UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
Form 8-K
 
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
 
Date of Report (Date of earliest event reported): February 24, 2014
 
Victory Energy Corporation
(Exact name of registrant as specified in its charter)
 
Nevada
 
2-76219-NY
 
87-0564462
(State or other jurisdiction of incorporation)
 
(Commission File Number)
 
(I.R.S. Employer Identification No.)
 
3355 Bee Caves Road, Suite 608
Austin, Texas
 
78746
(Address of principal executive offices)
 
(Zip Code)
 
(512) 347-7300
(Registrant’s telephone number, including area code)
 
N/A
(Former name or former address, if changed since last report)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
 
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 
 
 
 
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
 
Long-Term Incentive Plan
 
On February 24, 2014, the Board of Directors (the “ Board ”) of the Victory Energy Corporation (the “ Company ”) adopted the Victory Energy Corporation 2014 Long Term Incentive Plan (the “ LTIP ”) for the employees, directors and consultants of the Company and its affiliates. The LTIP provides for the grant of all or any of the following components: (1) stock options, (2) restricted stock, (3) other stock-based awards, (4) performance awards and (6) dividends and dividend equivalents. Subject to adjustment in accordance with the LTIP, the maximum aggregate number of shares of the common stock of the Company, par value $0.001 per share (the “ Common Stock ”) that may be issued with respect to awards under the LTIP is fifteen percent (15%) of the outstanding shares of Common Stock at the end of the preceding calendar quarter, of which the maximum number of such shares that may be issued as incentive stock options, as defined in Section 422(b) of the Internal Revenue Code of 1986 is two million (2,000,000) shares of Common Stock. Common Stock withheld to satisfy exercise prices or tax withholding obligations will be available for delivery pursuant to other awards. The LTIP will be administered by the Board, until such time as a compensation committee of the Board is established (the “ Compensation Committee ”), at which time the LTIP will be administered by the Compensation Committee.
 
The foregoing description of the LTIP is not complete and is qualified in its entirety by reference to the full text of the LTIP, which is attached hereto as Exhibit 10.1 and incorporated by reference herein.
 
Form of Award Agreements under Long-Term Incentive Plan
 
On February 24, 2014, the Board also adopted and approved the following form of award agreements that will govern the grant of awards under the LTIP:
 
The form of Award of Restricted Stock Units (Employee) (the “ Form of Employee RSU Award ”) that governs the grant of Restricted Stock Units (“RSUs”) to the Company’s employees and the form of Award of Restricted Stock Units (Director) the “ Form of Director RSU Award ”) that governs the grant of RSUs to the Company’s directors. The RSUs granted under the forms of Award of Restricted Stock Units will entitle the grantee to receive the number of shares of common stock of the Company equal to the number of RSUs that have vested on such date.   The RSUs granted to employees will vest ratably on the first, second and third anniversaries of the Grant Date, so long as the grantee is continuously employed by the Company.  The RSUs granted to directors will either (i) vest ratably on the first, second and third anniversaries of the Grant Date or (ii) vest fully on the second anniversary of the Grant Date, so long as the grantee is continuously providing services to the Company, as selected by the administrator on the grant date.  In addition, the RSUs will be 100% vested upon any one of the following events: termination of the grantee’s employment or director service, as applicable, with the Company due to death or Disability (as defined in the LTIP), or termination of the grantee’s employment or director service, as applicable, with the Company without Cause (as defined in the LTIP) on or within twelve (12) months after the date of a Change in Control (as defined in the LTIP).
 
The form of Award of Restricted Stock (Employee) (the “ Form of Employee Restricted Stock Award ”) that governs the grant of restricted stock to the Company’s employees and a the form of Award of Restricted Stock (Director) (the “ Form of Director Restricted Stock Award ”) that governs the grant of restricted stock to the Company’s directors. The shares of the Company’s restricted common stock granted to employees will vest ratably on the first, second and third anniversaries of the grant date so long as the grantee is continuously employed by the Company. The shares of the Company’s restricted common stock granted to directors will either (i) vest ratably on the first, second and third anniversaries of the grant date or (ii) vest fully on the second anniversary of the grant date, so long as the grantee is continuously providing services to the Company, as selected by the administrator on the grant date.  In addition, the shares of the Company’s restricted stock will be 100% vested upon any one of the following events: termination of the grantee’s employment or director service, as applicable, with the Company due to death or Disability, or termination of the grantee’s employment or director service, as applicable, with the Company without Cause on or within twelve (12) months after the date of a Change in Control.
 
 
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The form of Nonstatutory Stock Option Agreement (Employee) (the “ Form of Employee Option Agreement ”) that governs the grant of nonstatutory stock options to purchase shares of Common Stock (“ Options ”) to the Company’s employees and a form of Nonstatutory Stock Option Agreement (Director) (the “ Form of Director Option Agreement ”) that governs the grant of Options to the Company’s directors.  The Options will terminate on the tenth (10 th ) anniversary of the Grant Date. The Options granted to employees will vest ratably on the first, second and third anniversaries of the Grant Date so long as the grantee is continuously employed by the Company. The Options granted to directors will either (i) vest ratably on the first, second and third anniversaries of the Grant Date or (ii) vest fully on the second anniversary of the Grant Date so long as the grantee is continuously providing services to the Company, as selected by the administrator on the grant date.  In addition, the Options will be 100% vested upon any one of the following events: termination of the grantee’s employment or director service, as applicable, with the Company due to death or Disability, or termination of the grantee’s employment or director service, as applicable, with the Company without Cause on or within twelve (12) months after the date of a Change in Control.  In the event of the termination of the grantee’s employment or director service, as applicable, with the Company for any reason other than death, Disability or Cause, then (i) the non-vested portion of the Option will immediately expire and (ii) the vested portion of the Option will expire to the extent not exercised within three (3) months after the date of termination.  In the event of the termination of service for Cause, or, as applicable, for the breach of any non-competition and/or confidentiality agreement, all vested and unvested Options will immediately expire and will not be exercisable.
 
The foregoing description of the Form of Employee RSU Award, Form of Director RSU Award, Form of Employee Restricted Stock Award, Form of Director Restricted Stock Award, Form of Employee Option Agreement and Form of Director Option Agreement are qualified in their entirety by reference to the Form of Employee RSU Award, the Form of Director RSU Award, the Form of Employee Restricted Stock Award, the Form of Director Restricted Stock Award, the Form of Employee Option Agreement and the Form of Director Option Agreement which are incorporated herein by reference and are attached hereto as Exhibit 10.2, Exhibit 10.3, Exhibit 10.4, Exhibit 10.5, Exhibit 10.6 and Exhibit 10.7.
 
Item 9.01. Financial Statements and Exhibits
 
Exhibit No.   Description
10.1
 
Victory Energy Corporation 2014 Long Term Incentive Plan.
10.2
 
Form of Award of Restricted Stock Units (Employee).
10.3
 
Form of Award of Restricted Stock Units (Director).
10.4
 
Form of Award of Restricted Stock (Employee).
10.5
 
Form of Award of Restricted Stock (Director).
10.6
 
Form of Nonstatutory Stock Option Agreement (Employee).
10.7
 
Form of Nonstatutory Stock Option Agreement (Director).
 
3
 
 
SIGNATURE
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
  Victory Energy Corporation  
       
Dated: February 28, 2014
 
/s/ Kenneth Hill
 
   
Kenneth Hill
Chief Executive Officer
 
 
 
