AFFILIATE RESALE RESTRICTION AGREEMENT
Exhibit
2.11
THIS
AGREEMENT (the “Agreement”), dated as of May 20, 2008 (the “Agreement Date”) is
made by and between Kelyniam Global, Inc. a Nevada corporation (the “Company”),
and Xxxx Xxxxxxxxx, (the “Participant”).
WHEREAS,
the Company hereby acknowledges the need to retain non-employee directors by
encouraging and enabling the acquisition of a financial interest in the Company
by such directors through the issuance of restricted shares of Common Stock of
the Company; by providing such directors a stake in the growth and profitability
of the Company in order to enable them to represent the viewpoint of other
shareholders of the Company more effectively; and to reward them for continuing
to provide valuable services to the Company and contributing to the Company’s
future success. For the purposes of this Agreement, non-employee director is any
person who is a member of the Board of Directors of the Company (the “Board”)
and who is not a full-time employee of the Company;
WHEREAS,
the purpose of this Agreement is to place a resale limitation restriction on the
remaining shares of common stock previously issued to the Participant under an
employee stock compensation package that have not yet been
registered;
WHEREAS,
the Board acting in the absence of a Compensation Committee maintains the
Participant currently holds a total of 560,000 shares of common stock restricted
under Rule 144 in which the Company issued to the Participant in 2007 for an
employee stock compensation package. The issuance of 360,000 common
shares were approved in a meeting of the Board held on November 28, 2007, and
the remaining 200,000 common shares were approved by the Board on December 7,
2007, and are hereby available for sale pursuant to the terms of this
Agreement;
WHEREAS,
this Agreement shall encompass a five year period beginning from the date of
this Agreement;
NOW
THEREFORE, in consideration of the mutual covenants hereinafter set forth, the
parties hereto agree as follows:
1.
Shares.
(a) Subject
to the terms and conditions set forth in this Agreement, the Company hereby
acknowledges the previously issued 560,000 shares of common stock (the
“Restricted Shares”) to the Participant. The Restricted Shares shall vest
and become non-forfeitable in accordance with Section 2.
(b) On
March 5, 2008, Participant entered into an agreement with the Company to
transfer a total of 60,000 shares of his personal common stock into the
Company’s Escrow account; of which 40,000 shares of common stock have been
registered on Form SB-2/A with the Securities and Exchange Commission on January
30, 2008, and 20,000 shares of said stock are exempt from registration under the
rules and provisions of Rule 144. It is the intention of Xx.
Xxxxxxxxx that the proceeds from the sales of these securities are to be used
for financing activities in order to further the Company’s business development
by the way of an interest free loan by and between the Company and Xx.
Xxxxxxxxx, with payments to be made to Xx. Xxxxxxxxx by the Company from time to
time when funds become available and or the Company has a more suitable cash
flow.
2.
Vesting.
(a) As
of the date of this Agreement, 60,000 shares of common stock have been
registered and fully vested. 560,000 shares of common stock shall
vest and become non-forfeitable in accordance with Section 2(b).
(b) Subject
to the Participant’s continued service on the Board and the terms of this
Agreement, all of the Restricted Shares outlined hereunder shall become
unrestricted from rule 144 (herein “vested”) unconditionally on the fifth
(5th)
anniversary of the Agreement Date, divided evenly over 5 years, represented as 5
terms of service as a director, at a rate of 112,000 shares of common stock
vested per term.
(c) As
soon as practicable following the completion of each term and in compliance with
the requirements of Rule 144 as set forth by the Securities and Exchange
Commission, the restriction under rule 144 shall be lifted at the Company’s
Transfer Agent for the amount of common stock vested for each term.
(d) If
the Participant’s service on the Board is terminated for any reason prior to the
fifth (5th)
anniversary of the Agreement Date, a pro rata portion of the Restricted Shares
shall vest based on the ratio that the number of days the Participant served on
the Board since the Agreement Date bears to the full 5 years of service, and the
remaining Restricted Shares, to the extent not then vested, shall be forfeited
by the Participant without consideration.
3.
