UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C.
20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE
ACT OF 1934
Date of Report (Date of Earliest Event Reported): December
22, 2015
NUTRASTAR INTERNATIONAL
INC.
(Exact name of registrant as specified in its
charter)
| Nevada |
000-52899 |
80-0264950 |
| (State of Incorporation) |
(Commission File No.) |
(IRS Employer ID No.) |
4/F Yushan Plaza
51 Yushan Road
Nangang
District, Harbin 150090
People's Republic of China
(Address of Principal Executive Offices)
(86) 451-82287746
(Registrant’s Telephone
Number, Including Area Code)
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule
425 under the Securities Act (17 CFR.425)
[ ] Soliciting material pursuant to Rule
14a-12 under the Exchange Act (17 CFR 240.14a -12)
[ ] Pre-commencement communications pursuant to
Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d -2(b))
[ ] Pre-commencement communications pursuant to
Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e -4(c))
ITEM 5.02. DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS.
On December 22, 2015, the board of directors (the “Board”) of Nutrastar International Inc. (the “Company”), in accordance with Article III of the Company’s Amended and Restated Bylaws, elected Mr. David Chong as
director (“Mr. Chong”) of the Company to fill the vacancy created by Henry Ngan’s resignation. The Board has also determined that Mr. Chong is an “independent director” as defined by Rule 5605(a)(2) of the NASDAQ
Listing Rules. Mr. Chong is expected to be named to one or more committees of the Board, however, no determination has yet been made as to which committees he will be named.
On the same day, the Company entered into an Independent Director Contract and an Indemnification Agreement with Mr. Chong. Under the terms of the Independent Director Contract, the Company agreed to grant, under the Company’s 2009 Equity
Incentive Plan (the “Plan”), to Mr. Chong, 40,000 restricted shares of the Company’s common stock (the "Restricted Shares") as compensation for the services to be provided by him as a director of the Company. Under the terms of the
Indemnification Agreements, the Company agreed to indemnify Mr. Chong against expenses, judgments, fines, penalties or other amounts actually and reasonably incurred by Mr. Chong in connection with any proceeding if Mr. Chong acted in good faith and
in the best interests of the Company.
On December 22, 2015, the Company also entered into a restricted shares grant agreement with Mr. Chong to evidence the grant of the Restricted Shares (the "Restricted Shares Grant Agreement"). The Restricted Shares will vest in equal installments on
a semi-annual basis over a two-year period. If Mr. Chong’s service with the Company ceases for any reason other than his (a) death, (b) disability, (c) retirement, or (d) termination by the Company without cause, any unvested Restricted Shares
will be automatically forfeited to the Company.
The foregoing descriptions of the Independent Director Contract, the Indemnification Agreement and the Restricted Shares Grant Agreement do not purport to be complete and are qualified in their entirety by reference to the Independent Director
Contract, the Indemnification Agreement and the Restricted Shares Grant Agreement which are filed as Exhibits 10.1, 10.2 and 10.3 to this Current Report on Form 8-K, respectively, and are incorporated herein by reference.
Mr. David Chong, a citizen of Singapore, is currently a founder and director of Industrial Conservation of Energy Pte Ltd., a Singapore company. Mr. Chong was an Investor Relation consultant with China Recycling Energy Corporation (Nasdaq: CREG)
until September 2015 and served as CREG’s Chief Financial Officer and Secretary from January 2011 to May 2015. Prior to Mr. Chong’s appointment as CREG’s Chief Financial Officer and Secretary, he served as a consultant with CREG
since June 2010. Prior to joining CREG, Mr. Chong served as CFO for Guangdong Yan Zhi Hong Shoes Manufacturing Co., Ltd (“YZH”) from January, 2007 to December, 2010. From 1991 to 2007, Mr. Chong served as the Financial Controller for
Amtek Engineering Limited’s China Operations, where he managed the financial operations of six plants in China with annual revenues in excess of $250 million. Mr. Chong holds the qualification in Professional Accountancy Studies from ACCA
(the Association of Chartered Certified Accountants) and is fluent in both spoken and written English and Mandarin. Mr. Chong is very experienced in working with large manufacturing companies, his familiarity in navigating China, U.S., Europe,
Singapore and other capital markets and has significant expertise in international financial management and operations, auditing, funding, business development, internal control maintenance, corporate governance and investor relations.
There are no arrangements or understandings between Mr. Chong and any other persons pursuant to which Mr. Chong was selected as a director and there are no transactions between the Company and Mr. Chong that would require disclosure under Item
404(a) of Regulation S-K.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Nutrastar International Inc.
Date: December 28, 2015
/s/ Robert Tick
Chief Financial Officer
EXHIBIT INDEX
Exhibit 10.1
NUTRASTAR INTERNATIONAL INC.
INDEPENDENT
DIRECTOR’S CONTRACT
THIS AGREEMENT (this “Agreement”) is made as of December
22, 2015 and is by and between Nutrastar International Inc., a Nevada
corporation (hereinafter referred to as the “Company”) and David Chong
(hereinafter referred to as the “Director”).
BACKGROUND
The Board of Directors of the Company desires to appoint the
Director to the Board of Directors of the Company and to have the Director
perform the duties of an independent director and the Director desires to be so
appointed for such position and to perform the duties required of such position
in accordance with the terms and conditions of this Agreement.
AGREEMENT
In consideration for the above recited promises and the mutual
promises contained herein, the adequacy and sufficiency of which are hereby
acknowledged, the Company and the Director hereby agree as follows:
1. DUTIES. The Company
requires that the Director be available to perform the duties of an independent
director customarily related to this function as may be determined and assigned
by the Board of Directors of the Company and as may be required by the Company’s
constituent instruments, including its articles of incorporation, bylaws and its
corporate governance and board committee charters, each as amended or modified
from time to time, and by applicable law, including the Nevada General
Corporation Law. The Director agrees to devote as much time as is necessary to
perform completely the duties as the Director of the Company, including duties
as a member of board committees as the Director may hereafter be appointed to.
The Director will perform such duties described herein in accordance with the
general fiduciary duty of directors arising under the Nevada General Corporation
Law and Chapter 78 of the Nevada Revised Statutes.
2. TERM. The term of this
Agreement shall commence as of the date of the Director’s appointment by the
Board of Directors of the Company (in the event the Director is appointed to
fill a vacancy) or the date of the Director’s election by the stockholders of
the Company and shall continue until the Director’s removal or resignation.
