Exhibit 10.1
Yuma Energy, Inc.
2014
LONG-TERM INCENTIVE PLAN
NOTICE OF RESTRICTED STOCK AWARD
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Participant:
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(the
“Participant”)
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Notice:
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You
have been granted the following award of restricted shares of
common stock, $0.001 par value per share (the “Common Stock”), of Yuma Energy,
Inc., a Delaware corporation (the “Company”), in accordance with the
terms of this Notice of Restricted Stock Award (this
“Notice”), the
Yuma Energy, Inc. 2014 Long-Term Incentive Plan, as assumed by the
Company in October 2016, as in effect and as amended from time to
time (the “Plan”), and the attached
Restricted Stock Agreement (the “Agreement”).
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Date of Grant:
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(the
“Grant
Date”)
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Number of Restricted Shares of Common Stock:
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(the
“Restricted
Shares”)
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Expiration Date:
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The
earlier to occur of: (a) the date on which all Restricted Shares
have vested and (b) the tenth anniversary of the Grant Date (the
“Expiration
Date”).
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Vesting Schedule:
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No. of
Restricted Shares
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Vesting
Date (each, a “Vesting
Date”)
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The
vesting of the above Restricted Shares is subject to your continued
service as an employee of the Company or any of its subsidiaries
through such Vesting Date, and upon the terms of this Notice, the
Plan and the Agreement.
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You, by your
signature as the Participant below, acknowledge that you (i) have
reviewed the Agreement and the Plan in their entirety and have had
the opportunity to obtain the advice of counsel prior to executing
this Notice, (ii) understand that the award of Restricted Shares is
granted under and governed by the terms and provisions of the
Agreement and the Plan, and (iii) agree to accept as binding all of
the determinations and interpretations made by the Compensation
Committee of the Board of Directors of the Company with respect to
matters arising under or relating to this Notice, the Agreement and
the Plan.
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PARTICIPANT
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YUMA ENERGY, INC.
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By:
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By:
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Name:
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Name:
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Title:
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YUMA ENERGY, INC.
RESTRICTED STOCK AGREEMENT
1. Award
of Restricted Shares. Yuma Energy, Inc., a
Delaware corporation (the “Company”), hereby issues to
Participant under the Yuma Energy, Inc. 2014 Long-Term Incentive
Plan, as in effect and as amended from time to time (the
“Plan”), an
award (the “Award”) of the number of
restricted shares (the “Restricted Shares”) of common
stock, $0.001 par value per share (the “Common Stock”), of the Company,
set forth in the Notice of Restricted Stock Award (the
“Notice”)
attached to this Restricted Stock Agreement (this
“Agreement”).
This Agreement consists of the Notice and the terms and conditions
of the Plan. Unless otherwise provided herein, capitalized terms
herein will have the same meanings as in the Plan.
2. Vesting
Schedule.
(a) Except as otherwise
provided in this Agreement or the Plan, the Restricted Shares
awarded by this Agreement are scheduled to vest in accordance with
the vesting schedule set forth in the Notice; provided, however, no
Restricted Shares shall vest after the Expiration Date. The
Restricted Shares scheduled to vest on a Vesting Date will vest
only if the Participant remains in continued service as an employee
of the Company or any of its subsidiaries through such Vesting
Date. Should the Participant’s continued service as an
employee of the Company or any of its subsidiaries end
(“Termination of
Service”) at any time (the “Termination Date”), any unvested
Restricted Shares will be immediately forfeited and reconveyed to
the Company. However, the Compensation Committee (the
“Committee”) of
the Board of Directors (the “Board”) of the Company may, in its
discretion, vest any unvested Restricted Shares upon the
Participant’s Termination of Service.
