ORIGIN AGRITECH LIMITED EMPLOYEE SHARE OPTION AGREEMENT
EXHIBIT
4.2
ORIGIN
AGRITECH LIMITED
2005
PERFORMANCE EQUITY PLAN
THIS
EMPLOYEE SHARE OPTION AGREEMENT
(this
“Option
Agreement”)
dated
_____________________ by and between Origin Agritech Limited,
an
international business company formed under the laws of the British Virgin
Islands (the “Corporation”),
and
___________________________ (the “Grantee”)
evidences the share option (the “Option”)
granted
by the Corporation to the Grantee as to the number of the Corporation’s ordinary
shares (“Common
Shares”)
first
set forth below.
|
Number
of Common Shares:1
_______
Award
Date:
__________________
Exercise
Price per Common Share:1
$________ Expiration
Date:1,2
_____________
Type
of Option (check
one):
Nonqualified
Option [____]
Incentive
Stock Option [____]
Vesting1,2
The
Option shall become vested as to 20% of the total number of Common
Shares
subject to the Option on the one year anniversary of the Award Date.
The
remaining 80% of the total number of Common Shares subject to the
Option
shall vest in 16 substantially equal quarterly installments, with
the
first installment vesting on the last day of the third month after
the
month in which the Award Date occurs and an additional installment
vesting
on the last day of each of the 15 three-month periods
thereafter.
|
The
Option is granted under the Chardan China Acquisition Corp. 2005 Performance
Equity Plan, which became the Origin Agritech Limited 2005 Performance Equity
Plan (the “Plan”)
by
operation of law under the terms of the merger of Chardan China Acquisition
Corp. with and into the Corporation. The Option is subject to the Terms and
Conditions of Employee Share Options (the “Terms”)
attached to this Option Agreement (incorporated herein by this reference) and
to
the Plan. The Option has been granted to the Grantee in addition to, and not
in
lieu of, any other form of compensation otherwise payable or to be paid to
the
Grantee. Capitalized terms are defined in the Plan if not defined herein. The
parties agree to the terms of the Option set forth herein. The Grantee
acknowledges receipt of a copy of the Terms and the Plan, specifically
acknowledges and agrees to Section 1 of the Terms, and agrees to maintain in
confidence all information provided to him/her in connection with the
Option.
|
“GRANTEE”
______________________________________
Signature
______________________________________
Print
Name
_________________________________
Address
|
ORIGIN
AGRITECH LIMITED
By:__________________________________
Print
Name:___________________________
Title:________________________________
|
| 1 |
Subject
to adjustment under the Plan.
|
|
2
|
Subject
to early termination under Section 5 of the Terms and the
Plan.
|
CONSENT
OF SPOUSE
(optional)
In
consideration of the Corporation’s execution of this Option Agreement, the
undersigned spouse of the Grantee agrees to be bound by all of the terms and
provisions hereof and of the Plan.
| Signature of Spouse | Date |
TERMS
AND CONDITIONS OF EMPLOYEE SHARE OPTION
|
1.
|
Satisfaction
of All Rights to Equity.
|
The
Option is in complete satisfaction of any and all rights that the Grantee may
have (under an employment, consulting, or other written or oral agreement with
the Corporation or any of its affiliates, or otherwise) to receive (1) options
or share awards with respect to the securities of the Corporation or any of
its
affiliates, and/or (2) any other equity or derivative security in or with
respect to the Corporation or any of its affiliates. This Option Agreement
supersedes the terms of all prior understandings and agreements, written or
oral, of the parties with respect to such matters. The Grantee shall have no
further rights or benefits under any prior agreement conveying any right with
respect to any security or derivative security in or with respect to the
Corporation or any of its affiliates. The foregoing notwithstanding, this
Section 1 shall not adversely affect the Grantee’s rights under any prior option
or share award agreement under the Plan (provided such agreement is expressly
labeled as an option or share award agreement under the Plan and is similar
in
form to this Option Agreement) which has been signed by an authorized officer
of
the Corporation.
|
2.
|
Vesting;
Limits on Exercise.
|
The
Option shall vest and become exercisable in percentage installments of the
aggregate number of Common Shares subject to the Option as set forth on the
cover page of this Option Agreement. The Option may be exercised only to the
extent the Option is vested and exercisable.
|
·
|
Cumulative
Exercisability.