3. COMPENSATION. The
Company will pay the Director a director’s fee in the form of equity
compensation. The Director will be granted 40,000 restricted shares of common
stock of the Company (the “Restricted Shares”). The Restricted Shares
shall vest in equal installments on a semi-annual basis over a two-year period.
The Restricted Shares grant shall be evidenced by a restricted stock agreement
(the “Restricted Stock Agreement”) and the Restricted Shares will be
subject to the terms and conditions of such Restricted Stock Agreement.
4. EXPENSES. In addition
to the compensation provided in paragraph 3 hereof, the Company will reimburse
the Director for pre-approved reasonable business related expenses incurred in
good faith in the performance of the Director’s duties for the Company. Such
payments shall be made by the Company upon submission by the Director of a
signed statement itemizing the expenses incurred. Such statement shall be
accompanied by sufficient documentary matter to support the expenditures.
5. CONFIDENTIALITY. The
Company and the Director each acknowledge that, in order for the intents and
purposes of this Agreement to be accomplished, the Director shall necessarily be
obtaining access to certain confidential information concerning the Company and
its affairs, including, but not limited to business methods, information
systems, financial data and strategic plans which are unique assets of the
Company (“Confidential Information”). The Director covenants not to,
either directly or indirectly, in any manner, utilize or disclose to any person,
firm, corporation, association or other entity any Confidential Information.
6. NON-COMPETE. During
the term of this Agreement and for a period of six (6) months following the
Director’s removal or resignation from the Board of Directors of the Company or
any of its subsidiaries or affiliates (the “Restricted Period”), the
Director shall not, directly or indirectly, (i) in any manner whatsoever engage
in any capacity with any business competitive with the Company’s current lines
of business or any business then engaged in by the Company, any of its
subsidiaries or any of its affiliates (the “Company’s Business”) for the
Director’s own benefit or for the benefit of any person or entity other than the
Company or any subsidiary or affiliate; or (ii) have any interest as owner, sole
proprietor, stockholder, partner, lender, director, officer, manager, employee,
consultant, agent or otherwise in any business competitive with the Company’s
Business; provided, however, that the Director may hold, directly
or indirectly, solely as an investment, not more than one percent (1%) of the
outstanding securities of any person or entity which is listed on any national
securities exchange or regularly traded in the over-the-counter market
notwithstanding the fact that such person or entity is engaged in a business
competitive with the Company’s Business. In addition, during the Restricted
Period, the Director shall not develop any property for use in the Company’s
Business on behalf of any person or entity other than the Company, its
subsidiaries and affiliates.
7. TERMINATION. With or
without cause, the Company and the Director may each terminate this Agreement at
any time upon ten (10) days written notice, and the Company shall be obligated
to pay to the Director the compensation and expenses due up to the date of the
termination. Nothing contained herein or omitted here from shall prevent the
stockholder(s) of the Company from removing the Director with immediate effect
at any time for any reason.
8. INDEMNIFICATION. The
Company shall indemnify, defend and hold harmless the Director, to the full
extent allowed by the law of the State of Nevada, and as provided by, or granted
pursuant to, any charter provision, bylaw provision, agreement (including,
without limitation, the Indemnification Agreement executed herewith), vote of
stockholders or disinterested directors or otherwise, both as to action in the
Director’s official capacity and as to action in another capacity while holding
such office. The Company and the Director are executing the Indemnification
Agreement in the form attached hereto as Exhibit A.
2
9. EFFECT OF WAIVER. The
waiver by either party of the breach of any provision of this Agreement shall
not operate as or be construed as a waiver of any subsequent breach thereof.
10. NOTICE. Any and all notices
referred to herein shall be sufficient if furnished in writing at the addresses
specified on the signature page hereto or, if to the Company, to the Company’s
address as specified in filings made by the Company with the U.S. Securities and
Exchange Commission and if by fax to 86-451-82287746.
11. GOVERNING LAW. This
Agreement shall be interpreted in accordance with, and the rights of the parties
hereto shall be determined by, the laws of the State of Nevada without reference
to that state’s conflicts of laws principles.
12. ASSIGNMENT. The rights and
benefits of the Company under this Agreement shall be transferable, and all the
covenants and agreements hereunder shall inure to the benefit of, and be
enforceable by or against, its successors and assigns. The duties and
obligations of the Director under this Agreement are personal and therefore the
Director may not assign any right or duty under this Agreement without the prior
written consent of the Company.
13. MISCELLANEOUS. If any
provision of this Agreement shall be declared invalid or illegal, for any reason
whatsoever, then, notwithstanding such invalidity or illegality, the remaining
terms and provisions of this Agreement shall remain in full force and effect in
the same manner as if the invalid or illegal provision had not been contained
herein.
14. ARTICLE HEADINGS. The
article headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
15. COUNTERPARTS. This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one instrument. Facsimile execution and delivery of
this Agreement is legal, valid and binding for all purposes.
16. ENTIRE AGREEMENT. Except as
provided elsewhere herein, this Agreement sets forth the entire agreement of the
parties with respect to its subject matter and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party to this Agreement with respect to such subject matter.
[Signature Page Follows]
3
IN WITNESS WHEREOF, the parties hereto have caused this
Independent Director’s Contract to be duly executed and signed as of the day and
year first above written.
NUTRASTAR INTERNATIONAL INC.
| BY: |
/s/
Robert Tick |
| |
Name: Robert Tick |
| |
Title: Chief Financial Officer
|
INDEPENDENT DIRECTOR
| BY: |
/s/
David Chong |
| |
Name: David Chong
|
Exhibit 10.2
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this “Agreement”), dated
as of the 22nd day of December, 2015 is made by and between Nutrastar
International Inc., a Nevada corporation (the “Company”), and David
Chong, an independent director of the Company (the “Indemnitee”).
