CHINA ARCHITECTURAL ENGINEERING, INC. STOCK ISSUANCE AGREEMENT
Exhibit
10.5
AGREEMENT
made
as
of this ____ day of ______________________, _____ by and between China
Architectural Engineering, Inc., a Delaware corporation, and
_____________________, Participant in the Corporation’s 2007 Equity Incentive
Plan.
All
capitalized terms in this Agreement shall have the meaning assigned to them
in
this Agreement or in the attached Appendix.
A. PURCHASE
OF SHARES
1. Purchase.
Participant hereby purchases ___________________ shares of Common Stock (the
“Purchased
Shares”)
pursuant to the provisions of the Stock Issuance Program at the purchase price
of $_____________ per share (the “Purchase
Price”).
2. Payment.
Concurrently with the delivery of this Agreement to the Corporation, Participant
shall pay the Purchase Price for the Purchased Shares in cash or cash equivalent
and shall deliver a duly-executed blank Assignment Separate from Certificate
(in
the form attached hereto as Exhibit I) with respect to the Purchased
Shares.
3. Stockholder
Rights.
Until
such time as the Corporation exercises the Repurchase Right, Participant (or
any
successor in interest) shall have all stockholder rights (including voting,
dividend and liquidation rights equal to those of other holders of the Company’s
Common Stock) with respect to the Purchased Shares, subject, however, to the
transfer restrictions of Articles B and C.
B. SECURITIES
LAW COMPLIANCE
1. Restricted
Securities.
To the
extent the Purchased Shares are not issued pursuant to an effective registration
statement, The Purchased Shares have not been registered under the 1933 Act
and
are being issued to Participant in reliance upon the exemption from such
registration provided by SEC Rule 701 for stock issuances under compensatory
benefit plans such as the Plan. Participant hereby confirms that Participant
has
been informed that the Purchased Shares are restricted securities under the
1933
Act and may not be resold or transferred unless the Purchased Shares are first
registered under the Federal securities laws or unless an exemption from such
registration is available. Accordingly, Participant hereby acknowledges that
Participant is acquiring the Purchased Shares for investment purposes only
and
not with a view to resale and is prepared to hold the Purchased Shares for
an
indefinite period and that Participant is aware that SEC Rule 144 issued under
the 1933 Act which exempts certain resales of unrestricted securities is not
presently available to exempt the resale of the Purchased Shares from the
registration requirements of the 1933 Act.
2. Disposition
of Purchased Shares.
Participant shall make no disposition of the Purchased Shares (other than a
Permitted Transfer) unless and until there is compliance with all of the
following requirements:
(i) Participant
shall have provided the Corporation with a written summary of the terms and
conditions of the proposed disposition.
(ii) Participant
shall have complied with all requirements of this Agreement applicable to the
disposition of the Purchased Shares.
(iii) Participant
shall have provided the Corporation with written assurances, in form and
substance satisfactory to the Corporation, that (a) the proposed
disposition does not require registration of the Purchased Shares under the
1933
Act or (b) all appropriate action necessary for compliance with the
registration requirements of the 1933 Act or any exemption from registration
available under the 1933 Act (including Rule 144) has been taken.
The
Corporation shall not
be
required (i) to transfer on its books any Purchased Shares which have been
sold
or transferred in violation of the provisions of this Agreement or
(ii) to
treat as the owner of the Purchased Shares, or otherwise to accord voting,
dividend or liquidation rights to, any transferee to whom the Purchased Shares
have been transferred in contravention of this Agreement.
3. Restrictive
Legends.
The
stock certificates for the Purchased Shares shall be endorsed with one or more
of the following restrictive legends:
“The
shares represented by this certificate have not been registered under the
Securities Act of 1933. The shares may not be sold or offered for sale in the
absence of (a) an effective registration statement for the shares under such
Act, (b) a “no action” letter of the Securities and Exchange Commission with
respect to such sale or offer or (c) satisfactory assurances to the Corporation
that registration under such Act is not required with respect to such sale
or
offer.”
