Attached files
Exhibit 4.2
GHN
AGRISPAN HOLDING COMPANY
2009
STOCK INCENTIVE PLAN
ARTICLE
I -- PREAMBLE
1.1 This GHN Agrispan
Holding Company 2009 Stock Incentive Plan is intended to secure for the GHN
Agrispan Holding Company (the “Company”) and its Affiliates the benefits arising
from ownership of the Company's Common Stock by the Employees, Officers,
Directors, Consultants of the Company and its Affiliates, all of whom are and
will be responsible for the Company's future growth. The Plan is
designed to help attract and retain for the Company and its Affiliates personnel
of superior ability for positions of exceptional responsibility, to reward
Employees, Officers, Directors and Consultants for their services and to
motivate such individuals through added incentives to further contribute to the
success of the Company and its Affiliates.
1.2 Awards under the Plan
may be made to an Eligible Person in the form of (i) Nonqualified Stock Options;
(ii) Restricted Stock; (iii) Stock Awards; (iv) Performance Shares; or (v) any
combination of the foregoing.
1.3 The
Company’s board of directors adopted the Plan on September 18,
2009. The Plan shall be effective September 18, 2009 (the "Effective
Date"), subject to approval by the shareholders of the Company to the extent
necessary to satisfy the requirements of the Code, the Act, or other applicable
federal or state law. Unless sooner terminated as provided elsewhere
in this Plan, this Plan shall terminate upon the close of business on the day
next preceding the tenth (10th) anniversary of the Effective Date and may be
terminated on any earlier date pursuant to this Section 1.3. Award
Agreements outstanding on such date shall continue to have force and effect in
accordance with the provisions thereof.
1.4 The Plan shall be
governed by, and construed in accordance with, the laws of the State of Nevada
(except its choice-of-law provisions).
1.5 Capitalized terms shall
have the meaning provided in Article II unless otherwise provided in this Plan
or any related Award Agreement.
ARTICLE
II -- DEFINITIONS
DEFINITIONS. Except where
the context otherwise indicates, the following definitions apply:
"Act"
means the Securities Exchange Act of 1934, as now in effect or as hereafter
amended.
“Affiliate”
means any parent corporation or subsidiary corporation of the Company, whether
now or hereinafter existing, as those terms are defined in Sections 424(e) and
(f), respectively, of the Code.
"Award"
means an award granted to a Participant in accordance with the provisions of the
Plan, including, but not limited to, Stock Options, Restricted Stock, Stock
Awards, Performance Shares, or any combination of the foregoing.
"Award
Agreement" means the separate written agreement evidencing each Award granted to
a Participant under the Plan.
"Board of
Directors" or “Board” means the board of directors of the Company, as
constituted from time to time.
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"Code"
means the Internal Revenue Code of 1986, as amended, and the regulations and
interpretations promulgated thereunder.
"Committee"
means a committee of two or more members of the Board appointed by the Board in
accordance with Section 3.2 of the Plan.
"Common
Stock" means the Company’s common stock, par value $.001 per share.
"Company"
means GHN Agrispan Holding Company, a Nevada corporation.
“Consultant”
means any person, including an advisor engaged by the Company or an Affiliate to
render bona fide consulting or advisory services to the Company or an Affiliate,
other than as an Employee, Director or Non-Employee Director.
Director"
means a member of the Board of Directors of the Company.
"Disability"
means the permanent and total disability of a person within the meaning of
Section 22(e)(3) of the Code.
"Effective
Date" shall be the date set forth in Section 1.3 of the Plan.
"Eligible
Employee" means an Eligible Person who is an Employee of the Company or any
Affiliate.
"Eligible
Person" means any Employee, Officer, Director, Non-Employee Director or
Consultant of the Company or any Affiliate, except for instances where services
are in connection with the offer or sale of securities in a capital-raising
transaction, or they directly or indirectly promote or maintain a market for the
Company’s securities, subject to any other limitations as may be provided by the
Code, the Act, or the Board. In making such determinations, the Board
may take into account the nature of the services rendered by such person, his or
her present and potential contribution to the Company’s success, and such other
factors as the Board in its discretion shall deem relevant.
“Employee”
means an individual who is a common-law employee of the Company or an Affiliate
including employment as an Officer. Mere service as a Director or
payment of a director's fee by the Company or an Affiliate shall not be
sufficient to constitute "employment" by the Company or an
Affiliate.
"ERISA"
means the Employee Retirement Income Security Act of 1974, as now in effect or
as hereafter amended.