RECITALS
A. The Company and the Indemnitee
recognize that the present state of the law is too uncertain to provide the
Company’s officers and directors with adequate and reliable advance knowledge or
guidance with respect to the legal risks and potential liabilities to which they
may become personally exposed as a result of performing their duties for the
Company;
B. The Company and the Indemnitee are
aware of the substantial growth in the number of lawsuits filed against
corporate officers and directors in connection with their activities in such
capacities and by reason of their status as such;
C. The Company and the Indemnitee
recognize that the cost of defending against such lawsuits, whether or not
meritorious, is typically beyond the financial resources of most officers and
directors of the Company;
D. The Company and the Indemnitee
recognize that the legal risks and potential liabilities, and the threat
thereof, associated with proceedings filed against the officers and directors of
the Company bear no reasonable relationship to the amount of compensation
received by the Company’s officers and directors;
E. The Company, after reasonable
investigation prior to the date hereof, has determined that the liability
insurance coverage available to the Company as of the date hereof is inadequate,
unreasonably expensive or both. The Company believes, therefore, that the
interest of the Company and its current and future stockholders would be best
served by a combination of (i) such insurance as the Company may obtain pursuant
to the Company’s obligations hereunder and (ii) a contract with its officers and
directors, including the Indemnitee, to indemnify them to the fullest extent
permitted by law (as in effect on the date hereof, or, to the extent any
amendment may expand such permitted indemnification, as hereafter in effect)
against personal liability for actions taken in the performance of their duties
to the Company;
F. Section 78.7502 of the Nevada
Revised Statutes empowers Nevada corporations to indemnify their officers and
directors and further states that the indemnification provided by Section
78.7502 shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under the articles of incorporation or any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in an official capacity and as to action in another capacity
while holding such office; thus, Section 78.7502 does not by itself limit the
extent to which the Company may indemnify persons serving as its officers and
directors;
G. The Company’s Articles of
Incorporation and Bylaws authorize the indemnification of the officers and
directors of the Company in excess of that expressly permitted by Section
78.7502;
H. The Board of Directors of the
Company has concluded that, to retain and attract talented and experienced
individuals to serve as officers and directors of the Company and to encourage
such individuals to take the business risks necessary for the success of the
Company, it is necessary for the Company to contractually indemnify its officers
and directors, and to assume for itself liability for expenses and damages in
connection with claims against such officers and directors in connection with
their service to the Company, and has further concluded that the failure to
provide such contractual indemnification could result in great harm to the
Company and its stockholders;
I. The Company desires and has
requested the Indemnitee to serve or continue to serve as a director or officer
of the Company, free from undue concern for the risks and potential liabilities
associated with such services to the Company; and
J. The Indemnitee is willing to serve,
or continue to serve, the Company, provided, and on the expressed condition,
that the Indemnitee is furnished with the indemnification provided for herein.
AGREEMENT
NOW, THEREFORE, the Company and Indemnitee agree as follows:
1. DEFINITIONS.
(a) “EXPENSES” means, for the purposes
of this Agreement, all direct and indirect costs of any type or nature
whatsoever (including, without limitation, any fees and disbursements of
Indemnitee’s counsel, accountants and other experts and other out-of-pocket
costs) actually and reasonably incurred by the Indemnitee in connection with the
investigation, preparation, defense or appeal of a Proceeding; provided,
however, that Expenses shall not include judgments, fines, penalties or amounts
paid in settlement of a Proceeding.
(b) “PROCEEDING” means, for the purposes of
this Agreement, any threatened, pending or completed action or proceeding,
whether civil, criminal, administrative or investigative (including an action
brought by or in the right of the Company) in which Indemnitee may be or may
have been involved as a party or otherwise, by reason of the fact that
Indemnitee is or was a director or officer of the Company, by reason of any
action taken by Indemnitee or of any inaction on his or her part while acting as
such director or officer or by reason of the fact that he or she is or was
serving at the request of the Company as a director, officer, employee or agent
of another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, or was a director or officer of the foreign or domestic
corporation which was a predecessor corporation to the Company or of another
enterprise at the request of such predecessor corporation, whether or not he or
she is serving in such capacity at the time any liability or expense is incurred
for which indemnification or reimbursement can be provided under this Agreement.
2. AGREEMENT TO SERVE.
Indemnitee agrees to serve or continue to serve as a director
or officer of the Company to the best of his or her abilities at the will of the
Company or under separate contract, if such contract exists, for so long as
Indemnitee is duly elected or appointed and qualified or until such time as the
Indemnitee tenders his or her resignation in writing. Nothing contained in this
Agreement is intended to create in Indemnitee any right to continued
employment.
3. INDEMNIFICATION.
(a) THIRD PARTY PROCEEDINGS. The
Company shall indemnify Indemnitee against Expenses, judgments, fines, penalties
or amounts paid in settlement (if the settlement is approved in advance by the
Company) actually and reasonably incurred by Indemnitee in connection with a
Proceeding (other than a Proceeding by or in the right of the Company) if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to
be in the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe Indemnitee’s conduct
was unlawful. The termination of any Proceeding by judgment, order, settlement,
conviction, or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not act in good faith and in a
manner which Indemnitee reasonably believed to be in the best interests of the
Company, or, with respect to any criminal Proceeding, had no reasonable cause to
believe that Indemnitee's conduct was unlawful.
(b) PROCEEDINGS BY OR IN THE RIGHT OF
THE COMPANY. To the fullest extent permitted by law, the Company shall indemnify
Indemnitee against Expenses and amounts paid in settlement, actually and
reasonably incurred by Indemnitee in connection with a Proceeding by or in the
right of the Company to procure a judgment in its favor if Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in the best
interests of the Company and its stockholders. Notwithstanding the foregoing, no
indemnification shall be made in respect of any claim, issue or matter as to
which Indemnitee shall have been adjudged liable to the Company in the
performance of Indemnitee’s duty to the Company and its stockholders unless and
only to the extent that the court in which such action or Proceeding is or was
pending shall determine upon application that, in view of all the circumstances
of the case, Indemnitee is fairly and reasonably entitled to indemnity for
Expenses and then only to the extent that the court shall determine.
(c) SCOPE. Notwithstanding any other
provision of this Agreement but subject to Section 14(b), the Company shall
indemnify the Indemnitee to the fullest extent permitted by law, notwithstanding
that such indemnification is not specifically authorized by other provisions of
this Agreement, the Company’s Articles of Incorporation, the Company’s Bylaws or by statute.
4. LIMITATIONS ON INDEMNIFICATION.
Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement:
(a) EXCLUDED ACTS. To indemnify
Indemnitee for any acts or omissions or transactions from which a director may
not be relieved of liability under applicable law;
(b) EXCLUDED INDEMNIFICATION PAYMENTS.
