the Participant is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last
for a continuous period of not less than twelve (12) months.
(o) “Effective
Date” means the date when the Plan is adopted by the Board.
(p) “Eligible
Director” means a person who is (i) a “non-employee director” within the meaning of Rule 16b-3 under the Exchange
Act, and (ii) an “outside director” within the meaning of Section 162(m) of the Code.
(q) “Eligible
Person” means any (i) individual employed by the Company or an Affiliate; provided, however, that no
such employee covered by a collective bargaining agreement shall be an Eligible Person unless and to the extent that such eligibility
is set forth in such collective bargaining agreement or in an agreement or instrument relating thereto; (ii) director of the Company or
an Affiliate; (iii) consultant or advisor to the Company or an Affiliate, provided that if the Securities Act applies such persons must
be eligible to be offered securities registrable on Form S-8 under the Securities Act; or (iv) prospective employees, directors, officers,
consultants or advisors who have accepted offers of employment or consultancy from the Company or its Affiliates (and would satisfy the
provisions of clauses (i) through (iii) above once he or she begins employment with or begins providing services to the Company or its
Affiliates).
(r) “Exchange
Act” has the meaning given such term in the definition of “Change in Control,” and any reference in this Plan
to any section of (or rule promulgated under) the Exchange Act shall be deemed to include any rules, regulations or other interpretative
guidance under such section or rule, and any amendments or successor provisions to such section, rules, regulations or guidance.
(s) “Exercise
Price” has the meaning given such term in Section 7(b) of this Plan.
(t) “Fair
Market Value”, unless otherwise provided by the Committee in accordance with all applicable laws, rules regulations and
standards, means, on a given date, (i) if the Common Shares (A) are listed on a national securities exchange or (B) are not listed on
a national securities exchange, but is quoted by the OTC Markets Group, Inc. (www.otcmarkets.com) or any successor or alternative recognized
over-the-counter market or another inter-dealer quotation system, on a last sale basis, the average selling price of the Common Shares
reported on such national securities exchange or other inter-dealer quotation system, determined as the arithmetic mean of such selling
prices over the thirty (30)-Business Day period preceding the Date of Grant, weighted based on the volume of trading of such Common Shares
on each trading day during such period; or (ii) if the Common Shares are not listed on a national securities exchange or quoted in an
inter-dealer quotation system on a last sale basis, the amount determined by the Committee in good faith to be the fair market value of
the Common Shares.
(u) “Immediate
Family Members” shall have the meaning set forth in Section 15(b) of this Plan.
(v) “Incentive
Stock Option” means an Option that is designated by the Committee as an incentive stock option as described in Section 422
of the Code and otherwise meets the requirements set forth in this Plan.
(w) “Indemnifiable
Person” shall have the meaning set forth in Section 4(e) of this Plan.
(x) “Intellectual
Property Products” shall have the meaning set forth in Section 15(c) of this Plan.
(y) “Mature
Shares” means Common Shares owned by a Participant that are not subject to any pledge or security interest and that have
been either previously acquired by the Participant on the open market or meet such other requirements, if any, as the Committee may determine
are necessary in order to avoid an accounting earnings charge on account of the use of such shares to pay the Exercise Price or satisfy
a withholding obligation of the Participant.
(z) “Negative
Discretion” shall mean the discretion authorized by this Plan to be applied by the Committee to eliminate or reduce the
size of a Performance Compensation Award consistent with Section 162(m) of the Code.
(aa) “Nonqualified
Stock Option” means an Option that is not designated by the Committee as an Incentive Stock Option.
(bb) “Option”
means an Award granted under Section 7 of this Plan.
(cc) “Option
Period” has the meaning given such term in Section 7(c) of this Plan.
(dd) “Outstanding
Company Common Shares” has the meaning given such term in the definition of “Change in Control.”
(ee) “Outstanding
Company Voting Securities” has the meaning given such term in the definition of “Change in Control.”
(ff) “Participant”
means an Eligible Person who has been selected by the Committee to participate in this Plan and to receive an Award pursuant to Section
6 of this Plan.
(gg) “Performance
Compensation Award” shall mean any Award designated by the Committee as a Performance Compensation Award pursuant to Section
11 of this Plan.
(hh) “Performance
Criteria” shall mean the criterion or criteria that the Committee shall select for purposes of establishing the Performance
Goal(s) for a Performance Period with respect to any Performance Compensation Award under this Plan.
(ii) “Performance
Formula” shall mean, for a Performance Period, the one or more objective formulae applied against the relevant Performance
Goal to determine, with regard to the Performance Compensation Award of a particular Participant, whether all, some portion but less than
all, or none of the Performance Compensation Award has been earned for the Performance Period.
(jj) “Performance
Goals” shall mean, for a Performance Period, the one or more goals established by the Committee for the Performance Period
based upon the Performance Criteria.
(kk) “Performance
Period” shall mean the one or more periods of time, as the Committee may select, over which the attainment of one or more
Performance Goals will be measured for the purpose of determining a Participant’s right to, and the payment of, a Performance Compensation
Award.
(ll) “Permitted
Transferee” shall have the meaning set forth in Section 15(b) of this Plan.
(mm)
“Person” has the meaning given such term in the definition of “Change in Control.”
(nn) “Plan”
means this Bit Brother Limited 2023 Equity Incentive Plan, as amended from time to time.
(oo) “Retirement”
means the fulfillment of each of the following conditions: (i) the Participant is good standing with the Company as determined by the
Committee; (ii) the voluntary termination by a Participant of such Participant’s employment or service to the Company and (B) that
at the time of such voluntary termination, the sum of: (1) the Participant’s age (calculated to the nearest month, with any resulting
fraction of a year being calculated as the number of months in the year divided by 12) and (2) the Participant’s years of employment
or service with the Company (calculated to the nearest month, with any resulting fraction of a year being calculated as the number of
months in the year divided by 12) equals at least 62 (provided that, in any case, the foregoing shall only be applicable if, at the time
of Retirement, the Participant shall be at least 55 years of age and shall have been employed by or served with the Company for no less
than 5 years).
(pp) “Restricted
Period” means the period of time determined by the Committee during which an Award is subject to restrictions or, as applicable,
the period of time within which performance is measured for purposes of determining whether an Award has been earned.
(qq) “Restricted
Stock Unit” means an unfunded and unsecured promise to deliver Common Shares, cash, other securities or other property,
subject to certain restrictions (including, without limitation, a requirement that the Participant remain continuously employed or provide
continuous services for a specified period of time), granted under Section 9 of this Plan.
(rr) “Restricted
Stock” means Common Shares, subject to certain specified restrictions (including, without limitation, a requirement that
the Participant remain continuously employed or provide continuous services for a specified period of time), granted under Section 9 of
this Plan.
(ss) “SAR
Period” has the meaning given such term in Section 8(c) of this Plan.
(tt) “Securities
Act” means the Securities Act of 1933, as amended, and any successor thereto. Reference in this Plan to any section of the
Securities Act shall be deemed to include any rules, regulations or other official interpretative guidance under such section, and any
amendments or successor provisions to such section, rules, regulations or guidance.
(uu) “Stock
Appreciation Right” or “SAR” means an Award granted under Section 8 of this Plan which meets all
of the requirements of Section 1.409A-1(b)(5)(i)(B) of the Treasury Regulations.
(vv) “Stock
Bonus Award” means an Award granted under Section 10 of this Plan.
(ww) “Strike
Price” means, except as otherwise provided by the Committee in the case of Substitute Awards, (i) in the case of a SAR granted
in tandem with an Option, the Exercise Price of the related Option, or (ii) in the case of a SAR granted independent of an Option, the
Fair Market Value on the Date of Grant.
(xx) “Subsidiary”
means, with respect to any specified Person:
(i) any
corporation, association or other business entity of which more than 50% of the total voting power of shares of Outstanding Company Voting
Securities (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’
agreement that effectively transfers voting power) is at the time owned or controlled, directly or indirectly, by that Person or one or
more of the other Subsidiaries of that Person (or a combination thereof); and
(ii) any
partnership or limited liability company (or any comparable foreign entity) (a) the sole general partner or managing member (or functional
equivalent thereof) or the managing general partner of which is such Person or Subsidiary of such Person or (b) the only general partners
or managing members (or functional equivalents thereof) of which are that Person or one or more Subsidiaries of that Person (or any combination
thereof).
(yy) “Substitute
Award” has the meaning given such term in Section 5(e).
(zz) “Treasury
Regulations” means any regulations, whether proposed, temporary or final, promulgated by the U.S. Department of Treasury
under the Code, and any successor provisions.
3. Effective
Date; Duration. The Plan shall be effective as of the Effective Date, but no Award shall be exercised or paid (or, in the case of
a stock Award, shall be granted unless contingent on stockholder approval) unless and until this Plan has been approved by the stockholders
of the Company, which approval shall be within twelve (12) months after the Effective Date. The expiration date of this Plan, on and after
which date no Awards may be granted hereunder, shall be the tenth anniversary of the Effective Date; provided, however,
that such expiration shall not affect Awards then outstanding, and the terms and conditions of this Plan shall continue to apply to such
Awards.