4
EXHIBIT 10.1
 

 
VICTORY ENERGY CORPORATION
2014 LONG TERM INCENTIVE PLAN
(Effective February 24, 2014)
TABLE OF CONTENTS
 
SECTION 1 ESTABLISHMENT; PURPOSE AND TERM OF PLAN  2
       
 
1.1
Establishment
 2
 
1.2
Purpose
 2
 
1.3
Term of Plan
 2
       
SECTION 2 DEFINITIONS AND CONSTRUCTION  2
     
 
2.1
Definitions
 2
 
2.2
Construction
 2
     
SECTION 3 ADMINISTRATION  9
     
 
3.1
Administration by the Committee
 9
 
3.2
Authority of Officers
 9
 
3.3
Powers of the Committee
 9
 
3.4
Administration with Respect to Insiders
 10
 
3.5
Indemnification
 11
     
SECTION 4 SHARES SUBJECT TO PLAN  11
     
 
4.1
Maximum Number of Shares Issuable
 11
 
4.2
Adjustments for Changes in Capital Structure
 12
     
SECTION 5 ELIGIBILITY AND AWARD LIMITATIONS  13
     
 
5.1
Persons Eligible for Awards
 13
 
5.2
Award Agreements
 13
 
5.3
Award Grant Restrictions
 13
 
5.4
Fair Market Value Limitations for Incentive Stock Options
 14
 
5.5
Repurchase Rights, Right of First Refusal and Other Restrictions on Stock
 14
     
SECTION 6 TERMS AND CONDITIONS OF OPTIONS  14
     
 
6.1
Exercise Price
 15
 
6.2
Exercisability, Vesting and Term of Options
 15
 
6.3
Payment of Exercise Price
 15
     
SECTION 7 RESTRICTED STOCK  16
     
 
7.1
Award of Restricted Stock
 16
 
7.2
Restrictions
 17
 
7.3
Delivery of Shares of Common Stock
 18
     
SECTION 8 OTHER STOCK-BASED, PERFORMANCE AWARDS AND DIVIDENDS  18
     
 
8.1
Grant of Other Stock-Based and Performance Awards
 18
 
8.2
Other Stock-Based Award and Performance Awards Terms
 19
 
8.3
Dividends.
 20
     
SECTION 9 EFFECT OF TERMINATION OF SERVICE  21
     
 
9.1
Option Exercisability and Award Vesting
 21
 
9.2
Extension if Exercise Prevented by Law
 22
 
9.3
Extension if Participant Subject to Section 16(b)
 22
     
SECTION 10 WITHHOLDING TAXES  22
     
 
10.1
Tax Withholding
 22
 
10.2
Share Withholding
 22
 
10.3
Incentive Stock Options
 23
 
SECTION 11 PROVISION OF INFORMATION
 23
SECTION 12 COMPLIANCE WITH SECURITIES LAW, OTHER APPLICABLE LAWS AND OTHER COMPANY POLICIES
 23
SECTION 13 NONTRANSFERABILITY OF AWARDS AND STOCK
 24
SECTION 14 NONCOMPETITIVE ACTIONS
 24
SECTION 15 TERMINATION OR AMENDMENT OF PLAN
 24
SECTION 16 STOCKHOLDER APPROVAL
 25
SECTION 17 NO GUARANTEE OF TAX CONSEQUENCES
 25
SECTION 18 SEVERABILITY
 25
SECTION 19 GOVERNING LAW
 25
SECTION 20 SUCCESSORS
 26
SECTION 21 RIGHTS AS A STOCKHOLDER
 26
SECTION 22 NO SPECIAL EMPLOYMENT OR SERVICE RIGHTS
 26
SECTION 23 REORGANIZATION OF COMPANY
 26
SECTION 24 CODE SECTION 409A
 27
SECTION 25 ADJUSTMENTS UPON A CHANGE IN CONTROL
 28
 
 
1
 
 
VICTORY ENERGYCORPORATION
2014 LONG TERM INCENTIVE PLAN
 
SECTION 1
 
ESTABLISHMENT; PURPOSE AND TERM OF PLAN
 
1.1     Establishment
 
The Victory Energy Corporation 2014 Long Term Incentive Plan (the “ Plan ” ) is hereby established and adopted by the Board effective as of February 24, 2014 (the “ Effective Date ” ).
 
1.2     Purpose
 
The purpose of the Plan is to advance the interests of the Company and its stockholders by providing an incentive to attract, retain and reward persons performing services for the Company and by motivating such persons to contribute to the growth and profitability of the Company.
 
1.3     Term of Plan
 
The Plan shall continue in effect until the earlier of its termination by the Board or the date on which all of the shares of Stock available for issuance under the Plan have been issued and all restrictions on such shares of Stock under the terms of the Plan and the agreements evidencing Awards granted under the Plan have lapsed. However, all Awards shall be granted, if at all, on or before the date which is ten (10) years from Effective Date.
 
SECTION 2
 
DEFINITIONS AND CONSTRUCTION
 
2.1     Definitions
 
Whenever used herein, the following terms shall have their respective meanings set forth below:
 
(a)   “ Affiliate ”  means, with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, another Person. The term “control” includes, without limitation, the possession, directly or indirectly, of the power to direct the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. With respect to any Award that is deferred compensation subject to Code Section 409A, for the purposes of applying Code Section 409A to such Award the term Affiliate shall mean all Persons with whom the Participant’s employer would be considered a single employer under Code Section 414(b) or 414(c) as defined and modified in Code Section 409 as determined by the Committee. Notwithstanding the foregoing, with respect to Nonstatutory Stock Options and Stock appreciation rights, if necessary for such Awards to be exempt from Code Section 409A, as determined by the Committee, for purposes of grants of such Awards, Affiliate shall only include an entity if the Company’s Stock would constitute “service recipient stock” within the meaning of Code Section 409A.
 
 
2
 
 
(b)   “Award”  shall mean a grant of an Option, Restricted Stock, Other Stock-Based Award, Performance Awards or Dividends or Dividend Equivalents to a Participant under this Plan.
 
(c)   “Authorized Shares”  shall have the meaning set forth in Section 15 hereto.
 
(d)   “Award Agreement”  means a written agreement between the Company and a Participant setting forth the terms, conditions and restrictions of the Award granted to the Participant and any shares of Stock acquired upon the exercise thereof. The Award Agreement consists of the Award Agreement and the Notice of Grant of an Award incorporated therein by reference, or such other form or forms as the Committee may approve from time to time.
 
(e)   “Board”  means the Board of Directors of the Company.
 
(f)   “ Cashless Exercise ” shall have the meaning set forth in Section 6.3(a) hereto.
 
(g)   “Cause”  shall mean, unless otherwise specifically defined in a Participant’s Award Agreement or an employment agreement between the Participant and the Company or an Affiliate as in effect on the effective date of the grant of an Award, any of the following: (1) the Participant’s theft or falsification of any Company or Affiliate documents or records or property; (2) the Participant’s improper use or disclosure of the Company’s or an Affiliate’s confidential or proprietary information; (3)any action by the Participant which has a material detrimental effect on the Company’s or an Affiliate’s reputation or business as determined by the Committee; (4) the Participant’s material failure or inability to perform any reasonable assigned and lawful duties after written notice from the Company or Affiliate of, and Participant’s failure or inability to cure within ten (10) business days, such failure or inability; (5) any material breach by the Participant of any employment or service agreement between the Participant and the Company or Affiliate, if applicable, which breach is not cured pursuant to the terms of such agreement, if applicable; or (6) the Participant’s conviction (including any plea of guilty or nolo contendere) of any criminal act which impairs the Participant’s ability to perform his or her duties with the Company or Affiliate or (7) a material breach by the Participant of the policies and procedures of the Company or an Affiliate.
 
(h)   A “Change in Control”  shall mean any of the following events occurring with respect to the Company:
 
(i)   any Person (other than the Company, any trustee or other fiduciary holding securities under any employee benefit plan of the Company, or any company owned, directly or indirectly, by the stockholders of the Company immediately prior to the occurrence with respect to which the evaluation is being made in substantially the same proportions as their ownership of the common stock of the Company) acquires securities of the Company and immediately thereafter is the beneficial owner (except that a Person shall be deemed to be the beneficial owner of all shares that any such Person has the right to acquire pursuant to any agreement or arrangement or upon exercise of conversion rights, warrants or options or otherwise, without regard to the sixty (60)-day period referred to in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the combined voting power of the Company’s then outstanding securities;
 
 
3
 
 
(ii)   During any period of two consecutive years, individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii), or (iv) of this paragraph) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least a majority of the directors then still in office who either were directors at the beginning of the two-year period or whose election or nomination for election was previously so approved but excluding for this purpose any such new director whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of an individual, corporation, partnership, group, associate or other entity or Person other than the Board, cease for any reason to constitute at least a majority of the Board;
 
(iii)   the consummation of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving or resulting entity) more than 50% of the combined voting power of the surviving or resulting entity outstanding immediately after such merger or consolidation; or
 
(iv)   the stockholders of the Company approve a plan or agreement for the sale or disposition of all or substantially all of the consolidated assets of the Company (other than such a sale or disposition immediately after which such assets will be owned directly or indirectly by the stockholders of the Company, in substantially the same proportions as their ownership of the common stock of the Company immediately prior to such sale or disposition) in which case the Board shall determine the effective date of the Change in Control resulting therefrom; provided, however, that a transaction described in this clause (iv) shall not be deemed a Change in Control unless and until such transaction is consummated.
 
(i)   “Code”  means the Internal Revenue Code of 1986, as amended, and any applicable notices, rulings and regulations promulgated thereunder.
 
(j)   “Committee”  means the Board; provided however, after a compensation committee of the Board is established which meets the outside director requirements of Code Section 162(m) and non-employee director requirements under Securities and Exchange Commission Rule 16b-3, the Committee will mean such compensation committee during any period the Company is a “Publicly Held Corporation” within the meaning of the Code Section 162(m) and at any time required by the Securities and Exchange Commission Rule 16b-3.
 
 
4
 
 
(k)   “Company”  means Victory Energy Corporation, a Nevada corporation, or any successor corporation thereto.
 
(l)   “Consultant”  means an individual who is a natural person engaged to provide consulting or advisory services (other than as an Employee or a Director) to the Company or its Affiliates, provided that the identity of such person, the nature of such services or the entity to which such services are provided are not in connection with the offer or sale of securities in a capital raising transaction, and do not directly or indirectly promote or maintain a market for the Company’s securities or would not preclude the Company from offering or selling securities to such person pursuant to the Plan in reliance on either the exemption from registration provided by Rule 701 under the Securities Act or, if the Company is required to file reports pursuant to Section 13 or 15(d) of the Exchange Act, registration on a Form S-8 Registration Statement under the Securities Act.
 
(m)   “Director”  means a member of the Board or of the board of directors of any other Company or any of the Company’s Affiliates who is not an Employee.
 
(n)   “Disability”  means, unless otherwise specifically defined in the Participant’s Award Agreement, (i) in the case where the Participant has a written employment agreement with the Company or any Subsidiary, the definition of “Disability,” the definition for such term set forth in such employment agreement as in effect on the date of the applicable Award grant and (ii) in all other cases, a Participant’s inability, due to physical or mental incapacity, to substantially perform his duties and responsibilities for a period of ninety (90) days during any twelve-month period as determined by the Company. The Participant agrees to submit to any examination that is necessary for a determination of Disability and agrees to provide any information necessary for a determination of Disability, including any information that is protected by the Health Insurance Portability and Accountability Act.
 