To the extent that the Option is vested and exercisable, the Grantee
has
the right to exercise the Option (to the extent not previously exercised),
and such right shall continue, until the expiration or earlier termination
of the Option.
|
|
·
|
No
Fractional Shares.
Fractional Common Share interests shall be disregarded, but may be
cumulated subject to the Plan.
|
|
·
|
Minimum
Exercise.
No fewer than 100 Common Shares (subject to adjustment under Section
3.2
of the Plan) may be purchased at any one time, unless the number
purchased
is the total number at the time exercisable under the Option.
|
|
·
|
ISO
Value Limit.
If the Option
is designated as an Incentive Stock Option (an “ISO”),
as indicated on the cover page of this Option Agreement, and if
the
aggregate fair market value of the shares with respect to which ISOs
(whether granted under the Option or otherwise) first become exercisable
by the Grantee in any calendar year exceeds $100,000, as measured
on the
applicable Award Dates, taking into account both Common Shares subject
to
ISOs under the Plan and shares subject to ISOs under all other plans
of
the Company (or any parent or predecessor corporation to the extent
required by and within the meaning of Section 422 of the Code and
the
regulations promulgated thereunder), such options shall be treated
as
nonqualified share options. In reducing the number of options treated
as
ISOs to meet the $100,000 limit,
the
|
most
recently granted options shall be reduced first. To the extent a reduction
of
simultaneously granted options is necessary to meet the $100,000 limit, the
Board or the Committee may, in the manner and to the extent permitted by law,
designate which Common Shares are to be treated as shares acquired pursuant
to
the exercise of an ISO. Any participant who exercises an ISO shall give prompt
written notice to the Corporation of any sale or other transfer of the Common
Shares acquired on such exercise if the sale or other transfer occurs within
(a)
one year after the exercise date of the Option, or (b) two years after the
grant
date of the Option.
|
3.
|
Continuance
of Employment/Service Required; No Employment/Service
Commitment.
|
The
vesting schedule requires continued employment or service through each
applicable vesting date as a condition to the vesting of the applicable
installment of the Option and the rights and benefits under this Option
Agreement. Employment or service for only a portion of the vesting period,
even
if a substantial portion, will not entitle the Grantee to any proportionate
vesting or avoid or mitigate a termination of rights and benefits upon or
following a termination of employment or services as provided in Section 5
below
or under the Plan.
Nothing
contained in this Option Agreement or the Plan constitutes a continued
employment or service commitment by the Corporation or any of its Subsidiaries,
affects the Grantee’s status, if he or she is an employee, as an employee at
will who is subject to termination without cause, confers upon the Grantee
any
right to remain employed by or in service to the Corporation or any Subsidiary,
interferes in any way with the right of the Corporation or any Subsidiary at
any
time to terminate such employment or service, or affects the right of the
Corporation or any Subsidiary to increase or decrease the Grantee’s other
compensation.
|
4.
|
Method
of Exercise of Option.
|
The
Option shall be exercisable by the delivery to the Secretary of the Corporation
(or such other person as the Committee may require pursuant to such
administrative exercise procedures as the Committee may implement from time
to
time) of:
|
·
|
an
executed Option Exercise and Common Share Purchase Agreement (stating
the
number of Common Shares to be purchased pursuant to the Option) in
substantially the form attached hereto as Exhibit A or such other
form as
the Committee may require from time to time (the “Exercise
Agreement”);
|
|
·
|
payment
in full for the Exercise Price of the shares to be purchased, in
cash or
by electronic funds transfer to the Corporation, or by certified
or
cashier’s check payable to the order of the Corporation subject to such
specific procedures or directions as the Committee may
establish;
|
|
·
|
any
written statements or agreements required in connection with fulfilling
the obligations of the Corporation pursuant to Section 13.10 of the
Plan;
and
|
|
·
|
satisfaction
of the tax withholding provisions of Section 13.6 of the
Plan.
