RESTRICTED STOCK AGREEMENT
THIS
RESTRICTED STOCK AGREEMENT (this "Agreement") is made effective the
30th day of
June, 2007 by and between Aspire Japan, Inc., a Delaware corporation, (the
"Company") and Xxxxx Xxxxxxx Xxxxxxxx, an individual (the
"Employee").
RECITALS
WHEREAS,
the Employee has entered into an Employment Agreement with the Company under
which the Company has agreed to issue to the Employee shares of Restricted
Common Stock on the terms and conditions set forth herein;
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, and, other good and valuable
consideration, the parties hereto agree as follows:
1.
Authorization
and Issuance of Shares
1.1 Authorization
On September 30, 2007, the Company shall authorize the issuance and shall issue
250,000 shares of Common Stock (the “Shares”) par value $0.001 to the
Employee. Additionally, on May 31, 2008, the Company shall authorize
the issuance and shall issue an additional 250,000 shares, provided Employee
has
met certain sales goals to be set by the Chairman of the Board by no later
than
December 31, 2007.
1.2 Issuance
of the Shares Subject to the terms and conditions hereof, the Company
shall sell and Employee shall purchase the Shares at the Closing, as defined
below.
1.3 Vesting
of the Shares The shares will vest over 2 years with 50% of
shares vesting on June 1, 2009, and the remaining 50% vesting pro rata monthly
thereafter, with the final shares to vest no later than December 31,
2009
2. Representations
and Warranties of the Company The Company hereby represents
and warrants to the Employee as follows:
2.1 Organization
and Standing: Articles and Bylaws The Company is and will be a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Delaware and will have all requisite corporate power and authority
to
carry on its business as proposed to be conducted.
2.2 Corporate
Power The Company has all requisite corporate power to enter into this
Agreement and to issue the Shares. This Agreement shall constitute a valid
and
binding obligation of the Company, enforceable in accordance with its respective
terms, except as the same may be limited by bankruptcy, insolvency, moratorium,
and other laws of general application affecting the enforcement of creditors'
rights.
2.3 Capitalization
The authorized capital stock of the Company is 100,000,000 shares of Common
Stock, par value $0.001 per share, of which, 7,760,000 are
issued and outstanding. All such issued and outstanding shares have been duly
authorized and validly issued, are fully paid and non-assessable.
2.4 Authorization
(a) Corporate
Action All corporate action on the part of
the Company necessary for the authorization, execution and
delivery of this Agreement, the issuance of the Shares and the performance
of
the Company's obligations hereunder will be taken prior to
the issuances. This Agreement constitutes a valid and legally binding obligation
of the Company, enforceable in accordance with its terms.
(b) Valid
Issuance The Shares, when issued in compliance with the
provisions of this Agreement will be duly authorized, validly issued, fully
paid
and non-assessable, and will be free of any liens or encumbrances caused or
created by the Company; provided, however, that all such
shares may be subject to restrictions on transfer under state and federal
securities laws as set forth herein, and as may be required by future changes
in
such laws.
(c) No
Preemptive Rights Except as provided herein, no person currently has or will
have any right of first refusal or any preemptive rights in connection with
the
issuance of the Shares, or any future issuance of securities by the
Company.
2.5 Compliance
with Other Instruments The Company will not be in violation of any term of
the Company's Articles or Bylaws, nor will the Company be
in violation of or in default in any material respect under the terms of any
mortgage, indenture, contract, agreement, instrument, judgment, or decree,
the
violation of which would have a material adverse effect on the Company as a
whole, and to the knowledge of the Company, is not in violation of any order,
statute, rule, or regulation applicable to the Company, the violation of which
would have a material adverse effect on the Company. The execution, delivery
and
performance of and compliance with this Agreement and the issuance of the Shares
will not (a) result in any such violation, or (b) be in conflict with or
constitute a default under any such term, or (c) result in the creation of
any
mortgage, pledge, lien, encumbrance, or charge upon any of the properties or
assets of the Company pursuant to any such term.
3. Representations
and Warrantiesof Employee and Restrictions on Transfer Imposed
by the Securities Act.