“The
shares represented by this certificate are subject to certain repurchase rights
granted to the Corporation and accordingly may not be sold, assigned,
transferred, encumbered, or in any manner disposed of except in conformity
with
the terms of a written agreement between the Corporation and the registered
holder of the shares (or the predecessor in interest to the shares). A copy
of
such agreement is maintained at the Corporation’s principal corporate
offices.”
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C. TRANSFER
RESTRICTIONS
1. Restriction
on Transfer.
Except
for any Permitted Transfer, Participant shall not transfer, assign, encumber
or
otherwise dispose of any of the Purchased Shares which are subject to the
Repurchase Right.
2. Transferee
Obligations.
Each
person (other than the Corporation) to whom the Purchased Shares are transferred
by means of a Permitted Transfer must, as a condition precedent to the validity
of such transfer, acknowledge in writing to the Corporation that such person
is
bound by the provisions of this Agreement and that the transferred shares are
subject to the Repurchase Right, to the same extent such shares would be so
subject if retained by Participant.
D. REPURCHASE
RIGHT
1. Grant.
The
Corporation is hereby granted the right (the “Repurchase
Right”),
exercisable at any time during the ninety (90)-day period following the date
Participant ceases for any reason to remain in Service, to repurchase at the
Repurchase Price any or all of the Purchased Shares in which Participant is
not,
at the time of his or her cessation of Service, vested in accordance with the
provisions of the Vesting Schedule set forth in Paragraph D.3
or the
special vesting acceleration provisions of Paragraph D.5
(such
shares to be hereinafter referred to as the “Unvested
Shares”).
2. Exercise
of the Repurchase Right.
The
Repurchase Right shall be exercisable by written notice delivered to each Owner
of the Unvested Shares prior to the expiration of the ninety (90)-day exercise
period. The notice shall indicate the number of Unvested Shares to be
repurchased, the Repurchase Price to be paid per share and the date on which
the
repurchase is to be effected, such date to be not more than thirty (30) days
after the date of such notice. The certificates representing the Unvested Shares
to be repurchased shall be delivered to the Corporation on the closing date
specified for the repurchase. Concurrently with the receipt of such stock
certificates, the Corporation shall pay to Owner, in cash or cash equivalents
(including the cancellation of any purchase-money indebtedness), an amount
equal
to the Repurchase Price for the Unvested Shares which are to be repurchased
from
Owner.
3. Termination
of the Repurchase Right.
The
Repurchase Right shall terminate with respect to any Unvested Shares for which
it is not timely exercised under Paragraph D.2.
In
addition, the Repurchase Right shall terminate and cease to be exercisable
with
respect to any and all Purchased Shares in which Participant vests in accordance
with the following Vesting Schedule:
4. Recapitalization.
Any
new, substituted or additional securities or other property (including cash
paid
other than as a regular cash dividend) which is by reason of any
Recapitalization distributed with respect to the Purchased Shares shall be
immediately subject to the Repurchase Right and any escrow requirements
hereunder, but only to the extent the Purchased Shares are at the time covered
by such right or escrow requirements. Appropriate adjustments to reflect such
distribution shall be made to the number and/or class of Purchased Shares
subject to this Agreement and to the Repurchase Price per share to be paid
upon
the exercise of the Repurchase Right in order to reflect the effect of any
such
Recapitalization upon the Corporation’s capital structure; provided,
however, that the aggregate Repurchase Price shall remain the same.
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5. Change
in Control.
(a) To
the
extent the Repurchase Right remains in effect following a Change in Control,
such right shall apply to any new securities or other property (including any
cash payments) received in exchange for the Purchased Shares in consummation
of
the Change in Control, but only to the extent the Purchased Shares are at the
time covered by such right. Appropriate adjustments shall be made to the
Repurchase Price per share payable upon exercise of the Repurchase Right to
reflect the effect (if any) of the Change in Control upon the Corporation’s
capital structure; provided,
however, that the aggregate Repurchase Price shall remain the same. The new
securities or other property (including any cash payments) issued or distributed
with respect to the Purchased Shares in consummation of the Change in Control
shall be immediately deposited in escrow with the Corporation (or the successor
entity) and shall not be released from escrow until Participant vests in such
securities or other property in accordance with the same Vesting Schedule in
effect for the Purchased Shares.