|
The
Committee also may, but is not required to, authorize a non-cash payment
alternative specified below at or prior to the time of exercise. In which case,
the Exercise Price and/or applicable withholding taxes, to the extent so
authorized, may be paid in full or in part by delivery to the Corporation
of:
|
·
|
Common
Shares already owned by the Grantee, valued at their Fair Market
Value on
the date prior to the exercise date, provided,
however,
that any shares acquired directly from the Corporation (upon exercise
of
an option or otherwise) must have been owned by the Grantee for at
least
six (6) months before the date of such exercise;
and/or
|
|
·
|
if
the Common Shares are then registered under the Exchange Act and
listed or
quoted on a recognized national securities exchange or in the NASDAQ
National Market Quotation System, irrevocable instructions to a broker
to,
upon exercise of the Option, promptly sell a sufficient number of
Common
Shares acquired upon exercise of the Option and deliver to the Corporation
the amount necessary to pay the Exercise Price (and, if applicable,
the
amount of any related tax withholding
obligations).
|
An
Option
will qualify as an ISO only if it meets all of the applicable requirements
of
the Code. If the Option is designated as an ISO, the Option may be rendered
a
Nonqualified Option if the Committee permits the use of one or more of the
non-cash payment alternatives referenced above.
|
5.
|
Early
Termination of Option.
|
5.1 Possible
Termination of Option upon Change in Control.
The
Option is subject to termination in connection with a Change in Control Event
or
certain similar reorganization events.
5.2 Termination
of Option upon a Termination of Grantee’s Employment or
Services.
Subject
to earlier termination on the Expiration Date of the Option or pursuant to
Section 5.1 above, if the Grantee ceases to be employed by or ceases to provide
services to the Corporation or a Subsidiary (other than in the capacity as
a
member of the board of directors of the Corporation as provided below), the
following rules shall apply (the last day that the Grantee is employed by or
provides services to the Corporation or a Subsidiary is referred to as the
Grantee’s “Severance
Date”):
|
·
|
other
than as expressly provided below in this Section 5.2, (a) the Grantee
will
have until the date that is 30 days after his or her Severance Date
to
exercise the Option (or portion thereof) to the extent that it was
vested
on the Severance Date, (b) the Option, to the extent not vested on
the
Severance Date, shall terminate on the Severance Date, and (c) the
Option,
to the extent exercisable for the 30-day period following the Severance
Date and not exercised during such period, shall terminate at the
close of
business on the last day of the 30-day
period;
|
|
·
|
if
the termination of the Grantee’s employment is the result of the Grantee’s
voluntary Retirement (as defined below and other than a termination
by
the
|
Corporation
or a Subsidiary for cause as provided below), then (a) the Grantee will have
until the date that is 3 years after his or her Severance Date to exercise
the
Option (or portion thereof) to the extent that it was vested on the Severance
Date, (b) the Option, to the extent not vested on the Severance Date, shall
terminate on the Severance Date, and (c) the Option, to the extent exercisable
for the 3-year period following the Severance Date and not exercised during
such
period, shall terminate at the close of business on the last day of the 3-year
period;
|
·
|
if
the termination of the Grantee’s employment is the result of the Grantee’s
death or Disability (as defined below), then (a) the Grantee (or
his
beneficiary or personal representative, as the case may be) will
have
until the earlier of the date that is 1 year after the Grantee’s Severance
Date or until the expiration of the dated term of such Stock Option
to
exercise the Option, (b) the Option, to the extent not vested on
the
Severance Date, shall terminate on the Severance Date, and (c) the
Option,
to the extent exercisable for the 1-year period following the Severance
Date and not exercised during such period, shall terminate at the
close of
business on the last day of the 1-year
period;
|
|
·
|
if
the termination of the Grantee’s employment is the result of a termination
by the Corporation or a Subsidiary for Cause (as defined below),
the
Option (whether vested or not) shall terminate on the Severance
Date.
