CHINA GREEN AGRICULTURE, INC. NONQUALIFIED STOCK OPTION GRANT AGREEMENT
Exhibit
10.2
2009
EQUITY INCENTIVE PLAN
This Grant Agreement (the "Agreement")
is entered into as of ________ by and between China Green Agriculture, Inc., a
Nevada corporation (the "Corporation"), and ________ ("Grantee"). All
terms, conditions and restrictions of the 2009 Equity Incentive Plan of the
Corporation (the “Plan”) are incorporated herein and made part hereof as if
stated herein. If there is any conflict between the terms and
conditions of the Plan and this Agreement, the terms and conditions of the Plan,
as interpreted by the Compensation Committee of the Board of Directors of the
Company (the “Committee”), shall govern. Except as otherwise provided
herein, all capitalized terms used herein shall have the meaning given to such
terms in the Plan.
ARTICLE
1
GRANT
OF OPTION
Section 1.1 Grant of
Options. Subject to the provisions of the Agreement, and
pursuant to the provisions of the Plan, the Corporation hereby grants to
Grantee, as of the Grant Date specified in Attachment A, a Nonqualified Stock
Option (the "Option") to purchase all or any part of the number and class of
shares of common stock, par value $0.001 per share, of the Corporation (“Common
Stock”) set forth on Attachment A at the exercise price per share (the "Option
Price") set forth on Attachment A.
Section 1.2 Term of
Options. Unless the Option granted pursuant to Section 1.1
terminates earlier pursuant to other provisions of the Agreement, including the
expiration date specified in Attachment A, the Option shall expire on the
expiration date set forth on Attachment A hereto, but in no event later than the
fifth (5th) anniversary of its Grant Date.
ARTICLE
2
VESTING
Section 2.1 Vesting
Schedule. Subject to the further provision of this Agreement,
and unless the Option has earlier terminated pursuant to the provisions of the
Agreement, Grantee shall become vested on the dates specified on Attachment A in
a portion of the Option with respect to a percentage or number of the underlying
shares in accordance with the vesting schedule specified on Attachment A;
[provided that the performance targets set forth on Attachment A are satisfied
with respect to such date][applicable to performance based
options] and Grantee shall have been in the continuous employ of or
affiliation (as a director or consultant) with the Corporation or any of the
Corporation’s subsidiaries from the Grant Date through any such
date. Any potion of the Option which fails to vest pursuant to the
vesting schedule set forth on Attachment A shall be forfeited.
ARTICLE
3
EXERCISE
OF OPTION
Section 3.1 Exercisability
of Option. No portion of the Option granted to Grantee shall
be exercisable by Grantee prior to the time such portion of the Option has
vested.
Section 3.2 Manner of
Exercise. (a) The
Option may be exercised, in whole or in part, by delivering written notice to
the Committee or any designee of the Committee. Such notice shall
specify the number of shares of Common Stock subject to the Option as to which
the Option is being exercised, and shall be accompanied by full payment of the
Option Price of the shares of Common Stock as to which the Option is being
exercised. Payment of the Option Price shall be made in cash (or cash
equivalents acceptable to the Committee in the Committee's
discretion). In the Committee's sole and absolute discretion, the
Committee may authorize payment of the Option Price to be made, in whole or in
part, by such other means as the Committee may prescribe. The Option
may be exercised only in multiples of whole shares and no partial shares shall
be issued. Notwithstanding anything to the contrary herein, the
minimum number of shares that may be purchased upon an exercise of the Option is
the lesser of 100 shares or the number of shares subject to the vested portion
of the Option.
(b) In
lieu of delivery of the Option Price, the Grantee shall have the right to
exercise the Option through a “cashless exercise,” pursuant to which the Grantee
shall be entitled to receive a certain number of shares of Common Stock based on
the following formula:
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X =
Y [(A-B)/A]
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where:
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X =
the number of shares of Common Stock the Grantee shall receive as the
result of cashless exercise.
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Y =
the number of shares issuable under the Option that the Grantee elects to
exercise.
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A =
the arithmetic average of the closing price of the Common Stock for the
five trading days immediately prior to (but not including) the exercise
date.