To indemnify or advance Expenses in violation of any prohibition or limitation
on indemnification under the statutes, regulations or rules promulgated by any
state or federal regulatory agency having jurisdiction over the Company.
(c) CLAIMS INITIATED BY INDEMNITEE. To
indemnify or advance Expenses to Indemnitee with respect to Proceedings or
claims initiated or brought voluntarily by Indemnitee and not by way of defense,
except with respect to Proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other statute or law or otherwise as
required under Section 78.7502 of the Nevada Revised Statutes, but such
indemnification or advancement of Expenses may be provided by the Company in
specific cases if the Board of Directors has approved the initiation or bringing
of such suit;
(d) LACK OF GOOD FAITH. To indemnify
Indemnitee for any Expenses incurred by the Indemnitee with respect to any
Proceeding instituted by Indemnitee to enforce or interpret this Agreement, if a
court of competent jurisdiction determines that each of the material assertions
made by the Indemnitee in such Proceeding was not made in good faith or was
frivolous;
(e) INSURED CLAIMS. To indemnify
Indemnitee for Expenses or liabilities of any type whatsoever (including, but
not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts
paid in settlement) which have been paid directly to or on behalf of Indemnitee
by an insurance carrier under a policy of directors’ and officers’ liability
insurance maintained by the Company or any other policy of insurance maintained
by the Company or Indemnitee; or
(f) CLAIMS UNDER SECTION 16(b). To
indemnify Indemnitee for Expenses and the payment of profits arising from the
purchase and sale by Indemnitee of securities in violation of Section 16(b) of
the Securities Exchange Act of 1934, as amended, or any similar successor
statute.
5. DETERMINATION OF RIGHT TO
INDEMNIFICATION.
Upon receipt of a written claim addressed to the Board of
Directors for indemnification pursuant to Section 3, the Company shall determine
by any of the methods set forth in Section 78.751 of the Nevada Revised Statutes whether Indemnitee has
met the applicable standards of conduct which makes it permissible under
applicable law to indemnify Indemnitee. If a claim under Section 3 is not paid
in full by the Company within ninety (90) days after such written claim has been
received by the Company, the Indemnitee may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim and, unless such
action is dismissed by the court as frivolous or brought in bad faith, the
Indemnitee shall be entitled to be paid also the expense of prosecuting such
claim. The court in which such action is brought shall determine whether
Indemnitee or the Company shall have the burden of proof concerning whether
Indemnitee has or has not met the applicable standard of conduct.
6. ADVANCEMENT AND REPAYMENT OF
EXPENSES.
Subject to Section 4 hereof, the Expenses incurred by
Indemnitee in defending and investigating any Proceeding shall be paid by the
Company in advance of the final disposition of such Proceeding within 30 days
after receiving from Indemnitee the copies of invoices presented to Indemnitee
for such Expenses, if Indemnitee shall provide an undertaking to the Company to
repay such amount to the extent it is ultimately determined that Indemnitee is
not entitled to indemnification. In determining whether or not to make an
advance hereunder, the ability of Indemnitee to repay shall not be a factor.
Notwithstanding the foregoing, in a proceeding brought by the Company directly,
in its own right (as distinguished from an action bought derivatively or by any
receiver or trustee), the Company shall not be required to make the advances
called for hereby if the Board of Directors determines, in its sole discretion,
that it does not appear that Indemnitee has met the standards of conduct which
make it permissible under applicable law to indemnify Indemnitee and the
advancement of Expenses would not be in the best interests of the Company and
its stockholders.
7. PARTIAL INDEMNIFICATION.
If the Indemnitee is entitled under any provision of this
Agreement to indemnification or advancement by the Company of some or a portion
of any Expenses or liabilities of any type whatsoever (including, but not
limited to, judgments, fines, penalties, and amounts paid in settlement)
incurred by him in the investigation, defense, settlement or appeal of a
Proceeding, but is not entitled to indemnification or advancement of the total
amount thereof, the Company shall nevertheless indemnify or pay advancements to
the Indemnitee for the portion of such Expenses or liabilities to which the
Indemnitee is entitled.
8. NOTICE TO COMPANY BY INDEMNITEE.
Indemnitee shall notify the Company in writing of any matter
with respect to which Indemnitee intends to seek indemnification hereunder as
soon as reasonably practicable following the receipt by Indemnitee of written
notice thereof; provided, however, that any delay in so notifying the Company
shall not constitute a waiver by Indemnitee of her rights hereunder. The written
notification to the Company shall be addressed to the Board of Directors and
shall include a description of the nature of the Proceeding and the facts
underlying the Proceeding and be accompanied by copies of any documents filed
with the court in which the Proceeding is pending. In addition, Indemnitee shall give the Company such
information and cooperation as it may reasonably require and as shall be within
Indemnitee’s power.
9. MAINTENANCE OF LIABILITY INSURANCE.
(a) Subject to Section 4 hereof, the
Company hereby agrees that so long as Indemnitee shall continue to serve as a
director or officer of the Company and thereafter so long as Indemnitee shall be
subject to any possible Proceeding, the Company, subject to Section 9(b), shall
use reasonable commercial efforts to obtain and maintain in full force and
effect directors’ and officers’ liability insurance (“D&O Insurance”)
which provides Indemnitee the same rights and benefits as are accorded to the
most favorably insured of the Company’ directors, if Indemnitee is a director;
or of the Company’s officers, if Indemnitee is not a director of the Company but
is an officer.
(b) Notwithstanding the foregoing, the
Company shall have no obligation to obtain or maintain D&O Insurance if the
Company determines in good faith that such insurance is not reasonably
available, the premium costs for such insurance are disproportionate to the
amount of coverage provided, the coverage provided by such insurance is limited
by exclusions so as to provide an insufficient benefit, or the Indemnitee is
covered by similar insurance maintained by a subsidiary or parent of the
Company.
(c) If, at the time of the receipt of a
notice of a claim pursuant to Section 8 hereof, the Company has D&O
Insurance in effect, the Company shall give prompt notice of the commencement of
such Proceeding to the insurers in accordance with the procedures set forth in
the respective policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the Indemnitee, all
amounts payable as a result of such Proceeding in accordance with the terms of
such policies.
