Exhibit 4.1
SHUAIYI
INTERNATIONAL NEW RESOURCES DEVELOPMENT INC.
2009 EQUITY
INCENTIVE PLAN
1.
Purposes of the Plan
. Shuaiyi
International New Resources Development Inc., a Nevada corporation
(the “ Company ”) hereby establishes the Shuaiyi
International New Resources Development Inc. 2009 EQUITY INCENTIVE
PLAN (the “ Plan ”). The purposes of this Plan
are to attract and retain the best available personnel for
positions of substantial responsibility, to provide additional
incentive to Employees, Directors and Consultants, and to promote
the long-term growth and profitability of the Company. The
Plan permits the grant of Incentive Stock Options, Nonstatutory
Stock Options, Restricted Stock, Restricted Stock Units, Stock
Appreciation Rights, Performance Units and Performance Shares as
the Administrator may determine.
2.
Definitions . The following definitions
will apply to the terms in the Plan:
“
Administrator ” means the Board or any of its
Committees as will be administering the Plan, in accordance with
Section 4.
“ Applicable
Laws ” means the requirements relating to the
administration of equity-based awards under U.S. state corporate
laws, U.S. federal and state securities laws, the Code, any stock
exchange or quotation system on which the Common Stock is listed or
quoted and the applicable laws of any foreign country or
jurisdiction where Awards are, or will be, granted under the
Plan.
“ Award
” means, individually or collectively, a grant under the Plan
of Options, SARs, Restricted Stock, Restricted Stock Units,
Performance Units or Performance Shares.
“ Award
Agreement ” means the written or electronic agreement
setting forth the terms and provisions applicable to each Award
granted under the Plan. The Award Agreement is subject to the terms
and conditions of the Plan.
“ Board
” means the Board of Directors of the Company.
“ Change in
Control ” means the occurrence of any of the following
events:
(i)
Any “person”
(as such term is used in Sections 13(d) and 14(d) of the Exchange
Act) becomes the "beneficial owner" (as defined in Rule 13d-3 of
the Exchange Act), directly or indirectly, of securities of the
Company representing fifty percent (50%) or more of the total
voting power represented by the Company's then outstanding voting
securities; provided however, that for purposes of this subsection
(i) any acquisition of securities directly from the Company shall
not constitute a Change in Control; or
(ii)
The consummation of the
sale or disposition by the Company of all or substantially all of
the Company's assets;
(iii)
A change in the
composition of the Board occurring within a two-year period, as a
result of which fewer than a majority of the directors are
Incumbent Directors. “Incumbent Directors” means
directors who either (A) are Directors as of the effective date of
the Plan, or (B) are elected, or nominated for election, to the
Board with the affirmative votes of at least a majority of the
Incumbent Directors at the time of such election or nomination (but
will not include an individual whose election or nomination is in
connection with an actual or threatened proxy contest relating to
the election of directors to the Company); or
(iv)
The consummation of a
merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity
or its parent) at least fifty percent (50%) of the total voting
power represented by the voting securities of the Company or such
surviving entity or its parent outstanding immediately after such
merger or consolidation.
For avoidance of doubt,
a transaction will not constitute a Change in Control if: (i) its
sole purpose is the change the state of the Company’s
incorporation, or (ii) its sole purpose is to create a holding
company that will be owned in substantially the same proportions by
the persons who held the Company’s securities immediately
before such transaction.
“ Code
” means the Internal Revenue Code of 1986, as amended.
Any reference in the Plan to a section of the Code will be a
reference to any successor or amended section of the
Code.
“ Committee
” means a committee of Directors or of other individuals
satisfying Applicable Laws appointed by the Board in accordance
with Section 4 hereof.
“ Common
Stock ” means the common stock of the Company.
“ Company
” means Shuaiyi International New Resources Development Inc.,
a Nevada corporation, or any successor thereto.
“
Consultant ” means any person, including an advisor,
engaged by the Company or a Parent or Subsidiary to render services
to such entity.
“ Director
” means a member of the Board.
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“
Disability ” means total and permanent disability as
determined by the Administrator in its discretion in accordance
with uniform and non-discriminatory standards adopted by the
Administrator from time to time.
“ Employee
” means any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary of the Company.
Neither service as a Director nor payment of a director's fee by
the Company will be sufficient to constitute "employment" by the
Company.
“ Exchange
Act ” means the Securities Exchange Act of 1934, as
amended.