(o)   “Dividends and Dividend Equivalents”  means an Award as specified in Section 8.3 .
 
(p)  “Effective Date”  shall have the meaning set forth in Section 1.1  hereto.
 
(q)   “Employee”  means any person treated as an employee (including a Director who is also treated as an employee) of the Company on the records of the Company or of any of the Company’s Affiliates on the records of such Affiliate and, with respect to any Incentive Stock Option granted to such person, who is an employee of the Company or a parent or a Subsidiary of the Company for purposes of Sections 422, 424 and 3401(c) of the Code; provided, however, that neither service as a Director nor payment of a director’s fee shall be sufficient to constitute employment for purposes of the Plan. The Company shall determine in good faith and in the exercise of its discretion whether an individual has become or has ceased to be an Employee and the effective date of such individual’s employment or termination of employment, as the case may be. For purposes of an individual’s rights, if any, under the Plan as of the time of the Company’s determination, all such determinations by the Company shall be final, binding and conclusive, notwithstanding that the Company, the Board, the Committee or any court of law or governmental agency subsequently makes a contrary determination.
 
 
5
 
 
(r)   “Exchange Act”  means the Securities Exchange Act of 1934, as amended.
 
(s)   “ Fair Market Value ”  means, as of any date, the value of a share of Stock or other property as determined by the Committee, in its discretion, or by the Company, in its discretion, if such determination is expressly allocated to the Company herein, subject to the following:
 
(i)   If, on such date, the Stock is listed or traded on a national or regional securities exchange or market system, constituting the primary market for the Stock, the Fair Market Value of a share of Stock shall be the closing sale price of a share of Stock (or the mean of the closing bid and asked prices of a share of Stock if the Stock is so quoted instead) on the determination date (or, if no sales occur on such date, on the last preceding date on which such sales of Stock are so reported) as quoted on such exchange and as reported in The Wall Street Journal , pink sheets or such other source as the Committee deems reliable.
 
(ii)   If, on such date, the Stock is not listed or traded on a national or regional securities exchange or market system, the Fair Market Value of a share of Stock shall be as determined by the Committee in its discretion using a reasonable method exercised in good faith without regard to any restriction other than a restriction which, by its terms, will never lapse, and if it is determined by the Committee to be applicable, in any other manner permitted in accordance with Code Section 409A and the notices, rulings and regulations thereunder, or 422(b) and the notices, rulings and regulations thereunder, if applicable.
 
(t)   “Incentive Stock Option”  means an Option intended to be (as set forth in the Award Agreement) and which qualifies as an incentive stock option within the meaning of Section 422(b) of the Code.
 
(u)    “Insider”  means an Officer, a Director or other person whose transactions in Stock are subject to Section 16 of the Exchange Act.
 
(v)   “ New Shares ” shall have the meaning set forth in Section 4.2 hereto.
 
(w)   “Nonstatutory Stock Option”  means an Option not intended to be (as set forth in the Award Agreement) or which does not qualify as an Incentive Stock Option.
 
 
6
 
 
(x)   “Notice of Grant of an Award”  means the Notice of Grant of an Award executed by the Company and the Participant on the date of the Award Grant.
 
(y)   “Officer”   means any person designated by the Board as an officer of the Company.
 
(z)   “Option”  means a right to purchase Stock pursuant to the terms and conditions of the Plan. An Option may be either an Incentive Stock Option or a Nonstatutory Stock Option.
 
(aa)   “Option Expiration Date”  shall have the meaning set forth in Section 9.1(a)  hereto.
 
(bb)   “Other Stock-Based Awards”  shall mean Awards described in Section 8.
 
(cc)   “Participant”  means a person who has been granted one or more Awards hereunder.
 
(dd)   “Performance Awards”  shall mean Awards described in Section 8.
 
(ee)   “Permitted Transferee” has the meaning provided such term in Section 13.
 
(ff)   “Person”  means any partnership, corporation, limited liability company, group, trust or other legal entity.
 
(gg)   “Plan”  shall have the meaning set forth in Section 1.1  hereto.
 
(hh)   “Restricted Stock”   shall mean an Award granted to a Participant pursuant to Section 7 hereof.
 
(ii)   “Restriction Period”  means the period of time determined by the Committee and set forth in the Award Agreement during which the transfer of Restricted Stock by the Participant is restricted.
 
(jj)   “Rule 16b-3”  means Rule 16b-3 under the Exchange Act, as amended from time to time, or any successor rule or regulation.
 
(kk)   “Securities Act”  means the Securities Act of 1933, as amended.
 
(ll)   “ Section 409A Plan ” shall have the meaning described in Section 24.
 
 
7
 
 
(mm)   “Service”  means a Participant’s employment or Service with the Company or any of its Affiliates, whether in the capacity of an Employee, a Director or a Consultant. A Participant’s Service shall not be deemed to have terminated merely because of a change in the capacity in which the Participant renders Service to the Company or Affiliate (or in the case of an Incentive Stock Option the parent or Subsidiary of the Company) or a change in the Company or Affiliate (or in the case of an Incentive Stock Option the parent or Subsidiary of the Company) for which the Participant renders such Service, provided that there is no interruption or termination of the Participant’s Service. Furthermore, a Participant’s Service with the Company or an Affiliate (or in the case of an Incentive Stock Option the parent or Subsidiary of the Company) shall not be deemed to have terminated if the Participant takes any military leave, temporary illness leave, authorized vacation or other bona fide leave of absence; provided, however, that if any such leave exceeds three (3) months, the Participant’s Service shall be deemed to have terminated unless the Participant’s right to return to Service with the Company is provided by either statute or contract. Notwithstanding the foregoing, unless otherwise designated by the Company or provided by statute or contract, a leave of absence shall not be treated as Service. The Participant’s Service shall be deemed to have terminated either upon an actual termination of Service or upon the company for which the Participant performs Service ceasing to be the Company or an Affiliate (or in the case of an Incentive Stock Option the parent or Subsidiary of the Company). Subject to the foregoing, the Company, in its discretion, shall determine whether the Participant’s Service has terminated and the effective date of such termination. Notwithstanding the foregoing, with respect to any Award that is subject to 409A, separation from Service shall be determined by the Committee under the applicable rules of Code Section 409A.
 
(nn)   “Stock”  means the common stock of the Company, par value $0.001 per share, as adjusted from time to time in accordance with Section 4.2 hereto.
 
(oo)   “Subsidiary”  means any corporation (whether now or hereafter existing) which constitutes a “subsidiary” of the Company, as defined in Section 424(f) of the Code.
 
(pp)   “Ten Percent Owner Participant”  means a Participant who, at the time an Option is granted to the Participant, owns stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or parent or Subsidiary within the meaning of Section 422(b)(6) of the Code.
 
(qq)   “Term”  shall have the meaning described in Section 15.
 
2.2     Construction
 
Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of the Plan. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Words of the masculine gender shall include the feminine and neuter, and vice versa. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise. Section headings as used herein are inserted solely for convenience and reference and do not constitute any part of the interpretation or construction of the Plan.
 
 
8
 
 
SECTION 3
 
ADMINISTRATION
 
3.1     Administration by the Committee
 
The Plan shall be administered by the Committee. All questions of interpretation of the Plan, construction of its terms, or of any Award shall be determined by the Committee, and such determinations shall be final and binding upon all persons having an interest in the Plan or such Award.
 
3.2     Authority of Officers
 
Any Officer shall have the authority to act on behalf of the Company with respect to any matter, right, obligation, determination or election which is the responsibility of or which is allocated to the Company herein, provided the Officer has apparent authority with respect to such matter, right, obligation, determination or election.
 
3.3     Powers of the Committee
 
In addition to any other powers set forth in the Plan and subject to the provisions of the Plan, the Committee shall have the full and final power and authority, in its discretion:
 
(a)   to determine the persons to whom, and the time or times at which, Awards shall be granted and the number of shares of Stock to be subject to each Award;
 
(b)   to designate Awards as Restricted Stock or Options or Other Stock-Based Awards or Performance Awards, and to designate Options as Incentive Stock Options or Nonstatutory Stock Options;
 
(c)   to determine the Fair Market Value of shares of Stock or other property;
 
(d)   to determine the terms, conditions and restrictions applicable to each Award (which need not be identical) and any shares acquired upon the exercise and/or vesting thereof, including, without limitation, (i) the exercise price of the Option, (ii) the method of payment for shares purchased upon the exercise and/or vesting of an Award, (iii) the method for satisfaction of any tax withholding obligation arising in connection with the Award or such shares, including by the withholding or delivery of shares of Stock, (iv) the timing, terms and conditions, including but not limited to performance goals, of the exercisability of the Award or the vesting of any shares of Stock, (v) the time of the expiration of the Award, (vi) the effect of the Participant’s termination of Service with the Company on any of the foregoing, (vii) the provision for electronic delivery of Awards and/or book entry, and (viii) all other terms, conditions and restrictions applicable to the Award or such shares not inconsistent with the terms of the Plan;
 
 
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(e)   to approve one or more forms of the Award Agreement;
 
(f)   to amend, modify, extend, cancel, or renew any Award, or to waive any restrictions or conditions applicable to any Award or any shares acquired upon the exercise thereof; provided, however, that no such amendment, modification, extension or cancellation shall adversely affect a Participant’s Award without a Participant’s consent;
 
(g)   to accelerate, continue, extend or defer the exercisability and/or vesting of any Award, including with respect to the period following a Participant’s termination of Service with the Company;
 
(h)   to prescribe, amend or rescind rules, guidelines and policies relating to the Plan, or to adopt supplements to, or alternative versions of, the Plan, including, without limitation, as the Committee deems necessary or desirable to comply with the laws of, or to accommodate the tax policy or custom of, foreign jurisdictions whose citizens may be granted Awards;
 
(i)   to correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award Agreement and to make all other determinations and take such other actions with respect to the Plan or any Award as the Committee may deem advisable to the extent not inconsistent with the provisions of the Plan or applicable law; and
 
(j)   notwithstanding the foregoing, except as provided in Section 4.2 and Section 25, the terms of an outstanding Award may not be amended by the Committee, without approval of the Company’s stockholders, to: (i) reduce the exercise price of an outstanding Option or to reduce the exercise price of an outstanding Stock appreciation right, (ii) cancel an outstanding Option or outstanding Stock appreciation right in exchange for other Options or Stock appreciation rights with an exercise price that is less than the exercise price of the cancelled Option or the cancelled Stock appreciation right, as applicable, or (iii) cancel an outstanding Option with an exercise price that is less than the Fair Market Value of a share of Stock on the date of cancellation or cancel an outstanding Stock appreciation right with an exercise price that is less than the Fair Market Value of a share of Stock on the date of cancellation in exchange for cash or another Award.
 