10. DEFENSE OF CLAIM.
In the event that the Company shall be obligated under Section
6 hereof to pay the Expenses of any Proceeding against Indemnitee, the Company,
if appropriate, shall be entitled to assume the defense of such Proceeding, with
counsel approved by Indemnitee, which approval shall not be unreasonably
withheld, upon the delivery to Indemnitee of written notice of its election to
do so. After delivery of such notice, approval of such counsel by Indemnitee and
the retention of such counsel by the Company, the Company will not be liable to
Indemnitee under this Agreement for any fees of counsel subsequently incurred by
Indemnitee with respect to the same Proceeding, provided that (i) Indemnitee
shall have the right to employ counsel in any such Proceeding at Indemnitee’s
expense; and (ii) if (A) the employment of counsel by Indemnitee has been
previously authorized by the Company, or (B) Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company and the
Indemnitee in the conduct of such defense or (C) the Company shall not, in fact,
have employed counsel to assume the defense of such Proceeding, then the fees
and expenses of Indemnitee’s counsel shall be at the expense of the Company.
11. ATTORNEYS' FEES.
In the event that Indemnitee or the Company institutes an
action to enforce or interpret any terms of this Agreement, the Company shall
reimburse Indemnitee for all of the Indemnitee’s reasonable fees and expenses in
bringing and pursuing such action or defense, unless as part of such action or
defense, a court of competent jurisdiction determines that the material
assertions made by Indemnitee as a basis for such action or defense were not
made in good faith or were frivolous.
12. CONTINUATION OF OBLIGATIONS.
All agreements and obligations of the Company contained herein
shall continue during the period the Indemnitee is a director or officer of the
Company, or is or was serving at the request of the Company as a director,
officer, fiduciary, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, and shall continue thereafter so long as the
Indemnitee shall be subject to any possible proceeding by reason of the fact
that Indemnitee served in any capacity referred to herein.
13. SUCCESSORS AND ASSIGNS.
This Agreement establishes contract rights that shall be
binding upon, and shall inure to the benefit of, the successors, assigns, heirs
and legal representatives of the parties hereto.
14. NON-EXCLUSIVITY.
(a) The provisions for indemnification
and advancement of expenses set forth in this Agreement shall not be deemed to
be exclusive of any other rights that the Indemnitee may have under any
provision of law, the Company’s Articles of Incorporation or Bylaws, the vote of
the Company’s stockholders or disinterested directors, other agreements or
otherwise, both as to action in the Indemnitee’s official capacity and action in
another capacity while occupying the Indemnitee’s position as a director or
officer of the Company.
(b) In the event of any changes, after
the date of this Agreement, in any applicable law, statute, or rule which expand
the right of a Nevada corporation to indemnify its officers and directors, the
Indemnitee's rights and the Company’s obligations under this Agreement shall be
expanded to the full extent permitted by such changes. In the event of any
changes in any applicable law, statute or rule, which narrow the right of a
Nevada corporation to indemnify a director or officer, such changes, to the
extent not otherwise required by such law, statute or rule to be applied to this
Agreement, shall have no effect on this Agreement or the parties’ rights and
obligations hereunder.
15. EFFECTIVENESS OF AGREEMENT.
To the extent that the indemnification permitted under the
terms of certain provisions of this Agreement exceeds the scope of the
indemnification provided for in the Nevada Revised Statutes, such provisions shall not be effective unless and
until the Company’s Articles of Incorporation authorize such additional rights
of indemnification. In all other respects, the balance of this Agreement shall
be effective as of the date set forth on the first page and may apply to acts of
omissions of Indemnitee which occurred prior to such date if Indemnitee was an
officer, director, employee or other agent of the Company, or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, at the time
such act or omission occurred.
16. SEVERABILITY.
Nothing in this Agreement is intended to require or shall be
construed as requiring the Company to do or fail to do any act in violation of
applicable law. The Company’s inability, pursuant to court order, to perform its
obligations under this Agreement shall not constitute a breach of this
Agreement. The provisions of this Agreement shall be severable as provided in
this Section 16. If this Agreement or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
17. GOVERNING LAW.
This Agreement shall be interpreted and enforced in accordance
with the laws of the State of Nevada, without reference to its conflict of law
principals. To the extent permitted by applicable law, the parties hereby waive
any provisions of law which render any provision of this Agreement unenforceable
in any respect.
18. NOTICE.
All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the party addressee or (ii) if mailed by
certified or registered mail with postage prepaid, on the third business day
after the mailing date. Addresses for notice to either party are as shown on the
signature page of this Agreement, or as subsequently modified by written notice.
19. MUTUAL ACKNOWLEDGMENT.
Both the Company and Indemnitee acknowledge that in certain
instances, federal law or applicable public policy may prohibit the Company from
indemnifying its directors and officers under this Agreement or otherwise.
Indemnitee understands and acknowledges that the Company has undertaken or may
be required in the future to undertake with the appropriate state or federal
regulatory agency to submit for approval any request for indemnification, and
has undertaken or may be required in the future to undertake with the Securities
and Exchange Commission to submit the question of indemnification to a court in
certain circumstances for a determination of the Company’s right under public
policy to indemnify Indemnitee.
20. COUNTERPARTS.
This Agreement may be executed in one or more counterparts,
each of which shall constitute an original.
21. AMENDMENT AND TERMINATION.
No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties hereto.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year set forth above.
| COMPANY: |
INDEMNITEE: |
|
|
|
| NUTRASTAR INTERNATIONAL INC. |
|
|
|
|
|
|
|
|
|
|
| By: /s/ Robert Tick
|
By: /s/ David Chong
|
| Name: Robert Tick |
David
Chong |
| Title: Chief Financial
Officer |
|
|
|
|
| Address: 4/F Yushan Plaza, 51 Yushan Road |
|
|
Nangang District, Harbin China 150090 |
|
Exhibit 10.3
NUTRASTAR INTERNATIONAL INC.
