chinaswinegeneticss8ex4-1.htm


    
      

      

    

    
      EXHIBIT
4.1

      


      CHINA
SWINE GENETICS, INC.

      


      2009
Stock and Stock Option Plan

      


      Article
1. Establishment and Purpose

      


      1.1  Establishment of the
Plan.  China Swine Genetics, Inc., a Delaware corporation (the
“Company” or “China Swine Genetics”), hereby establishes an incentive
compensation plan (the “Plan”), as set forth in this document.

      


      1.2  Purpose of the
Plan.  The purpose of the Plan is to promote the success and
enhance the value of the Company by linking the personal interests of
Participants to those of the Company's
shareholders, and by providing Participants with an incentive for outstanding
performance. The Plan is further intended to attract and retain the services of
Participants upon whose judgment, interest, and special efforts the successful
operation of China Swine Genetics and its subsidiaries is
dependent.

      


      1.3  Effective Date of the
Plan.  The Plan shall become effective on October 21,
2009.

      


      Article
2. Definitions

      


      Whenever used in the Plan, the
following terms shall have the meanings set forth below and, when the meaning is
intended, the initial letter of the word is capitalized:

      


      (a)  “Award” means,
individually or collectively, a grant under this Plan of Stock, Stock Options,
or Restricted Stock.

      


      (b)  “Award Agreement” means
an agreement which may be entered into by each Participant and the Company,
setting forth the terms and provisions applicable to Awards granted to
Participants under this Plan.

      


      (c)  “Board” or “Board of
Directors” means the Company’s Board of Directors.

      


      (d)  “Cause” shall mean
willful and gross misconduct on the part of an Eligible Person that is
materially and demonstrably detrimental to the Company or any Subsidiary as
determined by the Committee in its sole discretion.


      
        
           


        

        
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      (e)  “Change in Control”
shall be deemed to have occurred if (i) any “person” (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act), other than (A) a person who on
October 21, 2009 was the beneficial owner of more than 25% of the outstanding
Shares, (B) a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or (C) a corporation owned directly or indirectly by
the shareholders of the Company in substantially the same proportions as their
ownership of stock of the Company, is  or becomes the “beneficial
owner” (as defined in Rule 13d-3 under said 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, or (ii) during any period of two (2) consecutive years, individuals
who at the beginning of such period constitute the Board of Directors of
the  Company and any new Director whose election by the Board
of  Directors or nomination for election by the
Company's  shareholders was approved by a vote of at least two-thirds
(2/3) of the Directors then still in office who either were  Directors
at the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof,
or (iii) the shareholders of the Company approve 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) at least fifty-five percent (55%)
of the  total voting power represented by the voting securities of the
Company or such surviving entity outstanding immediately  after such
merger or consolidation, or the shareholders of  the Company approve a
plan of complete liquidation of the  Company or an agreement for the
sale or disposition by the  Company of all or substantially all the
Company’s assets.

      


      (f)  “Code” means the
Internal Revenue Code of 1986, as amended from time to time.

      


      (g)  “Committee” means the
committee or committees, as specified in Article 3, appointed by the Board to
administer the Plan with respect to grants of Awards.

      


      (h) “Consultant” means a natural person
under contract with the Company to provide bona fide services to the
Company which are not in connection with the offer or sale of securities in a
capital-raising transaction and do not directly or indirectly promote or
maintain a market for the Company’s securities.

      


      (i)  “Director”
means any individual who is a member of the China Swine Genetics Board of
Directors.

      


      (j)  “Disability” shall mean
the Participant’s inability to perform the Participant’s normal Employment
functions due to any medically determinable physical or mental disability, which
can last or has lasted 12 months or is expected to result in death.

      


      (k) “Eligible Person” means an
Employee, Director or Consultant.

      


      (l)  “Employee” means any
officer or employee of the Company or of one of the Company's
Subsidiaries.  Directors who are not otherwise employed by the Company
shall not be considered Employees under this Plan.


      
        
           


        

        
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      (m)  “Employment,” with
reference to an Employee, means the condition of being an officer or employee of
the Company or one of its Subsidiaries.  “Employment,” with reference
to a Consultant, means the condition of being a
Consultant.  “Employment,” with reference to a Director, means the
condition of being a Director.  The change in status of an Eligible
Person among the categories of Employee, Director and Consultant shall not be
deemed a termination of Employment.

      


      (n)  “Exchange Act” means the
Securities Exchange Act of 1934, as amended from time to time, or any successor
Act thereto.

      


      (o)  “Exercise
Price” means the price at which a Share may be purchased by a Participant
pursuant to an Option, as determined by the Committee.