|
In
the
event a Grantee who is appointed by the holders of the preferred shares of
the
Corporation to serve on the board of directors of the Corporation (the
“Board”)
terminates his service to the Corporation (other than in connection with a
Change in Control Event or certain similar reorganization events), the Option
shall not be subject to Section 5.2 herein but shall be subject to accelerated
vesting in accordance with Section 10 of the Plan.
For
purposes of the Option, “Disability” means a permanent disability (within the
meaning of Section 22(e)(3) of the Code or as otherwise determined by the
Administrator). For purposes of the Option, “Retirement” means a termination of
employment by the Grantee that occurs upon or after the Grantee’s attainment of
age 65 and in accordance with the retirement policies of the Corporation (or
the
Subsidiary that employs the Grantee) then in effect. For purposes of the Option,
“Cause” means that the Grantee: (a) has been repeatedly negligent in the
discharge of his or her duties to the Corporation or a Subsidiary or has refused
to perform stated or assigned duties (other than by reason of a disability
or
analogous condition); (b) has been dishonest or committed or engaged in an
act
of theft, embezzlement or fraud, a breach of confidentiality, an unauthorized
disclosure or use of inside information, customer lists, trade secrets or other
confidential information; (c) has
breached a fiduciary duty, or violated any other duty, law, rule, regulation
or
policy of the company or an affiliate; (d) has been convicted of, or plead
guilty or nolo contendere to, a felony or misdemeanor (other than minor traffic
violations or similar offenses); (e) has materially breached any of the
provisions of any agreement with the Corporation or a Subsidiary; (f) has
engaged in unfair competition with, or otherwise acted intentionally in a manner
injurious to the reputation, business or assets of, the Corporation or a
Subsidiary; or has
improperly induced a vendor or customer to break or terminate any contract
with
the Corporation or a Subsidiary or induced a principal for whom the Corporation
or a Subsidiary acts as agent to terminate such agency
relationship.
In
all
events the Option is subject to earlier termination on the Expiration Date
of
the Option or as contemplated by Section 5.1. The Committee shall be the sole
judge of whether the Grantee continues to render employment or services for
purposes of this Option Agreement.
|
6.
|
Non-Transferability.
|
The
Option and any other rights of the Grantee under this Option Agreement or the
Plan are nontransferable and exercisable only by the Grantee, except as set
forth in Section 5.2(e) of the Plan. Any Common Shares issued on exercise of
the
Option are subject to substantial restrictions on transfer, and are subject
to
other rights in favor of the Corporation as set forth herein and in the Exercise
Agreement.
|
7.
|
Securities
Law Compliance.
|
The
Grantee acknowledges that the Option and the Common Shares are not being
registered under the Securities Act, based, in part, in reliance upon an
exemption from registration under Securities and Exchange Commission Rule 701
promulgated under the Securities Act of 1933, and a comparable exemption from
qualification under applicable state securities laws, as each may be amended
from time to time. The Grantee, by executing this Option Agreement, hereby
makes
the following representations to the Corporation and acknowledges that the
Corporation’s reliance on federal and state securities law exemptions from
registration and qualification is predicated, in substantial part, upon the
accuracy of these representations:
|
·
|
The
Grantee is acquiring the Option and, if and when he/she exercises
the
Option, will acquire the Common Shares solely for the Grantee’s own
account, for investment purposes only, and not with a view to or
an intent
to sell, or to offer for resale in connection with any unregistered
distribution, all or any portion of the Common Shares within the
meaning
of the Securities Act, or other applicable state securities
laws.
