UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
6-K
REPORT
OF FOREIGN PRIVATE ISSUER
PURSUANT
TO RULE 13a-16 OR 15d-16 UNDER
THE
SECURITIES EXCHANGE ACT OF 1934
For
the month of November 2023
Commission
File Number: 001-38421
BIT
DIGITAL, INC.
(Translation
of registrant’s name into English)
33
Irving Place, New York, NY 10003
(Address
of principal executive offices)
Indicate
by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F
Form
20-F ☒ Form 40-F ☐
ADOPTION
OF CLAWBACK POLICY
Nasdaq
adopted a new listing standard related to recovery of erroneously awarded compensation (Nasdaq Listing Rule 5608, the “Executive
Compensation Clawback Rule”), which became effective on October 2, 2023, and pursuant to the Executive Compensation Clawback Rule,
all Nasdaq listed companies have until December 1, 2023, to adopt a clawback policy.
On
November 30, 2023, the Board of Directors (the “Board”) of Bit Digital Inc. (the “Company”) adopted a Clawback
Policy (the “Clawback Policy”), a copy of which is filed as Exhibit 4.1 to this Form 6-K. The Clawback Policy provides for
the recoupment of certain executive compensation in the event of an accounting restatement resulting from material noncompliance with
financial reporting requirements under the Federal securities laws. The Clawback Policy is designed to comply with Section 10D of the
Securities Exchange Act of 1934, and Nasdaq Listing Rule 5608.
The
Clawback Policy will be administered by the Board. It applies to the Company’s current and former executive officers and such other
senior executives and employees who may be deemed subject to the policy by the Board. The amount to be recovered will be the excess of
the Incentive Compensation (as defined) paid to the executive based on the erroneous data over the Incentive Compensation that would
have been paid had it been based on the restated results.
The
foregoing description of the Clawback Policy with Form of Acknowledgement is a summary only and is qualified in its entirety by reference
to the full text of the Clawback Policy, a copy of which is attached to this Report on Form 6-K as Exhibit 4.1 and is incorporated herein
by reference.
Exhibit
Index
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
|
Bit Digital, Inc. |
|
(Registrant) |
|
|
Date: November
30, 2023 |
By: |
/s/
Samir Tabar |
|
Name: |
Samir Tabar |
|
Title: |
Chief Executive Officer |
2
Exhibit 4.1
Bit Digital, Inc. (“the Company”)
CLAWBACK POLICY
Introduction
The Board of Directors of the Company (the “Board”)
believes that it is in the best interests of the Company and its shareholders to create and maintain a culture that emphasizes integrity
and accountability and that reinforces the Company’s pay-for-performance compensation philosophy. The Board has therefore adopted
this policy which provides for the recoupment of certain executive compensation in the event of an accounting restatement resulting from
material noncompliance with financial reporting requirements under the federal securities laws (the “Policy”). This
Policy is designed to comply with Section 10D of the Securities Exchange Act of 1934 (the “Exchange Act”) and Nasdaq
Listing Rule 5608 (the “Clawback Listing Standards”).
Administration
This Policy shall be administered by the Board
or, if so designated by the Board, the Compensation Committee, in which case references herein to the Board shall be deemed references
to the Compensation Committee. Any determinations made by the Board shall be final and binding on all affected individuals.
Covered Executives
This Policy applies to the Company’s current
and former executive officers, as determined by the Board in accordance with the definition in Section 10D of the Exchange Act and the
Clawback Listing Standards, and such other senior executives and employees who may from time to time be deemed subject to the Policy by
the Board (“Covered Executives”).
Recoupment; Accounting Restatement
In the event the Company is required to prepare
an accounting restatement of its financial statements due to the Company’s material noncompliance with any financial reporting requirement
under the securities laws, including any required accounting restatement to correct an error in previously issued financial statements
that is material to the previously issued financial statements or that would result in a material misstatement if the error were corrected
in the current period or left uncorrected in the current period, the Board will require reimbursement or forfeiture of any excess Incentive
Compensation (defined below) received by any Covered Executive during the three completed fiscal years immediately preceding the date
on which the Company is required to prepare an accounting restatement.
Incentive Compensation
For purposes of this Policy, Incentive Compensation
means any of the following; provided that, such compensation is granted, earned, or vested
based wholly, or in part, on the attainment of a financial reporting measure including, but not limited to:
| ● | Annual
bonuses and other short- and long-term cash incentives. |
| ● | Stock
appreciation rights. |
Financial
reporting measures include:
| ● | Total
shareholder return. |
| ● | Earnings
before interest, taxes, depreciation, and amortization (EBITDA). |
| ● | Liquidity
measures such as working capital or operating cash flow. |
| ● | Return
measures such as return on invested capital or return on assets. |
| ● | Earnings
measures such as earnings per share. |
Excess
Incentive Compensation: Amount Subject to Recovery
The
amount to be recovered will be the excess of the Incentive Compensation paid to the Covered Executive based on the erroneous data over
the Incentive Compensation that would have been paid to the Covered Executive had it been based on the restated results, as determined
by the Board, without regard to any taxes paid by the Covered Executive in respect of the Incentive Compensation paid based on the erroneous
data.
If the Board cannot determine the amount of excess
Incentive Compensation received by the Covered Executive directly from the information in the accounting restatement, then it will make
its determination based on a reasonable estimate of the effect of the accounting restatement.