2009 EQUITY INCENTIVE PLAN
NOTICE OF RESTRICTED SHARES GRANT
Capitalized but otherwise undefined terms in this Notice of
Restricted Shares Grant and the attached Restricted Shares Grant Agreement shall
have the same defined meanings as in the Nutrastar International Inc. 2009
Equity Incentive Plan (the “Plan”).
| Grantee Name: |
Chong Shaw Cheng David |
You have been granted Restricted Shares subject to the terms
and conditions of the Plan and the attached Restricted Shares Grant Agreement,
as follows:
| |
Date of Grant: |
December 22, 2015 |
| |
Vesting Commencement Date: |
December 22, 2015 |
| |
Exercise Price Per Share: |
$0.00
|
| |
Total Number of Shares Granted: |
40,000
shares |
| |
Total Purchase Price: |
$0.00
|
| |
Agreement Date: |
December 22, 2015 |
| |
Vesting Schedule: |
as follows |
The Restricted Share vests under the following schedule:
| |
Number
of Shares |
|
Vesting Date |
|
| |
10,000 |
|
June 15, 2016 |
|
| |
10,000 |
|
December 15, 2016 |
|
| |
10,000 |
|
June 15, 2017 |
|
| |
10,000 |
|
December 15, 2017
|
|
NUTRASTAR INTERNATIONAL INC.
2009 EQUITY INCENTIVE
PLAN
RESTRICTED SHARES GRANT AGREEMENT
This RESTRICTED SHARES GRANT AGREEMENT
(“Agreement”), dated as of the Agreement Date specified on the Notice of
Restricted Shares Grant is made by and between NUTRASTAR INTERNATIONAL INC., a
Nevada corporation (the “Company”), and the grantee named in the Notice of
Restricted Shares Grant (the “Grantee,” which term as used herein shall
be deemed to include any successor to Grantee by will or by the laws of descent
and distribution, unless the context shall otherwise require).
BACKGROUND
Pursuant to the Plan, the Company, acting through the
Administrator, approved the issuance to Grantee, effective as of the date set
forth above, of an award of the number of Restricted Shares as is set forth in
the attached Notice of Restricted Shares Grant (which is expressly incorporated
herein and made a part hereof, the “Notice of Restricted Shares Grant”) at the
purchase price per share of Restricted Shares (the “Purchase Price”), if any,
set forth in the attached Notice of Restricted Shares Grant, upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual premises
and undertakings hereinafter set forth, the parties agree as follows:
1. Grant and Purchase of
Restricted Shares. The Company hereby grants to Grantee, and Grantee
hereby accepts the number of Restricted Shares set forth in the Notice of
Restricted Shares Grant, subject to the payment by Grantee of the total purchase
price, if any, set forth in the Notice of Restricted Shares Grant.
2. Stockholder
Rights.
(a) Voting Rights. Until such
time as all or any part of the Restricted Shares are forfeited to the Company
under this Agreement, if ever, Grantee (or any successor in interest) has the
rights of a stockholder, including voting rights, with respect to the Restricted
Shares subject, however, to the transfer restrictions or any other restrictions
set forth in the Plan.
(b) Dividends and Other
Distributions. During the Period of Restriction, Participants holding
Restricted Shares are entitled to all regular cash dividends or other
distributions paid with respect to all Shares while they are so held. If any
such dividends or distributions are paid in Shares, such Shares will be subject
to the same restrictions on transferability and forfeitability as the Restricted
Shares with respect to which they were paid.
2
3. Vesting of Restricted
Shares.
(a) The Restricted Shares are
restricted and subject to forfeiture until vested. The Restricted Shares which
have vested and are no longer subject to forfeiture are referred to as “Vested
Shares.” All Restricted Shares which have not become Vested Shares are referred
to as “Nonvested Shares.”
(b) Restricted Shares will vest and
become nonforfeitable in accordance with the vesting schedule contained in the
Notice of Restricted Shares Grant except that 100% of Grantee’s Nonvested Shares
will vest in full upon a Change of Control.
(c) Definitions. Terms used in section
3 and 4 have the following meanings:
(i) “Cause” has the meaning ascribed to
such term or words of similar import in Grantee’s written employment or service
contract with the Company or its subsidiaries and, in the absence of such
agreement or definition, means Grantee’s (i) conviction of, or plea of nolo
contendere to, a felony or crime involving moral turpitude; (ii) fraud on or
misappropriation of any funds or property of the Company or its subsidiaries, or
any affiliate, customer or vendor; (iii) personal dishonesty, incompetence,
willful misconduct, willful violation of any law, rule or regulation (other than
minor traffic violations or similar offenses), or breach of fiduciary duty which
involves personal profit; (iv) willful misconduct in connection with Grantee’s
duties or willful failure to perform Grantee’s responsibilities in the best
interests of the Company or its subsidiaries; (v) illegal use or distribution of
drugs; (vi) violation of any rule, regulation, procedure or policy of the
Company or its subsidiaries; or (vii) breach of any provision of any employment,
non-disclosure, non-competition, non-solicitation or other similar agreement
executed by Grantee for the benefit of the Company or its subsidiaries, all as
determined by the Board of Directors of the Company, which determination will be
conclusive.
(ii) “Retirement” means Grantee’s retirement
from Company employ at age 65 as determined in accordance with the policies of
the Company or its subsidiaries in good faith by the Board of Directors of the
Company, which determination will be final and binding on all parties concerned.
(d) Nonvested Shares may not be sold,
transferred, assigned, pledged, or otherwise disposed of, directly or
indirectly, whether by operation of law or otherwise. The restrictions set forth
in this Section will terminate upon a Change of Control.
4. Forfeiture of Nonvested
Shares. Except as provided herein, if Grantee's service with the Company
ceases for any reason other than Grantee’s (a) death, (b) Disability, (c)
Retirement, or (d) termination by the Company without Cause, any Nonvested
Shares will be automatically forfeited to the Company, subject to the re-payment
by the Company at the lesser of (1) the original purchase price paid by the
Participant pursuant to the Award Agreement or (2) the Shares’ Fair Market Value
on the date of repurchase.
(a) Legend. Each certificate
representing Restricted Shares granted pursuant to the Notice of Restricted
Shares Grant may bear a legend substantially as follows:
3
“THE SALE OR OTHER TRANSFER OF THE SHARES REPRESENTED BY THIS
CERTIFICATE, WHETHER VOLUNTARY, INVOLUNTARY OR BY OPERATION OF LAW, IS SUBJECT
TO CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN THE NUTRASTAR INTERNATIONAL
INC. 2009 EQUITY INCENTIVE PLAN AND IN A RESTRICTED SHARE GRANT AGREEMENT. A
COPY OF SUCH PLAN AND SUCH AGREEMENT MAY BE OBTAINED FROM NUTRASTAR
INTERNATIONAL INC.”