3.4     Administration with Respect to Insiders
 
With respect to participation by Insiders in the Plan, at any time that any class of equity security of the Company is registered pursuant to Section 12 of the Exchange Act, the Plan shall be administered in compliance with the requirements, if any, of Rule 16b-3 and all other applicable laws, including any required blackout periods. At any time the Company is required to comply with Securities Regulation BTR, all transactions under this Plan respecting the Company’s securities shall comply with Securities Regulation BTR and the Company’s insider trading policies, as revised from time to time, or such other similar Company policies, including but not limited to policies relating to blackout periods. Any ambiguities or inconsistencies in the construction of an Award shall be interpreted to give effect to such limitation. To the extent any provision of the Plan or Award Agreement or action by the Committee or Company fails to so comply, such provision or action shall be deemed null and void to the extent permitted by law and deemed advisable by the Committee in its discretion.
 
 
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3.5      Indemnification
 
EACH PERSON WHO IS OR WAS A MEMBER OF THE BOARD OR THE COMMITTEE SHALL BE INDEMNIFIED BY THE COMPANY AGAINST AND FROM ANY DAMAGE, LOSS, LIABILITY, COST AND EXPENSE THAT MAY BE IMPOSED UPON OR REASONABLY INCURRED BY HIM IN CONNECTION WITH OR RESULTING FROM ANY CLAIM, ACTION, SUIT, OR PROCEEDING TO WHICH HE MAY BE A PARTY OR IN WHICH HE MAY BE INVOLVED BY REASON OF ANY ACTION TAKEN OR FAILURE TO ACT UNDER THE PLAN (INCLUDING SUCH INDEMNIFICATION FOR A PERSON’S OWN, SOLE, CONCURRENT OR JOINT NEGLIGENCE OR STRICT LIABILITY), EXCEPT FOR ANY SUCH ACT OR OMISSION CONSTITUTING WILLFUL OR INTENTIONAL MISCONDUCT, FRAUD OR GROSS NEGLIGENCE. SUCH PERSON SHALL BE INDEMNIFIED BY THE COMPANY FOR ALL AMOUNTS PAID BY HIM IN SETTLEMENT THEREOF, WITH THE COMPANY’S APPROVAL, OR PAID BY HIM IN SATISFACTION OF ANY JUDGMENT IN ANY SUCH ACTION, SUIT, OR PROCEEDING AGAINST HIM, PROVIDED HE SHALL GIVE THE COMPANY AN OPPORTUNITY, AT ITS OWN EXPENSE, TO HANDLE AND DEFEND THE SAME BEFORE HE UNDERTAKES TO HANDLE AND DEFEND IT ON HIS OWN BEHALF. THE FOREGOING RIGHT OF INDEMNIFICATION SHALL NOT BE EXCLUSIVE OF ANY OTHER RIGHTS OF INDEMNIFICATION TO WHICH SUCH PERSONS MAY BE ENTITLED UNDER THE COMPANY’S ARTICLES OF INCORPORATION OR BYLAWS, AS A MATTER OF LAW, OR OTHERWISE, OR ANY POWER THAT THE COMPANY MAY HAVE TO INDEMNIFY THEM OR HOLD THEM HARMLESS.
 
SECTION 4
 
SHARES SUBJECT TO PLAN
 
4.1     Maximum Number of Shares Issuable
 
Subject to adjustment as provided in Section 4.2, the maximum aggregate number of shares of Stock that may be issued with respect to Awards under the Plan shall be fifteen percent (15%) of the then outstanding shares of Stock at the end of the preceding quarter and shall consist of authorized but unissued or reacquired shares of Stock or any combination thereof. If the Company repurchases shares of Stock that is not an event described in Section 4.2, the amount of shares of Stock available under the Plan that may be issued for Awards shall not be reduced due to such repurchase, and the amount available for Awards thereafter shall then be the amount equal to fifteen percent (15%) of the then outstanding shares of Stock at the end of the preceding quarter that immediately precedes the date of the repurchase or prior to a related series of repurchases. The maximum aggregate number of such shares of Stock authorized for issuance in the foregoing sentence that may be issued as Incentive Stock Options shall be the two million (2,000,000) shares of Stock. Shares of Stock of an outstanding Award that for any reason expire or are terminated, forfeited or canceled or withheld for taxes or settled in a manner that all or some of the shares of Stock covered by an Award are not issued to a Participant (including, without limitation, shares of Stock withheld for the purchase price of an Award) shall again be available for issuance under the Plan.
 
 
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During any period that the Company is a Publicly Held Corporation within the meaning of Code Section 162(m) the following rules shall apply to grants of Awards:
 
(a)   Subject to adjustment as provided in Section 4.2, the maximum aggregate number of shares of Stock (including phantom or restricted units, Options, Stock appreciation rights, Restricted Stock, Other Stock-Based Awards, Performance Awards or Dividends or Dividend Equivalents paid out in Stock) that may be granted in any calendar year pursuant to any Award held by any Participant shall be two million (2,000,000) shares of Stock.
 
(b)   The maximum aggregate cash payout (including phantom or restricted units, Stock appreciation rights, Other Stock-Based Awards, Performance Awards or Dividends or Dividend Equivalents paid out in cash) with respect to Awards granted in any calendar year that may be made to any Participant shall be four million dollars ($4,000,000).
 
(c)   With respect to any Option or Stock appreciation right granted to a Participant that is canceled or repriced, the number of shares of Stock subject to such Option or Stock appreciation right shall continue to count against the maximum number of shares of Stock that may be the subject of Options or Stock appreciation right granted to such Participant hereunder to the extent such is required in accordance with Section 162(m) of the Code.
 
(d)   The limitations of subsections (a), (b) and (c) above shall be construed and administered so as to comply with the performance-based exception in Code Section 162(m).
 
4.2     Adjustments for Changes in Capital Structure
 
In the event of any stock dividend or extraordinary cash dividend, stock split, reverse stock split, recapitalization, combination, reclassification or similar change in the capital structure of the Company, appropriate adjustments shall be made in the number and class of shares subject to the Plan and to any outstanding Awards, and in the exercise price per share of any outstanding Awards and with respect to Options, if applicable, in accordance with Code Sections 424 and 409A. If a majority of the shares, which are of the same class as the shares that are subject to outstanding Awards, are exchanged for, converted into, or otherwise become (whether or not pursuant to a change in control) shares of another company (the “ New Shares ” ) , the Committee may, in its sole discretion, unilaterally amend the outstanding Awards to provide that such Awards are exercisable for New Shares. In the event of any such amendment, the number of shares subject to, and the exercise price per share of, the outstanding Awards shall be adjusted in a fair and equitable manner as determined by the Committee, in its discretion, and with respect to Options in accordance with Code Sections 424 and 409A and the regulations thereunder. Notwithstanding the foregoing, any fractional share resulting from an adjustment pursuant to this Section 4.2 shall be rounded down to the nearest whole number, and in no event may the exercise price of any Award be decreased to an amount less than the par value, if any, of the stock subject to the Award. The adjustments determined by the Committee pursuant to this Section 4.2 shall be final, binding and conclusive.
 
 
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SECTION 5
 
ELIGIBILITY AND AWARD LIMITATIONS
 
5.1     Persons Eligible for Awards
 
Awards may be granted only to Employees, Consultants, and Directors. For purposes of the foregoing sentence, “Employees,” “Consultants,” and “Directors” shall include prospective Employees, prospective Consultants and prospective Directors to whom Awards are granted in connection with written offers of employment or other service relationships with the Company. Eligible persons may be granted more than one (1) Award. Eligibility in accordance with this Section shall not entitle any person to be granted an Award, or, having been granted an Award, to be granted an additional Award.
 