"Fair
Market Value" means:
(a) for
purposes of an Incentive Stock Option, if there is a market for the Company’s
stock, on a stock exchange or in an over-the-counter market, or otherwise, the
Fair Market Value shall be the mean between the highest and lowest quoted
selling prices on the valuation date of the Incentive Stock Option, or if there
were no sales of the Company’s Common Stock on the valuation date, the Fair
Market Value shall be the weighted average of the means between the highest and
lowest sales on the nearest date before and the nearest date after the valuation
date. If a valuation pursuant to this paragraph is not available, the
appropriate method described in Section 20.2031-2 of the Treasury Regulations
adopted under the Code shall be used for the Fair Market Value, and
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(b) for
all other purposes, the mean between the highest and lowest quoted selling
prices of the Common Stock (if actual sales price information on such trading
day is not available, the mean between the bona fide bid and asked prices on
such trading day shall be used) on the trading day immediately prior to the date
on which a determination is being made pursuant to this Section 2.19 (the “Mean
Selling Price”), as reported by the National Association of Securities Dealers
Automated Quotation System (“NASDAQ”), or if the Common Stock is not traded on
NASDAQ, the Mean Selling Price in the over-the-counter market; provided,
however, that if the Common Stock is listed on a stock exchange, the Fair Market
Value shall be the Mean Selling Price on such exchange; and, provided further,
that if the Common Stock is not quoted or listed by any organization, the fair
value of the Common Stock, as determined by the Board, whose determination shall
be conclusive, shall be used. In no event shall the Fair Market Value
of any share of Common Stock be less than its par value.
"Grant
Date" means, as to any Award, the latest of:
(a) the date on which the Board
authorizes the grant of the Award; or
(b) the date the Participant receiving
the Award becomes an Employee or a Director of the Company or its Affiliate, to
the extent employment status is a condition of the grant or a requirement of the
Code or the Act; or
(c) such
other date (later than the dates described in (a) and (b) above) as the Board
may designate and as set forth in the Participant's Award
Agreement.
"Immediate
Family" means any child, stepchild, grandchild, parent, stepparent, grandparent,
spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law or sister-in-law and shall include adoptive
relationships.
"Nonqualified
Stock Option" means a Stock Option not intended to qualify as an Incentive Stock
Option and is not so designated in the Participant's Award
Agreement.
“Officer”
means a person who is an officer of the Company within the meaning of Section 16
of the Act.
"Option
Period" means the period during which a Stock Option may be exercised from time
to time, as established by the Board and set forth in the Award Agreement for
each Participant who is granted a Stock Option.
"Option
Price" means the purchase price for a share of Common Stock subject to purchase
pursuant to a Stock Option, as established by the Board and set forth in the
Award Agreement for each Participant who is granted a Stock Option.
"Participant"
means an Eligible Person to whom an Award has been granted and who has entered
into an Award Agreement evidencing the Award or, if applicable, such other
person who holds an outstanding Award.
"Plan"
means this GHN Agrispan Holding Company 2009 Stock Incentive Plan, as it may be
amended from time to time.
“Reporting
Person” means a person required to file reports under Section 16(a) of the
Act.
"Restricted
Stock" means an Award under Article V of the Plan of shares of Common Stock that
are at the time of the Award subject to restrictions or limitations as to the
Participant's ability to sell, transfer, pledge or assign such shares, which
restrictions or limitations may lapse separately or in combination at such time
or times, in installments or otherwise, as the Board, in its sole discretion, shall determine at
the time of such Award and set forth in a Participant's Award
Agreement. All Restricted Stock shall be subject to the
following: Each certificate representing the Restricted Stock shall
be stamped or otherwise imprinted with a legend substantially in the following
form (in addition to any legend required by applicable state securities or “blue
sky” laws):
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THE
SECURITIES REPRESENTED BY THIS CERTIFICATE (THE “SECURITIES”) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”)
OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR GHN AGRISPAN HOLDING COMPANY SHALL HAVE RECEIVED AN
OPINION OF COUNSEL THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT
AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED.
The
Restricted Stock may not be sold, transferred, pledged or otherwise disposed of,
directly or indirectly until ownership of the Restricted Securities shall have
vested, any time periods restricting the sale have expired, and the holder
provides the Company with an opinion of counsel acceptable to the Company that
such Restricted Security can be sold pursuant to Rule 144 under the Securities
Act. The Eligible Person receiving the shares has no right to require
the Company to register any Restricted Securities.
"Restriction
Period" means the period commencing on the Grant Date with respect to such
shares of Restricted Stock and ending on such date as the Board, in its sole
discretion, shall establish and set forth in a Participant's Award
Agreement.
"Retirement"
means retirement as determined under procedures established by the Board or in
any Award, as set forth in a Participant's Award Agreement.
“Stock
Award" means an Award of shares of Common Stock under Article VIII of the
Plan.
2.40 “Stock Option" means an Award
under Article IV of the Plan of an option to purchase Common Stock. A Stock
Option may be either an Incentive Stock Option or a Nonqualified Stock
Option.