      


      (p)  “Insider” shall mean an
Eligible Person who is, on the relevant date, an officer, director, or ten
percent (10%) beneficial owner of the Company, as those terms are defined under
Section 16 of the Exchange Act.

      


      (q)  “Option” or “Stock
Option” shall mean an option to purchase Shares granted hereunder.

      


      (r)  “Participant” means a
person who holds an outstanding Award granted under the Plan.

      


      (s) “Plan” means this 2009 Stock and
Stock Option Plan.

      


      (t)  “Restricted Stock” means
an Award of Stock granted to an Eligible Person pursuant to Article 7
herein.

      


      (u) “Restriction Period” means the
period during which Shares of Restricted Stock are subject to restrictions or
conditions under Article 7.

      


      (v)  “Shares” or “Stock”
means the shares of common stock of the Company.

      


      (w)
“Subsidiary” shall mean any corporation in which the  Company owns
directly, or indirectly through  subsidiaries, more than fifty percent
(50%) of the total combined voting power of all classes of Stock, or any
other  entity (including, but not limited to, partnerships
and  joint ventures) in which the Company owns more than
fifty  percent  (50%) of the combined equity
thereof.

      


      Article
3. Administration

      


      3.1  The
Committee.   The Plan and all Awards hereunder shall be
administered by one or more Committees of the Board as may be appointed by the
Board for this purpose.  The Board may appoint a Committee
specifically responsible for Awards to Insiders (the “Disinterested Committee”)
where each Director on such Disinterested Committee is a “Non-Employee Director”
(or any successor designation for determining who may administer plans,
transactions or awards exempt under Section 16(b) of the Exchange Act), as that
term is used in Rule 16b-3 under the Exchange Act, as that rule may be modified
from time to time.  If no specific Committee is appointed by the
Board, then the Board in its entirety shall be the Committee.  Any
Committee may be replaced by the Board at any time.


      
        
           


        

        
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      3.2 Authority of the
Committee.  The Committee shall have full power, except as
limited by law and subject to the provisions herein, to select the recipients of
Awards; to determine the size and types of Awards; to determine the terms and
conditions of such Awards in a manner consistent with the Plan; to construe and
interpret the Plan and any agreement or instrument entered into under the Plan;
to establish, amend, or waive rules and regulations for the Plan's
administration; and to amend the terms and conditions of any outstanding Award
to the extent such terms and conditions are within the discretion of the
Committee as provided in the Plan.  Further, the Committee shall make
all other determinations which may be necessary or advisable for the
administration of the Plan.

      


      No Award may be made under the Plan
after December 31, 2014.

      


      All determinations and decisions made
by the Committee pursuant to the provisions of the Plan and all related orders
or resolutions of the Board shall be final, conclusive, and binding on all
persons, including the Company, its stockholders, Eligible Persons,
Participants, and their estates and beneficiaries.

      


      Subject to the terms of this Plan, the
Committee is authorized, and shall not be limited in its discretion, to use any
of the Performance Criteria specified herein in its determination of Awards
under this Plan.

      


      Article
4. Shares Subject to the Plan

      


      4.1 Number of
Shares.  Subject to adjustment as provided in Section 4.3
herein, the number of Shares available for grant under the Plan shall not exceed
one million (1,000,000) Shares.  The Shares granted under this Plan
may be either authorized but unissued or reacquired Shares.

      


      4.2 Lapsed
Awards.  If any Award granted under this Plan is canceled,
terminates, expires, or lapses for any reason, Shares subject to such Award
shall be again available for the grant of an Award under the Plan.

      


      4.3 Adjustments in Authorized
Plan Shares.  In the event of any merger, reorganization,
consolidation, recapitalization, separation, liquidation, Stock dividend,
split-up, Share combination, or other change in the corporate structure of the
Company affecting the Shares, an adjustment shall be made in the number and
class of Shares which may be delivered under the Plan, and in the number and
class of and/or price of Shares subject to outstanding Awards granted under the
Plan, and/or the number of outstanding Options and Shares of Restricted Stock
constituting outstanding Awards, as may be determined to be appropriate and
equitable by the Committee, in its sole discretion, to prevent dilution or
enlargement of rights.


      
        
           


        

        
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      Article
5.  Stock Grant

      


      5.1  Grant of
Stock.  Subject to the terms and provisions of the Plan, the
Board of Directors, at any time and from time to time, may grant Shares of Stock
to Eligible Persons in such amounts and upon such terms and conditions as the
Board of Directors shall determine.

