Registration No. 333-______
As filed with the Securities and Exchange Commissionon May 12, 2023
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIESACT OF 1933
CLPS Incorporation
(Exact name of registrant as specified in its charter)
Cayman Islands Not applicable
(State or other jurisdiction (I.R.S. Employer
of Identification No.)
incorporation or organization)
c/o Unit 1102, 11
th
Floor,Millennium City III
370 Kwun Tong Road, Kwun Tong, Kowloon
Hong Kong SAR
(Address of principal executive offices, includingzip code)
CLPS Incorporation 2023 Equity Incentive Plan
(the "2023 Equity Incentive Plan")
(Full title of the plan)
Raymond Ming Hui Lin, Chief Executive Officer
c/o Unit 1102, 11
th
Floor,Millennium City III
370 Kwun Tong Road, Kwun Tong, Kowloon
Hong Kong SAR
Tel: (852) 37073600
With a copy to:
Corporation Service Company
251 Little Falls Drive
Wilmington, DE 19808
Telephone: 800-927-9800
(Name, address, including zip code, and telephonenumber, including areas code,
of agent for service)
Copies to:
Tahra Wright, Esq.
Loeb & Loeb LLP
345 Park Avenue
New York, NY 10154
Tel: (212) 407-4000
Indicate by check mark whether the registrantis a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company.
See the definitions of "largeaccelerated filer," "accelerated filer," "smaller
reporting company" or an emerging growth company. Seethe 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
If an emerging growth company, indicate by checkmark if the registrant has
elected not to use the extended transition period for complying with any new
or revised financial accountingstandards provided pursuant to Section
7(a)(2)(B) of the Securities Act.
EXPLANATORY NOTE
This Registration Statementis being filed by the Registrant to register
20,000,000 shares reserved and available for issuance pursuant to the CLPS
Incorporation2023 Equity Incentive Plan adopted by the Board of Directors of
the Company (the "2023 Equity Incentive Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. RegistrantInformation 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 CLPS Incorporation 2023 Equity Incentive Plan adopted
by the Board of Directors of the Company (the "2023 Equity Incentive 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.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
CLPS Incorporation (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, proxy statements and other information concerning the Companyfiled
with the Commission may be inspected and copies may be obtained (at prescribed
rates) at the Commission's Public ReferenceSection, 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 theCompany. The address for the Commission's Web site is
"http://www.sec.gov". The following documents are incorporatedby reference in
this Registration Statement:
(a) The Company's Annual Report on
Form 20-F
for the fiscal year ended June 30, 2022 filed with the Commission on October
20, 2022,
(b) The Company's Current Reports on Form6-K furnished to the Commission on
March 3
,
March 14
, and
April 24
, 2023, respectively; and
(c) The description of the Company's Sharescontained in Item 1 of the
registration statement on
Form 8-A12B
(File No. 001-38505) filed with the Commission on May 22, 2018 and on
Form 6-K
filed with the Commission on April 7, 2022.
Except to the extent suchinformation is deemed furnished and not filed
pursuant to securities laws and regulations, all documents filed by the
Company pursuantto Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, to theextent
specifically designated therein, reports on Form 6-K furnished by the Company
to the Commission, in each case, subsequent to theeffective date of this
Registration Statement and prior to the filing of a post-effective amendment
to this Registration Statement indicatingthat all securities offered under
this Registration Statement have been sold, or deregistering all securities
then remaining unsold, shallbe deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing or
furnishingof such documents.
Any statement contained hereinor in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modifiedor superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequentlyfiled
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statementso 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.
The Companies Act (Revised)of the Cayman Islands does not limit the extent to
which a company's memorandum and articles of association may provide for
indemnificationof officers and directors, except to the extent any such
provision may be held by the Cayman Islands courts to be contrary to public
policy,such as to provide indemnification against civil fraud or the
consequences of committing a crime. Our memorandum and articles of
associationpermit indemnification of officers and directors for losses,
damages, costs and expenses incurred in their capacities as such unless
suchlosses or damages arise from dishonesty of such directors or officers
willful default of fraud. This standard of conduct is generallythe same as
permitted under the Delaware General Corporation Law for a Delaware
corporation. Insofar as indemnification for liabilitiesarising under the
Securities Act may be permitted to our directors, officers or persons
controlling us under the foregoing provisions,we have been informed that in
the opinion of the SEC, such indemnification is against public policy as
expressed in the Securities Actand is therefore unenforceable.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
For a list of all exhibitsfiled or included as part of this Registration
Statement, see "Index to Exhibits" at the end of this Registration Statement.
Item 9. Undertakings.
(a) The undersigned registranthereby undertakes:
(1) To file, duringany period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include anyprospectus required by Section 10(a)(3) of the Securities
Act of 1933, as amended (the "Securities Act");
(ii) To reflectin the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effectivea
mendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registrationstatement.
Notwithstanding the foregoing, any increase or decrease in the volume of
securities offered (if the total dollar valueof securities offered would not
exceed that which was registered) and any deviation from the low or high end
of the estimated maximumoffering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate,
thechanges in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculationof Registration
Fee" table in the effective registration statement; and
(iii) To includeany material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
materialchange to such information in the registration statement;
provided
,
however,
thatparagraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information
required to be included in a post-effective amendmentby those paragraphs is
contained in reports filed with or furnished to the SEC by the registrant
pursuant to Section 13 or Section 15(d) ofthe Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for thepurpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registrationstatement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initialbona
fide offering thereof.
(3) To remove fromregistration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
theoffering.
(b) The undersigned registranthereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annualreport pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registrationstatement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securitiesat that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnificationfor liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuantto the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the SEC such indemnification is
againstpublic policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnificationagainst such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controllingperson of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controllingperson in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has beensettled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
againstpublic policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
*********************
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Signatures
Pursuant to the requirementsof the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets
all of therequirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereuntoduly authorized, in the People's Republic of China, on May 12, 2023.
CLPS Incorporation
Date: May 12, 2023 By: /s/ Raymond Ming Hui Lin
Raymond Ming Hui Lin
Chief Executive Officer, Director
(Principal Executive Officer)
Date: May 12, 2023 By: /s/ Rui Yang
Rui Yang
Chief Financial Officer
(Principal Financial and Accounting Officer)
KNOW ALL MEN BY THESE PRESENTS,that each person whose signature appears below
constitutes and appoints Raymond Ming Hui Lin, his true and lawful
attorneys-in-fact andagents, with full power of substitution and resubstitution
for him and in his name, place and stead, in any and all capacities, to
signany and all amendments (including post-effective amendments) to this
Registration Statement, and any subsequent registration statementspursuant to
Rule 462 of the Securities Act of 1933 and to file the same, with all exhibits
thereto, and other documents in connectiontherewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full powerand authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully
toall intents and purposes as he might or could do in person, hereby ratifying
and confirming all that each of said attorney-in-fact orhis substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirementsof the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on
the datesindicated.