"Ten
Percent Stockholder" means an individual who owns (or is deemed to own pursuant
to Section 424(d) of the Code), at the time of grant, stock possessing more than
ten percent (10%) of the total combined voting power of all classes of stock of
the Company or any of its Affiliates.
"Termination
of Service" means (i) in the case of an Eligible Employee, the discontinuance of
employment of such Participant with the Company or its Affiliates for any reason
and (ii) in the case of a Director who is not an Employee of the Company or any
Affiliate, the date such Participant ceases to serve as a Director. The
determination of whether a Participant has discontinued service shall be made by
the Board in its sole discretion. In determining whether a Termination of
Service has occurred, the Board may provide that service as a Consultant or
service with a business enterprise in which the Company has a significant
ownership interest shall be treated as employment with the Company.
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ARTICLE
III – ADMINISTRATION
3.1 The Plan shall be
administered by the Board of Directors of the Company. The Board
shall have the exclusive right to interpret and construe the Plan, to select the
Eligible Persons who shall receive an Award, and to act in all matters
pertaining to the grant of an Award and the determination and interpretation of
the provisions of the related Award Agreement, including, without limitation,
the determination of the number of shares subject to Stock Options and the
Option Period(s) and Option Price(s) thereof, the number of shares of Restricted
Stock or shares subject to Stock Awards or Performance Shares subject to an
Award, the vesting periods (if any) and the form, terms, conditions and duration
of each Award, and any amendment thereof consistent with the provisions of the
Plan. The Board may adopt, establish, amend and rescind such rules,
regulations and procedures as it may deem appropriate for the proper
administration of the Plan, make all other determinations which are, in the
Board’s judgment, necessary or desirable for the proper administration of the
Plan, amend the Plan or a Stock Award as provided in Article XI, and terminate
or suspend the Plan as provided in Article XI. All acts,
determinations and decisions of the Board made or taken pursuant to the Plan or
with respect to any questions arising in connection with the administration and
interpretation of the Plan or any Award Agreement, including the severability of
any and all of the provisions thereof, shall be conclusive, final and binding
upon all persons.
3.2 The
Board may, to the full extent permitted by and consistent with applicable law
and the Company’s Bylaws, and subject to Subparagraph 3.2(b) herein below,
delegate any or all of its powers with respect to the administration of the Plan
to a Committee consisting of not fewer than two members of the Board each of
whom shall qualify (at the time of appointment to the Committee and during all
periods of service on the Committee) in all respects as a Non-Employee Director
and as an Outside Director.
(a) If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore possessed
by the Board, including the power to delegate to a subcommittee any of the
administrative powers the Committee is authorized to exercise (and references in
the Plan to the Board shall thereafter be to the Committee or subcommittee),
subject, however, to such resolutions, not consistent with the provisions of the
Plan, as may be adopted from time to time by the Board.
(b) The
Board may abolish the Committee at any time and reassume all powers and
authority previously delegated to the Committee.
(c) In
addition to, and not in limitation of, the right of any Committee so designated
by the Board to administer this Plan to grant Awards to Eligible Persons under
this Plan, the full Board of Directors may from time to time grant Awards to
Eligible Persons pursuant to the terms and conditions of this Plan, subject to
the requirements of the Code or any other applicable law, rule or regulation. In
connection with any such grants, the Board of Directors shall have all of the
power and authority of the Committee to determine the Eligible Persons to whom
such Awards shall be granted and the other terms and conditions of such
Awards.
3.3 Without limiting the
provisions of this Article III, and subject to the provisions of Article X, the
Board is authorized to take such action as it determines to be necessary or
advisable, and fair and equitable to Participants and to the Company. Such
action may include, but shall not be limited to, establishing, amending or
waiving the form, terms, conditions and duration of an Award and the related
Award Agreement, so as to provide for earlier, later, extended or additional
times for exercise or payments, differing methods for calculating payments,
alternate forms and amounts of payment, an accelerated release of restrictions
or other modifications. The Board may take such actions pursuant to this Section
3.3 by adopting rules and regulations of general applicability to all
Participants or to certain categories of Participants, by including, amending or
waiving terms and conditions in an Award and the related Award Agreement, or by
taking action with respect to individual Participants from time to
time.
3.4 Subject to the
provisions of Section 3.9, the maximum aggregate number of shares of Common
Stock which may be issued pursuant to Awards under the Plan shall be One Million
Two Hundred Thousand (1,200,000) shares. Such shares of Common Stock shall be
made available from authorized and unissued shares of the Company.
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(a) For all purposes under the Plan,
each Performance Share awarded shall be counted as one share of Common Stock
subject to an Award.