5.2     Award Agreements
 
Each Participant to whom an Award is granted shall be required to enter into an Award Agreement with the Company, in such a form as is provided by the Committee. The Award Agreement shall contain specific terms as determined by the Committee, in its discretion, with respect to the Participant’s particular Award. Such terms need not be uniform among all Participants or any similarly situated Participants. The Award Agreement may include, without limitation, vesting, forfeiture and other provisions specific to the particular Participant’s Award, as well as, for example, provisions to the effect that the Participant (i) shall not disclose any confidential information acquired during employment with the Company or while providing service to the Company, (ii) shall abide by all the terms and conditions of the Plan and such other terms and conditions as may be imposed by the Committee, (iii) shall not interfere with the employment or other Service of any Employee or service provider, (iv) shall not compete with the Company or become involved in a conflict of interest with the interests of the Company, (v) shall forfeit an Award if terminated for Cause, (vi) shall not be permitted to make an election under Section 83(b) of the Code when applicable, (vii) shall be subject to transfer restrictions respecting the Award or Stock, (viii) shall be subject to any other agreement between the Participant and the Company regarding shares of Stock that may be acquired under an Award including, without limitation, an agreement restricting the transferability of the Award or shares of Stock by Participant or any other restrictions or requirements of any stockholders’ agreement that is in effect from time to time, and (ix) any provisions or definitions the Committee deems necessary or desirable to comply with Code Section 409A. An Award Agreement shall include such terms and conditions as are determined by the Committee, in its discretion, to be appropriate with respect to any individual Participant. The Award Agreement shall be signed by the Participant to whom the Award is made and by an authorized Officer of the Company.
 
5.3     Award Grant Restrictions
 
Any person who is not an Employee on the effective date of the grant of an Award to such person may be granted only a Nonstatutory Stock Option, Restricted Stock or Other Stock-Based Award. An Incentive Stock Award granted to an Employee of the Company, or its parent or Subsidiary as defined in Code Section 424(f), or to a prospective Employee of the Company, or its parent or its Subsidiary as defined in Code Section 424(f) upon the condition that such person become an Employee shall be deemed granted effective on the date such person commences service as an Employee with the Company, with an exercise price determined as of such date in accordance with Section 6.1.
 
 
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5.4     Fair Market Value Limitations for Incentive Stock Options
 
To the extent that Options designated as Incentive Stock Options (granted under all stock option plans of the Company or parent or Subsidiary as defined in Code Section 422, including the Plan) become exercisable by a Participant for the first time during any calendar year for Stock having an aggregate Fair Market Value greater than One Hundred Thousand Dollars   ($100,000), the portion of such options which exceeds such amount shall be treated as Nonstatutory Stock Options. For purposes of this Section 5.4, options designated as Incentive Stock Options shall be taken into account in the order in which they were granted, and the Fair Market Value of Stock shall be determined as of the time the option with respect to such Stock is granted. If the Code is amended to provide for a different limitation from that set forth in this Section 5.4, such different limitation shall be deemed incorporated herein effective as of the date and with respect to such Options as required or permitted by such amendment to the Code. If an Option is treated as an Incentive Stock Option in part and as a Nonstatutory Stock Option in part by reason of the limitation set forth in this Section 5.4, the Company at the request of the Participant may designate which portion of such Option the Participant is exercising. In the absence of such designation, the Participant shall be deemed to have exercised the Incentive Stock Option portion of the Option first. Separate certificates representing each such portion shall be issued upon the exercise of the Option.
 
5.5     Repurchase Rights, Right of First Refusal and Other Restrictions on Stock
 
Shares under the Plan may be subject to a right of first refusal, one or more repurchase options, or other conditions and restrictions pursuant to a contract entered into by the Company and its stockholders or otherwise as determined by the Committee or as provided in the Award Agreement, in the Committee’s discretion. The Company shall have the right to assign at any time any repurchase right it may have, whether or not such right is then exercisable, to one or more persons as may be selected by the Company. Upon request by the Company, each Participant shall execute any agreement, including but not limited to, the Award Agreement evidencing such transfer restrictions prior to the receipt of shares of Stock hereunder and shall promptly present to the Company any and all certificates representing shares of Stock acquired hereunder for the placement on such certificates of appropriate legends evidencing any such transfer restrictions.
 
SECTION 6
 
TERMS AND CONDITIONS OF OPTIONS
 
Options shall be evidenced by Award Agreements specifying the number of shares of Stock covered thereby, in such form as the Committee shall from time to time establish. No Option or purported Option shall be a valid and binding obligation of the Company unless evidenced by a fully executed Award Agreement. Award Agreements may incorporate all or any of the terms of the Plan by reference and shall comply with and be subject to the following terms and conditions:
 
 
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6.1     Exercise Price
 
The exercise price for each Option shall be established in the discretion of the Committee; provided, however, that (a) the exercise price per share for an Option shall be not less than the Fair Market Value of a share of Stock on the effective date of grant of the Option and (b) no Incentive Stock Option granted to a Ten Percent Owner Participant shall have an exercise price per share less than one hundred ten percent (110%) of the Fair Market Value of a share of Stock on the effective date of grant of the Option. Notwithstanding the foregoing, an Option (whether an Incentive Stock Option or a Nonstatutory Stock Option) may be granted with an exercise price lower than the minimum exercise price set forth above if such Option is granted pursuant to an assumption or substitution for another option in a manner qualifying under the provisions of Sections 424 and 409A of the Code.
 
6.2     Exercisability, Vesting and Term of Options
 
(a)   Exercisability . Options shall be exercisable at such time or times, or upon such event or events, and subject to such terms, conditions, performance criteria and restrictions as shall be determined by the Committee and set forth in the Award Agreement evidencing such Option; provided, however, that (a) no Option shall be exercisable after the expiration of ten (10) years after the effective date of grant of such Option, (b) no Incentive Stock Option granted to a Ten Percent Owner Participant shall be exercisable after the expiration of five (5) years after the effective date of grant of such Option, and (c) no Option granted to a prospective Employee, prospective Consultant or prospective Director may become exercisable prior to the date on which such person commences Service with the Company. Subject to the foregoing, unless otherwise specified by the Committee in the grant of an Option, any Option granted hereunder shall terminate ten (10) years after the effective date of grant of the Option, unless earlier terminated in accordance with its provisions.
 
(b)   Vesting . The Committee shall specify the vesting schedule, if any, in the applicable Award Agreement.
 
(c)   Incentive Stock Options . Unless otherwise provided in the Option Agreement with respect to death or Disability of the Participant, the Incentive Stock Options may only be exercised within three (3) months after the Participant’s termination of Service.
 
6.3     Payment of Exercise Price
 
(a)   Forms of Consideration Authorized . Except as otherwise provided below, payment of the exercise price for the number of shares of Stock being purchased pursuant to any Option shall be made in cash, by check or cash equivalent or upon approval by the Committee in its sole discretion by any of the following (i) subject to Section 6.3(b)(i) below, by tender to the Company, or attestation to the ownership, of shares of Stock owned by the Participant having a Fair Market Value not less than the exercise price; (ii) subject to the Company’s rights set forth in Section 6.3(b)(ii) below, by causing the Company to withhold from the shares of Stock issuable upon the exercise of the Option the number of whole shares of Stock having a Fair Market Value, as determined by the Company, not less than the exercise price (a “ Cashless Exercise ”); (iii) by such other consideration as may be approved by the Committee from time to time to the extent permitted by applicable law; or (iv) by any combination of cash or any of the foregoing or any combination of (i-iii) thereof. The Committee may at any time or from time to time grant Options which do not permit all of the foregoing forms of consideration to be used in payment of the exercise price or which otherwise restrict one or more forms of consideration.
 
 
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(b)   Limitations on Forms of Consideration.
 
(i)   Tender of Stock. Notwithstanding the foregoing, an Option may not be exercised by tender to the Company, or attestation to the ownership, of shares of Stock to the extent such tender or attestation would constitute a violation of the provisions of any law, regulation or agreement restricting the redemption of the Company’s stock.
 
(ii)   Cashless Exercise. The Company reserves, at any and all times, the right, in the Company’s sole and absolute discretion, to establish, decline to approve or terminate any program or procedures for the exercise of Options by means of a Cashless Exercise in order to comply with applicable law.
 
SECTION 7
 
RESTRICTED STOCK
 
7.1     Award of Restricted Stock
 
(a)   Grant . In consideration of the performance of employment or Service by any Participant who is an Employee, Consultant or Director, Stock may be awarded under the Plan by the Committee as Restricted Stock with such restrictions during the Restriction Period as the Committee may designate in its discretion, any of which restrictions may differ with respect to each particular Participant. Restricted Stock may also be awarded as an Other Stock-Based Award subject to performance goals under Section 8.2. Restricted Stock shall be awarded for no additional consideration or such additional consideration as the Committee may determine, which consideration may be equal to or more than the Fair Market Value of the shares of Restricted Stock on the grant date. The terms and conditions of each grant of Restricted Stock shall be evidenced by an Award Agreement.
 
(b)   Immediate Transfer Without Immediate Delivery of Restricted Stock . Unless otherwise specified in the Participant’s Award Agreement, each Restricted Stock Award shall constitute an immediate transfer of the record and beneficial ownership of the shares of Restricted Stock to the Participant in consideration of the performance of Services as an Employee, Consultant or Director, as applicable, entitling such Participant to all voting and other ownership rights in such shares of Stock.
 
 
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As specified in the Award Agreement, a Restricted Stock Award may limit the Participant’s dividend and voting rights during the Restriction Period in which the shares of Restricted Stock are subject to a “substantial risk of forfeiture” (within the meaning given to such term under Code Section 83) and restrictions on transfer. In the Award Agreement, the Committee may apply any restrictions to the dividends that the Committee deems appropriate.
 
Shares awarded pursuant to a grant of Restricted Stock may be issued in the name of the Participant and held, together with a stock power endorsed in blank, by the Committee or Company (or their delegates) or in trust or in escrow pursuant to an agreement satisfactory to the Committee, as determined by the Committee, until such time as the restrictions on transfer have expired. All such terms and conditions shall be set forth in the particular Participant’s Award Agreement. The Company or Committee (or their delegates) shall issue to the Participant a receipt evidencing the certificates held by it which are registered in the name of the Participant.
 