“ Exchange
Program ” means a program under which (i) outstanding
Awards are surrendered or cancelled in exchange for Awards of the
same type (which may have lower exercise prices and different
terms), Awards of a different type and/or cash, and/or (ii) the
exercise price of an outstanding Award is reduced.
“ Fair Market
Value ” means, as of any date, the value of Common Stock
determined as follows:
(i)
If the Common Stock is
listed on any established stock exchange or a national market
system, including without limitation any division or subdivision of
the Nasdaq Stock Market, its Fair Market Value will be the closing
sales price for such stock (or the closing bid, if no sales were
reported) as quoted on such exchange or system on the day of
determination, as reported in The Wall Street Journal or such other
source as the Administrator deems reliable;
(ii)
If the Common Stock is
regularly quoted by a recognized securities dealer but selling
prices are not reported, including without limitation quotation
through the over the counter bulletin board (“OTCBB”)
quotation service administered by the Financial Industry Regulatory
Authority (“FINRA”) , the Fair Market Value of a Share
will be the mean between the high bid and low asked prices for the
Common Stock on the day of determination, as reported in The Wall
Street Journal or such other source as the Administrator deems
reliable; or
(iii)
In the absence of an
established market for the Common Stock, the Fair Market Value will
be determined in good faith by the Administrator, and to the extent
Section 15 applies (a) with respect to ISOs, the Fair Market Value
shall be determined in a manner consistent with Code section 422 or
(b) with respect to NSOs or SARs, the Fair Market Value shall be
determined in a manner consistent with Code section 409A.
“ Fiscal
Year ” means the fiscal year of the Company.
“ Grant
Date ” means, for all purposes, the date on which the
Administrator determines to grant an Award, or such other later
date as is determined by the Administrator, provided that the
Administrator cannot grant an Award prior to the date the material
terms of the Award are established. Notice of the
Administrator’s determination to grant an Award will be
provided to each Participant within a reasonable time after the
Grant Date.
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“ Incentive
Stock Option” or “ISO ” means an Option that
by its terms qualifies and is otherwise intended to qualify as an
incentive stock option within the meaning of Section 422 of the
Code and the regulations promulgated thereunder.
“ Nonstatutory
Stock Option” or “NSO ” means an Option that
by its terms does not qualify or is not intended to qualify as an
ISO.
“ Officer
” means a person who is an officer of the Company within the
meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
“ Option
” means a stock option granted pursuant to the
Plan.
“ Optioned
Shares ” means the Common Stock subject to an
Option.
“ Optionee
” means the holder of an outstanding Option.
“ Parent
” means a “parent corporation,” whether now or
hereafter existing, as defined in Section 424(e) of the
Code.
“
Participant ” means the holder of an outstanding
Award.
“ Performance
Share ” means an Award denominated in Shares which may
vest in whole or in part upon attainment of performance goals or
other vesting criteria as the Administrator may determine pursuant
to Section 10.
“ Performance
Unit ” means an Award which may vest in whole or in part
upon attainment of performance goals or other vesting criteria as
the Administrator may determine and which may be settled for cash,
Shares or other securities or a combination of the foregoing
pursuant to Section 10.
“ Period of
Restriction ” means the period during which Shares of
Restricted Stock are subject to forfeiture or restrictions on
transfer pursuant to Section 7.
“ Plan
” means this 2009 Equity Incentive Plan.
“ Restricted
Stock ” means Shares awarded to a Participant which are
subject to forfeiture and restrictions on transferability in
accordance with Section 7.
“ Restricted
Stock Unit ” means the right to receive one Share at the
end of a specified period of time, which right is subject to
forfeiture in accordance with Section 8 of the
Plan.
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“ Rule
16b-3 ” means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3.
“ Section
” means a paragraph or section of this Plan.
“ Section
16(b) ” means Section 16(b) of the Exchange
Act.
“ Service
Provider ” means an Employee, Director or
Consultant.
“ Share
” means a share of the Common Stock, as adjusted in
accordance with Section 13.
“ Stock
Appreciation Right ” or “ SAR ” means
the right to receive payment from the Company in an amount no
greater than the excess of the Fair Market Value of a Share at the
date the SAR is exercised over a specified price fixed by the
Administrator in the Award Agreement, which shall not be less than
the Fair Market Value of a Share on the Grant Date. In the
case of a SAR which is granted in connection with an Option, the
specified price shall be the Option exercise price.
“
Subsidiary ” means a "subsidiary corporation", whether
now or hereafter existing, as defined in Section 424(f) of the
Code.