(b) If, for any reason, any shares of
Common Stock (including shares of Common Stock subject to Performance Shares)
that have been awarded or are subject to issuance or purchase pursuant to Awards
outstanding under the Plan are not delivered or purchased, or are reacquired by
the Company, for any reason, including but not limited to a forfeiture of
Restricted Stock or failure to earn Performance Shares or the termination,
expiration or cancellation of a Stock Option, or any other termination of an
Award without payment being made in the form of shares of Common Stock (whether
or not Restricted Stock), such shares of Common Stock shall not be charged
against the aggregate number of shares of Common Stock available for Award under
the Plan and shall again be available for Awards under the Plan. In no event,
however, may Common Stock that is surrendered or withheld to pay the exercise
price of a Stock Option or to satisfy tax withholding requirements be available
for future grants under the Plan.
(c) The foregoing subsections (a) and
(b) of this Section 3.4 shall be subject to any limitations provided by the Code
or by any other applicable law, rule or regulation.
3.5 Each Award granted under
the Plan shall be evidenced by a written Award Agreement, which shall be subject
to and shall incorporate (by reference or otherwise) the applicable terms and
conditions of the Plan and shall include any other terms and conditions (not
inconsistent with the Plan) required by the Board.
3.6 The Company shall not be
required to issue or deliver any certificates for shares of Common Stock under
the Plan prior to the shares of Common Stock are fully vested or an Option is
exercised and fully paid.
3.7 The Board may require
any Participant acquiring shares of Common Stock pursuant to any Award under the
Plan to represent to and agree with the Company in writing that such person is
acquiring the shares of Common Stock for investment purposes and without a view
to resale or distribution thereof. Shares of Common Stock issued and
delivered under the Plan shall also be subject to such stop-transfer orders and
other restrictions as the Board may deem advisable under the rules, regulations
and other requirements of the Securities and Exchange Commission, any stock
exchange upon which the Common Stock is then listed and any applicable federal
or state laws, and the Board may cause a legend or legends to be placed on the
certificate or certificates representing any such shares to make appropriate
reference to any such restrictions. In making such determination, the Board may
rely upon an opinion of counsel for the Company.
3.8 Except as otherwise
expressly provided in the Plan or in an Award Agreement with respect to an
Award, no Participant shall have any right as a shareholder of the Company with
respect to any shares of Common Stock subject to such Participant's Award except
to the extent that, and until, one or more certificates representing such shares
of Common Stock shall have been delivered to the Participant. No shares shall be
required to be issued, and no certificates shall be required to be delivered,
under the Plan unless and until all of the terms and conditions applicable to
such Award shall have, in the sole discretion of the Board, been satisfied in
full and any restrictions shall have lapsed in full, and unless and until all of
the requirements of law and of all regulatory bodies having jurisdiction over
the offer and sale, or issuance and delivery, of the shares shall have been
fully complied with.
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3.9 The total amount of
shares with respect to which Awards may be granted under the Plan and rights of
outstanding Awards (both as to the number of shares subject to the outstanding
Awards and the Option Price(s) or other purchase price(s) of such shares, as
applicable) shall be appropriately adjusted for any increase or decrease in the
number of outstanding shares of Common Stock of the Company resulting from
payment of a stock dividend on the Common Stock, a stock split or subdivision or
combination of shares of the Common Stock, or a reorganization or
reclassification of the Common Stock, or any other change in the structure of
shares of the Common Stock. The foregoing adjustments and the manner of
application of the foregoing provisions shall be determined by the Board in its
sole discretion. Any such adjustment may provide for the elimination of any
fractional shares which might otherwise become subject to an Award. All
adjustments made as the result of the foregoing in respect of each Incentive
Stock Option shall be made so that such Incentive Stock Option shall continue to
be an Incentive Stock Option, as defined in Section 422 of the
Code.
3.10 No director or person
acting pursuant to authority delegated by the Board shall be liable for any
action or determination under the Plan made in good faith. The
members of the Board shall be entitled to indemnification by the Company in the
manner and to the extent set forth in the Company's Articles of Incorporation,
as amended, Bylaws or as otherwise provided from time to time regarding
indemnification of Directors.
3.11 The Board shall be
authorized to make adjustments in any performance based criteria or in the other
terms and conditions of outstanding Awards in recognition of unusual or
nonrecurring events affecting the Company (or any Affiliate, if applicable) or
its financial statements or changes in applicable laws, regulations or
accounting principles. The Board may correct any defect, supply any omission or
reconcile any inconsistency in the Plan or any Award Agreement in the manner and
to the extent it shall deem necessary or desirable to reflect any such
adjustment. In the event the Company (or any Affiliate, if applicable) shall
assume outstanding employee benefit awards or the right or obligation to make
future such awards in connection with the acquisition of another corporation or
business entity, the Board may, in its sole discretion, make such adjustments in
the terms of outstanding Awards under the Plan as it shall deem
appropriate.