      


      Article
6. Stock Options

      


      6.1  Grant of
Options.  Subject to the terms and provisions of the Plan,
Options may be granted to Eligible Persons at any time and from time to time,
and under such terms and conditions, as shall be determined by the
Committee.  The Committee shall have discretion in determining the
number of Shares subject to Options granted to each Eligible
Person.

      


      6.2  Form of
Issuance.  Each Option grant may be issued in the form of an
Award Agreement and/or may be recorded on the books and records of the Company
for the account of the Participant. If an Option is not issued in the form of an
Award Agreement, then the Option shall be deemed granted as determined by the
Committee.  The terms and conditions of an Option shall be set forth
in the Award Agreement, in the notice of the issuance of the grant, or in such
other documents as the Committee shall determine.  Such terms and
conditions shall include the Exercise Price, the duration of the Option, the
number of Shares to which an Option pertains (unless otherwise provided by the
Committee, each Option may be exercised to purchase one Share), and such other
provisions as the Committee shall determine.

      


      6.3  Exercise
Price.  The Exercise Price of an Option shall be determined by
the Committee in its sole discretion.

      


      6.4  Duration of
Options.  Each Option shall expire at such time as the
Committee shall determine at the time of grant (which duration may be extended
by the Committee); provided, however, that no Option shall be exercisable later
than the tenth (10th)
anniversary date of its grant.  If, however, the Eligible Person owns
stock possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or of its parent or subsidiary
corporations, then no Option shall be exercisable later than the fifth (5th)
anniversary date of its grant.

      


      6.5  Vesting of
Options.  Options shall vest at such times and under such terms
and conditions as determined by the Committee; provided, however, unless a
different vesting period is provided by the Committee at or before the grant of
an Option, the Options will vest on the first anniversary of the
grant.

      


      6.6  Exercise of
Options.  Options granted under the Plan shall be exercisable
at such times and be subject to such restrictions and conditions as the
Committee shall in each instance approve, which need not be the same for each
grant or for each Participant.

      


      Options shall be exercised by delivery
of a written notice (including e-mail and telecopies) to the Secretary of the
Company (or, if so provided by the Company, to its designated agent), which
notice shall be irrevocable, setting forth the exact number of Shares with
respect to which the Option is being exercised and including with such notice
payment of the Exercise Price.  When Options have been transferred,
the Company or its designated agent may require appropriate documentation that
the person or persons exercising the Option, if other than the Participant, has
the right to exercise the Option.   No Option may be exercised
with respect to a fraction of a Share.


      
        
           


        

        
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      6.7  Termination of
Employment.  Unless otherwise provided by the Committee, the
following limitations on exercise of Options shall apply upon termination of
Employment:

      


      (a) Termination by Death or
Disability.  In the event the Employment of a Participant shall
terminate by reason of death or Disability, all outstanding Options granted to
that Participant shall immediately vest as of the date of termination of
Employment and may be exercised, if at all, no more than three (3) years from
the date of the termination of Employment, unless the Options, by their terms,
expire earlier.

      


      (b)  Termination for
Cause.  If the Employment of a Participant shall be terminated
by the Company for Cause, all outstanding Options held by the Participant shall
immediately be forfeited to the Company and no additional exercise period shall
be allowed, regardless of the vested status of the Options.

      


      (c)  Retirement or Other
Termination of Employment.  If the Employment of a Participant
shall terminate for any reason other than the reasons set forth in (a) or (b)
above, all outstanding Options which are vested as of the effective date of
termination of Employment may be exercised, if at all, no more than thirty (30)
days from the date of termination of Employment, unless the Options, by their
terms, expire earlier.  In the event of the death of the Participant
after termination of Employment, this paragraph (c) shall still apply and not
paragraph (a), above.

      


      (d)  Options not Vested at
Termination.  Except as provided  in paragraph (a)
above, all Options held by the Participant  which are not vested on or
before the effective date of termination of Employment shall immediately be
forfeited to the Company (and shall once again become available for
grant  under the Plan).

      


      (e)  Notwithstanding the
foregoing, the Committee may, in its sole discretion, establish different terms
and conditions pertaining to the effect of termination of Employment, but no
such modification shall shorten the terms of Options issued prior to such
modification.

      


      6.9  Restrictions on Exercise and
Transfer of Options.  Unless otherwise provided by the
Committee:

      


      (a)  During the Participant's
lifetime, the Participant’s Options shall be exercisable only by the Participant
or by the Participant’s guardian or legal representative.  After the
death of the Participant, an Option shall only be exercised by the holder
thereof (including, but not limited to, an executor or administrator of a
decedent's estate) or his guardian or legal representative.