|
|
·
|
The
Grantee has had an opportunity to ask questions and receive answers
from
the Corporation regarding the terms and conditions of the Option
and the
restrictions imposed on any Common Shares purchased upon exercise
of the
Option. The Grantee has been furnished with, and/or has access to,
such
information as he or she considers necessary or appropriate for deciding
whether to exercise the Option and purchase Common Shares. However,
in
evaluating the merits and risks of an investment in the Common Shares,
the
Grantee has and will rely upon the advice of his/her own legal counsel,
tax advisors, and/or investment
advisors.
|
|
·
|
The
Grantee is aware that the Option may be of no practical value, that
any
value it may have depends on its vesting and exercisability as well
as an
increase in the Fair Market Value of the underlying Common Shares
to an
amount in excess of the Exercise Price, and that any investment in
common
shares of a closely held corporation such as the Corporation is
non-marketable, non-transferable and could require capital to be
invested
for an indefinite period of time, possibly without return, and at
substantial risk of loss.
|
| · |
The
Grantee understands that any Common Shares acquired on exercise of
the
Option will be characterized as “restricted securities” under the federal
securities laws, and that, under such laws and applicable regulations,
such securities may be resold without registration under the Securities
Act only in certain limited circumstances, including in accordance
with
the conditions of Rule 144 promulgated under the Securities Act,
as
presently in effect, with which the Grantee is
familiar.
|
|
·
|
The
Grantee has read and understands the restrictions and limitations
set
forth in the Plan, this Option Agreement (including these Terms),
which
are imposed on the Option and any Common Shares which may be acquired
upon
exercise of the Option.
|
|
·
|
At
no time was an oral representation made to the Grantee relating to
the
Option or the purchase of Common Shares and the Grantee was not presented
with or solicited by any promotional meeting or material relating
to the
Option or the Common Share.
|
|
8.
|
Lock-Up
Agreement.
|
Grantee
may not (nor may any permitted transferee), directly or indirectly, offer,
sell
or transfer or dispose of any of the Common Shares acquired upon exercise of
the
Option or any interest therein (or agree to do any thereof) (collectively,
a
“Transfer”)
during
the period commencing as of 14 days prior to and ending one year, or such lesser
period of time as the relevant underwriters may permit, after the effective
date
of a registration statement covering any public offering of the Corporation’s
securities of which the Grantee has notice (The term “Grantee” includes, where
the context so requires, any permitted direct or indirect transferee of the
Grantee.) The Grantee shall agree and consent to the entry of stop transfer
instructions with the Corporation’s transfer agent against the Transfer of the
Corporation’s securities beneficially owned by the Grantee and shall conform the
limitations hereunder by agreement with and for the benefit of the relevant
underwriters by a lock-up agreement or other agreement in customary form.
Notwithstanding anything else herein to the contrary, this Section 8 shall
not
be construed so as to prohibit the Grantee from participating in a registration
or a public offering of the Common Shares with respect to any shares which
he or
she may hold at that time, provided, however, that such participation shall
be
at the sole discretion of the Board.
|
9.
|
Notices.
|
Any
notice to be given under the terms of this Option Agreement shall be in writing
and addressed to the Corporation at its principal office to the attention of
the
Secretary, and to the Grantee at the address last reflected on the Corporation’s
payroll records, or at such other address as either party may hereafter
designate in writing to the other. Any such notice shall be given only when
received, but if the Grantee is no longer employed by the Corporation or a
Subsidiary, shall be deemed to have been duly given five business days after
the
date mailed in accordance with the foregoing provisions of this Section
9.
|
10.
|
Plan.
|
The
Option and all rights of the Grantee under this Option Agreement are subject
to,
and the Grantee agrees to be bound by, all of the terms and conditions of the
Plan, incorporated
herein
by
this reference.