Signature Title Date
/s/ Xiao Feng Yang Chairman of Board of Directors May 12, 2023
Xiao Feng Yang
/s/ Raymond Ming Hui Lin Chief Executive Officer and Director May 12, 2023
Raymond Ming Hui Lin (Principal Executive Officer)
/s/ Rui Yang Chief Financial Officer May 12, 2023
Rui Yang (Principal Accounting and Financial Officer)
/s/ Jin He Shao Independent Director May 12, 2023
Jin He Shao
/s/ Chong Seng Kee Independent Director May 12, 2023
Chong Seng Kee
/s/ Zhaohui Feng Independent Director May 12, 2023
Zhaohui Feng
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EXHIBIT INDEX
Exhibit Description
4.1 Specimen share certificate (1).
5.1 Opinion of Ogier
.
10.1 2023 Equity Incentive Plan
.
23.1 Consent of Ernst & Young Hua Ming LLP.
107 Calculation of Fee Table
(1) Incorporated by reference to exhibits of the same number filed with CLPS Incorporation's
Registration Statement on Form F-1 or amendments thereto (File No. 333-223956).
II-4
Exhibit 5.1
CLPS Incorporation D
+852 3656 6054/ 3656 6061
c/o - Ogier Global (Cayman) Limited E:
nathan.powell@ogier.com/
89 Nexus Way, Camana Bay florence.chan@ogier.com
Grand Cayman KY1-9009
Cayman Islands Reference: NMP/FYC/173339.00002
12 May 2023
Dear Sirs
CLPS Incorporation (the Company)
We have acted as Cayman Islands counsel to theCompany in connection with the
Company's registration statement on Form S-8, including all amendments or
supplements thereto (the
Form S-8
), as filed with the United States Securities and Exchange Commission (the
Commission
) under the United States SecuritiesAct of 1933, as amended (the
Act
) on or about the date hereof. The Form S-8 relates to the Company's adoption
of 2023 Equity IncentivePlan as approved by the board of directors of the
Company on 8 March 2023 and by the shareholders of the Company at the annual
generalmeeting of the Company held on 24 April 2023 (the
2023 Equity Incentive Plan
).
Unless a contrary intention appears, all capitalisedterms used in this opinion
have the respective meanings set forth in the Documents (as defined below). A
reference to a Schedule is areference to a schedule to this opinion and the
headings herein are for convenience only and do not affect the construction of
this opinion.
1 Documents examined
For the purposes of giving this opinion,we have examined originals, copies, or
drafts of the following documents (the
Documents
):
(a) the certificate of incorporation of the Company dated 11 May 2017
issued by the Registrar of Companiesof the Cayman Islands (the
Registrar
);
(b) the amended and restated memorandum and articles of association of the Company
adopted by special resolutionsdated 7 December 2017 (respectively, the
Memorandum
and the
Articles
);
(c) a certificate of good standing of the Company dated 28 April 2023 (the
Good Standing Certificate
)issued by the Registrar in respect of the Company;
(d) a copy of the register of directors of the Company filed with the Registrar on 17 December 2020 (the
ROD
);
Ogier Partners Florence Chan
British Virgin Islands, Cayman Islands, Nicholas Plowman Lin Han
Guernsey, Jersey and Luxembourg practitioners Nathan Powell Cecilia Li
Anthony Oakes Rachel Huang
Floor 11 Central Tower Oliver Payne Richard Bennett
28 Queen's Road Central Kate Hodson James Bergstrom
Central David Nelson Marcus Leese
Hong Kong Michael Snape
Justin Davis
T +852 3656 6000
F +852 3656 6001
ogier.com
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4
(e) the shareholder list of the Company provided by Continental Stock
Transfer & Trust as at 26 April2023 (together with the ROD, the
Registers
);
(f) the Form S-8;
(g) a copy of the written resolutions of all the directors of the Company dated 8 March 2023
approving, amongother things, the Company's adoption of 2023 Equity Incentive Plan (the
Board Resolutions
);
(h) a copy of the minutes of the annual general meeting of the Company held on 24 April 2023 (the
AGM
)approving, among other things, the Company's adoption of 2023 Equity Incentive Plan (the
Minutes of the AGM
, and together withthe Board Resolutions, the
Resolutions
);
(i) a certificate from a director of the Company dated 12 May 2023 as to certain matters of fact (the
Director'sCertificate
); and
(j) a copy of the 2023 Equity Incentive Plan.
2 Assumptions
In giving this opinion we have reliedupon the assumptions set forth in this
paragraph 2 without having carried out any independent investigation or
verification in respectof those assumptions:
(a) all original documents examined by us are authentic and complete;
(b) all copy documents examined by us (whether in facsimile, electronic or other
form) conform to the originalsand those originals are authentic and complete;
(c) all signatures, seals, dates, stamps and markings (whether on original or copy documents) are genuine;
(d) each of the Good Standing Certificate, the Registers, the Director's Certificate and the 2023 Equity
IncentivePlan is accurate, complete and up-to-date (as the case may be) as at the date of this opinion;
(e) the Memorandum and Articles provided to us are in full force and effect
and have not been amended, varied,supplemented or revoked in any respect;
(f) all copies of the Form S-8 are true and correct copies and the Form S-8 conforms
in every material respectto the latest drafts of the same produced to us and,
where the Form S-8 has been provided to us in successive drafts marked to show
changesfrom a previous draft, all such changes have been accurately marked;
(g) the Board Resolutions have been duly passed in accordance with the Company's
articles of association thenin effect and remains in full force and effect;
(h) the resolutions passed at the AGM as documented in the Minutes of the AGM remains in full force and
effectand the AGM referred to in the Minutes of the AGM was properly convened and held in accordance
with the Company's articles of associationthen in effect, a quorum was present throughout the AGM and
the Minutes of the AGM provided a complete and accurate record of the proceedingsdescried therein;
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(i) each of the directors of the Company has acted in good faith with a view to the best interests of theCompany and
has exercised the standard of care, diligence and skill that is required of him or her in approving the 2023
Equity IncentivePlan and no director has a financial interest in or other relationship to a party of the transactions
contemplated by the 2023 EquityIncentive Plan which has not been properly disclosed in the Board Resolutions;
(j) neither the directors and shareholders of the Company have taken any steps to wind up the Company or toappoint
a liquidator of the Company and no receiver has been appointed over any of the Company's property or assets;
(k) the maximum number of shares which the Company is required to issue
under the 2023 Equity Incentive Planto fulfil its obligation (the
ESOP Shares
) will not exceed the Company's authorised share capital then in place and the considerationpayable
for each ESOP Share shall be no less than the par value of US$0.0001 each; and
(l) there is nothing under any law (other than the laws of the Cayman Islands), that would or might affectthe opinions herein.