3.12 Subject to the express
provisions of the Plan, the Board shall have full power and authority to
determine whether, to what extent and under what circumstances any outstanding
Award shall be terminated, canceled, forfeited or suspended. Notwithstanding the
foregoing or any other provision of the Plan or an Award Agreement, all Awards
to any Participant that are subject to any restriction or have not been earned
or exercised in full by the Participant shall be terminated and canceled if the
Participant is terminated for cause, as determined by the Board in its sole
discretion.
ARTICLE
IV -- NONQUALIFIED STOCK OPTIONS
4.1 The Board, in its sole
discretion, may from time to time on or after the Effective Date grant
Nonqualified Stock Options to Eligible Persons, subject to the provisions of
this Article IV and Articles III and V and subject to the following
conditions:
(a) Nonqualified Stock Options may be
granted to any Eligible Person, each of whom may be granted one or more of such
Nonqualified Stock Options, at such time or times determined by the
Board.
(b) The Option Price per share of
Common Stock for a Nonqualified Stock Option shall be set in the Award Agreement
and may be less than one hundred percent (100%) of the Fair Market Value of the
Common Stock at the Grant Date; provided, however, that the exercise price of
each Nonqualified Stock Option granted under the Plan shall in no event be less
than the par value per share of the Company’s Common Stock.
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(c) A Nonqualified Stock Option may be
exercised in full or in part from time to time within the Option Period
specified by the Board and set forth in the Award Agreement; provided, however,
that, in any event, the Nonqualified Stock Option shall lapse and cease to be
exercisable upon a Termination of Service or within such period following a
Termination of Service as shall have been determined by the Board and set forth
in the related Award Agreement.
4.2 The Board may provide
for any other terms and conditions for a Nonqualified Stock Option not
inconsistent with this Article IV or Article V, as determined in its sole
discretion and set forth in the Award Agreement for such Nonqualified Stock
Option.
ARTICLE
V -- INCIDENTS OF STOCK OPTIONS
5.1 Each Stock Option shall
be granted subject to such terms and conditions, if any, not inconsistent with
this Plan, as shall be determined by the Board and set forth in the related
Award Agreement, including any provisions as to continued employment as
consideration for the grant or exercise of such Stock Option and any provisions
which may be advisable to comply with applicable laws, regulations or rulings of
any governmental authority. Notwithstanding any other provision of
the Plan, no Stock Option can be exercised after the expiration date provided in
the applicable Award Agreement and no Stock Option may provide that, upon
exercise of the Stock Option, a new Stock Option will automatically
granted.
5.2 Except as hereinafter
described, a Stock Option shall not be transferable by the Participant other
than by will or by the laws of descent and distribution, and shall be
exercisable during the lifetime of the Participant only by the Participant or
the Participant's guardian or legal representative. In the event of
the death of a Participant, any unexercised Stock Options may be exercised to
the extent otherwise provided herein or in such Participant's Award Agreement by
the executor or personal representative of such Participant's estate or by any
person who acquired the right to exercise such Stock Options by bequest under
the Participant's will or by inheritance. The Board, in its sole discretion, may
at any time permit a Participant to transfer a Nonqualified Stock Option for no
consideration to or for the benefit of one or more members of the Participant's
Immediate Family (including, without limitation, to a trust for the benefit of
the Participant and/or one or more members of such Participant's Immediate
Family or a corporation, partnership or limited liability company established
and controlled by the Participant and/or one or more members of such
Participant's Immediate Family), subject to such limits as the Board may
establish. The transferee of such Nonqualified Stock Option shall remain subject
to all terms and conditions applicable to such Nonqualified Stock Option prior
to such transfer. The foregoing right to transfer the Nonqualified Stock Option,
if granted by the Board shall apply to the right to consent to amendments to the
Award Agreement.
5.3 Shares of Common Stock
purchased upon exercise of a Stock Option shall be paid for in such amounts, at
such times and upon such terms as shall be determined by the Board, subject to
limitations set forth in the Stock Option Award Agreement. The Board may, in its
sole discretion, permit the exercise of a Stock Option by payment in cash or by
tendering shares of Common Stock (either by actual delivery of such shares or by
attestation), or any combination thereof, as determined by the Board. In the
sole discretion of the Board, payment in shares of Common Stock also may be made
with shares received upon the exercise or partial exercise of the Stock Option,
whether or not involving a series of exercises or partial exercises and whether
or not share certificates for such shares surrendered have been delivered to the
Participant. The Board also may, in its sole discretion, permit the payment of
the exercise price of a Stock Option by the voluntary surrender of all or a
portion of the Stock Option. Shares of Common Stock previously held by the
Participant and surrendered in payment of the Option Price of a Stock Option
shall be valued for such purpose at the Fair Market Value thereof on the date
the Stock Option is exercised.