4. Administration.
(a) The
Committee shall administer this Plan. To the extent required to comply with the provisions of Rule 16b-3 promulgated under the Exchange
Act (if the Board is not acting as the Committee under this Plan) or necessary to obtain the exception for performance-based compensation
under Section 162(m) of the Code, as applicable, it is intended that each member of the Committee shall, at the time he takes any action
with respect to an Award under this Plan, be an Eligible Director. However, the fact that a Committee member shall fail to qualify as
an Eligible Director shall not invalidate any Award granted by the Committee that is otherwise validly granted under this Plan. The acts
of a majority of the members present at any meeting at which a quorum is present or acts approved in writing by a majority of the Committee
shall be deemed the acts of the Committee. Whether a quorum is present shall be determined based on the Committee’s charter as approved
by the Board.
(b) Subject
to the provisions of this Plan and applicable law, the Committee shall have the sole and plenary authority, in addition to other express
powers and authorizations conferred on the Committee by this Plan and its charter, to: (i) designate Participants; (ii) determine the
type or types of Awards to be granted to a Participant; (iii) determine the number of Common Shares to be covered by, or with respect
to which payments, rights, or other matters are to be calculated in connection with, Awards; (iv) determine the terms and conditions of
any Award; (v) determine whether, to what extent, and under what circumstances Awards may be settled or exercised in cash, Common Shares,
other securities, other Awards or other property, or canceled, forfeited, or suspended and the method or methods by which Awards may be
settled, exercised, canceled, forfeited, or suspended; (vi) determine whether, to what extent, and under what circumstances the delivery
of cash, Common Shares, other securities, other Awards or other property and other amounts payable with respect to an Award; (vii) interpret,
administer, reconcile any inconsistency in, settle any controversy regarding, correct any defect in and/or complete any omission in this
Plan and any instrument or agreement relating to, or Award granted under, this Plan; (viii) establish, amend, suspend, or waive any rules,
conditions and regulations and appoint such agents as the Committee shall deem appropriate for the proper administration of this Plan;
(ix) accelerate the vesting or exercisability of, payment for or lapse of restrictions on, Awards; and (x) make any other determination
and take any other action that the Committee deems necessary or desirable for the administration of this Plan.
(c) The
Committee may delegate to one or more officers of the Company or any Affiliate the authority to act on behalf of the Committee with respect
to any matter, right, obligation, or election that is the responsibility of or that is allocated to the Committee herein, and that may
be so delegated as a matter of law, except for grants of Awards to persons (i) subject to Section 16 of the Exchange Act or (ii) who are,
or who are reasonably expected to be, “covered employees” for purposes of Section 162(m) of the Code.
(d) Unless
otherwise expressly provided in this Plan, all designations, determinations, interpretations, and other decisions under or with respect
to this Plan or any Award or any documents evidencing Awards granted pursuant to this Plan shall be within the sole discretion of the
Committee, may be made at any time and shall be final, conclusive and binding upon all persons or entities, including, without limitation,
the Company, any Affiliate, any Participant, any holder or beneficiary of any Award, and any stockholder of the Company.
(e) No
member of the Board, the Committee, delegate of the Committee or any employee, advisor or agent of the Company or the Board or the Committee
(each such person, an “Indemnifiable Person”) shall be liable for any action taken or omitted to be taken or
any determination made in good faith with respect to this Plan or any Award hereunder. Each Indemnifiable Person shall be indemnified
and held harmless by the Company against and from (and the Company shall pay or reimburse on demand for) any loss, cost, liability, or
expense (including attorneys’ fees) that may be imposed upon or incurred by such Indemnifiable Person in connection with or resulting
from any action, suit or proceeding to which such Indemnifiable Person may be a party or in which such Indemnifiable Person may be involved
by reason of any action taken or omitted to be taken under this Plan or any Award agreement and against and from any and all amounts paid
by such Indemnifiable Person with the Company’s approval, in settlement thereof, or paid by such Indemnifiable Person in satisfaction
of any judgment in any such action, suit or proceeding against such Indemnifiable Person, provided, that the Company shall have
the right, at its own expense, to assume and defend any such action, suit or proceeding and once the Company gives notice of its intent
to assume the defense, the Company shall have sole control over such defense with counsel of the Company’s choice. The foregoing
right of indemnification shall not be available to an Indemnifiable Person to the extent that a final judgment or other final adjudication
(in either case not subject to further appeal) binding upon such Indemnifiable Person determines that the acts or omissions of such Indemnifiable
Person giving rise to the indemnification claim resulted from such Indemnifiable Person’s bad faith, fraud or willful criminal act
or omission or that such right of indemnification is otherwise prohibited by law or by the Company’s Certificate of Incorporation
or Bylaws. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such Indemnifiable
Persons may be entitled under the Company’s Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or any other
power that the Company may have to indemnify such Indemnifiable Persons or hold them harmless.
(f) Notwithstanding
anything to the contrary contained in this Plan, the Board may, in its sole discretion, at any time and from time to time, grant Awards
and administer this Plan with respect to such Awards. In any such case, the Board shall have all the authority granted to the Committee
under this Plan.
5. Grant
of Awards; Shares Subject to this Plan; Limitations.
(a) The
Committee may, from time to time, grant Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Stock Bonus Awards
and/or Performance Compensation Awards to one or more Eligible Persons.
(b) Subject
to Section 3, Section 11 and Section 12 of this Plan, the Committee is authorized to deliver under this Plan an aggregate of Fifty Eight
Million (58,000,000) Common Shares. Each Common Share subject to an Option or a Stock Appreciation Right will reduce the number of Common
Shares available for issuance by one share, and each Common Share underlying an Award of Restricted Stock, Restricted Stock Units, Stock
Bonus Awards and Performance Compensation Awards will reduce the number of Common Shares available for issuance by one shares.
(c) Common
Shares underlying Awards under this Plan that are forfeited, cancelled, expire unexercised, or are settled in cash shall be available
again for Awards under this Plan at the same ratio at which they were previously granted. Notwithstanding the foregoing, the following
Common Shares shall not be available again for Awards under the Plan: (i) shares tendered or held back upon the exercise of an Option
or settlement of an Award to cover the Exercise Price of an Award; (ii) shares that are used or withheld to satisfy tax obligations of
the Participant; and (iii) shares subject to a Stock Appreciation Right that are not issued in connection with the stock settlement of
the SAR upon exercise thereof.
(d) Common
Shares delivered by the Company in settlement of Awards may be authorized and unissued shares, shares held in the treasury of the Company,
shares purchased on the open market or by private purchase, or a combination of the foregoing.
(e) Subject
to compliance with Section 1.409A-3(f) of the Treasury Regulations, Awards may, in the sole discretion of the Committee, be granted under
this Plan in assumption of, or in substitution for, outstanding awards previously granted by an entity acquired by the Company or with
which the Company combines (“Substitute Awards”). The number of Common Shares underlying any Substitute Awards
shall be counted against the aggregate number of Common Shares available for Awards under this Plan.
6. Eligibility.
Participation shall be limited to Eligible Persons who have entered into an Award agreement or who have received written notification
from the Committee, or from a person designated by the Committee, that they have been selected to participate in this Plan.
7. Options.
(a) Generally.
Each Option granted under this Plan shall be evidenced by an Award agreement (whether in paper or electronic medium (including email or
the posting on a web site maintained by the Company or a third party under contract with the Company)). Each Option so granted shall be
subject to the conditions set forth in this Section 7, and to such other conditions not inconsistent with this Plan as may be reflected
in the applicable Award agreement. All Options granted under this Plan shall be Nonqualified Stock Options unless the applicable Award
agreement expressly states that the Option is intended to be an Incentive Stock Option. Notwithstanding any designation of an Option,
to the extent that the aggregate Fair Market Value of Common Shares with respect to which Options designated as Incentive Stock Options
are exercisable for the first time by any Participant during any calendar year (under all plans of the Company or any Subsidiary) exceeds
$100,000, such excess Options shall be treated as Nonqualified Stock Options. Incentive Stock Options shall be granted only to Eligible
Persons who are employees of the Company and its Affiliates, and no Incentive Stock Option shall be granted to any Eligible Person who
is ineligible to receive an Incentive Stock Option under the Code. No Option shall be treated as an Incentive Stock Option unless this
Plan has been approved by the stockholders of the Company in a manner intended to comply with the stockholder approval requirements of
Section 422(b)(1) of the Code, provided that any Option intended to be an Incentive Stock Option shall not fail to be effective solely
on account of a failure to obtain such approval, but rather such Option shall be treated as a Nonqualified Stock Option unless and until
such approval is obtained. In the case of an Incentive Stock Option, the terms and conditions of such grant shall be subject to and comply
with such rules as may be prescribed by Section 422 of the Code. If for any reason an Option intended to be an Incentive Stock Option
(or any portion thereof) shall not qualify as an Incentive Stock Option, then, to the extent of such nonqualification, such Option or
portion thereof shall be regarded as a Nonqualified Stock Option appropriately granted under this Plan.