3 Opinions
On the basis of the examination ofthe Documents and assumptions referred to
above and subject to the limitations and qualifications set forth in paragraph
4 below, we areof the opinion that:
Corporatestatus
(a) The Company has been duly incorporated as an exempted company in the Cayman
Islands and is validly existingand in good standing with the Registrar.
Authorised Shares
(b) Based solely on the Memorandum, the authorised share capital of the Company
is US$10,000 divided into100,000,000 shares of US$0.0001 par value.
Valid Issuanceof ESOP Shares
(c) The ESOP Shares to be issued under the 2023 Equity Incentive Plan have been duly authorised by all
necessarycorporate actions of the Company under the Memorandum and Articles and, upon the issuance and delivery
of the ESOP Shares in accordancewith the Memorandum and Articles, the Resolutions and the terms of the
2023 Equity Incentive Plan and once consideration of not less thanthe par value is fully paid per ESOP
Share in accordance with the 2023 Equity Incentive Plan to the Company, the ESOP Shares will be
validlyissued, fully paid and non-assessable. Once the register of members of the Company has been updated to
reflect the issuance of the ESOPShares, the shareholders recorded in the register of members of the Company
will be deemed to have legal title to the shares of the Companyset out against their respective name.
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4 Limitations and Qualifications
4.1 We offer no opinion:
(a) as to any laws other than the laws of the Cayman Islands, and we have not, for the purposes of this
opinion,made any investigation of the laws of any other jurisdiction, and we express no opinion as
to the meaning, validity, or effect of referencesin the 2023 Equity Incentive Plan to statutes,
rules, regulations, codes or judicial authority of any jurisdiction other than the CaymanIslands; or
(b) except to the extent that this opinion expressly provides otherwise, as to the commercial terms of, orthe validity,
enforceability or effect of the Form S-8, the accuracy of representations, the fulfilment of warranties or
conditions, theoccurrence of events of default or terminating events or the existence of any conflicts or inconsistencies
among the Form S-8 and anyother agreements into which the Company may have entered or any other documents.
4.2 Under the Companies Act (Revised) (
Companies Act
) of the Cayman Islands annual returns in respectof the Company must be filed with the Registrar of Companies in the Cayman
Islands, together with payment of annual filing fees. A failureto file annual returns and pay annual filing fees may result
in the Company being struck off the Register of Companies, following whichits assets will vest in the Financial Secretary
of the Cayman Islands and will be subject to disposition or retention for the benefitof the public of the Cayman Islands.
4.3 In good standing means only that as of the date of the Good Standing Certificate the Company is up-to-datewith
the filing of its annual returns and payment of annual fees with the Registrar of Companies. We
have made no enquiries into the Company'sgood standing with respect to any filings or payment of fees, or
both, that it may be required to make under the laws of the Cayman Islandsother than the Companies Act.
5 Governing law of this opinion
5.1 This opinion is:
(a) governed by, and shall be construed in accordance with, the laws of the Cayman Islands;
(b) limited to the matters expressly stated in it; and
(c) confined to, and given on the basis of, the laws and practice in the Cayman Islands at the date of thisopinion.
5.2 Unless otherwise indicated, a reference to any specific Cayman Islands legislation is a
reference to thatlegislation as amended to, and as in force at, the date of this opinion.
6 Reliance
We hereby consent to the filing ofthis opinion as an exhibit to the Form S-8.
This opinion may be used only in connectionwith the Form S-8 while the 2023
Equity Incentive Plan is effective.
Yours faithfully
Ogier
Exhibit 10.1
CLPS INCORPORATION
2023 Equity Incentive Plan
______________________
Section 1. Establishment and Purpose.
1.1 The purpose of thePlan is to attract and retain outstanding individuals as
Employees, Directors and Consultants of the Company and its Subsidiaries,
torecognize the contributions made to the Company and its Subsidiaries by
Employees, Directors and Consultants, and to provide such Employees,Directors
and Consultants with additional incentive to expand and improve the profits
and achieve the objectives of the Company and itsSubsidiaries, by providing
such Employees, Directors and Consultants with the opportunity to acquire or
increase their proprietary interestin the Company through receipt of Awards.
Section 2. Definitions.
As used in the Plan, thefollowing terms shall have the meanings set forth below:
2.1 "
Award
"means any award or benefit granted under the Plan, which shall be a Stock
Option, a Stock Award, a Stock Unit Award or an SAR.
2.2 "
AwardAgreement
" means, as applicable, a Stock Option Agreement, Stock Award Agreement, Stock
Unit Award Agreement or SAR Agreementevidencing an Award granted under the
Plan.
2.3 "
Board
"means the Board of Directors of the Company.
2.4 "
Changein Control
" has the meaning set forth in Section 8.2 of the Plan.
2.5 "
Code
"means the Internal Revenue Code of 1986, as amended from time to time.
2.6 "
Committee
"means the Compensation Committee of the Board or such other committee as may
be designated by the Board from time to time to administerthe Plan, or, if no
such committee has been designated at the time of any grants, it shall mean
the Board.
2.7 "
Company
"means CLPS Incorporation.
2.8 "
Consultant
"means any person, including an advisor, who is engaged by the Company or a
Subsidiary to render consulting or advisory services and iscompensated for
such services. However, service solely as a Director, or payment of a fee for
such service, will not cause a Directorto be considered a "Consultant" for
purposes of the Plan. Notwithstanding the foregoing, a person is treated as a
Consultantunder this Plan only if a Form S-8 Registration Statement under the
Securities Act is available to register either the offer or the saleof the
Company's securities to such person.
2.9 "
Director
"means a director of the Company who is not an employee of the Company or a
Subsidiary.
2.10 "
EffectiveDate
" means _____, 2023.
2.11 "
ExchangeAct
" means the Securities Exchange Act of 1934, as amended from time to time.
2.12 "
FairMarket Value
" means as of any date, the closing price of a Share on the national
securities exchange on which the Shares arelisted, or, if the Shares are not
listed on a national securities exchange, the over-the-counter market on which
the Shares trades, or,if the Shares is not listed on a national securities
exchange or an over-the-counter market, as determined by the Board as of such
datein accordance with the requirements of Code Section 422 or 409A, as
applicable, or, if no trading occurred on such date, as of the tradingday
immediately preceding such date.
2.13 "
IncentiveStock Option
" or "
ISO
" means a Stock Option granted under Section 5 of the Plan that meets the
requirementsof Section 422(b) of the Code or any successor provision.
2.14 "
Employee
"means an employee of the Company or any Subsidiary selected to participate in
the Plan in accordance with Section 3. A Employee may alsoinclude a person who
is granted an Award (other than an Incentive Stock Option) in connection with
the hiring of the person prior tothe date the person becomes an employee of
the Company or any Subsidiary, provided that such Award shall not vest prior
to the commencementof employment.
