Grant Date: | __________, 20____ | ||||
Expiration Date: | mm/dd/yyyy | ||||
Number of Phantom Options: | __________________. Each Phantom Option provides you with the opportunity to receive a cash bonus upon exercise equal to the difference between the Fair Market Value of a Share on the date of exercise and the exercise price stated below. | ||||
Exercise Price: | U.S. $_____________ | ||||
Vesting: | Your Phantom Options will vest and become exercisable as follows, provided that you are employed by the Company or an Affiliate on the applicable vesting date: [insert vesting schedule] |
Exercise & Payment of Cash Bonus: | You may exercise your Phantom Options only to the extent vested and only if they have not terminated. Phantom Options may not be exercised after the expiration date set forth above, or the earlier date that they terminate in connection with your termination of service, as set forth below. In addition, your ability to exercise your Phantom Options may be restricted by the Company if required by applicable law. You may exercise your Phantom Options by completing your transaction on-line using the account provided by the Company’s designated stock plan administrator. As soon as administratively practicable following completion of your on-line exercise, the Company will make a cash payment in local currency to you equal to result of the following formula, less any applicable tax withholding and/or any other required withholdings: # of Phantom Options Exercised x (Fair Market Value of Share on Exercise Date – Exercise Price) For purposes of the foregoing, the amount of the cash payment in local currency shall be determined using the US$/RMB currency conversion rate (as determined by the Company) on the date the Phantom Options are exercised. | ||||
Termination of Service: | Upon termination of your employment for any reason, any unvested Phantom Options will be forfeited. Your vested Phantom Options will be treated according to the following rules upon termination: Death or Disability. If your service with the Company and its Affiliates terminates due to your death or disability (as determined pursuant to local law), then you may exercise your Phantom Options to the extent vested for up to 12 months after your termination date. If someone else wants to exercise your Phantom Options after your death, that person must contact the Company and prove to the Company’s satisfaction that he or she is entitled to do so. For Cause Termination. All of your Phantom Options will be terminated immediately if the Company or an Affiliate terminates your employment or service for Cause, or if your employment or service is terminated at a time when you could be terminated for Cause. In addition, if you are not terminated for Cause but the Administrator later determines that you could have been terminated for Cause if all facts had been known at that time, your Options will terminate immediately on the date of such determination. If you have submitted a notice of exercise while the Administrator is considering whether you should be (or could have been) terminated for Cause, your exercise will be suspended pending such determination. If it is determined that you are (or could have been) terminated for Cause, your Phantom Options will terminate and your notice of exercise will be rescinded. For purposes of this award, “Cause” means any of the circumstances listed in Article 39 or Article 40(2) of the Employment Contract Law of the People’s Republic of China (“ECL”), or equivalent circumstances if the ECL is amended or superseded following the date of execution of this Agreement. For the avoidance of doubt, any termination of employment by the Company based on the circumstances covered in this clause shall be considered for Cause for the purposes of this Award, regardless of whether or not such termination is ultimately deemed lawful under the employment laws of the applicable jurisdiction where you are employed. The following circumstances are meant to be an illustrative and not exhaustive list of examples of “serious violations of company rules” that may lead to termination of employment for Cause: •The Company determines that you failed to carry out, or comply with, in each case in any material respect, any lawful and reasonable directive of the Company, the Board, or any of their respective designees consistent with the terms of your employment which is not remedied within 30 days after the receipt of written notice from the Company or any of its Affiliates specifying such failure. •your unlawful use (including being under the influence) or possession of illegal drugs; •your commission of an act of fraud, embezzlement, misappropriation, willful misconduct, or breach of fiduciary duty against the Company or any of its Affiliates. •Your breach of any of the restrictive covenants contained in Appendix or any similar provisions contained in any other agreement with the Company or an Affiliate. All Other Terminations. If your service with the Company terminates for any reason other than by the Company for Cause or due to your death or disability, then you may exercise your Phantom Options to the extent vested as of the last day of your service for up to 90 days after your termination date. Notwithstanding anything in this agreement or the Plan to the contrary, and for purposes of clarity, unless otherwise determined by the Administrator in its sole discretion, any termination of employment shall be effective as of the date your active employment ceases and shall not be extended by any statutory or common law notice of termination period. For clarity, the foregoing provisions supersede Sections 13(a) through (e) of the Plan. |
Change of Control: | Upon a Change of Control, your Phantom Options will be treated as provided in Appendix A to the Plan. | ||||
Transferability of Award: | Except as otherwise provided in the Plan, you may not assign, alienate, sell or transfer this Award for any reason, other than under your will or as required by the laws of descent and distribution. Your Award also may not be pledged, attached, or otherwise encumbered. Any purported assignment, alienation, sale, transfer, pledge, attachment or encumbrance of your Award in violation of its terms shall be null and void and unenforceable against the Company or any Affiliate. | ||||
Tax Withholding: | To the extent that the grant, vesting or exercise of the Phantom Options requires the Company or an Affiliate to withhold taxes or any other amounts, then the Company will withhold any amount necessary to satisfy such withholding obligations from the gross amount of the cash payment in settlement of the Phantom Options or from your salary or other amounts payable to you. In the event the withholding requirements are not satisfied through the foregoing methods, then the Company will not issue any cash payment with respect to the Phantom Options unless and until you make satisfactory arrangements (as determined by the Company) with respect to any withholding obligations. By accepting this Award, you expressly consent to the withholding provisions provided herein. Any other taxes that may be due as a result of the Phantom Options shall be your sole responsibility. | ||||
Restrictive Covenants: | By accepting this Award, you agree to the restrictive covenants and other provisions contained in the Appendix hereto. |
Miscellaneous: | •As a condition of the granting of this Award, you agree, for yourself and your legal representatives or guardians, that this Award and the Plan shall be interpreted by the Administrator and that any interpretation by the Administrator of the terms of this Award or the Plan and any determination made by the Administrator pursuant to this Award or the Plan shall be final, binding and conclusive. •As a condition of the granting of this Award, you agree, for yourself and your legal representatives or guardians, that this Award, and any Shares issued or cash paid pursuant to this Award, shall be subject to (A) any recoupment, clawback, equity holding, stock ownership or similar policies adopted by the Company from time to time (to the extent contemplated by such policies) and (B) any recoupment, clawback, equity holding, stock ownership or similar requirements made applicable by law, regulation or listing standards to the Company from time to time (to the extent contemplated by such requirements). •In general, this Award may be amended only by written consent signed by both you and the Company, unless the amendment is not to your detriment. Notwithstanding the foregoing, this Award may be amended or terminated by the Administrator or the Company without your consent in accordance with the provisions of the Plan. •The failure of the Company to enforce any provision of this Award at any time shall in no way constitute a waiver of such provision or of any other provision hereof. •This Award shall be binding upon and inure to the benefit of you and your heirs and personal representatives and the Company and its successors and legal representatives. •If you transfer residence and/or employment to another country, then the Company may establish additional special terms and conditions as may be necessary or advisable to accommodate your transfer and/or administration of the Phantom Options. Such terms and conditions shall be reflected in an addendum to this agreement (the “Addendum”), and in all circumstances, such Addendum shall constitute part of this agreement and the Award. |
Prospectus Delivery/Access: | •By accepting this Award you acknowledge that a prospectus for the Plan, along with a copy of the Plan and the Company’s most recent Annual Report to Shareholders, has been made available to you electronically via the Company’s designated stock plan administrator’s web portal. •A paper copy of the prospectus for the Plan is also available to participants upon request. |