(b) Escrow of Nonvested Shares.
The Company has the right to retain the certificates representing Nonvested
Shares in the Company’s possession until such time as all restrictions
applicable to such Shares have been satisfied.
(c) Removal of Restrictions. The
Participant is entitled to have the legend removed from certificates
representing Vested Shares.
5. Recapitalizations, Exchanges,
Mergers, Etc. The provisions of this Agreement apply to the full extent
set forth herein with respect to any and all shares of capital stock of the
Company or successor of the Company which may be issued in respect of, in
exchange for, or in substitution for the Restricted Shares by reason of any
stock dividend, split, reverse split, combination, recapitalization,
reclassification, merger, consolidation or otherwise which does not terminate
this Agreement. Except as otherwise provided herein, this Agreement is not
intended to confer upon any other person except the parties hereto any rights or
remedies hereunder.
6. Grantee
Representations.
Grantee represents to the Company the following:
(a) Restrictions on Transfer.
Grantee acknowledges that the Restricted Shares to be issued to Grantee must be
held indefinitely unless subsequently registered and qualified under the
Securities Act or unless an exemption from registration and qualification is
otherwise available. In addition, Grantee understands that the certificate
representing the Restricted Shares will be imprinted with a legend which
prohibits the transfer of such Restricted Shares unless they are sold in a
transaction in compliance with the Securities Act or are registered and
qualified or such registration and qualification are not required in the opinion
of counsel acceptable to the Company.
(b) Relationship to the Company;
Experience. Grantee either has a preexisting business or personal
relationship with the Company or any of its officers, directors or controlling
persons or, by reason of Grantee’s business or financial experience or the
business or financial experience of Grantee’s personal representative(s), if
any, who are unaffiliated with and who are not compensated by the Company or any
affiliate or selling agent, directly or indirectly, has the capacity to protect
Grantee’s own interests in connection with Grantee’s acquisition of the
Restricted Shares to be issued to Grantee hereunder. Grantee and/or Grantee’s
personal representative(s) have such knowledge and experience in financial, tax
and business matters to enable Grantee and/or them to utilize the information
made available to Grantee and/or them in connection with the acquisition of the
Restricted Shares to evaluate the merits and risks of the prospective investment
and to make an informed investment decision with respect thereto.
4
(c) Grantee’s Liquidity. In
reaching the decision to invest in the Restricted Shares, Grantee has carefully
evaluated Grantee’s financial resources and investment position and the risks
associated with this investment, and Grantee acknowledges that Grantee is able
to bear the economic risks of the investment. Grantee (i) has adequate means of
providing for Grantee’s current needs and possible personal contingencies, (ii)
has no need for liquidity in Grantee’s investment, (iii) is able to bear the
substantial economic risks of an investment in the Restricted Shares for an
indefinite period and (iv) at the present time, can afford a complete loss of
such investment. Grantee’s commitment to investments which are not readily
marketable is not disproportionate to Grantee’s net worth and Grantee’s
investment in the Restricted Shares will not cause Grantee’s overall commitment
to become excessive.
(d) Access to Data. Grantee
acknowledges that during the course of this transaction and before deciding to
acquire the Restricted Shares, Grantee has been provided with financial and
other written information about the Company. Grantee has been given the
opportunity by the Company to obtain any information and ask questions
concerning the Company, the Restricted Shares, and Grantee’s investment that
Grantee felt necessary; and to the extent Grantee availed himself of that
opportunity, Grantee has received satisfactory information and answers
concerning the business and financial condition of the Company in response to
all inquiries in respect thereof.
(e) Risks. Grantee acknowledges
and understands that (i) an investment in the Company constitutes a high risk,
(ii) the Restricted Shares are highly speculative, and (iii) there can be no
assurance as to what investment return, if any, there may be. Grantee is aware
that the Company may issue additional securities in the future which could
result in the dilution of Grantee’s ownership interest in the Company.
(f) Valid Agreement. This
Agreement when executed and delivered by Grantee will constitute a valid and
legally binding obligation of Grantee which is enforceable in accordance with
its terms.
(g) Residence. The address set
forth on the Notice of Restricted Shares Grant is Grantee’s current address and
accurately sets forth Grantee’s place of residence.
(h) Tax Consequences. Grantee
has reviewed with Grantee’s own tax advisors the federal, state, local and
foreign tax consequences of this investment and the transactions contemplated by
this Agreement. Grantee is relying solely on such advisors and not on any
statements or representations of the Company or any of its agents. Grantee
understands that Grantee (and not the Company) is responsible for Grantee’s own
tax liability that may arise as a result of the transactions contemplated by
this Agreement. Grantee understands that Section 83 of the Internal Revenue Code
of 1986, as amended (the “Code”), taxes as ordinary income the difference
between the purchase price for the Restricted Shares and the fair market value
of the Restricted Shares as of the date any restrictions on the Restricted
Shares lapse. Grantee understands that Grantee may elect to be taxed at the time
the Restricted Shares is purchased rather than when and as the restrictions
lapse by filing an election under Section 83(b) of the Code with the Internal
Revenue Service within 30 days from the date of purchase. The form for making
this election is attached as Exhibit A hereto.
5
GRANTEE ACKNOWLEDGES THAT IT IS GRANTEE’S SOLE RESPONSIBILITY
AND NOT THE COMPANY’S TO FILE TIMELY ANY ELECTION UNDER SECTION 83(b), EVEN IF
GRANTEE REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON
GRANTEE’S BEHALF.
7. No Employment Contract
Created. The issuance of the Restricted Shares is not be construed as
granting to Grantee any right with respect to continuance of employment or any
service with the Company or any of its subsidiaries. The right of the Company or
any of its subsidiaries to terminate at will Grantee's employment or terminate
Grantee’s service at any time (whether by dismissal, discharge or otherwise),
with or without cause, is specifically reserved, subject to any other written
employment or other agreement to which the Company and Grantee may be a party.
8. Tax Withholding. The
Company has the power and the right to deduct or withhold, or require Grantee to
remit to the Company, an amount sufficient to satisfy Federal, state and local
taxes (including the Grantee’s FICA obligation) required by law to be withheld
with respect to the grant and vesting of the Restricted Shares.