2.15 "
FamilyMember
" unless otherwise defined by applicable tax laws, shall mean any child,
stepchild, grandchild, parent, stepparent, spouse,former spouse, sibling,
niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law or sister-in-law, includingadoptive relationships, any person
sharing the Participant's household (other than a tenant or employee of the
Participant), atrust in which such persons have more than fifty percent (50%)
of the beneficial interest, a foundation in which such persons (or
theParticipant) control the management of assets, and any other entity in
which such persons (or the Participant) own more than fifty percent(50%) of
the voting interests.
2.16 "
Founder
"means the Company's co-founder Raymond Lin.
2.17 "
Non-QualifiedStock Option
" or "
NSO
" means a Stock Option granted under Section 5 of the Plan that is not an
IncentiveStock Option.
2.18 "
Participant
"means an Employee, Director or Consultant selected to receive an Award under
the Plan.
2.19 "
Plan
"means this 2023 Equity Incentive Plan.
2.20 "
Shares
"means ordinary common shares with a par value $0.0001 per share, of the
Company.
2.21 "
StockAppreciation Right
" or "
SAR
" means a grant of a right to receive Shares or cash under Section 8 of the
Plan.
2.22 "
StockAward
" means a grant of Shares under Section 6 of the Plan.
2.23 "
StockOption
" means an Incentive Stock Option or a Non-Qualified Stock Option granted
under Section 5 of the Plan.
2.24 "
StockUnit Award
" means a grant of a right to receive Shares or cash under Section 7 of the
Plan.
2.25 "
Subsidiary
"means an entity of which the Company is the direct or indirect beneficial
owner of not less than 50% of all issued and outstanding equityinterest of
such entity.
2
2.26 "
Terminationof Service
" means a termination of a Participant's service with the Company or a
Subsidiary, as applicable, for any reason,including, without limitation,
disability or death. In the event Termination of Service shall constitute a
payment event with respectto any Award subject to Code Section 409A,
Termination of Service shall only be deemed to occur upon a "separation from
service"as such term is defined under Code Section 409A.
Section 3. Administration.
3.1
The Committee
.
The Plan shall be administeredby the Committee, which shall be comprised of at
least two members of the Board who satisfy the "non-employee director"
definitionset forth in Rule 16b-3 under the Exchange Act, unless the Board
otherwise determines.
3.2
Authority ofthe Committee
.
(a) The Committee,in its sole discretion, shall determine the Employees and
Directors to whom, and the time or times at which Awards will be granted,
theform and amount of each Award, the expiration date of each Award, the time
or times within which the Awards may be exercised, the cancellationof the
Awards and the other limitations, restrictions, terms and conditions
applicable to the grant of the Awards. The terms and conditionsof the Awards
need not be the same with respect to each Participant or with respect to each
Award.
(b) To theextent permitted by applicable law, regulation, and rules of a stock
exchange on which the Shares are listed or traded, the Committeemay delegate
its authority to grant Awards to Employees and to determine the terms and
conditions thereof to such officer of the Companyas it may determine in its
discretion, on such terms and conditions as it may impose, except with respect
to Awards to officers subjectto Section 16 of the Exchange Act.
(c) The Committeemay, subject to the provisions of the Plan, establish such
rules and regulations as it deems necessary or advisable for the proper
administrationof the Plan, and may make determinations and may take such other
action in connection with or in relation to the Plan as it deems necessaryor
advisable. Each determination or other action made or taken pursuant to the
Plan, including interpretation of the Plan and the specificterms and
conditions of the Awards granted hereunder, shall be final and conclusive for
all purposes and upon all persons.
(d) No memberof the Board or the Committee shall be liable for any action
taken or determination made hereunder in good faith. Service on the
Committeeshall constitute service as a Director so that the members of the
Committee shall be entitled to indemnification and reimbursement asDirectors
of the Company pursuant to the Company's Certificate of Incorporation and
By-Laws.
3.3
Award Agreements
.
(a) Each Awardshall be evidenced by a written Award Agreement specifying the
terms and conditions of the Award. In the sole discretion of the Committee,the
Award Agreement may condition the grant of an Award upon the Participant's
entering into one or more of the following agreementswith the Company: (i) an
agreement not to compete with the Company and its Subsidiaries which shall
become effective as of the date ofthe grant of the Award and remain in effect
for a specified period of time following termination of the Participant's
employmentwith the Company; (ii) an agreement to cancel any employment
agreement, fringe benefit or compensation arrangement in effect betweenthe
Company and the Participant; and (iii) an agreement to retain the
confidentiality of certain information. Such agreements may containsuch other
terms and conditions as the Committee shall determine. If the Participant
shall fail to enter into any such agreement at therequest of the Committee,
then the Award granted or to be granted to such Participant shall be forfeited
and cancelled.
3
Section 4. Shares Subject to Plan.
4.1
Total Numberof Shares
.
(a) The totalnumber of Shares that may be issued under the Plan shall be
20,000,000. Such Shares may be either authorized but unissued shares or
treasuryshares, and shall be adjusted in accordance with the provisions of
Section 4.3 of the Plan.
(b) The numberof Shares delivered by a Participant or withheld by the Company
on behalf of any such Participant as full or partial payment of an
Award,including the exercise price of a Stock Option or of any required
withholding taxes, shall not again be available for issuance pursuantto
subsequent Awards, and shall count towards the aggregate number of Shares that
may be issued under the Plan. Any Shares purchasedby the Company with proceeds
from a Stock Option exercise shall not again be available for issuance
pursuant to subsequent Awards, shallcount against the aggregate number of
Shares that may be issued under the Plan and shall not increase the number of
shares availableunder the Plan.
(c) If thereis a lapse, forfeiture, expiration, termination or cancellation of
any Award for any reason (including for reasons described in Section3.3), or
if Shares are issued under such Award and thereafter are reacquired by the
Company pursuant to rights reserved by the Companyupon issuance thereof, the
Shares subject to such Award or reacquired by the Company shall again be
available for issuance pursuant tosubsequent Awards, and shall not count
towards the aggregate number of Shares that may be issued under the Plan.
4.2
Shares UnderAwards
.
Of the Shares authorizedfor issuance under the Plan pursuant to Section 4.1:
(a) The maximumnumber of Shares as to which an Employee (other than the
Founder to whom no annual limit is applicable) may receive Stock Options
orSARs in any calendar year is 800,000, except that the maximum number of
Shares as to which an Employee (other than the Founder) may receiveStock
Options or SARs in the calendar year in which such Employee begins employment
with the Company or its Subsidiaries is 1,000,000.
(b) The maximumnumber of Shares that may be subject to Stock Options (ISOs
and/or NSOs) is full amount of Shares authorized under Section 4.1.
(c) The maximumnumber of Shares that may be used for Stock Awards and/or Stock
Unit Awards that may be granted to any Employee (other than the Founder)in any
calendar year is 800,000, or, in the event the Award is settled in cash, an
amount equal to the Fair Market Value of such numberof Shares on the date on
which the Award is settled.