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5.4 The holder of a Stock
Option shall have no rights as a shareholder with respect to any shares covered
by the Stock Option (including, without limitation, any voting rights, the right
to inspect or receive the Company’s balance sheets or financial statements or
any rights to receive dividends or non-cash distributions with respect to such
shares) until such time as the holder has exercised the Stock Option and then
only with respect to the number of shares which are the subject of the
exercise. No adjustment shall be made for dividends or other rights
for which the record date is prior to the date such stock certificate is
issued.
5.5 The Board may permit the
voluntary surrender of all or a portion of any Stock Option granted under the
Plan to be conditioned upon the granting to the Participant of a new Stock
Option for the same or a different number of shares of Common Stock as the Stock
Option surrendered, or may require such voluntary surrender as a condition
precedent to a grant of a new Stock Option to such Participant. Subject to the
provisions of the Plan, such new Stock Option shall be exercisable at such
Option Price, during such Option Period and on such other terms and conditions
as are specified by the Board at the time the new Stock Option is granted. Upon
surrender, the Stock Options surrendered shall be canceled and the shares of
Common Stock previously subject to them shall be available for the grant of
other Stock Options.
5.6 The Board may at any
time offer to purchase a Participant's outstanding Stock Option for a payment
equal to the value of such Stock Option payable in cash, shares of Common Stock
or Restricted Stock or other property upon surrender of the Participant's Stock
Option, based on such terms and conditions as the Board shall establish and
communicate to the Participant at the time that such offer is made.
5.7 The
Board shall have the discretion, exercisable either at the time the Award is
granted or at the time the Participant discontinues employment, to establish as
a provision applicable to the exercise of one or more Stock Options that, during
a limited period of exercisability following a Termination of Service, the Stock
Option may be exercised not only with respect to the number of shares of Common
Stock for which it is exercisable at the time of the Termination of Service but
also with respect to one or more subsequent installments for which the Stock
Option would have become exercisable had the Termination of Service not
occurred.
ARTICLE
VI -- RESTRICTED STOCK
6.1 The Board, in its sole
discretion, may from time to time on or after the Effective Date award shares of
Restricted Stock to Eligible Persons as a reward for past service and an
incentive for the performance of future services that will contribute materially
to the successful operation of the Company an its Affiliates, subject to the
terms and conditions set forth in this Article VI.
6.2 The
Board shall determine the terms and conditions of any Award of Restricted Stock,
which
Shall be
set forth in the related Award Agreement, including without
limitation:
(a) the
purchase price, if any, to be paid for such Restricted Stock, which may be zero,
subject to such minimum consideration as may be required by applicable
law;
(b) the
duration of the Restriction Period or Restriction Periods with respect to such
Restricted Stock and whether any events may accelerate or delay the end of such
Restriction Period(s);
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(c) the
circumstances upon which the restrictions or limitations shall lapse, and
whether such restrictions or limitations shall lapse as to all shares of
Restricted Stock at the end of the Restriction Period or as to a portion of the
shares of Restricted Stock in one or more installments during the Restriction
Period by means of one or more vesting schedules;
(d)
whether such Restricted Stock is subject to repurchase by the Company or to a
right of first refusal at a predetermined price or if the Restricted Stock may
be forfeited entirely under certain conditions;
(e)
whether any performance goals may apply to a Restriction Period to shorten or
lengthen such period; and
(f)
whether dividends and other distributions with respect to such Restricted Stock
are to be paid currently to the Participant or withheld by the Company for the
account of the Participant.
6.3 Awards of Restricted
Stock must be accepted within a period of thirty (30) days after the Grant Date
(or such shorter or longer period as the Board may specify at such time) by
executing an Award Agreement with respect to such Restricted Stock and tendering
the purchase price, if any. A prospective recipient of an Award of Restricted
Stock shall not have any rights with respect to such Award, unless such
recipient has executed an Award Agreement with respect to such Restricted Stock,
has delivered a fully executed copy thereof to the Board and has otherwise
complied with the applicable terms and conditions of such Award.
6.4 In the sole discretion
of the Board and as set forth in the Award Agreement for an Award of Restricted
Stock, all shares of Restricted Stock held by a Participant and still subject to
restrictions shall be forfeited by the Participant upon the Participant's
Termination of Service and shall be reacquired, canceled and retired by the
Company. Notwithstanding the foregoing, unless otherwise provided in an Award
Agreement with respect to an Award of Restricted Stock, in the event of the
death, Disability or Retirement of a Participant during the Restriction Period,
or in other cases of special circumstances (including hardship or other special
circumstances of a Participant whose employment is involuntarily terminated),
the Board may elect to waive in whole or in part any remaining restrictions with
respect to all or any part of such Participant's Restricted Stock, if it finds
that a waiver would be appropriate.
6.5 Except as otherwise
provided in this Article VI, no shares of Restricted Stock received by a
Participant shall be sold, exchanged, transferred, pledged, hypothecated or
otherwise disposed of during the Restriction Period.