“ Ten Percent
Owner ” means any Service Provider who is, on the grant
date of an ISO, the owner of Shares (determined with application of
ownership attribution rules of Code Section 424(d)) possessing more
than 10% of the total combined voting power of all classes of stock
of the Company or any of its Subsidiaries.
3.
Stock Subject to the
Plan .
a.
Stock Subject to the
Plan .
Subject to the provisions of Section 13, the maximum
aggregate number of Shares that may be issued under the Plan is 1.0
million (1,000,000) Shares. The Shares may be authorized but
unissued, or reacquired Common Stock.
b.
Lapsed Awards
. If an Award
expires or becomes unexercisable without having been exercised in
full or, with respect to Restricted Stock, Restricted Stock Units,
Performance Shares or Performance Units, is forfeited in whole or
in part to the Company, the unpurchased Shares (or for Awards other
than Options and SARs, the forfeited or unissued Shares) which were
subject to the Award will become available for future grant or sale
under the Plan (unless the Plan has terminated). With respect to
SARs, only Shares actually issued pursuant to a SAR will cease to
be available under the Plan; all remaining Shares subject to the
SARs will remain available for future grant or sale under the Plan
(unless the Plan has terminated). Shares that have actually been
issued under the Plan under any Award will not be returned to the
Plan and will not become available for future distribution under
the Plan; provided, however, that if Shares issued pursuant to
Awards of Restricted Stock, Restricted Stock Units, Performance
Shares or Performance Units are forfeited to the Company, such
Shares will become available for future grant under the Plan.
Shares withheld by the Company to pay the exercise price of an
Award or to satisfy tax withholding obligations with respect to an
Award will become available for future grant or sale under the
Plan. To the extent an Award under the Plan is paid out in cash
rather than Shares, such cash payment will not result in reducing
the number of Shares available for issuance under the
Plan.
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c.
Share Reserve
. The Company,
during the term of this Plan, will at all times reserve and keep
available such number of Shares as will be sufficient to satisfy
the requirements of the Plan.
4.
Administration of the
Plan .
a.
Procedure . The Plan shall be
administered by the Board or a Committee (or Committees) appointed
by the Board, which Committee shall be constituted to comply with
Applicable Laws. If and so long as the Common Stock is
registered under Section 12(b) or 12(g) of the Exchange Act, the
Board shall consider in selecting the Administrator and the
membership of any committee acting as Administrator the
requirements regarding (i) “nonemployee directors”
within the meaning of Rule 16b-3 under the Exchange Act; (ii)
“independent directors” as described in the listing
requirements for any stock exchange on which Shares are listed; and
(iii) Section 15(b)(i) of the Plan if the Company pays salaries for
which it claims deductions that are subject to the Code section
162(m) limitation on its U.S. tax returns. The Board may
delegate the responsibility for administering the Plan with respect
to designated classes of eligible Participants to different
committees consisting of two or more members of the Board, subject
to such limitations as the Board or the Administrator deems
appropriate. Committee members shall serve for such term as
the Board may determine, subject to removal by the Board at any
time.
b.
Powers of the
Administrator . Subject to the provisions
of the Plan and the approval of any relevant authorities, and in
the case of a Committee, subject to the specific duties delegated
by the Board to such Committee, the Administrator will have the
authority, in its discretion:
i.
to determine the Fair
Market Value;
ii.
to select the Service
Providers to whom Awards may be granted hereunder;
iii.
to determine the number
of Shares to be covered by each Award granted hereunder;
iv.
to approve forms of
agreement for use under the Plan;
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v.
to determine the terms
and conditions, not inconsistent with the terms of the Plan, of any
Award granted hereunder. Such terms and conditions include,
but are not limited to, the exercise price, the time or times when
Awards may be exercised (which may be based on continued
employment, continued service or performance criteria), any
vesting acceleration (whether by reason of a Change of Control or
otherwise) or waiver of forfeiture restrictions, and any
restriction or limitation regarding any Award or the Shares
relating thereto, based in each case on such factors as the
Administrator, in its sole discretion, will determine;
vi.
subject to Section 15(c)
of the Plan, to reduce, without prior stockholder approval, the
exercise price of any Award to the then current Fair Market Value
of the Common Stock covered by such Award if the Fair Market Value
has declined since the Grant Date;
vii.
to construe and
interpret the terms of the Plan and Awards granted pursuant to the
Plan, including the right to construe disputed or doubtful Plan and
Award provisions;
viii.