      


      (b)  No Option shall be
transferable except: (i) in the case of the Participant, only upon the
Participant’s death; and (ii) in the case of any holder after the Participant’s
death, only by will or by the laws of descent and distribution.


      
        
           


        

        
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      6.10  Competition.  Notwithstanding
anything in this Article 6 to the contrary, in the event the Committee
determines, in its sole discretion, that a Participant is engaging in activity
competitive with the Company, any Subsidiary, or any business in which any of
the foregoing have a substantial interest (the “China Swine Genetics
Businesses”), the Committee may cancel any Option granted to such Participant,
whether or not vested, in whole or in part.  Such cancellation shall
be effective as of the date specified by the Committee.  Competitive
activity shall mean any business or activity if a substantially similar business
activity is being carried on by a China Swine Genetics Business, including, but
not limited to, representing or providing consulting services to any person or
entity that is engaged in competition with a China Swine Genetics Business or
that takes a position adverse to a China Swine Genetics
Business.  However, competitive activity shall not include, among
other things, owning a nonsubstantial interest as a shareholder in a competing
business.

      


      Article
7. Restricted Stock

      


      7.1  Grant of Restricted
Stock.  Subject to the terms and provisions of the Plan, the
Committee, at any time and from time to time, may grant Shares of Restricted
Stock to Eligible Persons in such amounts and upon such terms and conditions as
the Committee shall determine.

      


      7.2  Restricted Stock
Agreement.  The Committee may require, as a condition to an
Award, that a recipient of a Restricted Stock Award enter into a Restricted
Stock Award Agreement, setting forth the terms and conditions of the
Award.  In lieu of a Restricted Stock Award Agreement, the Committee
may provide the terms and conditions of an Award in a notice to the Participant
of the Award, on the Stock certificate representing the Restricted Stock, in the
resolution approving the Award, or in such other manner as it deems
appropriate.

      


      7.3  Transferability.  Except
as otherwise provided in this Article 7, the Shares of Restricted Stock granted
herein may not be sold, transferred, pledged, assigned, or otherwise alienated
or hypothecated until the end of the applicable Restriction Period established
by the Committee, if any.

      


      7.4  Other
Restrictions.  The Committee may impose such other conditions
and/or restrictions on any Shares of Restricted Stock granted pursuant to the
Plan as it may deem advisable including, without limitation, a requirement that
Participants pay a stipulated purchase price for each Share of Restricted Stock
and/or restrictions under applicable Federal or state securities laws; and may
legend the certificates representing Restricted Stock to give appropriate notice
of such restrictions.

      


      The Company shall also have the right
to retain the certificates representing Shares of Restricted Stock in the
Company's possession until such time as all conditions and/or restrictions
applicable to such Shares have been satisfied.


      
        
           


        

        
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      7.5  Removal of
Restrictions.  Except as otherwise provided in this Article 7,
Shares of Restricted Stock covered by each Restricted Stock grant made under the
Plan shall become freely transferable by the Participant after the last day of
the Restriction Period and completion of all conditions to vesting, if
any.  However, unless otherwise provided by the Committee, the
Committee, in its sole discretion, shall have the right to immediately waive all
or part of the restrictions and conditions with regard to all or part of the
Shares held by any Participant at any time.

      


      7.6  Voting Rights, Dividends and
Other Distributions. During the Restriction Period, Participants holding
Shares of Restricted Stock granted hereunder may exercise full voting rights and
shall receive all regular cash dividends paid with respect to such
Shares.  Except as provided in the following sentence, in the sole
discretion of the Committee, other cash dividends and other distributions paid
to Participants with respect to Shares of Restricted Stock may be subject to the
same restrictions and conditions as the Shares of Restricted Stock with respect
to which they were paid.  If any such dividends or distributions are
paid in Shares, the Shares shall be subject to the same restrictions and
conditions as the Shares of Restricted Stock with respect to which they were
paid.

      


      7.7  Termination of Employment
Due to Death or Disability.  In the event the Employment of a
Participant shall terminate by reason of death or Disability, unless otherwise
provided by the Committee prior to or at the time of the Award, all Restriction
Periods and all restrictions imposed on outstanding Shares of Restricted Stock
held by the Participant shall immediately lapse and the Restricted Stock shall
immediately become fully vested as of the date of termination of
Employment.

      


      7.8  Termination of Employment
for Other Reasons.  If the Employment of a Participant shall
terminate for any reason other than those specifically set forth in Section 7.7
herein, all Shares of Restricted Stock held by the Participant which are not
vested as of the effective date of termination of Employment immediately shall
be forfeited and returned to the Company.