(b) Change of Control Event. If
there is a Change of Control Event, any outstanding unvested
Restricted Shares shall not vest immediately and shall remain
outstanding and continue subject to restrictions in accordance with
the terms hereof, unless one of the following things
happens:
(i) the
Committee, in its sole discretion, without the consent of the
Participant or holder of the Award, and on such terms and
conditions as it deems appropriate, may take any one or more of the
actions or make the adjustments set forth in Section 12.2 of the
Plan in connection with such Change in Control Event;
and
(ii) unless
the terms contained in any employment agreement between the
Participant and the Company provide otherwise, if the Participant
incurs a Termination of Service within a period beginning sixty
(60) days before and ending twelve (12) months following a Change
of Control Event on account of (1) a termination by the Company or
any of its subsidiaries for any reason other than Cause, or (2) a
termination by the Participant for Good Reason, then the
restrictions with respect to any outstanding unvested Restricted
Shares shall lapse on the Termination Date.
For
purposes of this Agreement, the following definitions
apply:
“Good Reason” means without the
Participant’s written consent (A) a material reduction
in the Participant’s authority, duties or responsibilities
compared to the Participant’s authority, duties and
responsibilities immediately prior to the Change of Control Event;
(B) the Participant’s principal work location being
moved more than 35 miles, from the location immediately prior to
the Change of Control Event; (C) the Company or any of its
subsidiaries materially reduces the Participant’s base salary
(unless the base salaries of substantially all other senior
executives of the Company are similarly reduced); or (D) if the
Participant is a party to an employment agreement with the Company,
any material breach of such employment agreement by the
Company. The Participant will not resign for Good Reason
without first providing the Company with written notice of the acts
or omissions constituting the grounds for “Good Reason”
within ninety (90) days of the initial existence of the grounds for
“Good Reason” and the Company must have an opportunity
within thirty (30) days following delivery of such notice to cure
the Good Reason condition.
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“Cause” means (A) the
Participant’s failure to perform (other than due to
Disability or death) the duties of the Participant’s position
(as they may exist from time to time) to the reasonable
satisfaction of the Company or any of its subsidiaries after
receipt of a written warning and at least fifteen (15) days’
opportunity for the Participant to cure the failure, (B) any
act of fraud or dishonesty committed by the Participant against or
with respect to the Company or any of its subsidiaries or customers
as shall be reasonably determined to have occurred by the Board,
(C) the Participant’s conviction or plea of no contest
to a crime that negatively reflects on the Participant’s
fitness to perform the Participant’s duties or harms the
Company’s or any of its subsidiaries’ reputation or
business, (D) the Participant’s willful misconduct that
is injurious to the Company or any of its subsidiaries, or
(E) the Participant’s willful violation of a material
Company or any of its subsidiaries policy. The preceding definition
shall not be deemed to be inclusive of all the acts or omissions
that the Company or any of its subsidiaries may consider as grounds
for the dismissal or discharge of the Participant or any other
individual in the service of the Company or any of its
subsidiaries. Notwithstanding the foregoing, if the
Participant is a party to an employment agreement with the Company,
the definition of “cause” as defined in the employment
agreement will supersede the above definition.
(c) All Restricted
Shares held by the Participant which are not vested on the
Termination Date pursuant to the provisions of Sections 2(a) or
2(b) shall be deemed forfeited and reconveyed to the Company.
Concurrently with the execution and delivery of the Notice, the
Participant shall deliver to the Company an executed stock power,
in the form attached hereto as Exhibit A, in blank, with
respect to the Restricted Shares. The Participant, by acceptance of
the Award, shall be deemed to appoint, and does so appoint by
execution of the Notice and the stock power, the Company, or any
escrow agent the Company may appoint, and each of the
Company’s authorized representatives as the
Participant’s attorney(s)-in-fact to effect any transfer of
unvested forfeited Restricted Shares (or shares otherwise
reacquired by the Company hereunder) to the Company as may be
required pursuant to the Plan or this Agreement and to execute such
documents as the Company or such representatives deem necessary or
advisable in connection with any such transfer. Participant will
receive no payment for unvested forfeited Restricted
Shares.