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B =
the Option Price
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Section 3.3 Issuance of
Shares and Payment of Cash upon Exercise. Upon exercise of the
Option, in whole or in part, in accordance with the terms of the Agreement and
upon payment of the Option Price for the shares of Common Stock as to which the
Option is exercised, unless exercised pursuant to Section 3.2(b), the
Corporation shall issue to Grantee or, in the event of Grantee's death, to
Grantee's executor, personal representative or the person to whom the Option
shall have been transferred by will or the laws of descent and distribution, as
the case may be, the number of shares of Common Stock to which the Grantee is
entitled, in the form of fully paid and nonassessable Common
Stock. The stock certificates for any shares of Common Stock issued
hereunder shall, unless such shares are registered or an exemption from
registration is available under applicable federal and state law, bear a legend
restricting transferability of such shares.
ARTICLE
4
TERMINATION
OF EMPLOYMENT
Section 4.1 Unvested
Portion. Subject to the further provision of this Agreement,
and unless the Option has earlier terminated pursuant to the provisions of this
Agreement, the unvested portion of the Option shall terminate upon termination
of Grantee's employment or affiliation (as a director or consultant) with the
Corporation and all of the Corporation’s subsidiaries for any reason. For
purposes of this Agreement, the Grantee shall be deemed to have terminated
employment or affiliation upon (i) the date the Grantee ceases to be employed
by, or to provide consulting services for, the Company or any Company
subsidiary; or (ii) the date the Grantee ceases to be a director, provided,
however, that if the Grantee (x) at the time of reference is both an employee or
consultant and a director, or (y) ceases to be engaged as an employee,
consultant or director and immediately is engaged in another of such
relationships with the Company or any Company subsidiary, the Grantee shall not
be deemed to have a “termination of employment or affiliation” until the last of
the dates determined pursuant to subparagraphs (i) and (ii) above. The
Committee, in its discretion, may determine whether any leave of absence
constitutes a termination of employment or affiliation for purposes of this
Agreement.
Section 4.2 Termination of
Employment or Affiliation For Cause by the Corporation or Voluntarily by Grantee
Other Than Termination of Employment or Affiliation by Death or
Disability. Unless the Option has earlier terminated pursuant
to the provisions of this Agreement, the vested portion of the Option shall
terminate upon termination of Grantee's employment or affiliation with the
Corporation and all of the Corporation’s subsidiaries for cause by the
Corporation or voluntarily by the Grantee other than termination of employment
or affiliation by death or disability.
Section 4.3 Termination of
Employment or Affiliation Involuntarily Without Cause by the
Corporation. Unless the Option has earlier terminated pursuant
to the provisions of this Agreement, the vested portion of the Option granted to
Grantee shall terminate in its entirety, regardless of whether the Option is
vested in whole or in part, at the end of the stated term of the
Option. Grantee may exercise all or any part of the Option that was
vested as of the date of termination of Grantee’s employment or affiliation with
the Corporation without cause (including any part of the Option as to which
vesting was accelerated by, or in connection with, such termination) after the
date of termination but no later than the earlier of ninety (90) days following
such date of termination (the “Ninety Day Period”) or the end of the stated term
of the Option.
Section 4.4 Upon Grantee's
Death. Unless the Option has earlier terminated pursuant to
the provisions of the Agreement, upon Grantee's death, Grantee's executor,
personal representative or the person to whom the Option shall have been
transferred by will or the laws of descent and distribution, as the case may be,
may exercise all or any part of the Option that was vested as of the date of
death no later than the earlier of twelve (12) months following such date of
termination (the “Twelve Month Period”) or the end of the stated term of the
Option.
Section 4.5 Termination of
Employment or Affiliation by Reason of Disability. Unless the
Option has earlier terminated pursuant to the provisions of the Agreement, in
the event that Grantee ceases, by reason of Disability, to be an employee of or
affiliated (as a director or consultant) with the Corporation, all or any part
of the Option that was vested as of the date of termination of employment or
affiliation may be exercised in whole or in part at any time until the earlier
of the end of the Twelve Month Period or the end of the stated term of the
Option. For purposes of this Agreement, Disability shall be as
defined in Code Section 409A(a)(2)(c) and shall be determined by the Committee,
with its determination on the matter being final and binding.