to prescribe, amend and
rescind rules and regulations relating to the Plan;
ix.
to modify or amend each
Award (subject to Section 19(c)) to the extent any modification or
amendment is consistent with the terms of the Plan. The
Administrator shall have the discretion to extend the exercise
period of Options generally provided the exercise period is not
extended beyond the earlier of the original term of the Option or
10 years from the original grant date, or specifically (1) if the
exercise period of an Option is extended (but to no more than 10
years from the original grant date) at a time when the exercise
price equals or exceeds the fair market value of the Optioned
Shares or (2) an Option cannot be exercised because such exercise
would violate Applicable Laws, provided that the exercise period is
not extended more than 30 days after the exercise of the Option
would no longer violate Applicable Laws.
x.
to allow Participants to
satisfy withholding tax obligations in such manner as prescribed in
Section 14;
xi.
to authorize any person
to execute on behalf of the Company any instrument required to
effect the grant of an Award previously granted by the
Administrator;
xii.
to delay issuance of
Shares or suspend Participant’s right to exercise an Award as
deemed necessary to comply with Applicable Laws; and
xiii.
to make all other
determinations deemed necessary or advisable for administering the
Plan.
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c.
Effect of
Administrator’s Decision . The Administrator’s
decisions, determinations and interpretations will be final and
binding on all Participants and any other holders of Awards.
Any decision or action taken or to be taken by the
Administrator, arising out of or in connection with the
construction, administration, interpretation and effect of the Plan
and of its rules and regulations, shall, to the maximum extent
permitted by Applicable Laws, be within its absolute discretion
(except as otherwise specifically provided in the Plan) and shall
be final, binding and conclusive upon the Company, all Participants
and any person claiming under or through any
Participant.
5.
Eligibility . NSOs, Restricted Stock,
Restricted Stock Units, SARs, Performance Units and Performance
Shares may be granted to Service Providers. ISOs may be
granted as specified in Section 15(a).
6.
Stock
Options .
a.
Grant of
Options .
Subject to the terms and conditions of the Plan, the
Administrator, at any time and from time to time, may grant Options
to Service Providers in such amounts as the Administrator will
determine in its sole discretion. For purposes of the
foregoing sentence, Service Providers shall include prospective
employees or consultants to whom Options are granted in connection
with written offers of employment or engagement of services,
respectively, with the Company; provided that no Option granted to
a prospective employee or consultant may be exercised prior to the
commencement of employment or services with the Company. The
Administrator may grant NSOs, ISOs, or any combination of the two.
ISOs shall be granted in accordance with Section 15(a) of the
Plan.
b.
Option Award
Agreement .
Each Option shall be evidenced by an Award Agreement that
shall specify the type of Option granted, the Option price, the
exercise date, the term of the Option, the number of Shares to
which the Option pertains, and such other terms and conditions
(which need not be identical among Participants) as the
Administrator shall determine in its sole discretion. If the
Award Agreement does not specify that the Option is to be treated
as an ISO, the Option shall be deemed a NSO.
c.
Exercise
Price .
The per Share exercise price for the Shares to be issued
pursuant to exercise of an Option will be no less than the Fair
Market Value per Share on the Grant Date.
d.
Term of
Options .
The term of each Option will be stated in the Award
Agreement. Unless terminated sooner in accordance with the
remaining provisions of this Section 6, each Option shall expire
either ten (10) years after the Grant Date, or after a shorter term
as may be fixed by the Board.
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e.
Time and Form of
Payment .
i.
Exercise
Date .
Each Award Agreement shall specify how and when Shares
covered by an Option may be purchased. The Award Agreement
may specify waiting periods, the dates on which Options become
exercisable or “vested” and, subject to the termination
provisions of this section, exercise periods. The
Administrator may accelerate the exercisability of any Option or
portion thereof.
ii.
Exercise of
Option .
Any Option granted hereunder will be exercisable according to
the terms of the Plan and at such times and under such conditions
as determined by the Administrator and set forth in the Award
Agreement. An Option may not be exercised for a fraction of a
Share. An Option will be deemed exercised when the Company
receives: (1) notice of exercise (in such form as the Administrator
specify from time to time) from the person entitled to exercise the
Option, and (2) full payment for the Shares with respect to which
the Option is exercised (together with all applicable withholding
taxes). Full payment may consist of any consideration and
method of payment authorized by the Administrator and permitted by
the Award Agreement and the Plan (together with all applicable
withholding taxes). Shares issued upon exercise of an Option
will be issued in the name of the Opt
