Unassociated Document


    Restricted
      Stock Award Number: #########

    Purchase
      ID Number: ####

    


    KAL
      ENERGY, INC.

    RESTRICTED
      STOCK AWARD AGREEMENT

    UNDER

    2007
      STOCK INCENTIVE PLAN 

     

    THIS
      RESTRICTED STOCK AWARD AGREEMENT (the “Agreement”) is entered into as of
(date)
      by and
      between (name)(hereinafter
      referred to as “Purchaser”) and KAL ENERGY, INC., a Delaware corporation
      (hereinafter referred to as the “Company”), pursuant to the Company’s 2007 Stock
      Incentive Plan (the “Plan”). Any capitalized term not defined herein shall have
      the same meaning ascribed to it in the Plan.

     

    RECITALS:

     

    A.  Purchaser
      is an employee, director, or other Eligible Person, and in connection therewith
      has rendered services for and on behalf of the Company or its
      Affiliates.

     

    B.  The
      Company desires to issue shares of common stock to Purchaser for the
      consideration set forth herein to provide an incentive for Purchaser to remain
      in the service of the Company and to exert added effort towards its growth
      and
      success.

     

    NOW,
      THEREFORE, in consideration of the mutual covenants hereinafter set forth,
      and
      for other good and valuable consideration, the parties agree as
      follows:

     

    1.  Issuance
      of Shares.
      The
      Company hereby offers to issue to Purchaser an aggregate of (number
      of shares)
      (#
      shares)
      shares
      of Common Stock of the Company (the “Shares”) on the terms and conditions herein
      set forth. Unless this offer is earlier revoked in writing by the Company,
      Purchaser shall have ten (10) days from the date of the delivery of this
      Agreement to Purchaser to accept the offer of the Company by executing and
      delivering to the Company two copies of this Agreement, without condition or
      reservation of any kind whatsoever, together with the consideration to be
      delivered by Purchaser pursuant to Section 2 below, if applicable.

     

    2.  Consideration.
      The
      purchase price for the Shares shall be Price
      ($0.00)
      per
      share, or a total of Price
      ($0.00).

     

    3.  Vesting
      of Shares.
      

     

    (a)  Subject
      to Section 3(b) below, the Shares acquired hereunder shall vest and become
      “Vested Shares” as to (#
      shares)
      shares
      of common stock on (Date)
      (the
      “First Vesting”). Commencing the following ___________, the Shares shall become
      Vested Shares, with respect to the remaining shares, at a vesting rate of
(amount)
      (#) per
quarter
      on the
      same day of the month on which the First Vesting occurred and continuing on
      the
      same day of each successive quarter
      until
      vested in full, if, and only if, the Purchaser provides “Continuous Service” (as
      defined below) through each such vesting date, such that 100% of the shares
      shall be Vested Shares on (date).
      Shares
      which have not yet become vested are herein called “Unvested Shares.” No
      additional shares shall vest after the date of termination of Purchaser’s
      Continuous Service.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    As
      used
      herein, the term “Continuous Service” means (i) employment by either the Company
      or any parent or subsidiary corporation of the Company, or by any successor
      entity following a Change in Control, which is uninterrupted except for paid
      vacations or sick days in accordance with Company policy, as applicable, (ii)
      service as a member of the Board of Directors of the Company until Purchaser
      resigns, is removed from office, or Purchaser’s term of office expires and he or
      she is not reelected, or (iii) service as a Service Provider pursuant to a
      service agreement by and between the Company and the Service Provider. Any
      leave
      of absence or other time off work, whether or not approved by the Company,
      shall
      result in a suspension of Purchaser’s Continuous Service, and during such time
      no Shares shall vest unless provided otherwise in writing by the Administrator
      to Purchaser. The Purchaser’s Continuous Service shall not terminate merely
      because of a change in the capacity in which the Purchaser renders service
      to
      the Company or a corporation or subsidiary corporation described in clause
      (i)
      above. For example, a change in the Purchaser’s status from an employee to a
      Non-Employee Director will not constitute an interruption of the Purchaser’s
      Continuous Service, provided there is no interruption in the Purchaser’s
      performance of such services. Notwithstanding the foregoing, for any employee
      of
      a subsidiary of the Company located outside the United States, such employee’s
      Continuous Service shall be deemed terminated upon the commencement of such
      employee’s “garden leave period,” “notice period,” or other similar period where
      such employee is being compensated by such subsidiary but not actively providing
      service to such subsidiary.