9. Interpretation. The
Restricted Shares are being issued pursuant to the terms of the Plan, and are to
be interpreted in accordance therewith. The Administrator will interpret and
construe this Agreement and the Plan, and any action, decision, interpretation
or determination made in good faith by the Administrator will be final and
binding on the Company and Grantee.
10. Notices. All notices
or other communications which are required or permitted hereunder will be in
writing and sufficient if (i) personally delivered or sent by telecopy, (ii)
sent by nationally-recognized overnight courier or (iii) sent by registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
if to Grantee, to the address (or telecopy number) set forth on
the Notice of Restricted Shares Grant; and
if to the Company, to the attention of the President at the
address set forth below:
Nutrastar International Inc.
4/F
Yushan Plaza, 51 Yushan Road
Nangang District, Harbin 150090
People's
Republic of China
or to such other address as the party to whom notice is to be
given may have furnished to the other party in writing in accordance herewith.
Any such communication will be deemed to have been given (i) when delivered, if
personally delivered, or when telecopied, if telecopied, (ii) on the first
Business Day (as hereinafter defined) after dispatch, if sent by
nationally-recognized overnight courier and (iii) on the fifth Business Day
following the date on which the piece of mail containing such communication is
posted, if sent by mail. As used herein, “Business Day” means a day that is not
a Saturday, Sunday or a day on which banking institutions in the city to which
the notice or communication is to be sent are not required to be open.
6
11. Specific Performance.
Grantee expressly agrees that the Company will be irreparably damaged if the
provisions of this Agreement and the Plan are not specifically enforced. Upon a
breach or threatened breach of the terms, covenants and/or conditions of this
Agreement or the Plan by Grantee, the Company will, in addition to all other
remedies, be entitled to a temporary or permanent injunction, without showing
any actual damage, and/or decree for specific performance, in accordance with
the provisions hereof and thereof. The Administrator has the power to determine
what constitutes a breach or threatened breach of this Agreement or the Plan.
Any such determinations will be final and conclusive and binding upon Grantee.
12. No Waiver. No waiver
of any breach or condition of this Agreement will be deemed to be a waiver of
any other or subsequent breach or condition, whether of like or different
nature.
13. Grantee Undertaking.
Grantee hereby agrees to take whatever additional actions and execute
whatever additional documents the Company may in its reasonable judgment deem
necessary or advisable in order to carry out or effect one or more of the
obligations or restrictions imposed on Grantee pursuant to the express
provisions of this Agreement.
14. Modification of
Rights. The rights of Grantee are subject to modification and
termination in certain events as provided in this Agreement and the Plan.
15. Governing Law. This
Agreement is governed by, and construed in accordance with, the laws of the
State of Nevada, without giving effect to its conflict or choice of law
principles that might otherwise refer construction or interpretation of this
Agreement to the substantive law of another jurisdiction.
16. Counterparts; Facsimile
Execution. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original, but all of which
together will constitute one and the same instrument. Facsimile execution and
delivery of this Agreement is legal, valid and binding execution and delivery
for all purposes.
17. Entire Agreement.
This Agreement (including the Notice of Restricted Shares Grant) and the
Plan, constitute the entire agreement between the parties with respect to the
subject matter hereof, and supersede all previously written or oral
negotiations, commitments, representations and agreements with respect thereto.
18. Severability. In the
event one or more of the provisions of this Agreement should, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability will not affect any other provisions of this
Agreement, and this Agreement will be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
19. WAIVER OF JURY
TRIAL. THE GRANTEE HEREBY EXPRESSLY, IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
[Signature Page Follows]
7
IN WITNESS WHEREOF, the parties hereto have executed
this Restricted Share Grant Agreement as of the date first written above.
NUTRASTAR INTERNATIONAL INC.
| By: |
|
| |
/s/
Robert Tick |
| |
Robert Tick |
| |
Chief Financial Officer
|
GRANTEE:
| /s/ David Chong |
| Name: David Chong |
8
SPOUSE'S CONSENT TO AGREEMENT
(Required where
Grantee resides in a community property state)
I acknowledge that I have read the Agreement and the Plan and
that I know and understand the contents of both. I am aware that my spouse has
agreed therein to the imposition of certain forfeiture provisions and
restrictions on transferability with respect to the Restricted Shares that are
the subject of the Agreement, including with respect to my community interest
therein, if any, on the occurrence of certain events described in the Agreement.
I hereby consent to and approve of the provisions of the Agreement, and agree
that I will abide by the Agreement and bequeath any interest in the Restricted
Shares which represents a community interest of mine to my spouse or to a trust
subject to my spouse's control or for my spouse's benefit or the benefit of our
children if I predecease him.
| Dated: |
|
|
|
| |
|
|
Signature |
| |
|
|
|
| |
|
|
|
| |
|
|
|
| |
|
|
Print Name |
9
Exhibit A
ELECTION UNDER SECTION 83(b)
OF THE INTERNAL
REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to Sections 55
and 83(b) of the Internal Revenue Code of 1986, as amended, to include in
taxpayer’s gross income or alternative minimum taxable income, as the case may
be, for the current taxable year the amount of any compensation taxable to
taxpayer in connection with taxpayer’s receipt of the property described below.
1. The name, address, taxpayer
identification number and taxable year of the undersigned are as follows:
| |
|
TAXPAYER: |
SPOUSE: |
| |
NAME: |
|
|
| |
ADDRESS: |
|
|
| |
IDENTIFICATION NO.: |
|
|
| |
TAXABLE YEAR: |
|
|
2. The property with respect to which
the election is made is described as follows: ____ shares (the “Shares”) of the
Common Stock of Nutrastar International Inc. (the “Company”).
3. The date on which the property was
transferred is:___________________,______.
4. The property
is subject to the following restrictions:
The Shares may not be transferred and
are subject to forfeiture under the terms of an agreement between the taxpayer
and the Company. These restrictions lapse upon the satisfaction of certain
conditions contained in such agreement.
5. 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, of such property is: $_________________.
6. The amount (if any) paid for such
property is: $_________________.
The undersigned has submitted a copy of this statement to the
person for whom the services were performed in connection with the undersigned’s
receipt of the above-described property. The transferee of such property is the
person performing the services in connection with the transfer of said property.
The undersigned understands that the foregoing election may
not be revoked except with the consent of the Commissioner.
The undersigned spouse of taxpayer joins in this election.
| Dated: |
|
|
|
|
|
|
Spouse of Taxpayer |
10