(d) The maximumnumber of Shares subject to Awards granted under the Plan or
otherwise during any one calendar year to any Director for service on
theBoard, taken together with any cash fees paid by the Company to such
Director during such calendar year for service on the Board, willnot exceed
$1,000,000 in total value (calculating the value of any such Awards based on
the grant date fair value of such Awards forfinancial reporting purposes).
4
The numbers of Shares describedherein shall be as adjusted in accordance with
Section 4.3 of the Plan.
4.3
Adjustment
.
In the event of any reorganization,recapitalization, stock split, stock
distribution, merger, consolidation, split-up, spin-off, combination,
subdivision, consolidationor exchange of shares, any change in the capital
structure of the Company or any similar corporate transaction, the Committee
shall makesuch adjustments as it deems appropriate, in its sole discretion, to
preserve the benefits or intended benefits of the Plan and Awardsgranted under
the Plan. Such adjustments may include: (a) adjustment in the number and kind
of shares reserved for issuance under thePlan; (b) adjustment in the number
and kind of shares covered by outstanding Awards; (c) adjustment in the
exercise price of outstandingStock Options or SARs or the price of Stock
Awards or Stock Unit Awards under the Plan; (d) adjustments to any of the
shares limitationsset forth in Section 4.1 or 4.2 of the Plan; and (e) any
other changes that the Committee determines to be equitable under the
circumstances.
Section 5. Grants of Stock Options.
5.1
Grant
.
Subject to the terms of thePlan, the Committee may from time to time grant
Stock Options to Participants. Stock Options granted under the Plan to
Employees shallbe NSOs unless the Award Agreement expressly provides that the
Stock Option is an ISO. Stock Options granted under the Plan to Consultantsand
Directors who are not Employees shall be NSOs.
5.2
Stock OptionAgreement
.
The grant of each Stock Optionshall be evidenced by a written Stock Option
Agreement specifying the type of Stock Option granted, the exercise period,
the exerciseprice, the terms for payment of the exercise price, the expiration
date of the Stock Option, the number of Shares to be subject to eachStock
Option and such other terms and conditions established by the Committee, in
its sole discretion, not inconsistent with the Plan.
5.3
Exercise Priceand Exercise Period
.
With respect to each StockOption granted to a Participant:
(a) The perShare exercise price of each Stock Option shall be the Fair Market
Value of the Shares subject to the Stock Option on the date on whichthe Stock
Option is granted, but such exercise price shall not be less than its par
value.
(b) Each StockOption shall become exercisable as provided in the Stock Option
Agreement; provided that the Committee shall have the discretion to
acceleratethe date as of which any Stock Option shall become exercisable.
(c) No dividendsor dividend equivalents shall be paid with respect to any
Shares subject to a Stock Option prior to the exercise of the Stock Option.
(d) Each StockOption shall expire, and all rights to purchase Shares
thereunder shall expire, on the tenth anniversary of the date the Stock
Optionwas granted, unless an earlier expiration date is specified in the Award
Agreement or dictated by Section 5.4.
5
5.4
Required Termsand Conditions of ISOs
.
In addition to the foregoing,each ISO granted to an Employee shall be subject
to the following specific rules:
(a) The aggregateFair Market Value (determined with respect to each ISO at the
time such Option is granted) of the Shares with respect to which ISOs
areexercisable for the first time by an Employee during any calendar year
(under all incentive stock option plans of the Company and itsSubsidiaries)
shall not exceed $100,000. If the aggregate Fair Market Value (determined at
the time of grant) of the Shares subject toan ISO which first becomes
exercisable in any calendar year exceeds the limitation of this Section
5.4(a), so much of the ISO that doesnot exceed the applicable dollar limit
shall be an ISO and the remainder shall be a NSO; but in all other respects,
the original StockOption Agreement shall remain in full force and effect.
(b) Notwithstandinganything herein to the contrary, if an ISO is granted to an
Employee who owns stock possessing more than 10% of the total combined
votingpower of all classes of stock of the Company (or its parent or
subsidiaries within the meaning of Section 422(b)(6) of the Code): (i)the
purchase price of each Shares subject to the ISO shall be not less than 110%
of the Fair Market Value of the Shares on the date theISO is granted; and (ii)
the ISO shall expire, and all rights to purchase Shares thereunder shall
expire, no later than the fifth anniversaryof the date the ISO was granted.
(c) No ISOsshall be granted under the Plan after ten years from the earlier of
the date the Plan is adopted or approved by shareholders of the Company.
5.5
Exercise of StockOptions
.
(a) A Participantentitled to exercise a Stock Option may do so by delivering
written notice to that effect specifying the number of Shares with respectto
which the Stock Option is being exercised and any other information the
Committee may prescribe. All notices or requests providedfor herein shall be
delivered to the Chief Financial Officer of the Company.
(b) The Committeein its sole discretion may make available one or more of the
following alternatives for the payment of the Stock Option exercise price:(i)
in cash; (ii) in cash received from a broker-dealer to whom the Participant
has submitted an exercise notice together with irrevocableinstructions to
deliver promptly to the Company the amount of sales proceeds from the sale of
the Shares subject to the Stock Optionto pay the exercise price; (iii) by
directing the Company to withhold such number of Shares otherwise issuable in
connection with theexercise of the Stock Option having an aggregate Fair
Market Value equal to the exercise price; or (iv) by delivering previously
acquiredShares that are acceptable to the Committee and that have an aggregate
Fair Market Value on the date of exercise equal to the Stock Optionexercise
price. The Committee shall have the sole discretion to establish the terms and
conditions applicable to any alternative madeavailable for payment of the
Stock Option exercise price.
6
(c) Exceptto the extent inconsistent with the terms of the applicable Award
Agreement and/or the provisions of Section 9, the following terms
andconditions shall apply with respect to a Participant's Termination of
Service, as applicable:
(i) The Participant'srights, if any, to exercise any vested Stock Option
and/or SAR shall terminate ninety (90) days after the date of such Termination
ofService, provided that if such termination is on account of the
Participant's death or disability (as defined under Code Section422(c)(6)),
one (1) year after the date of such Termination of Service; and
(ii) Upon suchapplicable date the Participant (or other legal representative)
shall forfeit any rights or interests in or with respect to any suchAward.
Notwithstanding the foregoing, the Committee, in its sole discretion, may
provide for a different time period in the Award Agreement,or may extend the
time period, following a Termination of Service, during which the Participant
has the right to exercise any vestedNSO or SAR, which time period may not
extend beyond the expiration date of the Award term.
Section 6. Stock Awards.
6.1
Grant
.
The Committee may, in itsdiscretion, (a) grant Shares under the Plan to any
Participant without consideration from such Participant or (b) sell Shares
under thePlan to any Participant for such amount of cash, Shares or other
consideration as the Committee deems appropriate.