In the
event of a conflict or inconsistency between the terms and conditions of this
Option Agreement and of the Plan, the terms and conditions of the Plan shall
govern. The Grantee agrees to be bound by the terms of the Plan and this Option
Agreement (including these Terms). The Grantee acknowledges having read and
understanding the Plan and this Option Agreement. Unless otherwise expressly
provided in other sections of this Option Agreement, provisions of the Plan
that
confer discretionary authority on the Board or the Committee do not and shall
not be deemed to create any rights in the Grantee unless such rights are
expressly set forth herein or are otherwise in the sole discretion of the Board
or the Committee so conferred by appropriate action of the Board or the
Committee under the Plan after
the date
hereof.
|
11.
|
Entire
Agreement.
|
This
Option Agreement (including these Terms) and the Plan together constitute the
entire agreement and supersede all prior understandings and agreements, written
or oral, of the parties hereto with respect to the subject matter hereof. The
Plan and this Option Agreement may be amended pursuant to Section 11 of the
Plan. Such amendment must be in writing and signed by the Corporation. The
Corporation may, however, unilaterally waive any provision hereof in writing
to
the extent such waiver does not adversely affect the interests of the Grantee
hereunder, but no such waiver shall operate as or be construed to be a
subsequent waiver of the same provision or a waiver of any other provision
hereof.
|
12.
|
Governing
Law; Limited Rights; Severability.
|
12.1 British
Virgin Islands Laws; Construction.
This
Option Agreement and the Exercise Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware without regard
to conflict of law principles thereunder. The terms of the Option grant have
resulted from the negotiations of the parties and each of the parties has had
an
opportunity to obtain and consult with its own counsel. The language of all
parts of the Plan, this Option Agreement (including these Terms) and the
Exercise Agreement shall in all cases be construed as a whole, according to
its
fair meaning, and not strictly for or against either of the parties.
12.2 Limited
Rights.
Except
as otherwise expressly authorized by the Committee or the Plan, a participant
shall not be entitled to any privilege of share ownership as to any Common
Shares not actually delivered to and held of record by the participant. No
adjustment will be made for dividends or other rights as a shareholder for
which
a record date is prior to such date of delivery. The existence of the Plan,
this
award agreement and the awards granted hereunder shall not limit, affect or
restrict in any way the right or power of the Board or the shareholders of
the
Corporation to make or authorize: (a) any adjustment, recapitalization,
reorganization or other change in the capital structure or business of the
Corporation or any subsidiary, (b) any merger, amalgamation, consolidation
or
change in the ownership of the Corporation or any subsidiary, (c) any issue
of
bonds, debentures, capital, preferred or prior preference share ahead of or
affecting the capital share (or the rights thereof) of the Corporation or any
subsidiary, (d) any dissolution or liquidation of the Corporation or any
subsidiary, (e) any sale or transfer of all or any part of the assets or
business of the Corporation or any subsidiary, or (f) any other corporate act
or
proceeding by the Corporation or any subsidiary. No participant, beneficiary
or
any
other
person shall have any claim under any award or award agreement against any
member of the Board or the Committee, or the Corporation or any employees,
officers or agents of the Corporation or any subsidiary, as a result of any
such
action.
12.3 Severability.
If the
arbitrator selected in accordance with Section 13.2 or a court of competent
jurisdiction determines that any portion of this Option Agreement, the Plan,
or
the Exercise Agreement is in violation of any statute or public policy, then
only the portions of this Option Agreement, the Plan, or the Exercise Agreement,
as applicable, which violate such statute or public policy shall be stricken,
and all portions of this Option Agreement, the Plan, and the Exercise Agreement
which do not violate any statute or public policy shall continue in full force
and effect. Furthermore, it is the parties’ intent that any court order striking
any portion of this Option Agreement, the Plan, and/or the Exercise Agreement
should modify the stricken terms as narrowly as possible to give as much effect
as possible to the intentions of the parties hereunder.
|
13.
|
Arbitration.
|
13.1 Any
dispute, controversy or claim arising out of or in connection with or relating
to this Option Agreement, or the interpretation, breach, termination or validity
hereof, shall be resolved through arbitration. A dispute may be submitted to
arbitration upon the request of either party with written notice to the other
(the “Notice”).