E. SPECIAL
TAX ELECTION
1. Section
83(b) Election.
Under
Code Section 83, the excess of the Fair Market Value of the Purchased Shares
on
the date any forfeiture restrictions applicable to such shares lapse over the
Purchase Price paid for those shares will be reportable as ordinary income
on
the lapse date. For this purpose, the term “forfeiture restrictions” includes
the right of the Corporation to repurchase the Purchased Shares pursuant to
the
Repurchase Right. Participant may elect under Code Section 83(b) to be taxed
at
the time the Purchased Shares are acquired, rather than when and as such
Purchased Shares cease to be subject to such forfeiture restrictions. Such
election must be filed with the Internal Revenue Service within thirty (30)
days
after the date of this Agreement. Even if the Fair Market Value of the Purchased
Shares on the date of this Agreement equals the Purchase Price paid (and thus
no
tax is payable), the election must be made to avoid adverse tax consequences
in
the future.
THE
FORM FOR MAKING THIS ELECTION IS ATTACHED AS EXHIBIT II HERETO. PARTICIPANT
UNDERSTANDS THAT FAILURE TO MAKE THIS FILING WITHIN THE APPLICABLE THIRTY
(30)-DAY PERIOD WILL RESULT IN THE RECOGNITION OF ORDINARY INCOME AS THE
FORFEITURE RESTRICTIONS LAPSE.
2. FILING
RESPONSIBILITY.
PARTICIPANT ACKNOWLEDGES THAT IT IS PARTICIPANT’S SOLE RESPONSIBILITY, AND NOT
THE CORPORATION’S, TO FILE A TIMELY ELECTION UNDER CODE SECTION 83(b), EVEN IF
PARTICIPANT REQUESTS THE CORPORATION OR ITS REPRESENTATIVES TO MAKE THIS FILING
ON HIS OR HER BEHALF.
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F. GENERAL
PROVISIONS
1. Assignment.
The
Corporation may assign the Repurchase Right and/or the First Refusal Right
to
any person or entity selected by the Board, including (without limitation)
one
or more stockholders of the Corporation.
2. At
Will Employment.
Nothing
in this Agreement or in the Plan shall confer upon Participant any right to
continue in Service for any period of specific duration or interfere with or
otherwise restrict in any way the rights of the Corporation (or any Parent
or
Subsidiary employing or retaining Participant) or of Participant, which rights
are hereby expressly reserved by each, to terminate Participant’s Service at any
time for any reason, with or without cause.
3. Notices.
Any
notice required to be given under this Agreement shall be in writing and shall
be deemed effective upon personal delivery or upon deposit in the U.S. mail,
registered or certified, postage prepaid and properly addressed to the party
entitled to such notice at the address indicated below such party’s signature
line on this Agreement or at such other address as such party may designate
by
ten (10) days advance written notice under this paragraph to all other parties
to this Agreement.
4. No
Waiver.
The
failure of the Corporation in any instance to exercise the Repurchase Right
or
the First Refusal Right shall not constitute a waiver of any other repurchase
rights and/or rights of first refusal that may subsequently arise under the
provisions of this Agreement or any other agreement between the Corporation
and
Participant. No waiver of any breach or condition of this Agreement shall be
deemed to be a waiver of any other or subsequent breach or condition, whether
of
like or different nature.
5. Cancellation
of Shares.
If the
Corporation shall make available, at the time and place and in the amount and
form provided in this Agreement, the consideration for the Purchased Shares
to
be repurchased in accordance with the provisions of this Agreement, then from
and after such time, the person from whom such shares are to be repurchased
shall no longer have any rights as a holder of such shares (other than the
right
to receive payment of such consideration in accordance with this Agreement).
Such shares shall be deemed purchased in accordance with the applicable
provisions hereof, and the Corporation shall be deemed the owner and holder
of
such shares, whether or not the certificates therefor have been delivered as
required by this Agreement.