7.2     Restrictions
 
(a)   Forfeiture of Restricted Stock . Restricted Stock awarded to a Participant may be subject to the following restrictions until the expiration of the Restriction Period: (i) a restriction that constitutes a “substantial risk of forfeiture” (as defined in Code Section 83), or a restriction on transferability; (ii) unless otherwise specified by the Committee in the Award Agreement, the Restricted Stock that is subject to restrictions which are not satisfied shall be forfeited and all rights of the Participant to such Shares shall terminate; and (iii) any other restrictions that the Committee determines in advance are appropriate, including, without limitation, rights of repurchase or first refusal in the Company or provisions subjecting the Restricted Stock to a continuing substantial risk of forfeiture in the hands of any transferee. Any such restrictions shall be set forth in the particular Participant’s Award Agreement.
 
(b)   Issuance of Certificates . Reasonably promptly after the date of grant with respect to shares of Restricted Stock, the Company shall take the actions as it determines necessary in its sole discretion to cause the Stock to be issued subject to the forfeiture provisions and other requirements as the Committee determines necessary, including, without limitation, issuing a Stock certificate, registered in the name of the Participant to whom such shares of Restricted Stock were granted, evidencing such shares; provided, however, that the Company shall not cause to be issued such a Stock certificate unless it has received a Stock power duly endorsed in blank with respect to such shares of Restricted Stock. Each such stock certificate shall bear the following legend or any other legend approved by the Company:
 
The transferability of this certificate and the shares of stock represented hereby are subject to the restrictions, terms and conditions (including forfeiture and restrictions against transfer) contained in the Victory Energy Corporation 2014 Long Term Incentive Plan and an Award Agreement entered into between the registered owner of such shares and Victory Energy Corporation. A copy of the Plan and Award Agreement are on file in the corporate offices of Victory Energy Corporation.
 
 
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Such legend shall not be removed from the certificate evidencing such shares of Restricted Stock until such shares vest pursuant to the terms of the Award Agreement.
 
(c)   Vesting . The Award Agreement shall specify the vesting schedule.
 
(d)   Removal of Restrictions . The Committee, in its discretion, shall have the authority to remove any or all of the restrictions on the Restricted Stock if it determines that, by reason of a change in applicable law or another change in circumstance arising after the grant date of the Restricted Stock, such action is appropriate.
 
7.3     Delivery of Shares of Common Stock
 
Subject to withholding taxes under Section 10 and to the terms of the Award Agreement, a Stock certificate evidencing the shares of Restricted Stock with respect to which the restrictions in the Award Agreement have been satisfied shall be delivered to the Participant or other appropriate recipient free of restrictions. Such delivery shall be affected for all purposes when the Company shall have deposited such certificate in the United States mail, addressed to the Participant or other appropriate recipient.
 
SECTION 8
 
OTHER STOCK-BASED, PERFORMANCE AWARDS AND DIVIDENDS
 
8.1      Grant of Other Stock-Based and Performance Awards
 
Other Stock-Based Awards may be awarded by the Committee to selected Participants that are denominated or payable in, valued in whole or in part by reference to, or otherwise related to, shares of Stock, as deemed by the Committee to be consistent with the purposes of the Plan and the goals of the Company. Performance Awards may be granted by the Committee in its sole discretion awarding cash or stock (including Restricted Stock) or a combination thereof based upon the achievement of goals as determined by the Committee. Types of Other Stock-Based Awards or Performance Awards include, without limitation, purchase rights, phantom stock, Stock appreciation rights, restricted units, Restricted Stock or Stock subject to performance goals, shares of Stock awarded that are not subject to any restrictions or conditions, convertible or exchangeable debentures, other rights convertible into shares of Stock, Awards valued by reference to the value of securities of, or the performance of, the Company or a specified Subsidiary, division or department, Awards based upon performance goals established by the Committee and settlement in cancellation of rights of any person with a vested interest in any other plan, fund, program or arrangement that is or was sponsored, maintained or participated in by the Company or any Subsidiary. Other Stock-Based Awards may be awarded either alone or in addition to or in tandem with any other Awards. Other Stock Based Awards may be paid in Stock, cash or a combination thereof.
 
 
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8.2     Other Stock-Based Award and Performance Awards Terms
 
(a)   Written Agreement . The terms and conditions of each grant of an Other Stock-Based Award or Performance Award shall be evidenced by an Award Agreement.
 
(b)   Purchase Price . To the extent that a Stock appreciation right is intended to be exempt from Code Section 409A or if the Company is a Publicly Held Corporation and the Stock appreciation right is intended to meet the performance based exception in Code Section 162(m), the exercise price per share of Stock shall not be less than one hundred percent (100%) of Fair Market Value of a share of Stock on the date of the grant of the Stock appreciation right and shall otherwise comply with Code Section 409A and/or Code Section 162(m).
 
(c)   Performance Goals and Other Terms . In its discretion, the Committee may specify such criteria, periods or performance goals for vesting in Other Stock-Based Awards or Performance Awards and payment thereof to the Participant as it shall determine; and the extent to which such criteria, periods or goals have been met shall be determined by the Committee. All terms and conditions of Other Stock-Based Awards shall be determined by the Committee and set forth in the Award Agreement.
 
If any Other Stock-Based Award or Performance Award is intended by the Committee to meet the performance-based exception in Code Section 162(m), the following shall apply:
 
(i)   Performance Period . The Committee shall establish a performance period which shall be a period of time, as may be determined in the discretion of the Committee and set out in the Award Agreement, over which performance is measured for the purpose of determining a Participant’s right to and the payment value of an Other Stock-Based Award or Performance Award in accordance with Code Section 162(m). For each performance period, the Committee shall establish the number of Other Stock-Based Awards or Performance Awards and their contingent values which may vary depending on the degree to which performance criteria established by the Committee are met.
 
(ii)   Performance Criteria . The Committee may establish performance goals applicable to Other Stock-Based Awards or Performance Awards based upon criteria in one or more of the following categories: (i) performance of the Company as a whole, (ii) performance of a segment of the Company’s business, and (iii) individual performance. Performance criteria for the Company shall relate to the achievement of predetermined financial, operational or strategic objectives for the Company and its Subsidiaries. Performance criteria for a segment of the Company’s business shall relate to the achievement of financial, operational or strategic objectives of the segment for which the Participant is accountable.
 
(iii)   Examples of performance criteria shall include any of the following: pre-tax or after tax profit levels, including: earnings per share, earnings before interest and taxes, earnings before interest, taxes, depreciation and amortization, net operating profits after tax, and net income; total stockholder return; return on assets, equity, capital or investment; cash flow and cash flow return on investment; economic value added and economic profit; growth in earnings per share; stock price performance, sales, costs, production volumes or reserves added; levels of operating expense, maintenance expense or measures of customer satisfaction and customer service as determined from time to time including the relative improvement therein. Individual performance criteria shall relate to a Participant’s overall performance, taking into account, among other measures of performance, the attainment of individual goals and objectives. The performance goals may differ among Participants and shall be established in accordance with Code Section 162(m).
 
 
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(iv)   Modification . If the Committee determines, in its discretion exercised in good faith, that the established performance measures or objectives are no longer suitable to the Company’s objectives because of a change in the Company’s business, operations, corporate structure, capital structure, or other conditions the Committee deems to be appropriate, the Committee may modify the performance measures and objectives to the extent it considers such modification to be necessary, provided, however , that with respect to Awards intended to qualify for the performance-based exception of Code Section 162(m), the Committee shall not permit any such modification that would cause the Awards to fail to qualify for the performance based exception.
 
(v)   Compliance with Code Section 162(m) . With respect to Awards intended to meet the performance based exception of Code Section 162(m), the Committee shall administer the Awards and take all action that it determines are necessary, including but not limited to certifying that performance goals have been met, so that Awards intended to meet the performance based exception comply with Code Section 162(m).
 
(d)   Payment . Other Stock-Based Awards or Performance Awards may be paid in shares of Stock, cash or other consideration or a combination thereof related to such shares, in a single payment or in installments on such dates as determined by the Committee, all as specified in the Award Agreement.
 
8.3          Dividends.
 
Except with respect to dividends on Restricted Stock, the Participant shall not be entitled to receive, currently or on a deferred basis, dividends or dividend equivalents with respect to the number of shares of Stock covered by the Award unless (and to the extent) otherwise as determined by the Committee and set forth in a separate Award Agreement. The Committee in the Award Agreement may provide such terms and conditions for the Award of Dividends or Dividend Equivalents as it shall determine in its discretion. The Committee may also provide in such Award Agreement that the amounts of any Dividends or Dividend Equivalent shall be deemed to have been reinvested in additional shares of Stock. Notwithstanding the foregoing and subject to adjustments under Section 4.2, no grant of a Dividend or Dividend Equivalent may be granted with respect to an Option.
 
 
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SECTION 9
 
EFFECT OF TERMINATION OF SERVICE
 
9.1     Option Exercisability and Award Vesting
 
Subject to earlier termination of the Option or other Award as otherwise provided herein and unless otherwise provided by the Committee in the Award Agreement, an Award and Option shall be vested and an Option shall be exercisable after a Participant’s termination of Service only during the applicable time period determined in accordance with this Section 9.1 and thereafter shall terminate:
 
(a)   Disability or Death . If the Participant’s Service terminates because of the Disability or death of the Participant, the unvested portion of any Award shall be forfeited and terminated and the vested portion of an Option may be exercised by the Participant or the applicable of his guardian or legal representative or estate for a period of three (3) months after the date on which the Participant’s Service terminated due to Disability or one (1) year after the date on which the Participant’s Service terminated due to death, respectively, but in any event no later than the date of expiration of the Option’s term, which in no event shall exceed ten (10) years from the date of grant, as set forth in the Award Agreement evidencing such Option (the “ Option Expiration Date ”).
 