3.1 Representations
and Warranties by the Employee The Employee represents and warrants to the
Company as follows:
(a) Shares
Not Registered The Employee understands and acknowledges that the
offering of the Shares pursuant to this Agreement will not be registered under
the Securities Act on the grounds that the offering and sale of securities
contemplated by this Agreement are exempt from registration under the Securities
Act pursuant to Section 4(2) thereof and exempt from registration pursuant
to
applicable state securities or blue sky laws, and that the Company's reliance
upon such exemptions is predicated upon such Employee's representations set
forth in this Agreement. The Employee acknowledges and understands that the
Shares must be held indefinitely unless the Shares are subsequently registered
under the Securities Act and qualified under state law or unless an exemption
from such registration and such qualification is available.
(b) No
Transfer Except as set forth in Section 4.4 hereunder, the
Employee covenants that in no event will the Employee dispose of any of the
Shares (other than in conjunction with an effective registration statement
for
the Shares under the Securities Act in compliance with Rule 144 promulgated
under the Securities Act) unless and until (i) the Employee shall have notified
the Company of the proposed disposition and shall have furnished the Company
with a statement of the circumstances surrounding the proposed disposition,
and
(ii) if reasonably requested by the Company, the Employee shall have furnished
the Company with an opinion of counsel satisfactory in form and substance to
the
Company to the effect that (x) such disposition will not require registration
under the Securities Act, and (y) appropriate action necessary for compliance
with the Securities Act and any other applicable state, local, or foreign law
has been taken, and (iii) the Company has consented, which consent shall not
be
unreasonably withheld.
3.2 Legends Each
certificate representing the Shares shall be endorsed with the following
legends:
(a) Federal
Legend. The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act") and are
"restricted securities" as defined in rule 144 promulgated under the Act. The
securities may not be sold or offered for sale or otherwise distributed except
(i) in conjunction with an effective registration statement for the shares
under
the Act, or (ii) pursuant to an opinion of counsel, satisfactory to the company,
that such registration or compliance is not required as to said sale, offer,
or
distribution.
(b) Other
Legends. With respect to any other legends required by applicable law, the
Company need not register a transfer of legended Shares, and may also instruct
its transfer agent not to register the transfer of the Shares, unless the
conditions specified in such legend is satisfied.
3.3 Rule
144. The Employee is aware of the adoption of Rule 144 by the SEC
promulgated under the Securities Act, which permits limited public resale of
securities acquired in a nonpublic offering, subject to the satisfaction of
certain conditions. The Employee understands that under Rule 144, the conditions
include, among other things: the availability of certain, current public
information about the issuer and the resale occurring not less than one year
after the party has purchased and paid for the securities to be
sold.
4. Miscellaneous
4.1 Governing
Law This Agreement shall be governed in all respects by the laws of the
State of Delaware as such laws are applied to agreements between residents
entered into and to be performed entirely within Delaware.
4.2 Successors
and Assigns Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors, and administrators of the parties
hereto.
4.4 Entire
Agreement This Agreement and the other documents delivered pursuant hereto
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof and they supersede, merge, and
render void every other prior written and/or oral understanding or agreement
among or between the parties hereto.
4.5 Notices,
etc All notices and other communications required or permitted hereunder
shall be in writing and shall be delivered personally, mailed by first class
mail, postage prepaid, or delivered by courier or overnight delivery, addressed
(a) if to a Employee, at such Employee's address set forth on the Schedule
of
Employee, or at such other address as such Employee shall have furnished to
the
Company in writing, or (b) if to the Company, at its address set forth at the
beginning of this Agreement, or at such other address as
the Company shall have furnished to the Employee in
writing. Notices that are mailed shall be deemed received five (5) days after
deposit in the United States mail. Notices sent by courier or overnight delivery
shall be deemed received two (2) days after they have been so sent.
4.6 Severability
In case any provision of this Agreement shall be found by a court of law to
be
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions of this Agreement shall not in any way be affected
or impaired thereby.
4.7 Titles
and Subtitles The titles of the sections and subsections of this Agreement
are for convenience of reference and are not to be considered in construing
this
Agreement.
4.8 Counterparts
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one
instrument.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement this
1st day of June 30, 2007
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COMPANY:
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EMPLOYEE:
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/s/
Xxx Xxxxx
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/s/
Xxxxx Xxxxxxx Xxxxxxxx
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By:
XXX XXXXX, CHAIRMAN
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XXXXX
XXXXXXX XXXXXXXX
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