6.6 Upon an Award of
Restricted Stock to a Participant, a certificate or certificates representing
the shares of such Restricted Stock will be issued to and registered in the name
of the Participant. Unless otherwise determined by the Board, such certificate
or certificates will be held in custody by the Company until (i) the Restriction
Period expires and the restrictions or limitations lapse, in which case one or
more certificates representing such shares of Restricted Stock that do not bear
a restrictive legend (other than any legend as required under applicable federal
or state securities laws) shall be delivered to the Participant, or (ii) a prior
forfeiture by the Participant of the shares of Restricted Stock subject to such
Restriction Period, in which case the Company shall cause such certificate or
certificates to be canceled and the shares represented thereby to be retired,
all as set forth in the Participant's Award Agreement. It shall be a
condition of an Award of Restricted Stock that the Participant deliver to the
Company a stock power endorsed in blank relating to the shares of Restricted
Stock to be held in custody by the Company. If any Award is not fully
vested on the Award Date (“Unvested Award”), no certificate shall be delivered
until the date the shares are fully vested and then subject to all other terms
and conditions of this Plan. The holder of a an Unvested Award shall
have no rights as a shareholder with respect to any shares covered by the
Unvested Stock (including, without limitation, any voting rights, the right to
inspect or receive the Company’s balance sheets or financial statements or any
rights to receive dividends or non-cash distributions with respect to such
shares) until such time as the ownership of the Shares is fully
vested. No adjustment shall be made for dividends or other rights for
which the record date is prior to the date ownership of the stock is fully
vested and such stock certificate is issued.
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6.7 Except as provided in
this Article VI or in the related Award Agreement, a Participant receiving an
Award of shares of Restricted Stock Award when such Award is fully vested shall
have, with respect to such shares as have vested, all rights of a shareholder of
the Company, including the right to vote the shares and the right to receive any
distributions, unless and until such shares are otherwise forfeited by such
Participant; provided, however, the Board may require that any cash dividends
with respect to such shares of Restricted Stock be automatically reinvested in
additional shares of Restricted Stock subject to the same restrictions as the
underlying Award, or may require that cash dividends and other distributions on
Restricted Stock be withheld by the Company or its Affiliates for the account of
the Participant. The Board shall determine whether interest shall be paid on
amounts withheld, the rate of any such interest, and the other terms applicable
to such withheld amounts.
ARTICLE
VII -- AMENDMENT AND TERMINATION
7.1 Subject to the
provisions of Section 7.2, the Board of Directors at any time and from time to
time may amend or terminate the Plan as may be necessary or desirable to
implement or discontinue the Plan or any provision hereof. To the
extent required by the Act or the Code, however, no amendment, without approval
by the Company's shareholders, shall:
(a) materially alter the group of
persons eligible to participate in the Plan; or
(b)
except as provided in Section 3.4, change the maximum aggregate number of shares
of Common Stock that are available for Awards under the Plan;
7.2 No amendment to or
discontinuance of the Plan or any provision hereof by the Board of Directors or
the shareholders of the Company shall, without the written consent of the
Participant, adversely affect (in the sole discretion of the Board) any Award
theretofore granted to such Participant under this Plan; provided, however, that
any Award is annulled and voided and no shares shall be issued under any Award
if the Participant’s relationship with the Company is terminated for any reason
as determined by the Board or if the Participant terminates employment or other
relationship for any reason prior to the Vesting Date of any shares under an
Award or the Exercise Date for any unexercised Option.
ARTICLE
VIII -- MISCELLANEOUS PROVISIONS
8.1 Nothing in the Plan or
any Award granted hereunder shall confer upon any Participant any right to
continue in the employ of the Company or its Affiliates or to serve as a
Director or shall interfere in any way with the right of the Company or its
Affiliates or the shareholders of the Company, as applicable, to terminate the
employment of a Participant or to release or remove a Director at any
time. Unless specifically provided otherwise, no Award granted under
the Plan shall be deemed salary or compensation for the purpose of computing
benefits under any employee benefit plan or other arrangement of the Company or
its Affiliates for the benefit of their respective employees unless the Company
shall determine otherwise. No Participant shall have any claim to an
Award until it is actually granted under the Plan and an Award Agreement has
been executed and delivered to the Company. To the extent that any
person acquires a right to receive payments from the Company under the Plan,
such right shall, except as otherwise provided by the Board, be no greater than
the right of an unsecured general creditor of the Company. All payments to be
made hereunder shall be paid from the general funds of the Company, and no
special or separate fund shall be established and no segregation of assets shall
be made to assure payment of such amounts, except as provided in Article VII
with respect to Restricted Stock and except as otherwise provided by the
Board.
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8.2 The Plan and the grant
of Awards shall be subject to all applicable federal and state laws, rules, and
regulations and to such approvals by any government or regulatory agency as may
be required.