6.2
Stock Award Agreement
.
Each Shares granted or soldhereunder shall be subject to such restrictions,
conditions and other terms as the Committee may determine at the time of grant
or sale,the general provisions of the Plan, the restrictions, terms and
conditions of the related Stock Award Agreement, and the following
specificrules:
(a) The AwardAgreement shall specify whether the Shares are granted or sold to
the Participant and such other provisions, not inconsistent with theterms and
conditions of the Plan, as the Committee shall determine.
(b) The restrictionsto which the Shares awarded hereunder are subject shall
lapse as provided in Stock Award Agreement; provided that the Committee
shallhave the discretion to accelerate the date as of which the restrictions
lapse with respect to any Award held by a Participant.
(c) Exceptas provided in this subsection (c) and unless otherwise set forth in
the related Stock Award Agreement, the Participant receiving a grantof or
purchasing Shares shall thereupon be a shareholder of the Company with respect
to such Shares and shall have the rights of a shareholderof the Company with
respect to such Shares, including the right to vote such Shares and to receive
dividends and other distributionspaid with respect to such Shares; provided
that any dividends or other distributions payable with respect to the Stock
Award shall beaccumulated and held by the Company and paid to the Participant
only upon, and to the extent, the restrictions lapse in accordance withthe
terms of the applicable Stock Award Agreement. Any such dividends or other
distributions held by the Company attributable to theportion of a Stock Award
that is forfeited shall also be forfeited.
7
Section 7. Stock Unit Awards.
7.1
Grant
.
The Committee may, in itsdiscretion, grant Stock Unit Awards to any
Participant. Each Stock Unit subject to the Award shall entitle the
Participant to receive,on the date or the occurrence of an event (including
the attainment of performance goals) as described in the Stock Unit Award
Agreement,a Share or cash equal to the Fair Market Value of a Share on the
date of such event as provided in the Stock Unit Award Agreement.
7.2
Stock Unit Agreement
.
Each Stock Unit Award shallbe subject to such restrictions, conditions and
other terms as the Committee may determine at the time of grant, the general
provisionsof the Plan, the restrictions, terms and conditions of the related
Stock Unit Award Agreement and the following specific rules:
(a) The StockUnit Agreement shall specify such provisions, not inconsistent
with the terms and conditions of the Plan, as the Committee shall determine.
(b) The restrictionsto which the Shares of Stock Units awarded hereunder are
subject shall lapse as provided in Stock Unit Agreement; provided that the
Committeeshall have the discretion to accelerate the date as of which the
restrictions lapse with respect to any Award held by a Participant.
(c) Exceptas provided in this subsection (c) and unless otherwise set forth in
the Stock Unit Agreement, the Participant receiving a Stock UnitAward shall
have no rights of a shareholder of the Company, including voting or dividends
or other distributions rights, with respectto any Stock Units prior to the
date they are settled in Shares; provided that a Stock Unit Award Agreement
may provide that until theStock Units are settled in Shares or cash, the
Participant shall be entitled to receive on each dividend or distribution
payment dateapplicable to the Shares an amount equal to the dividends or other
distributions that the Participant would have received had the StockUnits held
by the Participant as of the related record date been actual Shares. Such
amounts shall be accumulated and held by the Companyand paid to the
Participant only upon, and to the extent, the restrictions lapse in accordance
with the terms of the applicable StockUnit Award Agreement. Such amounts held
by the Company attributable to the portion of the Stock Unit Award that is
forfeited shall alsobe forfeited.
Section 8. SARs.
8.1
Grant
.
The Committee may grant SARsto Participants. Upon exercise, an SAR entitles
the Participant to receive from the Company the number of Shares having an
aggregateFair Market Value equal to the excess of the Fair Market Value of one
Share as of the date on which the SAR is exercised over the exerciseprice,
multiplied by the number of Shares with respect to which the SAR is being
exercised. The Committee, in its discretion, shall beentitled to cause the
Company to elect to settle any part or all of its obligations arising out of
the exercise of an SAR by the paymentof cash in lieu of all or part of the
Shares it would otherwise be obligated to deliver in an amount equal to the
Fair Market Value ofsuch Shares on the date of exercise. Cash shall be
delivered in lieu of any fractional Shares. The terms and conditions of any
such Awardshall be determined at the time of grant.
8.2
SAR Agreement
.
(a) Each SARshall be evidenced by a written SAR Agreement specifying the terms
and conditions of the SAR as the Committee may determine, includingthe SAR
exercise price, expiration date of the SAR, the number of Shares to which the
SAR pertains, the form of settlement and such otherterms and conditions
established by the Committee, in its sole discretion, not inconsistent with
the Plan.
8
(b) The perShare exercise price of each SAR shall not be less than 100% of the
Fair Market Value of a Share on the date the SAR is granted.
(c) Each SARshall expire and all rights thereunder shall cease on the date
fixed by the Committee in the related SAR Agreement, which shall not belater
than the ten years after the date of grant; provided however, if a Participant
is unable to exercise an SAR because trading inthe Shares is prohibited by law
or the Company's insider-trading policy, the SAR exercise date shall be
extended to the date thatis 30 days after the expiration of the trading
prohibition.
(d) Each SARshall become exercisable as provided in the related SAR Agreement;
provided that notwithstanding any other Plan provision, the Committeeshall
have the discretion to accelerate the date as of which any SAR shall become
exercisable.
(e) No dividendsor dividend equivalents shall be paid with respect to any SAR
prior to the exercise of the SAR.
(f) A personentitled to exercise an SAR may do so by delivery of a written
notice in accordance with procedures established by the Committee
specifyingthe number of Shares with respect to which the SAR is being
exercised and any other information the Committee may prescribe. As soonas
reasonably practicable after the exercise of an SAR, the Company shall (i)
issue the total number of full Shares to which the Participantis entitled and
cash in an amount equal to the Fair Market Value, as of the date of exercise,
of any resulting fractional Share, and(ii) if the Committee causes the Company
to elect to settle all or part of its obligations arising out of the exercise
of the SAR incash, deliver to the Participant an amount in cash equal to the
Fair Market Value, as of the date of exercise, of the Shares it wouldotherwise
be obligated to deliver.
Section 9. Change in Control.
9.1
Effect of a Changein Control
.
(a) Notwithstandingany of the provisions of the Plan or any outstanding Award
Agreement, upon a Change in Control of the Company (as defined in Section9.2),
the Board is authorized and has sole discretion to provide that (i) all
outstanding Awards shall become fully exercisable, (ii)all restrictions
applicable to all Awards shall terminate or lapse and (iii) performance goals
applicable to any Awards shall be deemedsatisfied at the highest level, as
applicable, in order that Participants may realize the benefits thereunder.