     

    (b)  Notwithstanding
      Section 3(a) above, if Purchaser holds Shares at the time a Change in Control
      occurs, and (x) the Change in Control is not approved by a majority of the
      Continuing Directors (as defined below), or (y) the acquiring or successor
      entity (or parent thereof) does not agree to provide for the continuance or
      assumption of this Agreement or the substitution for this Agreement of a new
      agreement of comparable value covering shares of a successor corporation (with
      appropriate adjustments as to the number and kind of shares and the purchase
      price), then all “Repurchase Rights” (as defined in Section 4 below) shall
      automatically terminate immediately prior to the consummation of such Change
      in
      Control and the Shares subject to those terminated Repurchase Rights shall
      immediately vest in full. Notwithstanding the foregoing sentence, if pursuant
      to
      a Change in Control approved by a majority of the Continuing Directors the
      acquiring or successor entity (or parent thereof) provides for the continuance
      or assumption of this Agreement or the substitution for this Agreement of a
      new
      agreement of comparable value covering shares of a successor corporation (with
      appropriate adjustments as to the number and kind of shares and the purchase
      price), then the Repurchase Rights shall not terminate and vesting of the Shares
      shall not accelerate in connection with such Change in Control to the extent
      this Agreement is continued, assumed or substituted for; provided, however,
      if
      Purchaser’s Continuous Service is terminated without Cause or pursuant to a
      Constructive Termination (as defined below) within twelve (12) mnoths following
      such Change in Control, all Repurchase Rights shall terminate and vesting of
      the
      Shares or any substituted shares shall accelerate in full automatically
      effective upon such termination. For purposes of this Section 3, the following
      terms shall have the meanings set forth below:

     

    (i)  “Cause”
      means, with respect to a Purchaser’s Continuous Service, the termination by the
      Company of such Continuous Service for any of the following reasons: (A) The
      continued, unreasonable refusal or omission by the Purchaser to perform any
      material duties required of him by the Company if such duties are consistent
      with duties customary for the position held with the Company; (B) Any material
      act or omission by the Purchaser involving malfeasance or gross negligence
      in
      the performance of Purchaser’s duties to, or material deviation from any of the
      policies or directives of, the Company; (C) Conduct on the part of Purchaser
      which constitutes the breach of any statutory or common law duty of loyalty
      to
      the Company; including the unauthorized disclosure of material confidential
      information or trade secrets of the Company; or (D) any illegal act by Purchaser
      which materially and adversely affects the business of the Company or any felony
      committed by Purchaser, as evidenced by conviction thereof, provided that the
      Company may suspend Purchaser with pay while any allegation of such illegal
      or
      felonious act is investigated. In the event that the Purchaser is a party to
      an
      employment agreement or other similar agreement with the Company or any
      Affiliate that defines a termination on account of “Cause” (or a term having
      similar meaning), such definition shall apply as the definition of a termination
      on account of “Cause” for purposes hereof, but only to the extent that such
      definition provides the Purchaser with greater rights. A termination on account
      of Cause shall be communicated by written notice to the Purchaser, and shall
      be
      deemed to occur on the date such notice is delivered to the
      Purchaser.

     

    
      
        
        

      

      
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    (ii)  “Constructive
      Termination” shall mean a termination of employment by Purchaser within sixty
      (60) days following the occurrence of any one or more of the following events
      without the Purchaser’s written consent (i) any reduction in position, title,
      overall responsibilities, level of authority, level of reporting, base
      compensation, annual incentive compensation opportunity, aggregate employee
      benefits or (ii) a request that Purchaser’s location of employment be relocated
      by more than fifty (50) miles. In the event that the Purchaser is a party to
      an
      employment agreement or other similar agreement with the Company or any
      Affiliate (or a successor entity) that defines a termination on account of
      “Constructive Termination,” “Good Reason” or “Breach of Agreement” (or a term
      having a similar meaning), such definition shall apply as the definition of
      “Constructive Termination” for purposes hereof in lieu of the foregoing, but
      only to the extent that such definition provides the Purchaser with greater
      rights. A Constructive Termination shall be communicated by written notice
      to
      the Committee, and shall be deemed to occur on the date such notice is delivered
      to the Committee, unless the circumstances giving rise to the Constructive
      Termination are cured within five (5) days of such notice.