Certificates. The Restricted Shares
have been issued by the Company and registered in the Participant’s name and
shall remain in the physical custody of the Participant or its designee at all
times prior to the vesting of such Restricted Shares pursuant to Section
2.
4.
Rights as a
Shareholder. The Participant shall be the record owner of the
Restricted Shares until or unless such Shares are forfeited pursuant to Section
2 hereof and as record owner shall be entitled to all rights of a common
shareholder of the Company, including, without limitation, voting rights with
respect to the Restricted Shares and the Participant shall receive, when paid,
any dividends on all of the Restricted Shares outlined herein as to which the
Participant is the record holder on the applicable record date; provided that the
Restricted Shares shall be subject to the limitations on transfer and
encumbrance set forth in Section 5.
5.
Transferability.
The Restricted Shares may not, at any time prior to becoming vested pursuant to
Section 2, be transferred, sold, assigned, pledged, hypothecated or otherwise
disposed of in any manner.
6.
Board
Membership. Nothing contained in this Agreement (i) obligates
the Company to retain the Participant as a member of its Board (or employ the
Participant in any capacity whatsoever), or (ii) prohibits or restricts the
Company from terminating its relationship with the Participant at any time or
for any reason whatsoever, with or without cause, and the Participant hereby
acknowledges and agrees that neither the Company nor any other Person has made
any representations or promises whatsoever to the Participant concerning the
Participant’s continued membership on its Board or employment of the Participant
by the Company.
7.
Adjustments.
If, prior to the time the restrictions imposed by Section 2 on the Restricted
Shares outlined herein lapse, there is a change in the outstanding common stock
by reason of a stock split, spin-off, stock combination, reclassification,
recapitalization, liquidation, dissolution, reorganization, merger, change in
control, or other event, the Board may adjust appropriately the number and kind
of shares subject to the Agreement, and make such other revisions to the
Agreement as it deems, in good faith, is equitably required. For the
avoidance of doubt, in its sole discretion, the Board may provide, in the event
of a change in control, or other similar event, that the Restricted Shares
shall, to the extent not then vested or previously forfeited, immediately become
fully vested and non-forfeitable.
8.
Withholding.
It shall be a condition of the Participant upon receipt of Restricted Shares
that the Participant pay and is held liable for any Federal, state or local
income or other taxes required by law to be withheld with respect to such
Restricted Shares, or any applicable taxes from capital gains given to the
Participant from the sale if his vested shares. The Participant is hereby
advised to seek his own tax counsel regarding the taxation of the Restricted
Shares previously issued and outlined herein.
9.
Securities
Laws. The previously issued Restricted Shares hereunder and
un-restriction of the same as described in Section 2, shall be subject to all
applicable laws, rules and regulations and to such approvals of any governmental
agencies as may be required.
10. Notices. Any
notice to be given under the terms of this Agreement to the Company shall be
addressed to the Company, and any notice to be given to the Participant shall be
addressed to him at the address given beneath his signature hereto. By a
notice given pursuant to this Section 10, either party may hereafter designate a
different address for notices to be given. Any notice which is required to
be given to the Participant shall, if the Participant is then deceased, be given
to the Participant’s personal representative if such representative has
previously informed the Company of his status and address by written notice
under this Section 10. Any notice shall have been deemed duly given when
enclosed in a properly sealed envelope or wrapper addressed as aforesaid,
deposited (with postage prepaid) in a post office or branch post office
regularly maintained by the United States Postal Service.
11. Governing Law.
The laws of the State of Nevada shall govern the interpretation, validity and
performance of the terms of this Agreement regardless of the law that might be
applied under principles of conflicts of laws.
12. Signature in
Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement.
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Date:
May 20, 2008
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By:
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/s/
Xxxxx Xxxxxx
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Xxxxx
Xxxxxx
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President/CEO/Chairman
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PARTICIPANT
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Date:
May 20, 2008
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By:
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/s/
Xxxx Xxxxxxxxx
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Xxxx
Xxxxxxxxx
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Address:
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0000
Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxx 000
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Xxxxxx
Xxxx, Xxxxxxxx 00000
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