3. Delivery
of Restricted Shares; Stockholder Rights. The unvested
Restricted Shares set forth in the Notice will be issued and
delivered to a book entry account maintained by the Company’s
transfer agent. Thereafter, subject to the forfeiture provisions
referenced in this Agreement or
transfer by the Participant (in accordance with this Agreement and
applicable law), the Participant shall be entitled to the rights
and privileges of a stockholder of the Company in respect to such
Restricted Shares, including the right to vote and receive
dividends (subject to applicable tax withholding obligations)
during the vesting period on the same basis as all other issued and
outstanding shares of Common Stock.
4. Taxes.
(a) Tax
Liability. The Participant is ultimately liable
and responsible for all taxes owed by the Participant in connection
with the Award, regardless of any action the Company takes with
respect to any tax withholding obligations that arise in connection
with the Award. The Company does not make any representation
or undertaking regarding the treatment of any tax withholding in
connection with the grant or vesting of the Award or the
subsequent sale of vested Restricted Shares. The Company does
not commit and is under no obligation to structure the Award to
reduce or eliminate the Participant’s tax
liability.
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(b) Payment
of Withholding Taxes. In the event required by
federal, state or local law, the Company will have the right and is
hereby authorized to withhold, and/or to require the Participant to
pay upon the occurrence of the event triggering the requirement,
any applicable withholding taxes in respect of the Restricted
Shares, their grant, vesting or otherwise and to take such other
action as may be necessary in the opinion of the Committee to
satisfy all obligations for the payment of such withholding taxes.
The Company, in its sole discretion and pursuant to such procedures
as it may specify from time to time, may permit the Participant to
satisfy such tax withholding obligation, in whole or in part
(without limitation) by (i) paying cash; (ii) electing to have the
Company withhold otherwise then deliverable vested Restricted
Shares having a fair market value equal to the minimum amount
required to be withheld; (iii) delivering to the Company,
vested and owned shares of Common Stock having a fair market value
equal to the amount required to be withheld; or (iv) through any
other lawful manner. The Participant agrees to indemnify and hold
the Company harmless from any losses, costs, damages, or expenses
relating to inadequate withholding. The Company shall withhold
from any dividends paid during the vesting period only the amounts
the Company is required to withhold to satisfy any applicable tax
withholding requirements with respect to such dividends based on
minimum statutory withholding rates for federal and state tax
purposes, including any payroll taxes.
5. Section
83(b) Election for Restricted Shares. In the event the
Participant determines to make an election with the Internal
Revenue Service (the “IRS”) under Section 83(b) of
the Internal Revenue Code of 1986, as amended (the
“Code”), and the
regulations promulgated thereunder (the “83(b) Election”), the Participant
shall provide a copy of such form to the Company promptly following
its filing, which is required under current law to be filed with
the IRS no later than thirty (30) days after the Grant Date of
the Restricted Shares. The Participant is advised to consult with
his or her own tax advisors regarding the purchase and holding of
the Restricted Shares, and the Company shall bear no liability for
any consequence of the Participant making an 83(b) Election or
failing to make an 83(b) Election.
YOU FURTHER ACKNOWLEDGE THAT THE COMPANY HAS DIRECTED YOU TO SEEK
INDEPENDENT ADVICE REGARDING THE APPLICABLE PROVISIONS OF THE CODE
AND THE INCOME TAX LAWS OF ANY MUNICIPALITY OR STATE IN WHICH YOU
MAY RESIDE.
6. No
Effect on Employment. Nothing contained in this Agreement
shall confer upon the Participant the right to continue as an
employee of the Company or any of its subsidiaries.
7. Address
for Notices. Any notice to be given to the Company under the
terms of this Agreement shall be addressed to the Company, Attn:
Chief Financial Officer, at the Company’s headquarters, 1177
West Loop South, Suite 1825, Houston, Texas 77027, or at such other
address as the Company may hereafter designate in writing. Any
notice to be given to the Participant will be addressed to such
Participant at the address maintained by the Company for such
person or at such other address as the Participant may specify in
writing to the Company.