(b) In additionto the Board's authority set forth in Section 3, upon such
Change in Control of the Company, the Board is authorized and has
solediscretion as to any Award, either at the time such Award is granted
hereunder or any time thereafter, to take any one or more of thefollowing
actions without Participant consent: (i) provide for the purchase of any
vested or unvested outstanding Stock Option, for anamount of cash equal to the
difference between the exercise price and the then Fair Market Value of the
Shares covered thereby; (ii)make such adjustment to any such Award then
outstanding as the Board deems appropriate to reflect such Change in Control;
and (iii) causeany such Award then outstanding to be assumed by or substituted
for another form of Award issued by the surviving corporation after suchChange
in Control.
9
9.2
Definition ofChange in Control
.
"Change in Control"of the Company shall be deemed to have occurred if at any
time during the term of an Award granted under the Plan any of the
followingevents occurs:
(a) any Person(other than the Company, a trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or a corporationowned
directly or indirectly by the shareholders of the Company in substantially the
same proportions as their ownership of Shares) isor becomes the Beneficial
Owner, directly or indirectly, of securities of the Company representing 30%
or more of the combined votingpower of the Company's then outstanding
securities entitled to vote generally in the election of directors
("Person"and "Beneficial Owner" being defined in Rule 13d-3 of the General
Rules and Regulations of the Exchange Act);
(b) the Companyis party to a merger, consolidation, reorganization or other
similar transaction with another corporation or other Person unless,
followingsuch transaction, more than 50% of the combined voting power of the
outstanding securities of the surviving, resulting or acquiring corporationor
Person or its parent entity entitled to vote generally in the election of
directors (or Persons performing similar functions) is thenbeneficially owned,
directly or indirectly, by all or substantially all of the individuals and
entities who were the beneficial ownersof the Company's outstanding securities
entitled to vote generally in the election of directors immediately prior to
such transaction,in substantially the same proportions as their ownership,
immediately prior to such transaction, of the Company's outstanding
securitiesentitled to vote generally in the election of directors;
(c) the electionto the Board, without the recommendation or approval of
two-thirds of the incumbent Board, of the lesser of: (i) three Directors;
or(ii) Directors constituting a majority of the number of Directors of the
Company then in office; provided, however, that Directors whoseinitial
assumption of office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation,relating to the
election of Directors of the Company will not be considered as incumbent
members of the Board for purposes of this Section;or
(d) thereis a complete liquidation or dissolution of the Company, or the
Company sells all or substantially all of its business and/or assetsto another
corporation or other Person unless, following such sale, more than 50% of the
combined voting power of the outstanding securitiesof the acquiring
corporation or Person or its parent entity entitled to vote generally in the
election of directors (or Persons performingsimilar functions) is then
beneficially owned, directly or indirectly, by all or substantially all of the
individuals and entities whowere the beneficial owners of the Company's
outstanding securities entitled to vote generally in the election of directors
immediatelyprior to such sale, in substantially the same proportions as their
ownership, immediately prior to such sale, of the Company'soutstanding
securities entitled to vote generally in the election of directors.
In no event, however, shalla Change in Control be deemed to have occurred,
with respect to a Participant, if that Participant is part of a purchasing
group whichconsummates the Change in Control transaction. A Participant shall
be deemed "part of a purchasing group" for purposes ofthe preceding sentence
if the Participant is an equity participant or has agreed to become an equity
participant in the purchasing companyor group (except for (a) passive
ownership of less than 3% of the shares of the purchasing company; or (b)
ownership of equity participationin the purchasing company or group which is
otherwise not deemed to be significant, as determined prior to the Change in
Control by amajority of the disinterested Directors).
10
Section 10. Payment of Taxes.
(a) In connectionwith any Award, and as a condition to the issuance or
delivery of any Shares to the Participant in connection therewith, the
Companyshall require the Participant to pay the Company the minimum amount of
federal, state, local or foreign taxes required to be withheld,and in the
Company's sole discretion, the Company may permit the Participant to pay the
Company up to the maximum individual statutoryrate of applicable withholding.
(b) The Companyin its sole discretion may make available one or more of the
following alternatives for the payment of such taxes: (i) in cash; (ii)in cash
received from a broker-dealer to whom the Participant has submitted notice
together with irrevocable instructions to deliverpromptly to the Company the
amount of sales proceeds from the sale of the Shares subject to the Award to
pay the withholding taxes; (iii)by directing the Company to withhold such
number of Shares otherwise issuable in connection with the Award having an
aggregate Fair MarketValue equal to the minimum amount of tax required to be
withheld; (iv) by delivering previously acquired Shares of the Company that
areacceptable to the Board that have an aggregate Fair Market Value equal to
the amount required to be withheld; or (v) by certifying toownership by
attestation of such previously acquired Shares.
The Committee shall have thesole discretion to establish the terms and
conditions applicable to any alternative made available for payment of the
required withholdingtaxes.
Section 11. Section 409A.
Notwithstanding any otherprovision of the Plan, the Committee shall have no
authority to issue an Award under the Plan with terms and/or conditions which
wouldcause such Award to constitute non-qualified "deferred compensation"
under Section 409A of the Code unless such Award shallbe structured to be
exempt from or comply with all requirements of Code Section 409A. The Plan and
all Award Agreements are intendedto comply with the requirements of Section
409A of the Code (or to be exempt therefrom) and shall be so interpreted and
construed andno amount shall be paid or distributed from the Plan unless and
until such payment complies with all requirements of Code Section 409A.It is
the intent of the Company that the provisions of this Agreement and all other
plans and programs sponsored by the Company be interpretedto comply in all
respects with Code Section 409A, however, the Company shall have no liability
to the Participant, or any successor orbeneficiary thereof, in the event
taxes, penalties or excise taxes may ultimately be determined to be applicable
to any payment or awardunder the Plan.
Section 12. Postponement.
The Committee may postponeany grant or settlement of an Award or exercise of a
Stock Option or SAR for such time as the Board in its sole discretion may deem
necessaryin order to permit the Company:
(a) to effect,amend or maintain any necessary registration of the Plan or the
Shares issuable pursuant to an Award, including upon the exercise ofa Stock
Option or SAR, under the Securities Act of 1933, as amended, or the securities
laws of any applicable jurisdiction;
(b) to permitany action to be taken in order to (i) list such Shares on a
stock exchange if Shares are then listed on such exchange or (ii) complywith
restrictions or regulations incident to the maintenance of a public market for
its Shares, including any rules or regulations ofany stock exchange on which
the Shares are listed; or
11
(c) to determinethat such Shares and the Plan are exempt from such
registration or that no action of the kind referred to in (b)(ii) above needs
to betaken; and the Company shall not be obligated by virtue of any terms and
conditions of any Award or any provision of the Plan to sellor issue Shares in
violation of the Securities Act of 1933 or the law of any government having
jurisdiction thereof.