The
arbitration shall be conducted in Hong Kong under the auspices of the Hong
Kong
International Arbitration Centre (the “Centre”).
There
shall be three (3) arbitrators. Each party shall nominate one (1) arbitrator
within thirty (30) days after the delivery of the Notice to the other party.
The
appointment of party nominated arbitrators shall be confirmed by the Centre.
Both arbitrators shall agree on the third arbitrator within thirty (30) days
of
their confirmation by the Centre. Should either party fail to appoint an
arbitrator or should the two arbitrators fail within thirty (30) days to reach
agreement on the third arbitrator, such arbitrator shall be appointed by the
Secretary General of the Centre.
13.2 The
arbitration proceedings shall be conducted in English. The arbitration tribunal
shall apply the UNCITRAL Arbitration Rules as administered by the Centre at
the
time of the arbitration. However, if such rules conflict with the provisions
of
this Section 13.2, including the provisions concerning the appointment of an
arbitrator(s), the provisions of this Section 13.2 shall prevail.
13.3 The
arbitrators shall decide any dispute submitted by the parties strictly in
accordance with the substantive laws of the State of Delaware and shall not
apply any other substantive law.
13.4 Each
party shall cooperate with the other in making full disclosure of and providing
complete access to all information and documents requested by the other in
connection with such arbitration proceedings, subject only to any
confidentiality obligations binding on such party.
13.5 The
costs
of arbitration shall be borne by the losing party, unless otherwise determined
by the arbitration tribunal.
13.6 When
any
dispute occurs and when any dispute is under arbitration, except for the matters
in dispute, the parties shall continue to fulfill their respective obligations
and shall be entitled to exercise their rights under this Agreement.
13.7 The
award
of the arbitration tribunal shall be final and binding upon the parties, and
the
prevailing party may apply to a court of competent jurisdiction for enforcement
of such award.
|
14.
|
Shareholder
Approval.
|
Notwithstanding
anything else contained herein to the contrary, the Option and all rights of
the
Grantee under this Option Agreement are subject to approval of the Plan by
the
Corporation’s shareholders (such approval to be obtained in accordance with the
terms of the Plan, the Corporation’s Memorandum and Articles of Association, and
applicable law) within 12 months after the Effective Date of the Plan.
|
15.
|
Effect
of this Agreement.
|
This
Option Agreement shall be assumed by, be binding upon and inure to the benefit
of any successor or successors to the Corporation.
|
16.
|
Counterparts.
|
This
Option Agreement may be executed simultaneously in any number of counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
|
17.
|
Section
Headings.
|
The
section headings of this Option Agreement are for convenience of reference
only
and shall not be deemed to alter or affect any provision hereof.
[Remainder
of page intentionally left blank]
EXHIBIT
A
ORIGIN
AGRITECH LIMITED
2005
PERFORMANCE EQUITY PLAN
OPTION
EXERCISE AND COMMON SHARE PURCHASE AGREEMENT
The
undersigned (the “Purchaser”)
hereby
irrevocably elects to exercise his/her right, evidenced by that certain Option
Agreement dated as of ____________________ (the “Option
Agreement”)
under
the Origin Agritech Limited 2005 Performance Equity Plan (the “Plan”),
as
follows:
|
·
|
the
Purchaser hereby irrevocably elects to purchase __________________
Common
Shares (the “Shares”),
of Origin Agritech Limited, an international business company formed
under
the laws of the British Virgin Islands (the “Corporation”),
and
|
|
·
|
such
purchase shall be at the price of $__________________ per share,
for an
aggregate amount of $__________________ (subject to applicable withholding
taxes pursuant to Section 13.6 of the
Plan).
|
Capitalized
terms are defined in the Plan if not defined herein.
1. Delivery
of Share Certificate.
The
Purchaser requests that a certificate representing the Shares be registered
to
Purchaser and delivered to: ____________________________________________________________________________________________________.
2. Investment
Representations.