ARTICLE
5
MISCELLANEOUS
Section 5.1 Non-Guarantee of
Employment. Nothing in the Plan or the Agreement shall be
construed as a contract of employment between the Corporation (or an affiliate)
and Grantee, or as a contractual right of Grantee to continue in the employ of
the Corporation or an affiliate, or as a limitation of the right of the
Corporation or an affiliate to discharge Grantee at any time.
Section 5.2 No Rights of
Stockholder. Grantee shall not have any of the rights of a
stockholder with respect to the shares of Common Stock that may be issued upon
the exercise of the Option until such shares of Common Stock have been issued to
him upon the due exercise of the Option.
Section 5.3 Withholding of
Taxes. The Corporation or any affiliate shall have the right
to deduct from any compensation or any other payment of any kind (including
withholding the issuance of shares of Common Stock) due Grantee the amount of
any federal, state or local taxes required by law to be withheld as the result
of the exercise of the Option; provided, however, that the value of the shares
of Common Stock withheld may not exceed the statutory minimum withholding amount
required by law. In lieu of such deduction, the Committee may require
Grantee to make a cash payment to the Corporation or an affiliate equal to the
amount required to be withheld. If Grantee does not make such payment
when requested, the Corporation may refuse to issue any Common Stock certificate
under the Plan until arrangements satisfactory to the Committee for such payment
have been made.
Section 5.4
Nontransferability of Option. Other than by will or the laws
of descent and distribution, the Option shall be
nontransferable. During any period Grantee is under a legal
disability, Grantee's guardian or legal representative may exercise all or any
portion of the vested Option on behalf of Grantee.
Section 5.5 Agreement
Subject to the Corporation’s Charter and Bylaws. This
Agreement is subject to the Charter and Bylaws of the Corporation, and any
applicable Federal or state laws, rules or regulations, including without
limitation, the laws, rules, and regulations of the State of
Nevada.
Section 5.6
Gender. As used herein, the masculine shall include the
feminine as the circumstances may require.
Section 5.7
Headings. The headings in the Agreement are for reference
purposes only and shall not affect the meaning or interpretation of the
Agreement.
Section 5.8
Notices. All notices and other communications made or given
pursuant to the Agreement shall be in writing and shall be sufficiently made or
given if hand delivered or mailed by certified mail, addressed to Grantee at the
address contained in the records of the Corporation, or addressed to the
Committee, care of the Corporation for the attention of its Secretary at its
principal office or, if the receiving party consents in advance, transmitted and
received via telecopy or via such other electronic transmission mechanism as may
be available to the parties.
Section 5.9 Entire
Agreement; Modification. This Agreement contains the entire
agreement between the parties with respect to the subject matter contained
herein and may not be modified, except as provided in the Plan.
Section 5.10 Conformity with
Plan. This Agreement is intended to conform in all respects
with, and is subject to all applicable provisions of, the Plan, which is
incorporated herein by reference. Unless stated otherwise herein,
capitalized terms in this Agreement shall have the same meaning as defined in
the Plan. Inconsistencies between this Agreement and the Plan shall
be resolved in accordance with the terms of the Plan. In the event of
any ambiguity in the Agreement or any matters as to which the Agreement is
silent, the Plan shall govern including, without limitation, the provisions
thereof pursuant to which the Committee has the power, among others, to (i)
interpret the Plan and Grant Agreements related thereto, (ii) prescribe, amend
and rescind rules and regulations relating to the Plan, and (iii) make all other
determinations deemed necessary or advisable for the administration of the
Plan. Grantee acknowledges by signing this Agreement that he has
received and reviewed a copy of the Plan.
[Signature page to
follow]
IN WITNESS WHEREOF, the parties have
executed the Agreement as of the date first above written.
| CHINA GREEN AGRICULTURE, INC. | |||
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By:
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| Name | |||
| Title | |||
| GRANTEE | |||
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[Name]
[Title]
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ATTACHMENT
A
| Grant Date: | ||
| Number of Options: | ||
| Exercise Price: | ||
| Expiration Date: | ||
| Vesting Schedule: | set forth in the table below | |
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Shares
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Vesting
Date
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[Performance
Targets][if
applicable]
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