Any such postponement shallnot extend the term of an Award and shall comply
with all requirements of Code Section 409A, and neither the Company nor its
Directorsor officers shall have any obligation or liability to a Participant,
the Participant's successor or any other person with respectto any Shares as
to which the Award shall lapse because of such postponement.
Section 13. Nontransferability.
Awards granted under thePlan, and any rights and privileges pertaining
thereto, may not be transferred, assigned, pledged or hypothecated in any
manner, or besubject to execution, attachment or similar process, by operation
of law or otherwise, except (i) by will or by the laws of descent
anddistribution, or (ii) where permitted under applicable tax rules, by gift
to any Family Member of the Participant, subject to compliancewith applicable
laws. An Award may be exercisable during the lifetime of the Participant only
by such Participant or by the Participant'sguardian or legal representative
unless it has been transferred by gift to a Family Member of the Participant,
in which case it shallbe exercisable solely by such transferee. Notwithstanding
any such transfer, the Participant shall continue to be subject to the
withholdingrequirements provided for under Section 10.
Section 14. Delivery of Shares.
Shares issued pursuant toa Stock Award, the exercise of a Stock or SAR or the
settlement of a Stock Unit Award shall be represented by share certificates or
ona non-certificated basis, with the ownership of such Shares by the
Participant evidenced solely by book entry in the records of the Company'stransf
er agent; provided, however, that upon the written request of the Participant,
the Company shall issue, in the name of the Participant,share certificates
representing such Shares. Notwithstanding the foregoing, Shares granted
pursuant to a Stock Award shall be heldby the Secretary of the Company until
such time as the Shares are forfeited or settled.
Section 15. Termination or Amendmentof Plan and Award Agreements.
15.1
Terminationor Amendment of Plan
.
(a)
Exceptas described in Section 15.3 below, the Board may terminate, suspend, or
amend the Plan, in whole or in part, from time to time, withoutthe approval of
the shareholders of the Company, unless such approval is required by
applicable law, regulation or rule of any stockexchange on which the Shares
are listed. No amendment or termination of the Plan shall adversely affect the
right of any Participantunder any outstanding Award in any material way
without the written consent of the Participant, unless such amendment or
terminationis required by applicable law, regulation or rule of any stock
exchange on which the Shares are listed. Subject to the foregoing,
theCommittee may correct any defect or supply an omission or reconcile any
inconsistency in the Plan or in any Award granted hereunder inthe manner and
to the extent it shall deem desirable, in its sole discretion, to effectuate
the Plan.
(b) The Boardshall have the authority to amend the Plan to the extent
necessary or appropriate to comply with applicable law, regulation or
accountingrules in order to permit Participants who are located outside of the
United States to participate in the Plan.
12
15.2
Amendment ofAward Agreements
.
The Committee shall havethe authority to amend any Award Agreement at any
time; provided however, that no such amendment shall adversely affect the
right ofany Participant under any outstanding Award Agreement in any material
way without the written consent of the Participant, unless suchamendment is
required by applicable law, regulation or rule of any stock exchange on which
the Shares are listed.
15.3
No Repricingof Stock Options
.
Notwithstanding the foregoing,and except as described in Section 4.3, there
shall be no amendment to the Plan or any outstanding Stock Option Agreement or
SAR Agreementthat results in the repricing of Stock Options or SARs without
shareholders' approval. For this purpose, repricing includes (i) a reductionin
the exercise price of the Stock Option or SARs or (ii) the cancellation of a
Stock Option in exchange for cash, Stock Options or SARswith an exercise price
less than the exercise price of the cancelled Options or SARs, other Awards or
any other consideration providedby the Company, but does not include any
adjustment described in Section 4.3.
Section 16. No Contract of Employment.
Neither the adoption of thePlan nor the grant of any Award under the Plan
shall be deemed to obligate the Company or any Subsidiary to continue the
employment ofany Participant for any particular period, nor shall the granting
of an Award constitute a request or consent to postpone the retirementdate of
any Participant.
Section 17. Applicable Law.
All questions pertainingto the validity, construction and administration of
the Plan and all Awards granted under the Plan shall be determined in
conformitywith the laws of the state of New York, without regard to the
conflict of law provisions of any state, and, in the case of IncentiveStock
Options, Section 422 of the Code and regulations issued thereunder.
Section 18. Effective Date and Termof Plan.
18.1
Effective Date
.
The Plan shall be effectiveas of the Effective Date, provided that the Plan is
approved by the board of directors of the Company within twelve (12) months of
suchdate. Awards may be granted or awarded prior to such shareholder approval,
provided that such Awards shall not be exercisable, shallnot vest and the
restrictions thereon shall not lapse prior to the time when the Plan is
approved by the shareholders, and provided furtherthat if such approval has
not been obtained at the end of said twelve month period, all Awards
previously granted or awarded under thePlan shall thereupon be canceled and
become null and void. The Plan is intended to supersede and replace any and
all prior equity planssponsored by the Company with respect to any authorized
shares not made subject to any award under such plans prior to the
effectivedate of this Plan. Any outstanding awards under prior plans shall
continue to be subject to and governed by the terms of such plans.
18.2
Term of Plan
.
Notwithstanding anythingto the contrary contained herein, no Awards shall be
granted on or after the tenth anniversary of the adoption of this Plan.
13
Exhibit 23.1
Consent of Independent Registered Public AccountingFirm
We consent to the incorporation by reference in the Registration Statement(Form
S-8) pertaining to the 2023 Equity Incentive Plan of CLPS Incorporation of our
report dated October 20, 2022, with respect to theconsolidated financial
statements of CLPS Incorporation included in its Annual Report (Form 20-F) for
the year ended June 30, 2022, filedwith the Securities and Exchange Commission.
/s/ Ernst & Young Hua Ming LLP
Shanghai, The People's Republic of China
May 12, 2023
Exhibit 107
Calculation of Filing Fee Tables
S-8
(Form Type)
CLPS Incorporation
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry ForwardSecurities
Security Security Fee Amount Proposed Maximum Fee Amount Carry Carry
Type Class Calculation Registered Maximum Aggregate Rate of Forward Forwar
Title or Offering Offering Registration Form File
Carry Price Price Fee Type Number
Forward Per
Rule Unit
Newly Registered Securities
Fees Equity Common Other 20,000,000 $ 1.15 $ 23,000,000 $110.20 $ 2,534.60
to Stock per
Be at $1,000,000
Paid par
value
$0.0001
per
share
Fees
Previously
Paid
Carry Forward Securities
Carry
Forward
Securities
Total $ 2,534.60
Offering
Amounts
Total $ 0
Fees
Previously
Paid
Total $ 0
Fee
Offsets
Net $ 2,534.60
Fee
Due
Carry Filing
d Forward Fee
Initial Previously
effective Paid
date In
Connection
with
Unsold
Securities
to
be
Carried
Forward
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