The
Purchaser acknowledges that the sale of the Shares by the Purchaser is
restricted by Securities and Exchange Commission Rule 701. The Purchaser hereby
affirms as made as of the date hereof the representations in Section 7 of the
“Terms and Conditions of Option” (which are attached to and a part of the Option
Agreement, the “Terms”)
and
such representations are incorporated herein by this reference. The Purchaser
represents that he/she has no need for liquidity in this investment, has the
ability to bear the economic risk of this investment, and can afford a complete
loss of the purchase price for the Shares.
The
Purchaser acknowledges receipt of the Corporation’s condensed consolidated
financial information.
3. Limitation
on Disposition and Other Restrictions.
The
Shares are subject to and the Purchaser hereby agrees to the following terms
and
conditions of the sale of the Shares to the Purchaser:
|
·
|
any
transfer of the Shares must comply with the restrictions on transfer
set
forth in Section 5.2(e) of the Plan and all applicable laws as set
forth
in Section 13.10 of the Plan;
|
|
·
|
the
Shares are subject to, and following any otherwise permitted transfer
of
the Shares, the Shares shall remain subject to and the transferee
shall be
bound by, the lock-up provisions set forth in Section 8 of the Terms,
the
foregoing provisions of this Section 3 and the arbitration provisions
of
Section 13 of the Terms; and
|
|
·
|
as
a condition to any otherwise permitted transfer of the Shares, the
Corporation may require the transferee to execute a written agreement,
in
a form acceptable to the
|
Committee,
that the transferee acknowledges and agrees to the foregoing terms and
restrictions imposed on the Shares.
4. Plan
and Option Agreement.
The
Purchaser acknowledges that all of his/her rights are subject to, and the
Purchaser agrees to be bound by, all of the terms and conditions of the Plan
and
the Option Agreement (including the Terms), both of which are incorporated
herein by this reference. If a conflict or inconsistency between the terms
and
conditions of this Option Exercise and Common Share Purchase Agreement and
of
the Plan or the Option Agreement shall arise, the terms and conditions of the
Plan and/or the Option Agreement shall govern. The Purchaser acknowledges
receipt of a copy of all documents referenced herein (including the Terms and
a
disclosure statement) and acknowledges reading and understanding these documents
and having an opportunity to ask any questions that he/she may have had about
them. Any controversy or claim arising out of or relating to this Option
Exercise and Common Share Purchase Agreement shall be submitted to arbitration
in accordance with Section 13.2 of the Terms, and the laws of the State of
Delaware shall apply as provided in Section 12.1 of the Terms.
5. Entire
Agreement.
This
Option Exercise and Common Share Purchase Agreement, the Option Agreement
(including the Terms), and the Plan together constitute the entire agreement
and
supersede all prior understandings and agreements, written or oral, of the
parties hereto with respect to the subject matter hereof. The Plan, the Option
Agreement and this Option Exercise and Common Share Purchase Agreement may
be
amended pursuant to Section 11of the Plan. Such amendment must be in writing
and
signed by the Corporation. The Corporation may, however, unilaterally waive
any
provision hereof or of the Option Agreement in writing to the extent such waiver
does not adversely affect the interests of the Grantee hereunder, but no such
waiver shall operate as or be construed to be a subsequent waiver of the same
provision or a waiver of any other provision hereof.
6. Notice
of Sale of ISO Shares.
If the
Shares are being acquired upon exercise of an Option intended to qualify as
an
Incentive Stock Option, the Purchaser agrees that, upon any sale or other
transfer of the Shares within either one year of the date that they are acquired
by the Purchaser or two years after the Award Date set forth in the Option
Agreement, the Purchaser shall provide the notice required under Section 2
(“ISO
Value Limit”) of the Terms.
|
“PURCHASER”
_________________________________
Signature
_________________________________
Print
Name
_________________________________
Date
|
ACCEPTED
BY:
ORIGIN
AGRITECH LIMITED,
an
international business company formed under the laws of the British
Virgin
Island
By:__________________________________
Its:__________________________________
|