(b) Exercise
Price. The exercise price (“Exercise Price”) per Common Share for each Option shall not be less than
100% of the Fair Market Value of such share determined as of the Date of Grant; provided, however, that in the case of an Incentive
Stock Option granted to an employee who, at the time of the grant of such Option, owns shares representing more than 10% of the voting
power of all classes of shares of the Company or any Affiliate, the Exercise Price per share shall not be less than 110% of the Fair Market
Value per share on the Date of Grant; and, provided further, that notwithstanding any provision herein to the contrary, the Exercise
Price shall not be less than the par value per Common Share.
(c) Vesting
and Expiration. Options shall vest and become exercisable in such manner and on such date or dates determined by the Committee
and as set forth in the applicable Award agreement, and shall expire after such period, not to exceed ten (10) years from the Date of
Grant, as may be determined by the Committee (the “Option Period”); provided, however,
that the Option Period shall not exceed five (5) years from the Date of Grant in the case of an Incentive Stock Option granted to a Participant
who on the Date of Grant owns shares representing more than 10% of the voting power of all classes of shares of the Company or any Affiliate;
and, provided, further, that notwithstanding any vesting dates set by the Committee, the Committee may, in its sole
discretion, accelerate the exercisability of any Option, which acceleration shall not affect the terms and conditions of such Option other
than with respect to exercisability. Unless otherwise provided by the Committee in an Award agreement:
(i) an
Option shall vest and become exercisable with respect to 100% of the Common Shares subject to such Option on the third (3rd)
anniversary of the Date of Grant;
(ii) the
unvested portion of an Option shall expire upon termination of employment or service of the Participant granted the Option, and the vested
portion of such Option shall remain exercisable for:
(A) one
year following termination of employment or service by reason of such Participant’s death or Disability (with the determination
of Disability to be made by the Committee on a case by case basis), but not later than the expiration of the Option Period;
(B) for
directors, officers and employees of the Company only, for the remainder of the Option Period following termination of employment or service
by reason of such Participant’s Retirement (it being understood that any Incentive Stock Option held by the Participant shall be
treated as a Nonqualified Stock Option if exercise is not undertaken within 90 days of the date of Retirement);
(C) 90
calendar days following termination of employment or service for any reason other than such Participant’s death, Disability or Retirement,
and other than such Participant’s termination of employment or service for Cause, but not later than the expiration of the Option
Period; and
(iii) both
the unvested and the vested portion of an Option shall immediately expire upon the termination of the Participant’s employment or
service by the Company for Cause.
(d) Method
of Exercise and Form of Payment. No Common Shares shall be delivered pursuant to any exercise of an Option until payment in full
of the Exercise Price therefor is received by the Company and the Participant has paid to the Company an amount equal to any federal,
state, local and non-U.S. income and employment taxes required to be withheld. Options that have become exercisable may be exercised by
delivery of written or electronic notice of exercise to the Company in accordance with the terms of the Award agreement accompanied by
payment of the Exercise Price. The Exercise Price shall be payable (i) in cash, check (subject to collection), cash equivalent and/or
vested Common Shares valued at the Closing Price at the time the Option is exercised (including, pursuant to procedures approved by the
Committee, by means of attestation of ownership of a sufficient number of Common Shares in lieu of actual delivery of such shares to the
Company); provided, however, that such Common Shares are not subject to any pledge or other security interest and are Mature
Shares and; (ii) by such other method as the Committee may permit in accordance with applicable law, in its sole discretion, including
without limitation: (A) in other property having a fair market value (as determined by the Committee in its discretion) on the date of
exercise equal to the Exercise Price or (B) if there is a public market for the Common Shares at such time, by means of a broker-assisted
“cashless exercise” pursuant to which the Company is delivered a copy of irrevocable instructions to a stockbroker to sell
the Common Shares otherwise deliverable upon the exercise of the Option and to deliver promptly to the Company an amount equal to the
Exercise Price or (C) by a “net exercise” method whereby the Company withholds from the delivery of the Common Shares for
which the Option was exercised that number of Common Shares having a Closing Price equal to the aggregate Exercise Price for the Common
Shares for which the Option was exercised. Any fractional Common Shares shall be settled in cash.
(e) Notification
upon Disqualifying Disposition of an Incentive Stock Option. Each Participant awarded an Incentive Stock Option under this Plan
shall notify the Company in writing immediately after the date he makes a disqualifying disposition of any Common Shares acquired pursuant
to the exercise of such Incentive Stock Option. A disqualifying disposition is any disposition (including, without limitation, any sale)
of such Common Shares before the later of (A) two years after the Date of Grant of the Incentive Stock Option or (B) one year after the
date of exercise of the Incentive Stock Option. The Company may, if determined by the Committee and in accordance with procedures established
by the Committee, retain possession of any Common Shares acquired pursuant to the exercise of an Incentive Stock Option as agent for the
applicable Participant until the end of the period described in the preceding sentence.
(f) Compliance
With Laws, etc. Notwithstanding the foregoing, in no event shall a Participant be permitted to exercise an Option in a manner
that the Committee determines would violate the Sarbanes-Oxley Act of 2002, if applicable, or any other applicable law or the applicable
rules and regulations of the Securities and Exchange Commission or the applicable rules and regulations of any securities exchange or
inter-dealer quotation system on which the securities of the Company are listed or traded.
8. Stock
Appreciation Rights.
(a) Generally.
Each SAR granted under this Plan shall be evidenced by an Award agreement (whether in paper or electronic medium (including email or the
posting on a web site maintained by the Company or a third party under contract with the Company)). Each SAR so granted shall be subject
to the conditions set forth in this Section 8, and to such other conditions not inconsistent with this Plan as may be reflected in the
applicable Award agreement. Any Option granted under this Plan may include tandem SARs. The Committee also may award SARs to Eligible
Persons independent of any Option.
(b) Vesting
and Expiration. A SAR granted in connection with an Option shall become exercisable and shall expire according to the same vesting
schedule and expiration provisions as the corresponding Option. A SAR granted independent of an Option shall vest and become exercisable
and shall expire in such manner and on such date or dates determined by the Committee and shall expire after such period, not to exceed
ten years, as may be determined by the Committee (the “SAR Period”); provided, however, that notwithstanding
any vesting dates set by the Committee, the Committee may, in its sole discretion, accelerate the exercisability of any SAR, which acceleration
shall not affect the terms and conditions of such SAR other than with respect to exercisability. Unless otherwise provided by the Committee
in an Award agreement:
(i) a
SAR shall vest and become exercisable with respect to 100% of the Common Shares subject to such SAR on the third anniversary of the Date
of Grant;
(ii) the
unvested portion of a SAR shall expire upon termination of employment or service of the Participant granted the SAR, and the vested portion
of such SAR shall remain exercisable for:
(A) one
year following termination of employment or service by reason of such Participant’s death or Disability (with the determination
of Disability to be made by the Committee on a case by case basis), but not later than the expiration of the SAR Period;
(B) for
directors, officers and employees of the Company only, for the remainder of the SAR Period following termination of employment or service
by reason of such Participant’s Retirement;
(C) 90
calendar days following termination of employment or service for any reason other than such Participant’s death, Disability or Retirement,
and other than such Participant’s termination of employment or service for Cause, but not later than the expiration of the SAR Period;
and
(iii) both
the unvested and the vested portion of a SAR shall expire immediately upon the termination of the Participant’s employment or service
by the Company for Cause.
(c) Method
of Exercise. SARs that have become exercisable may be exercised by delivery of written or electronic notice of exercise to the
Company in accordance with the terms of the Award, specifying the number of SARs to be exercised and the date on which such SARs were
awarded. Notwithstanding the foregoing, if on the last day of the Option Period (or in the case of a SAR independent of an option, the
SAR Period), the Closing Price exceeds the Strike Price, the Participant has not exercised the SAR or the corresponding Option (if applicable),
and neither the SAR nor the corresponding Option (if applicable) has expired, such SAR shall be deemed to have been exercised by the Participant
on such last day and the Company shall make the appropriate payment therefor.
(d) Payment.
Upon the exercise of a SAR, the Company shall pay to the Participant an amount equal to the number of shares subject to the SAR that are
being exercised multiplied by the excess, if any, of the Closing Price of one Common Share on the exercise date over the Strike Price,
less an amount equal to any federal, state, local and non-U.S. income and employment taxes required to be withheld. The Company shall
pay such amount in cash, in Common Shares valued at fair market value, or any combination thereof, as determined by the Committee. Any
fractional Common Share shall be settled in cash.
9. Restricted
Stock and Restricted Stock Units.
(a) Generally.
Each grant of Restricted Stock and Restricted Stock Units shall be evidenced by an Award agreement (whether in paper or electronic medium
(including email or the posting on a web site maintained by the Company or a third party under contract with the Company)). Each such
grant shall be subject to the conditions set forth in this Section 9, and to such other conditions not inconsistent with this Plan as
may be reflected in the applicable Award agreement.
(b) Restricted
Accounts; Escrow or Similar Arrangement. Upon the grant of Restricted Stock, a book entry in a restricted account shall be established
in the Participant’s name at the Company’s transfer agent and, if the Committee determines that the Restricted Stock shall
be held by the Company or in escrow rather than held in such restricted account pending the release of the applicable restrictions, the
Committee may require the Participant to additionally execute and deliver to the Company (i) an escrow agreement satisfactory to the Committee,
if applicable, and (ii) the appropriate share power (endorsed in blank) with respect to the Restricted Stock covered by such agreement.