8.3 The terms of the Plan
shall be binding upon the Company, its successors and assigns.
8.4 Neither a Stock Option
nor any other type of equity-based compensation provided for hereunder shall be
transferable except as provided for in this Plan. In addition to the transfer
restrictions otherwise contained herein, additional transfer restrictions shall
apply to the extent required by federal or state securities laws. If
any Participant makes such a transfer in violation hereof, any obligation
hereunder of the Company to such Participant shall terminate
immediately.
8.5 This Plan and all
actions taken hereunder shall be governed by the laws of the State of
Nevada.
8.6 Each Participant
exercising an Award hereunder agrees to give the Board prompt written notice of
any election made by such Participant under Section 83(b) of the Code, or any
similar provision thereof.
8.7 If any provision of this
Plan or an Award Agreement is or becomes or is deemed invalid, illegal or
unenforceable in any jurisdiction, or would disqualify the Plan or any Award
Agreement under any law deemed applicable by the Board, such provision shall be
construed or deemed amended to conform to applicable laws, or if it cannot be
construed or deemed amended without, in the determination of the Board,
materially altering the intent of the Plan or the Award Agreement, it shall be
stricken, and the remainder of the Plan or the Award Agreement shall remain in
full force and effect.
8.8 The grant of an Award
pursuant to this Plan shall not affect in any way the right or power of the
Company or any of its Affiliates to make adjustments, reclassification,
reorganizations, or changes of its capital or business structure, or to merge or
consolidate, or to dissolve, liquidate or sell, or to transfer all or part of
its business or assets.
8.9 The Plan is not subject
to the provisions of ERISA or qualified under Section 401(a) of the
Code.
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8.10 Participants
shall be solely liable for any income or other tax or other liability they must
pay as a result of any Award under this Plan. If a Participant is
required to pay to the Company an amount with respect to income and employment
tax withholding obligations in connection with (i) the exercise of a
Nonqualified Stock Option, (ii) certain dispositions of Common Stock acquired
upon the exercise of an Incentive Stock Option, or (iii) the receipt of Common
Stock pursuant to any other Award, then the issuance of Common Stock to such
Participant shall not be made (or the transfer of shares by such Participant
shall not be required to be effected, as applicable) unless such withholding tax
or other withholding liabilities shall have been satisfied in a manner
acceptable to the Company. To the extent provided by the terms of an
Award Agreement, the Participant may satisfy any federal, state or local tax
withholding obligation relating to the exercise or acquisition of Common Stock
under an Award by any of the following means (in addition to the Company's right
to withhold from any compensation paid to the Participant by the Company) or by
a combination of such means: (i) tendering a cash payment; (ii) authorizing the
Company to withhold shares of Common Stock from the shares of Common Stock
otherwise issuable to the Participant as a result of the exercise or acquisition
of Common Stock under the Award, provided, however, that no shares of Common
Stock are withheld with a value exceeding the minimum amount of tax required to
be withheld by law; or (iii) delivering to the Company owned and unencumbered
shares of Common Stock.
Adopted by the Board of Directors this
18th day
of September, 2009.
/s/ Yizhen Xu
CEO,
President
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Company
name
2009
STOCK INCENTIVE PLAN
PLAN
AWARD
1.
|
Date: ______________
|
2.
|
Name
of
Participant: _________________
|
3.
|
Date(s)
of Vesting and Amount(s) of Shares
|
VESTING
DATE
|
SHARES MAY NOT BE SOLD
FOR THE FOLLOWING RESTRICTION PERIOD OF TIME AFTER
VESTING
|
NUMBER OF
SHARES
|
4. All terms
and conditions of the Plan are incorporated herein by reference and made a part
hereof. Participant acknowledges receipt of the Plan and has read and
understands all aspects of the Plan and how the affect this Award.
In
particular, Participant acknowledges and agrees as follows:
·
|
If
any Award is not fully vested on the Award Date (“Unvested Award”), no
certificate shall be delivered until the date the shares are fully vested
and then subject to all other terms and conditions of this
Plan. The holder of a an Unvested Award shall have no rights as
a shareholder with respect to any shares covered by the Unvested Stock
(including, without limitation, any voting rights, the right to inspect or
receive the Company’s balance sheets or financial statements or any rights
to receive dividends or non-cash distributions with respect to such
shares) until such time as the ownership of the Shares is fully
vested.
|
·
|
This
Award is annulled and voided and no shares shall be issued under this
Award if the Participant’s relationship with the Company is terminated for
any reason as determined by the Board or if the Participant terminates
employment or other relationship for any reason prior to the Vesting Date
set forth above of any shares under this
Award.
|
·
|
Participants
shall be solely liable for any income or other tax or other liability they
must pay as a result of this Award.
|
Signature
of Participant _______________________
Signature
of Company ________________________
Authorized signature
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