      


      Article
8.   Employee Matters

      


      8.1  Employment Not
Guaranteed.  Nothing in the Plan shall interfere with or limit
in any way the right of the Company or any Subsidiary to terminate any
Participant's Employment at any time, nor confer upon any Participant any right
to continue in the employ of the Company or one of its
Subsidiaries.

      


      8.2  Participation.  No
Eligible Person shall have the right to be selected to receive an Award under
this Plan, or, having been so selected, to be selected to receive a future
Award.

      


      8.3  Claims and
Appeals.  Any claim under the Plan by a Participant or anyone
claiming through a Participant shall be presented to the Committee. Any person
whose claim under the Plan has been denied may, within sixty (60) days after
receipt of notice of denial, submit to the Committee a written request for
review of the decision denying the claim. The Committee shall determine
conclusively for all parties all questions arising in the administration of the
Plan.


      
        
           


        

        
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      Article
9. Amendment, Modification, and Termination

      


      9.1  Amendment, Modification, and
Termination.  The Board of Directors alone shall have the right
to alter, amend or revoke the Plan or any part thereof at any time and from time
to time, provided, however, that the Board of Directors may not, without the
approval of the holders of a majority of the voting Shares, make any alteration
or amendment to the Plan which changes the aggregate number of shares of Common
Stock which may be issued under the Plan, extend the term of the Plan, or change
the employees or class of employees eligible to receive Awards thereunder. The
Board may at any time suspend or terminate the Plan in whole or in
part.

      


      9.2  Awards Previously
Granted.  No termination, amendment, or modification of the
Plan shall adversely affect in any material way any Award previously granted
under the Plan, without the written consent of the Participant holding such
Award.

      


      Article
10. Change in Control

      


      Upon the occurrence of a Change in
Control:

      


      (a)  Any and all Options
granted hereunder immediately shall become vested and exercisable;

      


      (b)  Any Restriction Periods
and all restrictions imposed on Restricted Shares shall lapse and they shall
immediately become fully vested.

      


      Article
11 Withholding

      


      11 1  Tax
Withholding.  The Company shall deduct or withhold an amount
sufficient to satisfy Federal, state, and local taxes (including the
Participant's employment tax obligations) required by law to be withheld with
respect to any taxable event arising or as a result of this Plan (“Withholding
Taxes”).

      


      11.2  Share
Withholding.  With respect to withholding required upon the
exercise of Options, upon the lapse of restrictions on Restricted Stock, or upon
any other taxable event hereunder involving the transfer of Stock to a
Participant, the Company shall withhold Stock having a Fair Market Value on the
date the tax is to be determined in an amount equal to the Withholding Taxes on
such Stock.  Any fractional Share remaining after the withholding
shall be withheld as additional Federal withholding.

      


      11.3 Payment In Lieu of Share
Withholding.  In any situation in which the Company would be
required to withhold Stock pursuant to Sec.11.2 above, the Participant may, in
lieu of all or part of such withholding, remit to the Company an amount in cash
sufficient to satisfy the federal, state and local withholding tax requirements
or may direct the Company to withhold from other amounts payable to the
Participant, including salary.


      
        
           


        

        
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      Article
12. Successors

      


      All obligations of the Company under
the Plan, with respect to Awards granted hereunder, shall be binding on any
successor to the Company, whether the existence of such successor is the result
of a direct or indirect purchase, merger, consolidation, or otherwise, of all or
substantially all of the business and/or assets of the Company.

      


      Article
13. Legal Construction

      


      13.1  Severability.  In
the event any provision of the Plan shall be held illegal or invalid for any
reason, the illegality or invalidity shall not affect the remaining parts of the
Plan, and the Plan shall be construed and enforced as if the illegal or invalid
provision had not been included.

      


      13.2  Requirements of
Law.  The granting of Awards and the issuance of Shares under
the Plan shall be subject to all applicable laws, rules, and regulations, and to
such approvals by any governmental agencies or national securities exchanges as
may be required.

      


      13.3  Securities Law
Compliance.  With respect to Insiders, transactions under this
Plan are intended to comply with all applicable conditions of Rule 16b-3 or its
successors under the Exchange Act.  To the extent any provision of the
plan or action by the Committee fails to comply with a condition of Rule 16b-3
or its successors, it shall not apply to the Insiders or transactions
thereby.

      


      13.4  Governing
Law.  To the extent not preempted by Federal law, the Plan, and
all agreements hereunder, shall be construed in accordance with and governed by
the laws of the State of Delaware.

       

       

      
 

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