If a Participant shall fail to execute an agreement evidencing an Award of Restricted Stock and, if applicable, an escrow agreement and
blank share power within the amount of time specified by the Committee, the Award shall be null and void ab initio. Subject to
the restrictions set forth in this Section 9 and the applicable Award agreement, the Participant generally shall have the rights and privileges
of a stockholder as to such Restricted Stock, including without limitation the right to vote such Restricted Stock and the right to receive
dividends, if applicable. To the extent shares of Restricted Stock are forfeited, any share certificates issued to the Participant evidencing
such shares shall be returned to the Company, and all rights of the Participant to such shares and as a stockholder with respect thereto
shall terminate without further obligation on the part of the Company.
(c) Vesting;
Acceleration of Lapse of Restrictions. Unless otherwise provided by the Committee in an Award agreement: (i) the Restricted Period
shall lapse with respect to 100% of the Restricted Stock and Restricted Stock Units on the third (3rd) anniversary of the Date
of Grant; and (ii) the unvested portion of Restricted Stock and Restricted Stock Units shall terminate and be forfeited upon termination
of employment or service of the Participant granted the applicable Award.
(d) Delivery
of Restricted Stock and Settlement of Restricted Stock Units. (i) Upon the expiration of the Restricted Period with respect to
any shares of Restricted Stock, the restrictions set forth in the applicable certificate shall be of no further force or effect with respect
to such shares, except as set forth in the applicable Award agreement. If an escrow arrangement is used, upon such expiration, the Company
shall deliver to the Participant, or his beneficiary, without charge, the share certificate evidencing the shares of Restricted Stock
that have not then been forfeited and with respect to which the Restricted Period has expired (rounded down to the nearest full share).
Dividends, if any, that may have been withheld by the Committee and attributable to any particular share of Restricted Stock shall be
distributed to the Participant in cash or, at the sole discretion of the Committee, in Common Shares having a Closing Price equal to the
amount of such dividends, upon the release of restrictions on such share and, if such share is forfeited, the Participant shall have no
right to such dividends (except as otherwise set forth by the Committee in the applicable Award agreement).
(ii) Unless
otherwise provided by the Committee in an Award agreement, upon the expiration of the Restricted Period with respect to any outstanding
Restricted Stock Units, the Company shall deliver to the Participant, or his beneficiary, without charge, one Common Share for each such
outstanding Restricted Stock Unit; provided, however, that the Committee may, in its sole discretion and subject
to the requirements of Section 409A of the Code, elect to (i) pay cash or part cash and part Common Share in lieu of delivering only Common
Shares in respect of such Restricted Stock Units or (ii) defer the delivery of Common Shares (or cash or part Common Shares and part cash,
as the case may be) beyond the expiration of the Restricted Period if such delivery would result in a violation of applicable law until
such time as is no longer the case. If a cash payment is made in lieu of delivering Common Shares, the amount of such payment shall be
equal to the Closing Price of the Common Shares as of the date on which the Restricted Period lapsed with respect to such Restricted Stock
Units, less an amount equal to any federal, state, local and non-U.S. income and employment taxes required to be withheld.
10. Stock
Bonus Awards. The Committee may issue unrestricted Common Shares, or other Awards denominated in Common Shares, under this Plan to
Eligible Persons, either alone or in tandem with other awards, in such amounts as the Committee shall from time to time in its sole discretion
determine. Each Stock Bonus Award granted under this Plan shall be evidenced by an Award agreement (whether in paper or electronic medium
(including email or the posting on a web site maintained by the Company or a third party under contract with the Company)). Each Stock
Bonus Award so granted shall be subject to such conditions not inconsistent with this Plan as may be reflected in the applicable Award
agreement.
11. Performance
Compensation Awards.
(a) Generally.
The Committee shall have the authority, at the time of grant of any Award described in Sections 7 through 10 of this Plan, to designate
such Award as a Performance Compensation Award intended to qualify as “performance-based compensation” under Section 162(m)
of the Code. The Committee shall have the authority to make an award of a cash bonus to any Participant and designate such Award as a
Performance Compensation Award intended to qualify as “performance-based compensation” under Section 162(m) of the Code.
(b) Discretion
of Committee with Respect to Performance Compensation Awards. With regard to a particular Performance Period, the Committee shall
have sole discretion to select the length of such Performance Period, the type(s) of Performance Compensation Awards to be issued, the
Performance Criteria that will be used to establish the Performance Goal(s), the kind(s) and/or level(s) of the Performance Goals(s) that
is (are) to apply and the Performance Formula. Within the first 90 calendar days of a Performance Period (or, if longer or shorter, within
the maximum period allowed under Section 162(m) of the Code, if applicable), the Committee shall, with regard to the Performance Compensation
Awards to be issued for such Performance Period, exercise its discretion with respect to each of the matters enumerated in the immediately
preceding sentence and record the same in writing.
(c) Performance
Criteria. The Performance Criteria that will be used to establish the Performance Goal(s) shall be based on the attainment of
specific levels of performance of the Company and/or one or more Affiliates, divisions or operational units, or any combination of the
foregoing, as determined by the Committee. Any one or more of the Performance Criteria adopted by the Committee may be used on an absolute
or relative basis to measure the performance of the Company and/or one or more Affiliates as a whole or any business unit(s) of the Company
and/or one or more Affiliates or any combination thereof, as the Committee may deem appropriate, or any of the above Performance Criteria
may be compared to the performance of a selected group of comparison companies, or a published or special index that the Committee, in
its sole discretion, deems appropriate, or as compared to various stock market indices. The Committee also has the authority to provide
for accelerated vesting of any Award based on the achievement of Performance Goals pursuant to the Performance Criteria specified in this
paragraph. To the extent required under Section 162(m) of the Code, the Committee shall, within the first 90 calendar days of a Performance
Period (or, if longer or shorter, within the maximum period allowed under Section 162(m) of the Code), define in an objective fashion
the manner of calculating the Performance Criteria it selects to use for such Performance Period and thereafter promptly communicate such
Performance Criteria to the Participant.
(d) Modification
of Performance Goal(s). In the event that applicable tax and/or securities laws change to permit Committee discretion to alter
the governing Performance Criteria without obtaining stockholder approval of such alterations, the Committee shall have sole discretion
to make such alterations without obtaining stockholder approval. The Committee is authorized at any time during the first 90 calendar
days of a Performance Period (or, if longer or shorter, within the maximum period allowed under Section 162(m) of the Code, if applicable),
or at any time thereafter to the extent the exercise of such authority at such time would not cause the Performance Compensation Awards
granted to any Participant for such Performance Period to fail to qualify as “performance-based compensation” under Section
162(m) of the Code, in its sole discretion, to adjust or modify the calculation of a Performance Goal for such Performance Period, based
on and in order to appropriately reflect the following events: (i) asset write-downs; (ii) litigation or claim judgments or settlements;
(iii) the effect of changes in tax laws, accounting principles, or other laws or regulatory rules affecting reported results; (iv) any
reorganization and restructuring programs; (v) extraordinary nonrecurring items as described in Accounting Principles Board Opinion No.
30 (or any successor pronouncement thereto) and/or in management’s discussion and analysis of financial condition and results of
operations appearing in the Company’s annual report to stockholders for the applicable year; (vi) acquisitions or divestitures;
(vii) any other specific unusual or nonrecurring events, or objectively determinable category thereof; (viii) foreign exchange gains and
losses; and (ix) a change in the Company’s fiscal year.
(e) Payment
of Performance Compensation Awards.
(i) Condition
to Receipt of Payment. Unless otherwise provided in the applicable Award agreement, a Participant must be employed by the Company
on the last day of a Performance Period to be eligible for payment in respect of a Performance Compensation Award for such Performance
Period.
(ii) Limitation.
A Participant shall be eligible to receive payment in respect of a Performance Compensation Award only to the extent that: (A) the Performance
Goals for such period are achieved; and (B) all or some of the portion of such Participant’s Performance Compensation Award has
been earned for the Performance Period based on the application of the Performance Formula to such achieved Performance Goals.
(iii) Certification.
Following the completion of a Performance Period, the Committee shall review and certify in writing whether, and to what extent, the Performance
Goals for the Performance Period have been achieved and, if so, calculate and certify in writing that amount of the Performance Compensation
Awards earned for the period based upon the Performance Formula. The Committee shall then determine the amount of each Participant’s
Performance Compensation Award actually payable for the Performance Period and, in so doing, may apply Negative Discretion.
(iv) Use
of Negative Discretion. In determining the actual amount of an individual Participant’s Performance Compensation Award for
a Performance Period, the Committee may reduce or eliminate the amount of the Performance Compensation Award earned under the Performance
Formula in the Performance Period through the use of Negative Discretion if, in its sole judgment, such reduction or elimination is appropriate.
The Committee shall not have the discretion, except as is otherwise provided in this Plan, to (A) grant or provide payment in respect
of Performance Compensation Awards for a Performance Period if the Performance Goals for such Performance Period have not been attained;
or (B) increase a Performance Compensation Award above the applicable limitations set forth in Section 5 of this Plan.