8. Award
is Not Transferable. The Award and the rights and privileges
conferred hereby will not be transferred, assigned, pledged or
hypothecated in any way (whether by operation of law or otherwise)
and will not be subject to sale under execution, attachment or
similar process. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of the Award, or of any right or
privilege conferred hereby, or upon any attempted sale under any
execution, attachment or similar process, the Award and the rights
and privileges conferred hereby immediately will become null and
void.
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9. Restrictions.
(a) Restrictions on Sale of
Securities. If the Participant is an “affiliate”
of the Company, as that term is defined in Rule 144
(“Rule 144”)
under the Securities Act of 1933, as amended (the
“Securities
Act”), the Participant may not sell the shares
received upon vesting of the Restricted Shares unless in compliance
with Rule 144. Further, the Participant’s subsequent sale of
the shares received upon the vesting of Restricted Shares will be
subject to any market blackout-period that may be imposed by the
Company and must comply with the Company’s insider trading
policies and any other applicable securities laws. The Participant
acknowledges and agrees that, prior to the sale of any vested
Restricted Shares acquired under the Award; it is the
Participant’s responsibility to determine whether or not such
sale of such shares will subject the Participant to liability under
insider trading rules or other applicable federal securities
laws.
(b) Market Standoff Agreement. The
Participant agrees in connection with any registration of the
Company’s securities under the Securities Act that, upon the
request of the Company or the underwriter(s) managing any
registered public offering of the Company’s securities, the
Participant will not sell or otherwise dispose of any shares of
Common Stock acquired pursuant to this Agreement without the prior
written consent of the Company or such underwriters, as the case
may be, for such period of time (not to exceed one hundred eighty
(180) days) after the effective date of such registration requested
by such managing underwriter(s) and subject to all restrictions as
the Company or the managing underwriter(s) may specify for
employees, directors or other service provider stockholders
generally. The Participant further agrees to enter into any
agreement reasonably required by the underwriter(s) to implement
the foregoing.
10. Binding
Agreement. This Agreement will be binding upon and inure to
the benefit of the heirs, legatees, legal representatives,
successors and assigns of the parties hereto.
11. Conditions
for Issuance of Shares Upon Vesting of Restricted Shares.
The Company shall not be required to transfer on its books or
otherwise issue any certificate or certificates upon the vesting of
any Restricted Shares hereunder prior to fulfillment of any
approval or other clearance from any state or federal governmental
agency, which the Committee shall, in its absolute discretion,
determine to be necessary or advisable.
12. Committee
Authority. All actions taken and all interpretations and
determinations made by the Committee will be final and binding upon
the Participant, the Company and all other persons, and will be
given the maximum deference permitted by law. No member of the
Committee will be personally liable for any action, determination
or interpretation made in good faith with respect to this
Agreement.
13. Captions.
Captions provided herein are for convenience only and are not to
serve as a basis for interpretation or construction of this
Agreement.
14.
Provisions
Severable. In the event that any provision in this Agreement
is held invalid or unenforceable, such provision will be severable
from, and such invalidity or unenforceability will not be construed
to have any effect on, the remaining provisions of this
Agreement.
15.
Entire
Agreement. This Agreement, including the Notice, and the
Plan constitute the entire understanding of the parties relating to
the subjects covered herein. The Participant expressly warrants
that he or she is not executing the Notice in reliance on any
promises, representations or inducements other than those contained
herein and in the Plan.
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16. Modifications
to this Agreement. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will
be effective unless made in writing signed by the Participant and a
duly authorized officer of the Company. All modifications of or
amendments to this Agreement must either (a) comply with Section
409A of the Code or (b) not cause this Award to be subject to
Section 409A of the Code if this Award is not already subject to
Section 409A of the Code.
17.
Amendment,
Suspension or Termination of the Plan. By accepting this
Award, the Participant expressly warrants that he or she has
received an award under the Plan, and has received, read and
understood a description of the Plan. The Participant understands
that the Plan is discretionary in nature and may be modified,
suspended or terminated by the Company at any time.
18. Recoupment
Policy. Notwithstanding the vesting terms of this Agreement,
the Award is subject to any compensatory recovery (clawback) policy
in effect at the time of each Vesting Date.