G. MISCELLANEOUS
PROVISIONS
1. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of California without resort to that State’s conflict-of-laws
rules.
2. Participant
Undertaking.
Participant hereby agrees to take whatever additional action and execute
whatever additional documents the Corporation may deem necessary or advisable
in
order to carry out or effect one or more of the obligations or restrictions
imposed on either Participant or the Purchased Shares pursuant to the provisions
of this Agreement.
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3. Agreement
is Entire Contract.
This
Agreement constitutes the entire contract between the parties hereto with regard
to the subject matter hereof. This Agreement is made pursuant to the provisions
of the Plan and shall in all respects be construed in conformity with the terms
of the Plan.
4. Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed to
be
an original, but all of which together shall constitute one and the same
instrument.
5. Successors
and Assigns.
The
provisions of this Agreement shall inure to the benefit of, and be binding
upon,
the Corporation and its successors and assigns and upon Participant,
Participant’s assigns and the legal representatives, heirs and legatees of
Participant’s estate, whether or not any such person shall have become a party
to this Agreement and have agreed in writing to join herein and be bound by
the
terms hereof.
IN
WITNESS WHEREOF,
the
parties have executed this Agreement on the day and year first indicated
above.
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By:
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Title:
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Address:
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,
PARTICIPANT
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Address:
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SPOUSAL
ACKNOWLEDGMENT
The
undersigned spouse of Participant has read and hereby approves the foregoing
Stock Issuance Agreement. In consideration of the Corporation’s granting
Participant the right to acquire the Purchased Shares in accordance with the
terms of such Agreement, the undersigned hereby agrees to be irrevocably bound
by all the terms of such Agreement, including (without limitation) the right
of
the Corporation (or its assigns) to purchase any Purchased Shares in which
Participant is not vested at the time of his or her cessation of Service.
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PARTICIPANT’S
SPOUSE
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Address:
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EXHIBIT
I
ASSIGNMENT
SEPARATE FROM CERTIFICATE
FOR
VALUE RECEIVED
________________ hereby sell(s), assign(s) and transfer(s) unto China
Architectural Engineering, Inc. (the “Corporation”), ______________ (_____)
shares of the Common Stock of the Corporation standing in his or her name on
the
books of the Corporation represented by Certificate No. _______________ herewith
and do(es) hereby irrevocably constitute and appoint _________________ Attorney
to transfer the said stock on the books of the Corporation with full power
of
substitution in the premises.
Dated:
___________
Signature
__________________________________
Instruction:
Please
do not fill in any blanks other than the signature line. Please sign exactly
as
you would like your name to appear on the issued stock certificate. The purpose
of this assignment is to enable the Corporation to exercise the Repurchase
Right
without requiring additional signatures on the part of Participant.
EXHIBIT
II
SECTION
83(b) TAX ELECTION
SECTION
83(b) TAX ELECTION
This
statement is being made under Section 83(b) of the Internal Revenue Code,
pursuant to Treas. Reg. Section 1.83-2.
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(1)
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The
taxpayer who performed the services is:
Name:
Address:
Taxpayer
Ident. No.:
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(2)
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The
property with respect to which the election is being made is
______________ shares of the common stock of China Architectural
Engineering, Inc.
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(3)
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The
property was issued on __________________,
_____.
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(4)
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The
taxable year in which the election is being made is the calendar
year
_____.
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(5)
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The
property is subject to a repurchase right pursuant to which the issuer
has
the right to acquire the property at the lower of the purchase price
paid
per share, or the fair market value per share if for any reason taxpayer’s
service with the issuer terminates. [The issuer’s repurchase right or the
fair market value will lapse in a series of annual and monthly
installments over a [four (4)-year] period ending on ________________,
20___.]
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(6)
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The
fair market value at the time of transfer (determined without regard
to
any restriction other than a restriction which by its terms will
never
lapse) is $_____ per share.
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(7)
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The
amount paid for such property is $ _______ per
share.
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(8)
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A
copy of this statement was furnished to China Architectural Engineering,
Inc. for whom taxpayer rendered the services underlying the transfer
of
property.