(f) Timing
of Award Payments. Performance Compensation Awards granted for a Performance Period shall be paid to Participants as soon as administratively
practicable following completion of the certifications required by this Section 11, but in no event later than two-and-one-half months
following the end of the fiscal year during which the Performance Period is completed in order to comply with the short-term deferral
rules under Section 1.409A-1(b)(4) of the Treasury Regulations. Notwithstanding the foregoing, payment of a Performance Compensation Award
may be delayed, as permitted by Section 1.409A-2(b)(7)(i) of the Treasury Regulations, to the extent that the Company reasonably anticipates
that if such payment were made as scheduled, the Company’s tax deduction with respect to such payment would not be permitted due
to the application of Section 162(m) of the Code.
12. Changes
in Capital Structure and Similar Events. In the event of (a) any dividend or other distribution (whether in the form of cash, Common
Shares, other securities or other property), recapitalization, stock split, reverse stock split, reorganization, merger, amalgamation,
consolidation, split-up, split-off, combination, repurchase or exchange of Common Shares or other securities of the Company, issuance
of warrants or other rights to acquire Common Shares or other securities of the Company, or other similar corporate transaction or event
(including, without limitation, a Change in Control) that affects the Common Shares, or (b) unusual or nonrecurring events (including,
without limitation, a Change in Control) affecting the Company, any Affiliate, or the financial statements of the Company or any Affiliate,
or changes in applicable rules, rulings, regulations or other requirements of any governmental body or securities exchange or inter-dealer
quotation system, accounting principles or law, such that in either case an adjustment is determined by the Committee in its sole discretion
to be necessary or appropriate, then the Committee shall make any such adjustments that are equitable, including without limitation any
or all of the following:
(i) adjusting
any or all of (A) the number of Common Shares or other securities of the Company (or number and kind of other securities or other property)
that may be delivered in respect of Awards or with respect to which Awards may be granted under this Plan (including, without limitation,
adjusting any or all of the limitations under Section 5 of this Plan) and (B) the terms of any outstanding Award, including, without limitation,
(1) the number of Common Shares or other securities of the Company (or number and kind of other securities or other property) subject
to outstanding Awards or to which outstanding Awards relate, (2) the Exercise Price or Strike Price with respect to any Award or (3) any
applicable performance measures (including, without limitation, Performance Criteria and Performance Goals);
(ii) providing
for a substitution or assumption of Awards, accelerating the exercisability of, lapse of restrictions on, or termination of, Awards or
providing for a period of time for exercise prior to the occurrence of such event; and
(iii) subject
to the requirements of Section 409A of the Code, canceling any one or more outstanding Awards and causing to be paid to the holders thereof,
in cash, Common Shares, other securities or other property, or any combination thereof, the value of such Awards, if any, as determined
by the Committee (which if applicable may be based upon the price per Common Share received or to be received by other stockholders of
the Company in such event), including without limitation, in the case of an outstanding Option or SAR, a cash payment in an amount equal
to the excess, if any, of the fair market value (as of a date specified by the Committee) of the Common Shares subject to such Option
or SAR over the aggregate Exercise Price or Strike Price of such Option or SAR, respectively (it being understood that, in such event,
any Option or SAR having a per share Exercise Price or Strike Price equal to, or in excess of, the fair market value of a Common Share
subject thereto may be canceled and terminated without any payment or consideration therefor);
provided, however, that in
the case of any “equity restructuring” (within the meaning of the Financial Accounting Standards Board Statement of Financial
Accounting Standards No. 123 (revised 2004) or ASC Topic 718, or any successor thereto), the Committee shall make an equitable or proportionate
adjustment to outstanding Awards to reflect such equity restructuring. Any adjustment in Incentive Stock Options under this Section 12
(other than any cancellation of Incentive Stock Options) shall be made only to the extent not constituting a “modification”
within the meaning of Section 424(h)(3) of the Code, and any adjustments under this Section 12 shall be made in a manner that does not
adversely affect the exemption provided pursuant to Rule 16b-3 under the Exchange Act. The Company shall give each Participant notice
of an adjustment hereunder and, upon notice, such adjustment shall be conclusive and binding for all purposes.
13. Effect
of Change in Control. Except to the extent otherwise provided in an Award agreement or as determined by the Committee in its sole
discretion, in the event of a Change in Control, notwithstanding any provision of this Plan to the contrary, with respect to all or any
portion of a particular outstanding Award or Awards:
(a) all
of the then outstanding Options and SARs may immediately vest and may become immediately exercisable as of a time prior to the Change
in Control;
(b) the
Restricted Period may expire as of a time prior to the Change in Control (including without limitation a waiver of any applicable Performance
Goals);
(c) Performance
Periods in effect on the date the Change in Control occurs may end on such date, and the Committee (i) shall determine the extent to which
Performance Goals with respect to each such Performance Period have been met based upon such audited or unaudited financial information
or other information then available as it deems relevant and (ii) may cause the Participant to receive partial or full payment of Awards
for each such Performance Period based upon the Committee’s determination of the degree of attainment of the Performance Goals,
or assuming that the applicable “target” levels of performance have been attained or on such other basis determined by the
Committee.
To the extent practicable,
any actions taken by the Committee under the immediately preceding clauses (a) through (c) shall occur in a manner and at a time which
allows affected Participants the ability to participate in the Change in Control transactions with respect to the Common Shares subject
to their Awards. In the event no action is taken by the Committee to allow for the changes set forth in immediately preceding clauses
(a) through (c), then no changes to the Award shall be effected.
14. Amendments
and Termination.
(a) Amendment
and Termination of this Plan. The Board may amend, alter, suspend, discontinue, or terminate this Plan or any portion thereof
at any time; provided, that (i) no amendment to the definition of Eligible Employee in Section 2, Section 5(i), Section 11(c) or
Section 14(b) (to the extent required by the proviso in such Section 14(b)) shall be made without stockholder approval and (ii) no such
amendment, alteration, suspension, discontinuation or termination shall be made without stockholder approval if such approval is necessary
to comply with any tax or regulatory requirement applicable to this Plan (including, without limitation, as necessary to comply with any
rules or requirements of any securities exchange or inter-dealer quotation system on which the Common Shares may be listed or quoted or
to prevent the Company from being denied a tax deduction under Section 162(m) of the Code); and, provided, further,
that any such amendment, alteration, suspension, discontinuance or termination that would materially and adversely affect the rights of
any Participant or any holder or beneficiary of any Award theretofore granted shall not to that extent be effective without the prior
written consent of the affected Participant, holder or beneficiary.
(b) Amendment
of Award Agreements. The Committee may, to the extent consistent with the terms of any applicable Award agreement, waive any conditions
or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Award theretofore granted or the associated
Award agreement, prospectively or retroactively; provided, however that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would materially and adversely affect the rights of any Participant with respect to any
Award theretofore granted shall not to that extent be effective without the consent of the affected Participant; and, provided,
further, that without stockholder approval, except as otherwise permitted under Section 12 of this Plan, (i) no amendment or
modification may reduce the Exercise Price of any Option or the Strike Price of any SAR, (ii) the Committee may not cancel any outstanding
Option or SAR and replace it with a new Option or SAR, another Award or cash or take any action that would have the effect of treating
such Award as a new Award for tax or accounting purposes and (iii) the Committee may not take any other action that is considered a “repricing”
for purposes of the stockholder approval rules of the applicable securities exchange or inter-dealer quotation system on which the Common
Shares are listed or quoted.
15. General.
(a) Award
Agreements. Each Award under this Plan shall be evidenced by an Award agreement, which shall be delivered to the Participant (whether
in paper or electronic medium (including email or the posting on a web site maintained by the Company or a third party under contract
with the Company)) and shall specify the terms and conditions of the Award and any rules applicable thereto, including without limitation,
the effect on such Award of the death, Disability or termination of employment or service of a Participant, or of such other events as
may be determined by the Committee. The Company’s failure to specify any term of any Award in any particular Award agreement shall
not invalidate such term, provided such terms was duly adopted by the Board or the Committee.
(b) Nontransferability;
Trading Restrictions.
(i) Each
Award shall be exercisable only by a Participant during the Participant’s lifetime, or, if permissible under applicable law, by
the Participant’s legal guardian or representative. No Award may be assigned, alienated, pledged, attached, sold or otherwise transferred
or encumbered by a Participant other than by will or by the laws of descent and distribution and any such purported assignment, alienation,
pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or an Affiliate; provided that the
designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance.
(ii) Notwithstanding
the foregoing, the Committee may, in its sole discretion, permit Awards (other than Incentive Stock Options) to be transferred by a Participant,
with or without consideration, subject to such rules as the Committee may adopt consistent with any applicable Award agreement to preserve
the purposes of this Plan, to: (A) any person who is a “family member” of the Participant, as such term is used in the instructions
to Form S-8 under the Securities Act (collectively, the “Immediate Family Members”); (B) a trust solely for
the benefit of the Participant and his or her Immediate Family Members; or (C) a partnership or limited liability company whose only partners
or stockholders are the Participant and his or her Immediate Family Members; or (D) any other transferee as may be approved either (I)
by the Board or the Committee in its sole discretion, or (II) as provided in the applicable Award agreement (each transferee described
in clauses (A), (B) (C) and (D) above is hereinafter referred to as a “Permitted Transferee”); provided,
that the Participant gives the Committee advance written notice describing the terms and conditions of the proposed transfer and the Committee
notifies the Participant in writing that such a transfer would comply with the requirements of this Plan.