Method of Recoupment
The Board will determine, in its sole discretion,
the method for recouping Incentive Compensation hereunder which may include, without limitation:
| (a) | requiring reimbursement of cash Incentive Compensation previously paid; |
| (b) | seeking recovery of any gain realized on the vesting, exercise, settlement, sale, transfer, or other disposition
of any equity-based awards; |
| (c) | offsetting the recouped amount from any compensation otherwise owed by the Company to the Covered Executive; |
| (d) | cancelling outstanding vested or unvested equity awards; and/or |
| (e) | taking any other remedial and recovery action permitted by law, as determined by the Board. |
No Indemnification
The Company shall not indemnify any Covered Executives
against the loss of any incorrectly awarded Incentive Compensation.
Interpretation
The Board is authorized to interpret and construe
this Policy and to make all determinations necessary, appropriate, or advisable for the administration of this Policy. It is intended
that this Policy be interpreted in a manner that is consistent with the requirements of Section 10D of the Exchange Act, any applicable
rules or standards adopted by the Securities and Exchange Commission, and the Clawback Listing Standards.
Effective Date
This Policy shall be effective as of November
30, 2023 (the “Effective Date”) and shall apply to Incentive Compensation that is accrued and/or received by Covered
Executives on or after the Effective Date, even if such Incentive Compensation was approved, awarded, or granted to Covered Executives
prior to the Effective Date.
Amendment; Termination
The Board may amend this Policy from time to time
in its discretion and shall amend this Policy as it deems necessary to reflect final regulations adopted by the Securities and Exchange
Commission under Section 10D of the Exchange Act and to comply with the Clawback Listing Standards and any other rules or standards adopted
by a national securities exchange on which the Company’s securities are listed. The Board may terminate this Policy at any time.
Other Recoupment Rights
Any right of recoupment under this Policy is in
addition to, and not in lieu of, any other remedies or rights of recoupment that may be available to the Company pursuant to the terms
of any similar policy in any employment agreement, equity award agreement, or similar agreement and any other legal remedies available
to the Company.
Relationship to Other Plans and Agreements
The Board intends that this Policy will be applied
to the fullest extent of the law. The Board may require that any employment agreement, equity award agreement, or similar agreement entered
into on or after the Effective Date shall, as a condition to the grant of any benefit thereunder, require a Covered Executive to agree
to abide by the terms of this Policy. In the event of any inconsistency between the terms of the Policy and the terms of any employment
agreement, equity award agreement, or similar agreement under which Incentive Compensation has been granted, awarded, earned or paid to
a Covered Executive, whether or not deferred, the terms of the Policy shall govern.
Acknowledgment
The Covered Executive shall sign an acknowledgment
form in the form attached hereto as Exhibit A in which they acknowledge that they have read and understand the terms of the Policy and
are bound by the Policy.
Impracticability
The Board shall recover any excess Incentive Compensation
in accordance with this Policy unless such recovery would be impracticable, as determined by the Board in accordance with Rule 10D-1 of
the Exchange Act and the listing standards of the national securities exchange on which the Company’s securities are listed.
Successors
This Policy shall be binding and enforceable against
all Covered Executives and their beneficiaries, heirs, executors, administrators or other legal representatives.
EXHIBIT A
FORM OF
EXECUTIVE OFFICER ACKNOWLEDGEMENT & AGREEMENT
PERTAINING TO Bit
Digital, Inc.
CLAWBACK POLICY
This Acknowledgement & Agreement (the “Acknowledgement”)
is delivered by the undersigned executive officer (“Executive”), as of the date set forth below, to Bit Digital, Inc.
(the “Company”).
The Company’s Board of Directors (the “Board”)
adopted the Bit Digital, Inc. Clawback Policy, attached as Exhibit A hereto (as amended, restated, supplemented or otherwise
modified from time to time by the Board, the “Clawback Policy”). The Clawback Policy provides for the recovery of certain
incentive-based compensation from executive officers in the event that the Company is required to prepare an accounting restatement due
to the material noncompliance of the Company with any financial reporting requirement under the securities laws, including any required
accounting restatement to correct an error in previously issued financial statements that is material to the previously issued financial
statements, or that would result in a material misstatement if the error were corrected in the current period or left uncorrected in the
current period.
In consideration of the continued benefits to
be received from the Company and Executive’s right to participate in, and as a condition to the receipt of, incentive-based compensation
(as defined in the Clawback Policy), Executive hereby acknowledges and agrees to the following:
1. | Executive has read and understands the Clawback Policy and has had an opportunity to ask questions to
the Company regarding the Clawback Policy. |
2. | Executive agrees to be bound by and to abide by the terms of the Clawback Policy and intends for the Clawback
Policy to be applied to the fullest extent of the law. |
3. | The Clawback Policy shall apply to any and all incentive-based compensation that is received (as defined
in the Clawback Policy) by Executive on or after November 30, 2023. |
4. | Executive agrees and understands that the recovery of compensation under the Clawback Policy shall not
be an event giving rise to a right to resign for “good reason” or “constructive termination” (or similar term)
under any plan, agreement, or other arrangement with the Company. |
5. | In the event of any inconsistency between the provisions of the Clawback Policy and this Acknowledgement
or any applicable incentive-based compensation arrangements, equity agreement, indemnification agreement or similar agreement or arrangement
setting forth the terms and conditions of any incentive-based compensation, the terms of the Clawback Policy shall govern. |
No modifications, waivers or amendments of the
terms of this Acknowledgement shall be effective unless signed in writing by Executive and the Company. The provisions of this Acknowledgement
shall inure to the benefit of the Company, and shall be binding upon, the successors, administrators, heirs, legal representatives and
assigns of Executive.
By signing below, Executive agrees to the application
of the Clawback Policy and the other terms of this Acknowledgement.
_________________________
Name:
Date: ____________________
[Signature Page to Executive Officer Acknowledgement
& Agreement
Pertaining to the Bit Digital, Inc.
Clawback Policy]
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