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(9)
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This
statement is executed on _______________,
_____.
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Spouse
(if any)
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Taxpayer
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This
election must be filed with the Internal Revenue Service Center with which
taxpayer files his or her Federal income tax returns and must be made within
thirty (30) days after the execution date of the Stock Issuance Agreement.
This
filing should be made by registered or certified mail, return receipt requested.
Participant must retain two (2) copies of the completed form for filing with
his
or her Federal and state tax returns for the current tax year and an additional
copy for his or her records.
EXHIBIT
III
2007
EQUITY INCENTIVE PLAN
APPENDIX
The
following definitions shall be in effect under the Agreement:
A. Agreement
shall
mean this Stock Issuance Agreement.
B. Board
shall
mean the Corporation’s Board of Directors.
C. Change
in Control
shall
mean a change in ownership or control of the Corporation effected through any
of
the following transactions:
(i) a
merger,
consolidation or other reorganization approved by the Corporation’s
stockholders, unless
securities representing more than fifty percent (50%) of the total combined
voting power of the voting securities of the successor corporation are
immediately thereafter beneficially owned, directly or indirectly and in
substantially the same proportion, by the persons who beneficially owned the
Corporation’s outstanding voting securities immediately prior to such
transaction, or
(ii) a
stockholder-approved sale, transfer or other disposition of all or substantially
all of the Corporation’s assets in complete liquidation or dissolution of the
Corporation, or
(iii) the
acquisition, directly or indirectly by any person or related group of persons
(other than the Corporation or a person that directly or indirectly controls,
is
controlled by, or is under common control with, the Corporation), of beneficial
ownership (within the meaning of Rule 13d-3 of the ▇▇▇▇ ▇▇▇) of securities
possessing more than fifty percent (50%) of the total combined voting power
of
the Corporation’s outstanding securities pursuant to a tender or exchange offer
made directly to the Corporation’s stockholders.
In
no
event shall any public offering of the Corporation’s securities be deemed to
constitute a Change in Control.
D. Code
shall
mean the Internal Revenue Code of 1986, as amended.
E. Common
Stock
shall
mean the Corporation’s common stock.
F. Corporation
shall
mean China Architectural Engineering, Inc., a California corporation, and any
successor corporation to all or substantially all of the assets or voting stock
of China Architectural Engineering, Inc. which shall by appropriate action
adopt
the Plan.
A-1
G. Fair
Market Value
per
share of Common Stock on any relevant date shall be determined in accordance
with the following provisions:
(i) If
the
Common Stock is at the time traded on the Nasdaq National Market, then the
Fair
Market Value shall be the closing selling price per share of Common Stock on
the
date in question, as such price is reported by the National Association of
Securities Dealers on the Nasdaq National Market and published in The
Wall Street Journal.
If
there is no closing selling price for the Common Stock on the date in question,
then the Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
(ii) If
the
Common Stock is at the time listed on any Stock Exchange, then the Fair Market
Value shall be the closing selling price per share of Common Stock on the date
in question on the Stock Exchange determined by the Plan Administrator to be
the
primary market for the Common Stock, as such price is officially quoted in
the
composite tape of transactions on such exchange and published in The
Wall Street Journal.
If
there is no closing selling price for the Common Stock on the date in question,
then the Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
(iii) If
the
Common Stock is at the time neither listed on any Stock Exchange nor traded
on
the Nasdaq National Market, then the Fair Market Value shall be determined
by
the Plan Administrator after taking into account such factors as the Plan
Administrator shall deem appropriate.
H. 1933
Act
shall
mean the Securities Act of 1933, as amended.
I. Owner
shall
mean Participant and all subsequent holders of the Purchased Shares who derive
their chain of ownership through a Permitted Transfer from
Participant.
J. Parent
shall
mean any corporation (other than the Corporation) in an unbroken chain of
corporations ending with the Corporation, provided each corporation in the
unbroken chain (other than the Corporation) owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
K. Participant
shall
mean the person to whom shares are issued under the Stock Issuance
Program.
