FORFEITURE AGREEMENT
EXHIBIT
10.1
This
FORFEITURE AGREEMENT (the “Agreement”)
is
made effective as of September 17, 2008, by and among KAL Energy, Inc., a
Delaware corporation (the “Company”),
and
______, a __________ (the “Stockholder”).
RECITALS
A. The
Stockholder is a holder of the Common Stock of the Company.
B. In
order
to allow the Company to issue shares of its Common Stock and options to purchase
shares of its Common Stock in order to attract and retain qualified executive
officers and directors, the Stockholder is willing to return to the Company
____________ shares of Common Stock of the Company (the “Forfeited
Shares”).
C. As
a
stockholder of the Company, the Stockholder will receive
various benefits from the Company’s improved ability to issue shares and options
in connection with the transactions described above.
D. The
Stockholder desires to return to the Company all of the Forfeited Shares held
by
the Stockholder, subject to the terms and conditions set forth
herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing Recitals and the mutual promises
of
the parties, the parties agree as follows:
1. Forfeiture
of the Forfeited Shares.
Effective
as of the date hereof, and for the consideration described herein, the
sufficiency of which is acknowledged by the Stockholder, the Stockholder hereby
forfeits and returns to the Company to be held for reissue, and the Company
hereby accepts, the Forfeited Shares of the Stockholder, which Forfeited Shares
shall be delivered free of any and all liens, security interests, claims or
encumbrances of any kind whatsoever, on the terms and subject to the conditions
set forth herein. The consummation of the forfeiture of the Forfeited Shares
shall be concurrent with the execution hereof. The Company shall hold the
Forfeited Shares for reissue in the manner set forth in Recital B above and
incorporated herein by reference.
2. Representations
and Warranties of the Stockholders.
The
Stockholder represents and warrants to the Company as follows:
(a) Title
to Shares.
The
Stockholder is the record and beneficial owner of the Forfeited Shares indicated
as owned by the Stockholder in Recital A, and the Forfeited Shares are conveyed
to the Company hereunder, free and clear of all liens, claims, encumbrances,
pledges, options and any other adverse interests, restrictions on transfer
or
defects in title of any kind or nature whatsoever, except for restrictions
on
transfer imposed by federal and state securities laws.
(b) Legal
Power.
The
Stockholder has the full legal right and authority to enter into this Agreement,
to forfeit and deliver the Forfeited Shares to the Company and to consummate
the
transactions contemplated hereby.
(c) Enforceability,
Conflicts.
This
Agreement is a legally binding agreement that is enforceable against the
Stockholder in accordance with its terms, and the Stockholder’s execution and
delivery of this Agreement and the performance by the Stockholder of his or
her
obligations hereunder will not conflict with or violate any other agreement
or
understanding, written or oral, to which the Stockholder is a party or to which
any of the Stockholder’s Forfeited Shares are subject or bound.
(d) Informed
Investment Decision.
The
Stockholder
has been provided access to and the opportunity to review all material financial
and business records of the Company, and to ask such questions of the officers
of the Company, as necessary to make a deliberate and informed decision as
to
whether to forfeit the Forfeited Shares to the Company on the terms provided
in
this Agreement. The Stockholder has such knowledge and experience in financial
or business matters and with respect to the Company’s business, financial
condition, operating results and prospects that the Stockholder is capable
of
evaluating the merits and risks of the forfeiture contemplated by this
Agreement. Based on the knowledge and experience of the Stockholder, the
Stockholder has reviewed the merits and risks of the transaction contemplated
by
this Agreement, and, where necessary, has reviewed all material information
made
available to the Stockholder. The Stockholder has been advised to, and given
the
opportunity to, consult with counsel of the Stockholder’s own choosing with
respect to this Agreement and has not relied upon counsel for the Company in
connection with this Agreement.
3. Representations
and Warranties of the Company.
The
Company hereby represents and warrants to the Stockholder as
follows:
(a) Legal
Power.
The
Company has the requisite legal power and authority to enter into this Agreement
and to carry out and perform its obligations under the terms of this
Agreement.
(b) Enforceability,
Conflicts.
This
Agreement is a legally binding agreement that is enforceable against the Company
in accordance with its terms, and the Company’s execution and delivery of this
Agreement and the performance by the Company of its obligations hereunder will
not conflict with or violate any other agreement or understanding, written
or
oral, to which the Company is a party or to which any of its assets are subject
or bound.
4. Miscellaneous.
(a) Entire
Agreement; Amendment; Waiver.
This
Agreement is final and complete, and embodies all of the agreements and
understandings of the parties hereto with respect to the subject matter hereof
and supersedes all prior or contemporaneous agreements or understandings,
written or oral, with respect thereto. This Agreement may not be amended or
modified, except by a written instrument signed by all of the parties affected
thereby. No waiver of any right hereunder shall be effective unless it is given
in a written document or instrument signed by the party waiving such
right.
(b) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, without regard to the conflicts of laws provisions thereof.
(c) Headings.
The
paragraph headings included herein are for convenience of reference only and
shall not be considered in, and shall not affect, the interpretation or
application of any of the provisions hereof.
(d) Counterparts.
This
Agreement may be executed in separate counterparts, each of which shall
constitute one and the same agreement and, provided that each of the parties
hereto has executed and delivered at least one such counterpart, this Agreement
shall be effective even if all of the parties have not executed the same
counterpart of this Agreement.
2
(e) Successors
and Assigns.
The
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties
hereto.
(f) Severability.
Any
provision of this Agreement that is declared by a court of competent
jurisdiction to be illegal, unenforceable or invalid, shall be ineffective
to
the extent of such illegality, unenforceability or invalidity, but any such
provision shall be enforced to the fullest extent possible to avoid such
illegality, unenforceability or invalidity, and each other provision of this
Agreement shall continue in full force and effect.
(g) Further
Assurances.
Each
party agrees to execute all such other documents and take all such other actions
as are necessary or desirable to carry out the provisions of this
Agreement.
[Signatures
Appear on Following Page]
3
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the day
and
year first above written.
| COMPANY: | ||
| KAL Energy, Inc. | ||
| By: | ||
| Name: | ||
| Its: | ||
| Date: | ||
| STOCKHOLDER: | ||
| Entity Name: | ||
| Entity Address: | ||
| Entity Address: | ||
| Entity Address: | ||
| By: | ||
| Name: | ||
| Its: | ||
| Date: | ||
EXHIBIT
A
STOCK
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR
VALUE RECEIVED, _______________
hereby
sells, assigns and transfers unto KAL Energy, Inc., a Delaware corporation
(the
“Company”), ________________ (_________) shares of the Common Stock of the
Company, standing in his, her or its name on the books of said Company
represented by Certificate No. ____ herewith and does hereby irrevocably
constitute and appoint __________ his, her or its attorney to transfer the
said
stock on the books of the within named Company with full power of substitution
in the premises.
| Date: September 17, 2008 | |
| [Name of Stockholder] |