(iii) The
terms of any Award transferred in accordance with the immediately preceding sentence shall apply to the Permitted Transferee and any reference
in this Plan, or in any applicable Award agreement, to a Participant shall be deemed to refer to the Permitted Transferee, except that
(A) Permitted Transferees shall not be entitled to transfer any Award, other than by will or the laws of descent and distribution; (B)
Permitted Transferees shall not be entitled to exercise any transferred Option unless there shall be in effect a registration statement
on an appropriate form covering the Common Shares to be acquired pursuant to the exercise of such Option if the Committee determines,
consistent with any applicable Award agreement, that such a registration statement is necessary or appropriate; (C) the Committee or the
Company shall not be required to provide any notice to a Permitted Transferee, whether or not such notice is or would otherwise have been
required to be given to the Participant under this Plan or otherwise; and (D) the consequences of the termination of the Participant’s
employment by, or services to, the Company or an Affiliate under the terms of this Plan and the applicable Award agreement shall continue
to be applied with respect to the Participant, including, without limitation, that an Option shall be exercisable by the Permitted Transferee
only to the extent, and for the periods, specified in this Plan and the applicable Award agreement.
(iv) The
Committee shall have the right, either on an Award-by-Award basis or as a matter of policy for all Awards or one or more classes of Awards,
to condition the delivery of vested Common Shares received in connection with such Award on the Participant’s agreement to such
restrictions as the Committee may determine.
(c) Tax
Withholding.
(i) A
Participant shall be required to pay to the Company or any Affiliate, or the Company or any Affiliate shall have the right and is hereby
authorized to withhold, from any cash, Common Shares, other securities or other property deliverable under any Award or from any compensation
or other amounts owing to a Participant, the amount (in cash, Common Shares, other securities or other property) of any required withholding
taxes in respect of an Award, its exercise, or any payment or transfer under an Award or under this Plan and to take such other action
as may be necessary in the opinion of the Committee or the Company to satisfy all obligations for the payment of such withholding and
taxes.
(ii) Without
limiting the generality of clause (i) above, the Committee may, in its sole discretion, permit a Participant to satisfy, in whole or in
part, the foregoing withholding liability by (A) the delivery of Common Shares (which are not subject to any pledge or other security
interest and are Mature Shares) owned by the Participant having a fair market value equal to such withholding liability or (B) having
the Company withhold from the number of Common Shares otherwise issuable or deliverable pursuant to the exercise or settlement of the
Award a number of shares with a fair market value equal to such withholding liability (but no more than the minimum required statutory
withholding liability).
(d) No
Claim to Awards; No Rights to Continued Employment; Waiver. No employee of the Company or an Affiliate, or other person, shall
have any claim or right to be granted an Award under this Plan or, having been selected for the grant of an Award, to be selected for
a grant of any other Award. There is no obligation for uniformity of treatment of Participants or holders or beneficiaries of Awards.
The terms and conditions of Awards and the Committee’s determinations and interpretations with respect thereto need not be the same
with respect to each Participant and may be made selectively among Participants, whether or not such Participants are similarly situated.
Neither this Plan nor any action taken hereunder shall be construed as giving any Participant any right to be retained in the employ or
service of the Company or an Affiliate, nor shall it be construed as giving any Participant any rights to continued service on the Board.
The Company or any of its Affiliates may at any time dismiss a Participant from employment or discontinue any consulting relationship,
free from any liability or any claim under this Plan, unless otherwise expressly provided in this Plan or any Award agreement. By accepting
an Award under this Plan, a Participant shall thereby be deemed to have waived any claim to continued exercise or vesting of an Award
or to damages or severance entitlement related to non-continuation of the Award beyond the period provided under this Plan or any Award
agreement, notwithstanding any provision to the contrary in any written employment contract or other agreement between the Company and
its Affiliates and the Participant, whether any such agreement is executed before, on or after the Date of Grant.
(e) International
Participants. With respect to Participants who reside or work outside of the United States of America and who are not (and who
are not expected to be) “covered employees” within the meaning of Section 162(m) of the Code, the Committee may in its sole
discretion amend the terms of this Plan or outstanding Awards (or establish a sub-plan) with respect to such Participants in order to
conform such terms with the requirements of local law or to obtain more favorable tax or other treatment for a Participant, the Company
or its Affiliates.
(f) Designation
and Change of Beneficiary. Each Participant may file with the Committee a written designation of one or more persons as the beneficiary(ies)
who shall be entitled to receive the amounts payable with respect to an Award, if any, due under this Plan upon his or her death. A Participant
may, from time to time, revoke or change his or her beneficiary designation without the consent of any prior beneficiary by filing a new
designation with the Committee. The last such designation filed with the Committee shall be controlling; provided, however,
that no designation, or change or revocation thereof, shall be effective unless received by the Committee prior to the Participant’s
death, and in no event shall it be effective as of a date prior to such receipt. If no beneficiary designation is filed by a Participant,
the beneficiary shall be deemed to be his or her spouse or, if the Participant is unmarried at the time of death, his or her estate. Upon
the occurrence of a Participant’s divorce (as evidenced by a final order or decree of divorce), any spousal designation previously
given by such Participant shall automatically terminate.
(g) Termination
of Employment/Service. Unless determined otherwise by the Committee at any point following such event: (i) neither a temporary
absence from employment or service due to illness, vacation or leave of absence nor a transfer from employment or service with the Company
to employment or service with an Affiliate (or vice-versa) shall be considered a termination of employment or service with the Company
or an Affiliate; and (ii) if a Participant’s employment with the Company and its Affiliates terminates, but such Participant continues
to provide services to the Company and its Affiliates in a non-employee capacity (or vice-versa), such change in status shall not be considered
a termination of employment with the Company or an Affiliate.
(h) No
Rights as a Stockholder. Except as otherwise specifically provided in this Plan or any Award agreement, no person shall be entitled
to the privileges of ownership in respect of Common Shares that are subject to Awards hereunder until such shares have been issued or
delivered to that person.
(i) Government
and Other Regulations.
(i) The
obligation of the Company to settle Awards in Common Shares or other consideration shall be subject to all applicable laws, rules, and
regulations, and to such approvals by governmental agencies as may be required. Notwithstanding any terms or conditions of any Award to
the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling,
any Common Shares pursuant to an Award unless such shares have been properly registered for sale pursuant to the Securities Act with the
Securities and Exchange Commission or unless the Company has received an opinion of counsel, satisfactory to the Company, that such shares
may be offered or sold without such registration pursuant to an available exemption therefrom and the terms and conditions of such exemption
have been fully complied with. The Company shall be under no obligation to register for sale under the Securities Act any of the Common
Shares to be offered or sold under this Plan. The Committee shall have the authority to provide that all certificates for Common Shares
or other securities of the Company or any Affiliate delivered under this Plan shall be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under this Plan, the applicable Award agreement, the federal securities laws, or the
rules, regulations and other requirements of the Securities and Exchange Commission, any securities exchange or inter-dealer quotation
system upon which such shares or other securities are then listed or quoted and any other applicable federal, state, local or non-U.S.
laws, and, without limiting the generality of Section 9 of this Plan, the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions. Notwithstanding any provision in this Plan to the contrary, the Committee
reserves the right to add any additional terms or provisions to any Award granted under this Plan that it in its sole discretion deems
necessary or advisable in order that such Award complies with the legal requirements of any governmental entity to whose jurisdiction
the Award is subject.
(ii) The
Committee may cancel an Award or any portion thereof if it determines, in its sole discretion, that legal or contractual restrictions
and/or blockage and/or other market considerations would make the Company’s acquisition of Common Shares from the public markets,
the Company’s issuance of Common Shares to the Participant, the Participant’s acquisition of Common Shares from the Company
and/or the Participant’s sale of Common Shares to the public markets, illegal, impracticable or inadvisable. If the Committee determines
to cancel all or any portion of an Award in accordance with the foregoing, unless doing so would violate Section 409A of the Code, the
Company shall pay to the Participant an amount equal to the excess of (A) the aggregate fair market value of the Common Shares subject
to such Award or portion thereof canceled (determined as of the applicable exercise date, or the date that the shares would have been
vested or delivered, as applicable), over (B) the aggregate Exercise Price or Strike Price (in the case of an Option or SAR, respectively)
or any amount payable as a condition of delivery of Common Shares (in the case of any other Award). Such amount shall be delivered to
the Participant as soon as practicable following the cancellation of such Award or portion thereof. The Committee shall have the discretion
to consider and take action to mitigate the tax consequence to the Participant in cancelling an Award in accordance with this clause.