L. Permitted
Transfer
shall
mean (i) a transfer of title to the Purchased Shares effected pursuant to
Participant’s will or the laws of inheritance following Participant’s death,
(ii) a transfer to the Corporation in pledge as security for any purchase-money
indebtedness incurred by Participant in connection with the acquisition of
the
Purchased Shares, or (iii) a transfer by a Participant to the Participant’s
family members as a gift, whether directly or indirectly, or by means of a
trust
or partnership or otherwise, or pursuant to a qualified domestic relations
order
as defined in the Code or Title 1 of the Employee Retirement Income Security
Act
of 1974, as amended, provided, that, if the Corporation is subject to the
reporting requirements of Section 13 or 15(d) of the 1934 Act, then as otherwise
permitted pursuant to General Instructions A.1(a)(5) to Form S-8 under the
1933
Act. For purposes of this definition, "family member" shall have the meaning
given to such term in Rule 701 promulgated under the Securities Act, provided,
that, if the Corporation is subject to the reporting requirements of Section
13
or 15(d) of the 1934 Act, then it shall have the meaning given to such term
in
General Instructions A.1(a)(5) to Form S-8 under the 1933 Act.
A-2
M. Plan
shall
mean the Corporation’s 2007 Equity Incentive Plan attached hereto as Exhibit
III.
N. Plan
Administrator
shall
mean either the Board or a committee of the Board acting in its capacity as
administrator of the Plan.
O. Purchase
Price
shall
have the meaning assigned to such term in Paragraph A.1.
P. Purchased
Shares
shall
have the meaning assigned to such term in Paragraph A.1.
Q. Recapitalization
shall
mean any stock split, stock dividend, recapitalization, combination of shares,
exchange of shares or other change affecting the Corporation’s outstanding
Common Stock as a class without the Corporation’s receipt of
consideration.
R. Reorganization
shall
mean any of the following transactions:
(i) a
merger
or consolidation in which the Corporation is not the surviving
entity,
(ii) a
sale,
transfer or other disposition of all or substantially all of the Corporation’s
assets,
(iii) a
reverse
merger in which the Corporation is the surviving entity but in which the
Corporation’s outstanding voting securities are transferred in whole or in part
to a person or persons different from the persons holding those securities
immediately prior to the merger, or
(iv) any
transaction effected primarily to change the state in which the Corporation
is
incorporated or to create a holding company structure.
S. Repurchase
Price
shall
mean shall mean the Fair Market Value per share of Common Stock on the date
of Participant’s cessation of Service.
T. Repurchase
Right
shall
mean the right granted to the Corporation in accordance with Article
D.
A-3
U. SEC
shall
mean the Securities and Exchange Commission.
V. Service
shall
mean the Participant’s performance of services for the Corporation (or any
Parent or Subsidiary) in the capacity of an employee, subject to the control
and
direction of the employer entity as to both the work to be performed and the
manner and method of performance, a non-employee member of the board of
directors or an independent consultant.
W. Stock
Issuance Program
shall
mean the Stock Issuance Program under the Plan.
X. Subsidiary
shall
mean any entity in which, directly or indirectly through one or more
intermediaries, the Corporation has at least a 50% ownership interest or, where
permissible under Code Section 409A, at least a 20% ownership interest.
Y. Vesting
Schedule
shall
mean the vesting schedule specified in Paragraph D.3
pursuant
to which Participant is to vest in the Purchased Shares in a series of
installments over the Participant’s period of Service.
Z. Unvested
Shares
shall
have the meaning assigned to such term in Paragraph D.1.
A-4
ADDENDUM
TO
The
following provisions are hereby incorporated into, and are hereby made a part
of, that certain Stock Issuance Agreement (the “Issuance
Agreement”)
by and
between China Architectural Engineering, Inc. (the “Corporation”)
and
_________________ (“Participant”)
evidencing the shares of Common Stock purchased on this date by Participant
under the Corporation’s 2007 Equity Incentive Plan, and such provisions shall be
effective immediately. All capitalized terms in this Addendum, to the extent
not
otherwise defined herein, shall have the meanings assigned to such terms in
the
Issuance Agreement.