     

    (iii)  “Continuing
      Director” means any member of the Board of Directors of the Company who was a
      member of the Board prior to the adoption of the Plan, and any person who is
      subsequently elected to the Board if such person is recommended or approved
      by a
      majority of the Continuing Directors.

     

    4.  Reconveyance
      Upon Termination of Service.

     

    (a)  Repurchase
      Right.
      The
      Company shall have the right (but not the obligation) to repurchase all or
      any
      part of the Unvested Shares (the “Repurchase Right”) in the event that the
      Purchaser’s Continuous Service terminates for any reason. Upon exercise of the
      Repurchase Right, the Purchaser shall be obligated to sell his or her Unvested
      Shares to the Company, as provided in this Section 4. If the Purchase Price
      paid
      for the Shares is zero, then upon termination of Continuous Service Purchaser
      shall be obligated to transfer his or her Unvested Shares to the Company without
      consideration.

     

    (b)  Consideration
      for Repurchase Right.
      The
      repurchase price of the Unvested Shares (the “Repurchase Price”) shall be equal
      to the Purchase Price, if any, of such Unvested Shares. 

     

    (c)  Procedure
      for Exercise of Reconveyance Option.
      For
      sixty (60) days after the Termination Date or other event described in this
      Section 4, the Company may exercise the Repurchase Right by giving
      Purchaser and/or any other person obligated to sell written notice of the number
      of Unvested Shares which the Company desires to purchase. The Repurchase Price
      for the Unvested Shares shall be payable, at the option of the Company, by
      check
      or by cancellation of all or a portion of any outstanding indebtedness of
      Purchaser to the Company, or by any combination thereof.

     

    
      
        
        

      

      
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    (d)  Notification
      and Settlement.
      In the
      event that the Company has elected to exercise the Repurchase Right as to part
      or all of the Unvested Shares within the period described above, Purchaser
      or
      such other person shall deliver to the Company certificate(s) representing
      the
      Unvested Shares to be acquired by the Company within thirty (30) days following
      the date of the notice from the Company. The Company shall deliver to Purchaser
      against delivery of the Unvested Shares, checks of the Company payable to
      Purchaser and/or any other person obligated to transfer the Unvested Shares
      in
      the aggregate amount of the Repurchase Price, if any, to be paid as set forth
      in
      paragraph 4(b) above.

     

    (e)  Deposit
      of Unvested Shares.
      Purchaser shall deposit with the Company certificates representing the Unvested
      Shares, together with a duly executed stock assignment separate from certificate
      in blank, which shall be held by the Secretary of the Company. Purchaser shall
      be entitled to vote and to receive dividends and distributions on all such
      deposited Unvested Shares.

     

    (f)  Termination.
      The
      provisions of this Section 4 shall automatically terminate in accordance
      with Section 3(b) above. 

     

    (g)  Assignment.
      The
      Company may assign its Repurchase Right under this Section 4 without the consent
      of the Purchaser.

     

    5.  Restrictions
      on Unvested Shares.
      Unvested
      Shares may not be sold, transferred, pledged, or otherwise disposed of, except
      that such Unvested Shares may be transferred to a trust established for the
      sole
      benefit of the Purchaser and/or his or her spouse, children or grandchildren.
      Any Unvested Shares that are transferred as provided herein remain subject
      to
      the terms and conditions of this Agreement.