(j) Payments
to Persons Other Than Participants. If the Committee shall find that any person to whom any amount is payable under this Plan
is unable to care for his affairs because of illness or accident, or is a minor, or has died, then any payment due to such person or his
estate (unless a prior claim therefor has been made by a duly appointed legal representative) may, if the Committee so directs the Company,
be paid to his spouse, child, relative, an institution maintaining or having custody of such person, or any other person deemed by the
Committee to be a proper recipient on behalf of such person otherwise entitled to payment. Any such payment shall be a complete discharge
of the liability of the Committee and the Company therefor.
(k) Nonexclusivity
of this Plan. Neither the adoption of this Plan by the Board nor the submission of this Plan to the stockholders of the Company
for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it
may deem desirable, including, without limitation, the granting of stock options or other equity-based awards otherwise than under this
Plan, and such arrangements may be either applicable generally or only in specific cases.
(l) No
Trust or Fund Created. Neither this Plan nor any Award shall create or be construed to create a trust or separate fund of any
kind or a fiduciary relationship between the Company or any Affiliate, on the one hand, and a Participant or other person or entity, on
the other hand. No provision of this Plan or any Award shall require the Company, for the purpose of satisfying any obligations under
this Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or otherwise to segregate
any assets, nor shall the Company maintain separate bank accounts, books, records or other evidence of the existence of a segregated or
separately maintained or administered fund for such purposes. Participants shall have no rights under this Plan other than as general
unsecured creditors of the Company, except that insofar as they may have become entitled to payment of additional compensation by performance
of services, they shall have the same rights as other employees under general law.
(m) Reliance
on Reports. Each member of the Committee and each member of the Board shall be fully justified in acting or failing to act, as
the case may be, and shall not be liable for having so acted or failed to act in good faith, in reliance upon any report made by the independent
public accountant of the Company and its Affiliates and/or any other information furnished in connection with this Plan by any agent of
the Company or the Committee or the Board, other than himself.
(n) Relationship
to Other Benefits. No payment under this Plan shall be taken into account in determining any benefits under any pension, retirement,
profit sharing, group insurance or other benefit plan of the Company except as otherwise specifically provided in such other plan.
(o) Governing
Law. The Plan shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving
effect to the conflict of laws provisions.
(p) Severability.
If any provision of this Plan or any Award or Award agreement is or becomes or is deemed to be invalid, illegal, or unenforceable in any
jurisdiction or as to any person or entity or Award, or would disqualify this Plan or any Award under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to the applicable laws in the manner that most closely reflects
the original intent of the Award or the Plan, or if it cannot be construed or deemed amended without, in the determination of the Committee,
materially altering the intent of this Plan or the Award, such provision shall be construed or deemed stricken as to such jurisdiction,
person or entity or Award and the remainder of this Plan and any such Award shall remain in full force and effect.
(q) Obligations
Binding on Successors. The obligations of the Company under this Plan shall be binding upon any successor corporation or organization
resulting from the merger, amalgamation, consolidation or other reorganization of the Company, or upon any successor corporation or organization
succeeding to substantially all of the assets and business of the Company.
(r) Code
Section 162(m) Approval. If so determined by the Committee, the provisions of this Plan regarding Performance Compensation Awards
shall be disclosed and reapproved by stockholders no later than the first stockholder meeting that occurs in the fifth year following
the year in which stockholders previously approved such provisions, in each case in order for certain Awards granted after such time to
be exempt from the deduction limitations of Section 162(m) of the Code. Nothing in this clause, however, shall affect the validity of
Awards granted after such time if such stockholder approval has not been obtained.
(s) Expenses;
Gender; Titles and Headings. The expenses of administering this Plan shall be borne by the Company and its Affiliates. Masculine
pronouns and other words of masculine gender shall refer to both men and women. The titles and headings of the sections in this Plan are
for convenience of reference only, and in the event of any conflict, the text of this Plan, rather than such titles or headings shall
control.
(t) Other
Agreements. Notwithstanding the above, the Committee may require, as a condition to the grant of and/or the receipt of Common
Shares under an Award, that the Participant execute lock-up, stockholder or other agreements, as it may determine in its sole and absolute
discretion.
(u) Section
409A. The Plan and all Awards granted hereunder are intended to comply with, or otherwise be exempt from, the requirements of
Section 409A of the Code. The Plan and all Awards granted under this Plan shall be administered, interpreted, and construed in a manner
consistent with Section 409A of the Code to the extent necessary to avoid the imposition of additional taxes under Section 409A(a)(1)(B)
of the Code. Notwithstanding anything in this Plan to the contrary, in no event shall the Committee exercise its discretion to accelerate
the payment or settlement of an Award where such payment or settlement constitutes deferred compensation within the meaning of Section
409A of the Code unless, and solely to the extent that, such accelerated payment or settlement is permissible under Section 1.409A-3(j)(4)
of the Treasury Regulations. If a Participant is a “specified employee” (within the meaning of Section 1.409A-1(i) of the
Treasury Regulations) at any time during the twelve (12)-month period ending on the date of his termination of employment, and any Award
hereunder subject to the requirements of Section 409A of the Code is to be satisfied on account of the Participant’s termination
of employment, satisfaction of such Award shall be suspended until the date that is six (6) months after the date of such termination
of employment.
(v) Payments.
Participants shall be required to pay, to the extent required by applicable law, any amounts required to receive Common Shares under
any Award made under this Plan.
* * *
18
Exhibit 5.1
|
Harney Westwood & Riegels LP
Craigmuir Chambers
PO Box 71
Road Town
Tortola VG1110
British Virgin Islands
Tel: +1 284 494 2233
Fax: +1 284 494 3547 |
24 November 2023
george.weston@harneys.com
+1 284 852 4333
051431.0017-GYW-MTT
Bit Brother Limited
Clarence Thomas Building
P.O. Box 4649
Road Town, Tortola
British Virgin Islands
Dear Sir or Madam
Bit Brother Limited, Company No 1682727 (the
Company)
We are lawyers qualified to practise in the British
Virgin Islands and have acted as British Virgin Islands legal advisers to the Company connection with the offering by the Company of an
aggregate of 58,000,000 Class A Ordinary Shares (the Shares) issuable pursuant to the Bit Brother Limited 2023 Equity Incentive
Plan, (the 2023 Plan) and a Registration Statement on Form S-8 (the Registration Statement), filed with the
Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Securities Act).
We are furnishing this opinion as Exhibit 5.1
to the Registration Statement.
For the purposes of giving this opinion, we have
examined the Corporate Documents (as defined in Schedule 1), which we regard as necessary in order to issue this opinion. We have not
examined any other documents, official or corporate records or external or internal registers and have not undertaken or been instructed
to undertake any further enquiry or due diligence in relation to the transaction which is the subject of this opinion or in relation to
any British Virgin Islands companies other than the Company (including those British Virgin Islands companies, other than the Company,
referenced in the Registration Statement).
In giving this opinion we have relied upon the
assumptions set out in Schedule 2 which we have not verified.
Based solely upon the foregoing examinations and
assumptions and having regard to the legal considerations and documents which we regard as necessary in order to issue this opinion, and
subject to the qualifications set out in Schedule 3, we are of the opinion that under the laws of the British Virgin Islands:
| 1 | Existence and Good Standing. The Company is a company duly incorporated with limited liability,
and is validly existing and in good standing under the laws of the British Virgin Islands. The Company is a separate legal entity and
is subject to suit in its own name. |
| 2 | Authorised Shares. The Company is authorised to issue an unlimited number
of Class A Ordinary Shares with no par value, 200,000,000 Class B Ordinary Shares with no par value and 5,000,000 Preferred Shares with
a par value of US$0.0001. |
A list of partners is available for inspection at
our offices.
Bermuda legal services provided through an association
with Zuill & Co.
|
|
Anguilla | Bermuda | British Virgin Islands | Cayman
Islands
Cyprus | Hong Kong | London | Luxembourg | Montevideo
São Paulo | Shanghai | Singapore | Vancouver
www.harneys.com |
| 3 | Valid Issuance of Shares. The Shares (when issued and sold in accordance
with the Registration Statement, the 2023 Plan and the Resolutions) will be duly authorized, validly issued, fully paid and non-assessable
(meaning that no further sums will be payable with respect them). Shares in the Company are issued when the name of the shareholder is
entered on the register of members of the Company. |
| 4 | No actions/proceedings. The Public Searches do not show any pending
action or court proceedings against the Company at the time of our search referred to at paragraph 4 of Schedule 1. |
This opinion is confined to the matters expressly
opined on herein and given on the basis of the laws of the British Virgin Islands as they are in force and applied by the British Virgin
Islands courts at the date of this opinion. We have made no investigation of, and express no opinion on, the laws of any other jurisdiction.
We express no opinion as to matters of fact. We express no opinion with respect to the commercial terms of the transactions the subject
of this opinion.
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement.
In giving such consent, we do not believe that
we are “experts” within the meaning of such term used in the Securities Act or the rules and regulations of the Securities
and Exchange Commission issued thereunder with respect to any part of the Registration Statement, including this opinion as an exhibit
or otherwise. This opinion may be used only in connection with the offer and sale of the Shares while the Registration Statement is effective.