(b)   Change in Control . Upon a Change in Control then (1) the vested portion of the Option, to the extent unexercised and exercisable on the date on which the Participant’s Service terminated, may be exercised by the Participant (or the Participant’s guardian or legal representative) at any time prior to the expiration of three (3) months after the date on which the Participant’s Service terminated without Cause, but in any event no later than the Option Expiration Date, and (2) the exercisability and vesting of the Award or Option and any shares acquired upon the exercise thereof may otherwise be accelerated effective as of the date on which the Participant’s Service terminated to such extent, if any, as shall have been determined by the Committee, in its discretion, and set forth in the Award Agreement evidencing such Option.
 
(c)   Termination for Cause . Notwithstanding any other provision of the Plan to the contrary, if the Participant’s Service with the Company is terminated for Cause, as defined by the Participant’s Award Agreement or contract of employment or service (or, if not defined in any of the foregoing, as defined in the Plan), the Award, whether or not vested, shall terminate and cease to be exercisable immediately upon such termination of Service.
 
(d)   Other Termination of Service . If the Participant’s Service with the Company terminates for any reason, except Disability, death, termination after a Change in Control, or Cause, any Award or Option, to the extent unvested shall be forfeited by the Participant on the date on which the Participant’s Service is terminated, and any vested Option may be exercised by the Participant at any time prior to the expiration of three (3) months after the date on which the Participant’s Service terminated, but in any event no later than the Option Expiration Date.
 
 
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9.2     Extension if Exercise Prevented by Law
 
Notwithstanding the foregoing, other than termination for Cause, if the exercise of an Option within the applicable time periods set forth in Section 9.1 is prevented by the provisions of Section 12 below, the Option shall remain exercisable until thirty (30) days (or such longer period of time as determined by the Committee, in its discretion) after the date the Participant is notified by the Company that the Option is exercisable, but in any event no later than the Option Expiration Date.
 
9.3     Extension if Participant Subject to Section 16(b)
 
Notwithstanding the foregoing, other than termination for Cause, if a sale within the applicable time periods set forth in Section 9.1 of shares acquired upon the exercise of the Option would subject the Participant to suit under Section 16(b) of the Exchange Act, the Option (if exercisable) shall remain exercisable until the earliest to occur of (i) the tenth (10th) day following the date on which a sale of such shares by the Participant would no longer be subject to such suit, (ii) three (3) months after the Participant’s termination of Service, or (iii) the Option Expiration Date.
 
SECTION 10
 
WITHHOLDING TAXES
 
10.1        Tax Withholding
 
All Awards are subject to, and the Company shall have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy federal, state, and local taxes, domestic or foreign, required by law or regulation to be withheld with respect to any taxable event arising as a result of the Plan or an Award hereunder and all Awards are subject to the Company’s right hereunder.
 
10.2       Share Withholding
 
With respect to tax withholding required upon the exercise of Options, upon the lapse of restrictions on Restricted Stock, or upon any other taxable event arising as a result of any Awards, the Committee in its discretion, may elect to satisfy the withholding requirement, in whole or in part, by having the Company withhold shares of stock having a Fair Market Value on the date the tax is to be determined equal to the minimum statutory total tax which could be imposed on the transaction. All such elections shall be subject to any restrictions or limitations that the Committee, in its discretion, deems appropriate. Any fraction of a share of stock required to satisfy such obligation shall be disregarded and the amount due shall instead be paid in cash by the Participant.
 
 
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10.3        Incentive Stock Options
 
With respect to shares of Stock received by a Participant pursuant to the exercise of an Incentive Stock Option, if such Participant disposes of any such shares within (i) two (2) years from the date of grant of such Option or (ii) one (1) year after the transfer of such shares to the Participant, the Company shall have the right to withhold from any salary, wages or other compensation payable by the Company to the Participant an amount sufficient to satisfy federal, state and local tax withholding requirements attributable to such disqualifying disposition.
 
SECTION 11
 
PROVISION OF INFORMATION
 
Each Participant shall be given access to information concerning the Company equivalent to that information generally made available to the Company’s common stockholders.
 
SECTION 12
 
COMPLIANCE WITH SECURITIES LAW,
OTHER APPLICABLE LAWS AND COMPANY POLICIES
 
The Plan, Award Agreements, the grant of Awards and the issuance of shares of Stock shall be subject to compliance with all applicable requirements of federal, state and foreign law with respect to securities and all other applicable laws, regulations and requirements of any stock exchange or market system upon which the stock is listed or traded. Options may not be exercised and Stock may not be issued if the issuance of shares of Stock would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Stock may then be listed. In addition, no Option may be exercised and no shares of Stock may be issued unless (a) a registration statement under the Securities Act shall at the time be in effect with respect to the shares issuable or (b) in the opinion of legal counsel to the Company, the shares issuable may be issued in accordance with the terms of an applicable exemption from the registration requirements of the Securities Act. If the shares of Stock issuable pursuant to an Award are not registered under the Securities Act, the Company may imprint on the certificate for such shares the following legend or any other legend which legal counsel for the Company considers necessary or advisable to comply with the Securities Act:
 
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT UPON SUCH REGISTRATION OR UPON RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED FOR SUCH SALE OR TRANSFER.
 
The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company’s legal counsel to be necessary to the lawful issuance and sale of any shares hereunder shall relieve the Company of any liability in respect of the failure to issue or sell such shares as to which such requisite authority shall not have been obtained. As a condition to the exercise of any Option or the issuance of shares of Stock, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company.
 
Unless otherwise specifically provided in an Award Agreement, all Awards and all shares of stock issued and any payments are subject to the Company’s clawback policies adopted by the Company at any time and as amended from time to time.
 
 
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SECTION 13
 
NONTRANSFERABILITY OF AWARDS AND STOCK
 
During the lifetime of the Participant, an Award shall be exercisable only by the Participant or the Participant’s guardian or legal representative. Subject to the following paragraph, an Award may be assignable or transferable by the Participant only by will or by the laws of descent and distribution or pursuant to a qualified domestic relations order as defined in Section 414(p) of the Code, and only if it is so specified in the Award Agreement; provided, however, that an Incentive Stock Option may only be assignable or transferable by will or by the laws of descent and distribution. Notwithstanding the foregoing, to the extent permitted by the Committee in the Award Agreement, and in accordance with applicable law, in its discretion, and set forth in the Award Agreement evidencing such Option, a Nonstatutory Stock Option shall be assignable or transferable subject to the applicable limitations, if any, described in Rule 701 under the Securities Act, and the General Instructions to Form S-8 Registration Statement under the Securities Act. However, the transferee or transferees must be any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, in each case with respect to the Participant, any person sharing the Participant’s household (other than a tenant or employee of the Company), a trust in which these persons have more than fifty percent of the beneficial interest, a foundation in which these persons (or the Participant) control the management of assets, or any other entity in which these persons (or the Participant) own more than fifty percent of the voting interests (collectively, “ Permitted Transferees ”); provided further that, (a) there may be no consideration for any such transfer and (b) subsequent transfers of Options transferred as provided above shall be prohibited except subsequent transfers back to the original holder of the Option and transfers to other Permitted Transferees of the original holder.
 
SECTION 14
 
NONCOMPETITIVE ACTIONS
 
The Committee may provide in an Award Agreement a requirement to enter into a noncompetition agreement in connection with the Award or the effect of a violation of a noncompetition agreement on an Award.
 
SECTION 15
 
TERMINATION OR AMENDMENT OF PLAN
 
The Committee may terminate or amend the Plan at any time. However, no grant shall be made after the tenth (10 th ) anniversary of the Effective Date (the “ Term ”). Subject to changes in applicable law, regulations or rules that would permit otherwise, without the approval of the Company’s stockholders within the time required, there shall be (a) no increase in the maximum aggregate number of shares of Stock that may be issued under the Plan (except by operation of the provisions of Section 4.2), (b) no change in the class of persons eligible to receive Incentive Stock Options or purchase Stock under the Plan or to extend the Term of the Plan, and (c) no other amendment of the Plan that would require approval of the Company’s stockholders under any applicable law, regulation or rule or the stock exchange or market system on which the Stock is traded. No termination or amendment of the Plan shall affect any then outstanding Award unless expressly provided by the Committee or otherwise provided in the Plan. In any event, no termination or amendment of the Plan may adversely affect any then outstanding Award without the consent of the Participant, unless such termination or amendment is required to enable an Award designated as an Incentive Stock Option to qualify as an Incentive Stock Option or is necessary to comply with any applicable law, regulation or rule, including Code Section 409A or as otherwise permitted under the Plan, including upon a Change in Control.
 