INVOLUNTARY
TERMINATION FOLLOWING
A
CHANGE
IN CONTROL
TO
THE EXTENT THE REPURCHASE RIGHT IS ASSIGNED TO THE SUCCESSOR CORPORATION (OR
PARENT THEREOF) IN CONNECTION WITH A CHANGE IN CONTROL OR IS OTHERWISE TO
CONTINUE IN FULL FORCE AND EFFECT PURSUANT TO THE TERMS OF THE CHANGE IN CONTROL
TRANSACTION, NO ACCELERATED VESTING OF THE PURCHASED SHARES SHALL OCCUR UPON
THAT CHANGE IN CONTROL, AND THE REPURCHASE RIGHT SHALL CONTINUE TO REMAIN IN
FULL FORCE AND EFFECT IN ACCORDANCE WITH THE PROVISIONS OF THE ISSUANCE
AGREEMENT. PARTICIPANT SHALL, OVER HIS OR HER PERIOD OF SERVICE FOLLOWING SUCH
CHANGE IN CONTROL, CONTINUE TO VEST IN THE PURCHASED SHARES IN ONE OR MORE
INSTALLMENTS IN ACCORDANCE WITH THE PROVISIONS OF THE ISSUANCE AGREEMENT.
HOWEVER, UPON AN INVOLUNTARY TERMINATION OF PARTICIPANT’S SERVICE WITHIN
_________ (__) MONTHS FOLLOWING SUCH CHANGE IN CONTROL, THE REPURCHASE RIGHT
SHALL TERMINATE AUTOMATICALLY, AND ALL THE PURCHASED SHARES SHALL IMMEDIATELY
VEST IN FULL AT THAT TIME. ANY UNVESTED ESCROW ACCOUNT MAINTAINED ON
PARTICIPANT’S BEHALF PURSUANT TO PARAGRAPH D.5 OF THE ISSUANCE AGREEMENT SHALL
ALSO VEST AT THE TIME OF SUCH INVOLUNTARY TERMINATION AND SHALL BE PAID TO
PARTICIPANT PROMPTLY THEREAFTER.
FOR
PURPOSES OF THIS ADDENDUM, THE FOLLOWING DEFINITIONS SHALL BE IN
EFFECT:
An
Involuntary
Termination
shall
mean the termination of Participant’s Service by reason of:
Participant’s
involuntary dismissal or discharge by the Corporation for reasons other than
for
Misconduct, or
1
Participant’s
voluntary resignation following (1) a change in his or her position with the
Corporation (or Parent or Subsidiary employing Participant) which materially
reduces his or her duties and responsibilities or the level of management to
which he or she reports, (2) a reduction in Participant’s level of compensation
(including base salary, fringe benefits and target bonus under
any
corporate-performance based incentive programs) by more than fifteen percent
(15%) or (3) a relocation of Participant’s place of employment by more than
fifty (50) miles, provided and only if such change, reduction or relocation
is
effected by the Corporation without Participant’s consent.
2
Misconduct
shall
include the termination of Participant’s Service by reason of Participant’s
commission of any act of fraud, embezzlement or dishonesty, any unauthorized
use
or disclosure by Participant of confidential information or trade secrets of
the
Corporation (or any Parent or Subsidiary), or any other intentional misconduct
by Participant adversely affecting the business or affairs of the Corporation
(or any Parent or Subsidiary) in a material manner. The foregoing definition
shall not in any way preclude or restrict the right of the Corporation (or
any
Parent or Subsidiary) to discharge or dismiss Participant or any other person
in
the Service of the Corporation (or any Parent or Subsidiary) for any other
acts
or omissions, but such other acts or omissions shall not be deemed, for purposes
of the Plan and this Addendum, to constitute grounds for termination for
Misconduct.
IN
WITNESS WHEREOF,
China
Architectural Engineering, Inc. has caused this Addendum to be executed by
its
duly-authorized officer as of the Effective Date specified below.
|
CHINA
ARCHITECTURAL ENGINEERING, INC.
|
||
|
By:
|
||
|
Title:
|
||
EFFECTIVE
DATE:
_______________________, ________
3