Yours
faithfully |
|
|
|
/s/ Harney
Westwood & Riegels LP |
|
Harney
Westwood & Riegels LP |
|
Schedule
1
List of Documents and Records Examined
| 1 | a copy of the Certificate of Incorporation and Memorandum and Articles of Association of the Company obtained
from the Registry of Corporate Affairs on 21 November 2023, which our searches dated 23 November 2023 indicated were not subsequently
amended; |
| 2 | the records and information certified by FH Corporate Services Ltd., the registered agent of the Company,
on 22 November 2023 of the statutory documents and records maintained by the Company at its registered office (the Registered Agent’s
Certificate); |
| 3 | the public records of the Company on file and available for inspection at the Registry of Corporate Affairs,
Road Town, Tortola, British Virgin Islands on 23 November 2023; |
| 4 | the records of proceedings on file with, and available for inspection on 23 November 2023 at the High
Court of Justice, British Virgin Islands; |
(3 to 4 above are the Public
Searches),
| 5 | a certificate of good standing issued by the Registrar of Corporate Affairs with respect to the Company
dated 23 November 2023; |
| 6 | a copy of the unanimous written resolutions of the board of directors of the Company dated 22 November
2023 approving the 2023 Plan and authorising the filing of the Registration Statement (the Resolutions); and |
| 7 | the Registration Statement. |
(1 to 7 above are the Corporate Documents).
Schedule
2
Assumptions
| 1 | Authenticity of Documents. All original Corporate Documents are authentic, all signatures, initials
and seals are genuine, all copies of the Registration Statement are true and correct copies and the Registration Statement conform in
every material respect to the latest drafts of the same produced to us and, where the Registration Statement has been provided to us in
successive drafts marked-up to indicate changes to such documents, all such changes have been so indicated. Save for the Corporate Documents
provided to us there are no resolutions, agreements, documents or arrangements which materially affect, amend or vary the transactions
envisaged in the Registration Statement and the Resolutions have not been rescinded (save for any such rescission that has been notified
to us in writing by the Company prior to the date of this opinion) and are true and accurate as respects the director considerations regarding
conflicts of interests and the best interests of the Company. |
| 2 | Corporate Documents. All matters required by law to be recorded in the Corporate Documents are
so recorded, and all corporate minutes, resolutions, certificates, documents and records which we have reviewed are accurate and complete,
and all facts expressed in or implied thereby are accurate and complete, and the information recorded in the Registered Agent’s
Certificate was accurate as at the date of the passing of the Resolutions. |
| 3 | No Steps to Wind-up. Save for as recorded on the Public Searches reviewed by us, the directors
and shareholders of the Company have not taken any steps to appoint a liquidator of the Company and no receiver has been appointed over
any of the property or assets of the Company. |
Schedule
3
Qualifications
| 1 | Public Records. Records reviewed by us may not be complete for various reasons. In particular you
should note that: |
| (a) | in special circumstances the court may order the sealing of the court record, which would mean that a
record of the court action would not appear on the High Court register; |
| (b) | failure to file notice of appointment of a receiver with the Registry of Corporate Affairs does not invalidate
the receivership but merely gives rise to penalties on the part of the receiver; |
| (c) | a liquidator of a British Virgin Islands company has 14 days after their appointment within which they
must file notice of their appointment at the Registry of Corporate Affairs; and |
| (d) | although amendments to the Memorandum and Articles of Association of a company are normally effective
from the date of registration with the Registry of Corporate Affairs, it is possible for a British Virgin Islands court to order that
they be treated as being effective from an earlier date, and searches would not reveal the amendments until the court order was subsequently
filed, |
and accordingly our searches would
not indicate such issues.
| 2 | Foreign Statutes. We express no opinion in relation to provisions making reference to foreign statutes
in the Registration Statement. |
| 3 | Amendment. A British Virgin Islands court would not treat as definitive a statement in a contract
that it could only be amended or waived in writing but would be able to consider all the facts of the case particularly where consideration
had passed to determine whether a verbal amendment or waiver had been effected and if it found that it had such verbal amendment or waiver
would be deemed to have also amended the stated requirement for a written agreement. |
| 4 | Good Standing. To maintain the Company in good standing under the laws of the British Virgin Islands,
annual licence fees must be paid to the Registrar of Corporate Affairs. |
| 5 | Conflict of Laws. An expression of an opinion on a matter of British Virgin Islands law in relation
to a particular issue in this opinion should not necessarily be construed to imply that the British Virgin Islands courts would treat
British Virgin Islands law as the proper law to determine that issue under its conflict of laws rules. |
| 6 | Resolutions. The Resolutions remain in full force and effect and the Resolutions are an accurate
record of the relevant meeting and are factually accurate as to notice and quorum. |
| 7 | Sanctions. The obligations of the Company may be subject to restrictions pursuant to United Nations
and European Union sanctions as implemented under the laws of the British Virgin Islands. |
| 8 | 2023 Plan. The Company has confirmed that any reference to ‘Common Shares’ in
the 2023 Plan is to be construed as referring to Class A Ordinary Shares. |
| 9 | Economic Substance. We have undertaken no enquiry and express no view as to the compliance
of the Company with the Economic Substance (Companies and Limited Partnerships) Act 2018. |
5
Exhibit 23.1
![](https://www.sec.gov/Archives/edgar/data/1543268/000121390023089857/ex23-1_001.jpg) |
|
中正達會計師事務所
Centurion ZD CPA & Co.
Certified Public Accountants (Practising) |
|
|
|
Unit 1304, 13/F, Two Harbourfront, 22 Tak Fung Street, Hunghom, Hong
Kong.
香港紅磡 德豐街22號
海濱廣場二期 13樓1304室
Tel 電話: (852) 2126 2388 Fax 傳真: (852)
2122 9078 |
CONSENT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors
Bit Brother Limited:
We consent to the use
in this Registration Statement Form S-8 of Bit Brother Limited 2023 Equity Incentive Plan of our reports dated August 22, 2022, with respect
to the consolidated financial statements and schedule of Bit Brother Limited and the effectiveness of internal control over financial
reporting of Bit Brother Limited included in its Annual Report (Form 20-F) for the year ended June 30, 2022, filed with the Securities
and Exchange Commission.
/s/ Centurion ZD CPA & Co |
|
Centurion ZD CPA & Co. |
|
|
Certified Public Accountants |
|
|
|
Hong Kong,
November 24, 2023 |
|
Exhibit 23.2
![](https://www.sec.gov/Archives/edgar/data/1543268/000121390023089857/ex23-2_001.jpg) |
AUDIT ALLIANCE LLP® |
![](https://www.sec.gov/Archives/edgar/data/1543268/000121390023089857/ex23-2_002.jpg) |
|
A Top 18 Audit Firm |
|
|
10 Anson
Road, #20-16 International Plaza, Singapore 079903. |
|
UEN: T12LL1223B GST Reg No: M90367663E Tel: (65) 6227 5428
Website: www.allianceaudit.com
Consent of Independent Registered
Public Accounting Firm
We hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our report dated October 12, 2023, relating to the consolidated financial statements
of Bit Brother Ltd. for the year ended June 30, 2023, included in its Annual Report (Form 20-F), filed with the Securities and Exchange
Commission.
/s/ Audit Alliance LLP
Singapore
November 24, 2023
Exhibit 107
Calculation of Filing Fee Tables
S-8
(Form Type)
Bit Brother Limited
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
| |
Security Type | |
Security Class
Title | |
Fee Calculation
or Carry Forward Rule | |
Amount
Registered | | |
Proposed
Maximum Offering Price Per Unit | | |
Maximum
Aggregate Offering Price | | |
Fee
Rate | | |
Amount
of Registration Fee | | |
Carry Forward
Form Type | |
Carry Forward
File Number | |
Carry Forward
Initial effective date | |
Filing Fee Previously
Paid In Connection with Unsold Securities to be Carried Forward |
Newly Registered Securities |
Fees
to Be Paid | |
Equity | |
Class
A Ordinary Shares(1) | |
457(c) and 457(h) | |
| 58,000,000
| (1) | |
$ | 0.0265
| (2) | |
$ | 1,537,000 | | |
$ | 0.00014760 | | |
$ | 226.8612 | | |
N/A | |
N/A | |
N/A | |
N/A |
Fees Previously
Paid | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
| |
|
Carry Forward Securities |
Carry Forward
Securities | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
| |
|
| |
Total Offering Amounts | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
| |
|
| |
Total Fees Previously
Paid | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
| |
|
| |
Total Fee Offsets | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
| |
|
| |
Net Fee Due | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
| |
|
| (1) | Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement includes
an indeterminate number of additional shares which may be offered and issued to prevent dilution from stock splits, stock dividends or
similar transactions as provided in the 2023 Equity Incentive Plan, as amended (the “2023 Plan”). The amount to be registered
represents shares available for future issuance under the Plan. |
| (2) | Estimated
solely for the purpose of calculating the registration fee. Such estimate is calculated pursuant to Rules 457(c) and 457(h) under the
Securities Act, based on the average of the high and low prices ($0.027 and $0.026, respectively) of Bit Brother Limited’s Class
A Ordinary Shares, as quoted on the Nasdaq Capital Market on November 22, 2023. |
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