19. Governing
Law; Dispute Resolution.
(a) This Agreement will
be governed by, and construed in accordance with, the laws of the
State of Texas, without regard to its conflict of law
provisions.
(b) Any dispute arising
out of, or relating to this Agreement or any breach hereof, shall
be resolved by binding arbitration in Harris County, Texas, in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect, and judgment on the award
rendered by the arbitrator(s) may be entered in any court of
competent jurisdiction. The location of such arbitration in Harris
County, Texas, shall be selected by the Company in its sole and
absolute discretion. All costs and expenses, including
attorneys’ fees, relating to the resolution of any such
dispute shall be borne by the party incurring such costs and
expenses.
20. Data
Protection. By accepting the Award, the Participant agrees
and consents:
(a) to the
collection, use, processing and transfer by the Company of certain
personal information about the Participant, including the
Participant’s name, home address and telephone number, date
of birth, other employee information, details of the Restricted
Shares granted to the Participant, and of Common Stock issued or
transferred to the Participant pursuant to this Agreement
(“Data”);
and
(b) to the
Company transferring Data to any subsidiary or affiliate of the
Company for the purposes of implementing, administering and
managing this Agreement; and
(c) to the use
of such Data by any person for such purposes; and
(d) to the
transfer to and retention of such Data by third parties in
connection with such purposes.
21. Plan
Governs. Except where explicitly stated in this Agreement,
this Agreement is subject to all terms and provisions of the Plan.
In the event of a conflict between one or more provisions of this
Agreement and one or more provisions of the Plan, the provisions of
the Plan shall govern, unless the Committee shall determine
otherwise.
22. Participant
Acknowledgements. The Participant acknowledges receipt of a
copy of the Plan and represents that he or she is familiar with the
terms and provisions thereof, and hereby accepts the Award subject
to all of the terms and provisions hereof and thereof. The
Participant has reviewed this Agreement and the Plan in their
entirety, has had an opportunity to obtain the advice of counsel
prior to executing the Notice and fully understands all provisions
of this Agreement, including the Notice, and the Plan.
THE
PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE RESTRICTED SHARES
SHALL VEST, IF AT ALL, ONLY DURING THE PERIOD OF THE
PARTICIPANT’S CONTINUED SERVICE AS AN EMPLOYEE OF THE COMPANY
OR ANY OF ITS SUBSIDIARIES (NOT THROUGH THE ACT OF BEING GRANTED
THIS AWARD OR ACQUIRING RESTRICTED SHARES HEREUNDER). THE
PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THE
NOTICE, THE AGREEMENT NOR THE PLAN SHALL CONFER UPON THE
PARTICIPANT ANY RIGHT WITH RESPECT TO CONTINUATION OF THE
PARTICIPANT’S EMPLOYMENT WITH THE COMPANY OR ANY OF ITS
SUBSIDIARIES.
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EXHIBIT A
STOCK POWER
INSTRUCTIONS:
Please do not fill
in any blanks other than the signature line and the printed name
line. The purpose of the stock power is to enable the Company to
exercise its options upon a forfeiture set forth in the Notice of
Restricted Stock Award (including the Restricted Stock Agreement)
without requiring additional signatures on the part of the
Participant.
STOCK POWER
FOR VALUE RECEIVED
and pursuant to that certain Notice of Restricted Stock Award
(including the Restricted Stock Agreement) between Yuma Energy,
Inc., a Delaware corporation (the “Company”), and the individual
named below (the “Participant”) dated as of
_____________, the Participant, hereby sells, assigns and transfers
to the Company, an aggregate of _____________ Restricted Shares of
common stock, $0.001 par value per share, of the Company, standing
in the Participant’s name on the books of the Company and are
either represented by stock certificate number(s)
___________________________ to which this instrument is attached or
entered into a book entry account maintained by the transfer agent
of the Company, and hereby irrevocably constitutes and appoints
_____________________ as his or her attorney in fact and agent to
transfer such shares on the books of the Company, with full power
of substitution in the premises.
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Dated:
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Signature
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Print Name
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