     

    6.  Adjustments
      Upon Changes in Capital Structure.
      In the
      event that the outstanding Shares of Common Stock of the Company are hereafter
      increased or decreased or changed into or exchanged for a different number
      or
      kind of shares or other securities of the Company by reason of a
      recapitalization, stock split, combination of shares, reclassification, stock
      dividend, or other change in the capital structure of the Company, then
      Purchaser shall be entitled to new or additional or different shares of stock
      or
      securities, in order to preserve, as nearly as practical, but not to increase,
      the benefits of Purchaser under this Agreement, in accordance with the
      provisions of Section 4.3 of the Plan. Such new, additional or different shares
      shall be deemed “Shares” for purposes of this Agreement and subject to all of
      the terms and conditions hereof.

     

    7.  Shares
      Free and Clear.
      All
      Shares purchased by the Company (or otherwise returned to the Company) pursuant
      to this Agreement shall be delivered by Purchaser free and clear of all claims,
      liens and encumbrances of every nature (except the provisions of this Agreement
      and any conditions concerning the Shares relating to compliance with applicable
      federal or state securities laws), and the purchaser thereof shall acquire
      full
      and complete title and right to all of such Shares, free and clear of any
      claims, liens and encumbrances of every nature (again, except for the provisions
      of this Agreement and such securities laws).

     

    
      
        
        

      

      
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    8.  Limitation
      of Company’s Liability for Nonissuance; Unpermitted
      Transfers.

     

    (a)  The
      Company agrees to use its reasonable best efforts to obtain from any applicable
      regulatory agency such authority or approval as may be required in order to
      issue and sell the Shares to Purchaser pursuant to this Agreement. The inability
      of the Company to obtain, from any such regulatory agency, authority or approval
      deemed by the Company’s counsel to be necessary for the lawful issuance and sale
      of the Shares hereunder and under the Plan shall relieve the Company of any
      liability in respect of the nonissuance or sale of such Shares as to which
      such
      requisite authority or approval shall not have been obtained.

     

    (b)  The
      Company shall not be required to: (i) transfer on its books any Shares of the
      Company which shall have been sold or transferred in violation of any of the
      provisions set forth in this Agreement, or (ii) treat as owner of such shares
      or
      to accord the right to vote as such owner or to pay dividends to any transferee
      to whom such shares shall have been so transferred. 

     

    9.  Notices.
      Any
      notice, demand or request required or permitted to be given under this Agreement
      shall be in writing and shall be deemed given when delivered personally or
      three
      (3) days after being deposited in the United States mail, as certified or
      registered mail, with postage prepaid, (or by such other method as the
      Administrator may from time to time deem appropriate), and addressed, if to
      the
      Company, at its principal place of business, Attention: the Chief Financial
      Officer, and if to the Purchaser, at his or her most recent address as shown
      in
      the employment or stock records of the Company.

     

    10.  Binding
      Obligations.
      All
      covenants and agreements herein contained by or on behalf of any of the parties
      hereto shall bind and inure to the benefit of the parties hereto and their
      permitted successors and assigns.

     

    11.  Captions
      and Section Headings.
      Captions and section headings used herein are for convenience only, and are
      not
      part of this Agreement and shall not be used in construing it.

     

    12.  Amendment.
      This
      Agreement may not be amended, waived, discharged, or terminated other than
      by
      written agreement of the parties.

     

    13.  Entire
      Agreement.
      This
      Agreement and the Plan constitute the entire agreement between the parties
      with
      respect to the subject matter hereof and supersede all prior or contemporaneous
      written or oral agreements and understandings of the parties, either express
      or
      implied.

     

    14.  Assignment.
      Purchaser shall have no right, without the prior written consent of the Company,
      to (i) sell, assign, mortgage, pledge or otherwise transfer any interest or
      right created hereby, or (ii) delegate his or her duties or obligations under
      this Agreement. This Agreement is made solely for the benefit of the parties
      hereto, and no other person, partnership, association or corporation shall
      acquire or have any right under or by virtue of this Agreement.

     

    15.  Severability.
      Should
      any provision or portion of this Agreement be held to be unenforceable or
      invalid for any reason, the remaining provisions and portions of this Agreement
      shall be unaffected by such holding.

     

    
      
        
        

      

      
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    16.  Counterparts.
      This
      Agreement may be executed in one or more counterparts, all of which taken
      together shall constitute one agreement and any party hereto may execute this
      Agreement by signing any such counterpart. This Agreement shall be binding
      upon
      Purchaser and the Company at such time as the Agreement, in counterpart or
      otherwise, is executed by Purchaser and the Company.

     

    17.  Applicable
      Law.
      This
      Agreement shall be construed in accordance with the laws of the State of
      California without reference to choice of law principles, as to all matters,
      including, but not limited to, matters of validity, construction, effect or
      performance.

     

    18.  No
      Agreement to Employ.
      Nothing
      in this Agreement shall affect any right with respect to continuance of
      employment by the Company or any of its subsidiaries. The right of the Company
      or any of its subsidiaries to terminate at will the Purchaser’s employment at
      any time (whether by dismissal, discharge or otherwise), with or without cause,
      is specifically reserved, subject to any other written employment agreement
      to
      which the Company and Purchaser may be a party.

     

    19.  “Market
      Stand-Off” Agreement.
      Purchaser agrees that, if requested by the Company or the managing underwriter
      of any proposed public offering of the Company’s securities (including any
      acquisition transaction where Company securities will be used as all or part
      of
      the purchase price), Purchaser will not sell or otherwise transfer or dispose
      of
      any Shares held by Purchaser without the prior written consent of the Company
      or
      such underwriter, as the case may be, during such period of time, not to exceed
      180 days following the effective date of the registration statement filed by
      the
      Company with respect to such offering, as the Company or the underwriter may
      specify.

     

    20.  Tax
      Elections.
      Purchaser
      understands that Purchaser (and not the Company) shall be responsible for the
      Purchaser’s own tax liability that may arise as a result of the acquisition of
      the Shares. Purchaser acknowledges that Purchaser has considered the
      advisability of all tax elections in connection with the purchase of the Shares,
      including the making of an election under Section 83(b) under the Internal
      Revenue Code of 1986, as amended (“Code”); Purchaser further acknowledges that
      the Company has no responsibility for the making of such Section 83(b) election.
      In the event Purchaser determines to make a Section 83(b) election, Purchaser
      agrees to timely provide a copy of the election to the Company as required
      under
      the Code.

     

    21.  Attorneys’
      Fees.
      If any
      party shall bring an action in law or equity against another to enforce or
      interpret any of the terms, covenants and provisions of this Agreement, the
      prevailing party in such action shall be entitled to recover reasonable
      attorneys’ fees and costs.

     

    [Signature
      Page Follows]

     

    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
      date
      first above written.

     

    

      
        	
                THE
                  COMPANY:

              	 	
                 PURCHASER:

              
	 	 	 	 
	KAL
                Energy, Inc.	 	
                 .

              
	 	 	 
	 	 	 
	
                 

                By:

              	
                 

              	 	 
	
                 

                Name:

              	
                 

              	 	
                [Print
                  Name]

              
	
                 

                Title:

              	
                 

              	 	 
	 	 	 	
                 Address:

              
	 	 	 	
                 

                 

              
	 	 	 	
                 

                 

              


      

    

     

     

    
      
        
        

      

      
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    CONSENT
      AND RATIFICATION OF SPOUSE

     

    The
      undersigned, the spouse of _____________________, a party to the attached
      Restricted Stock Award Agreement (the “Agreement”), dated as of _______________,
      hereby consents to the execution of said Agreement by such party; and ratifies,
      approves, confirms and adopts said Agreement, and agrees to be bound by each
      and
      every term and condition thereof as if the undersigned had been a signatory
      to
      said Agreement, with respect to the Shares (as defined in the Agreement) made
      the subject of said Agreement in which the undersigned has an interest,
      including any community property interest therein.

     

    I
      also
      acknowledge that I have been advised to obtain independent counsel to represent
      my interests with respect to this Agreement but that I have declined to do
      so
      and I hereby expressly waive my right to such independent counsel.

     

     

    
      	
              Date:
                

            	
               

            	 	 
	 	 	 	
              (Signature)

            
	 	 	 	
               

               

            
	 	 	 	
              (Print
                Name)

               

            


    

     

    
      
         

      

      
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