 
24
 
 
SECTION 16  
 
STOCKHOLDER APPROVAL
 
The Plan is adopted by the Board as of the Effective Date and shall be approved by the stockholders of the Company on or within twelve (12) months of the date of adoption thereof by the Board. Any Awards granted under the Plan prior to such stockholder approval shall not vest or otherwise become payable or exercisable until such stockholder approval is obtained and if an Award does vest or become payable or exercisable due to an acceleration event or alternate payment event prior to such stockholder approval such Award and any payment related thereto shall be forfeited if such stockholder approval is not obtained. In addition, Options or performance-based compensation under Section 8.2 granted prior to stockholder approval of the Plan or in excess of the Stock previously approved by the stockholders shall become exercisable and otherwise shall not be paid no earlier than the date of stockholder approval of the Plan or stockholder approval of such increase in the Stock, as the case may be.
 
SECTION 17
 
NO GUARANTEE OF TAX CONSEQUENCES
 
Neither the Company, the Board nor the Committee makes any commitment or guarantee that any federal, state or local tax treatment will apply or be available to any person participating or eligible to participate hereunder.
 
SECTION 18
 
SEVERABILITY
 
In the event that any provision of this Plan shall be held illegal, invalid or unenforceable for any reason, such provision shall be fully severable, but shall not affect the remaining provisions of the Plan, and the Plan shall be construed and enforced as if the illegal, invalid, or unenforceable provision was not included herein.
 
SECTION 19
 
GOVERNING LAW
 
The Plan and Awards shall be interpreted, construed and constructed in accordance with the laws of the State of Texas without regard to its conflicts of law provisions, except as may be superseded by applicable laws of the United States.
 
 
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SECTION 20
 
SUCCESSORS
 
All obligations of the Company under the Plan with respect to Incentive Awards granted hereunder shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company.
 
SECTION 21
 
RIGHTS AS A STOCKHOLDER
 
The holder of an Award shall have no rights as a stockholder with respect to any shares covered by the Award until the date of issue of a stock certificate to him or her for such shares. Except as otherwise expressly provided in the Plan, no adjustment shall be made for dividends or other rights for which the record date is prior to the date such stock certificate is issued.
 
SECTION 22
 
NO SPECIAL EMPLOYMENT OR SERVICE RIGHTS
 
Nothing contained in the Plan or Award Agreement shall confer upon any Participant receiving a grant of any Award any right with respect to the continuation of his or her Service with the Company (or any Affiliate) or interfere in any way with the right of the Company (or Affiliate), subject to the terms of any separate employment agreement to the contrary, at any time to terminate such Service or to increase or decrease the compensation of the Participant from the rate in existence at the time of the grant of any Award.
 
SECTION 23
 
REORGANIZATION OF COMPANY
 
The existence of an Award shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in Company’s capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the shares of Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
 
 
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SECTION 24
 
CODE SECTION 409A
 
To the extent that any Award is deferred compensation subject to Code Section 409A, as determined by the Committee, the Award Agreement shall comply with the requirements of Code Section 409A in a manner as determined by the Committee in its sole discretion including, without limitation, using applicable definitions from Code Section 409A, such as a more restrictive definition of Change in Control to comply with Code Section 409A to the extent that it is more restrictive than as defined in the Plan, using the more restrictive definition of Disability as provided in Code Section 409A and specifying a time and form of payment schedule. In addition if any Award constitutes deferred compensation under Section 409A of the Code (a “ Section 409A Plan ”), then the Award shall be subject to the following requirements, if and to the extent required to comply with Code Section 409A, and as determined by the Committee and specified in the Award Agreement:
 
(a)   Payments under the Section 409A Plan may not be made earlier than (i) the Participant’s separation from service, (ii) the date of the Participant’s Disability, (iii) the Participant’s death, (iv) a specified time (or pursuant to a fixed schedule) specified in the Award Notice at the date of the deferral of such compensation, (v) a change in the ownership or effective control of the corporation, or in the ownership of a substantial portion of the assets of the corporation, or (vi) the occurrence of an unforeseeable emergency;
 
(b)   The time or schedule for any payment of the deferred compensation may not be accelerated, except to the extent provided in applicable Treasury Regulations or other applicable guidance issued by the Internal Revenue Service;
 
(c)    elections with respect to the deferral of such compensation or the time and form of distribution of such deferred compensation shall comply with the requirements of Section 409A(a)(4) of the Code; and
 
(d)    the case of any Participant who is specified employee, a distribution on account of a separation from service may not be made before the date which is six months after the date of the Participant’s separation from service (or, if earlier, the date of the Participant’s death).
 
For purposes of the foregoing, the terms “ separation from service ” and “ specified employee ”, all shall be defined in the same manner as those terms are defined for purposes of Section 409A of the Code, and the limitations set forth herein shall be applied in such manner (and only to the extent) as shall be necessary to comply with any requirements of Section 409A of the Code that are applicable to the Award as determined by the Committee.
 
If an Award is subject to Code Section 409A, as determined by the Committee, the Committee may interpret or amend any Award to comply with Code Section 409A without a Participant’s consent even if such amendment would have an adverse effect on a Participant’s Award. With respect to an Award that is subject to Code Section 409A, the Board may amend or interpret the Plan as it deems necessary to comply with Section 409A, including, without limitation, limiting the Committee’s or Company’s discretion with respect to an Award that constitutes deferred compensation to the extent it would violate Code Section 409A, and no Participant consent shall be required even if such an amendment would have an adverse effect on a Participant’s Award.
 
 
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SECTION 25
 
ADJUSTMENTS UPON A CHANGE IN CONTROL
 
If a Change in Control occurs, except a Change in Control solely on account of 2.1(g)(ii), then the Committee, at its sole discretion, shall have the power and right to (but subject to any accelerated vesting specified in an Award Agreement):
 
(a)   cancel, effective immediately prior to the occurrence of the Change in Control, each outstanding Award (whether or not then exercisable) (including the cancellation of any Options not in the money for which the exercise price is greater than the consideration to be received), and with respect to options that currently have an exercise price less than the consideration to be received immediately prior to the Change in Control, pay to the Participant an amount in cash equal to the excess of (i) the value, as determined by the Committee, of the property (including cash) received by the holders of Stock as a result of such Change in Control over (ii) the exercise price of such Award, if any; provided, however, this subsection shall be inapplicable to an Award granted within six (6) months before the occurrence of the Change in Control but only if the Participant is an insider and such disposition is not exempt under Rule 16b-3 (or other rules preventing liability of the insider under Section 16(b) of the Exchange Act) and, in that event, the provisions hereof shall be applicable to such Award after the expiration of six (6) months from the date of grant; or
 
(b)   provide for the exchange or substitution of each Award outstanding immediately prior to such Change in Control (whether or not then exercisable) for another award with respect to the Stock or other property for which such Award is exchangeable and, incident thereto, make an equitable adjustment as determined by the Committee, in its discretion, in the exercise price of the Award, if any, or in the number of shares of Stock or amount of property (including cash) subject to the Award; or
 
(c)   provide for assumption of the Plan and such outstanding Awards by the surviving entity or its parent.
 
The Committee, in its discretion, shall have the authority to take whatever action it deems to be necessary or appropriate to effectuate the provisions of this Section 25.
 
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IN WITNESS WHEREOF, the undersigned officer of the Company certifies that the foregoing sets forth the Victory Energy Corporation 2014 Long Term Incentive Plan as duly adopted by the Board on the Effective Date.
 
  VICTORY ENERGY CORPORATION  
       
 
By:
/s/ Kenneth Hill  
  Name: Kenneth Hill  
  Title: Chief Executive Officer  
       
  Information for Notices:  
 
3355 Bee Caves Road, Suite 608
Austin, Texas 78746
 
 
 
 
29
EXHIBIT 10.2
 
VICTORY ENERGY CORPORATION
AWARD OF RESTRICTED STOCK UNITS
(Employee)
 
In this Award, Victory Energy Corporation (the “ Company ”) grants [name] (the “ Participant ”), an Employee, Restricted Stock Units (“ RSUs ”) which upon becoming “ Vested ” (as provided below), on the applicable “ Vesting Date ” (as defined below), will entitle the Participant to receive the number of shares of Stock equal to the number of RSUs granted hereunder that have become vested on that date.  All terms and conditions of the RSUs and Stock that may be issued are granted under and governed by the terms of the Victory Energy Corporation 2014 Long Term Incentive Plan (“ Plan ”) and this Award.  All capitalized terms not defined in this Award shall have the meaning of such terms as provided in the Plan.
 
1.   The “ Date of Grant ” is _____________ .
 
2.   The total number of RSUs granted is _______________ .
 
3.   The Vesting Dates for the RSUs granted in this Award are as follows:
 
Subject to item 4 below, Participant shall not become vested in any of the RSUs granted unless he or she is continuously providing Services to the Company or an Affiliate from the Date of Grant through the applicable Vesting Date, and Participant may not sell, assign, transfer, exchange, pledge, encumber, gift, devise, hypothecate or otherwise dispose of any RSUs until such RSUs become Vested as provided herein.  The transfer restrictions and substantial risk of forfeiture imposed in the foregoing sentence shall lapse on the following applicable dates (each a “ Vesting Date ”): as to 33.3% of the RSUs on the first anniversary of the Date of Grant and an additional 33.3% of the RSUs on the second anniversary of the Date of Grant and 33.4% on the third anniversary of the Date of Grant.  The RSUs as to which such restrictions so lapse are referred to as “ Vested .”
 
4.   Other Vesting Events are as follows:
 
Notwithstanding the foregoing vesting schedule in item 3, the RSUs will be 100% Vested upon any one of the following “ Vesting Events ”:  (a) Participant’s termination of employment with the Company and its Affiliates or any successor thereto due to death, or Disability or (b) upon termination of the Participant’s employment by the Company, its Affiliates or their successor without Cause on or within 12 months after a Change in Control.  The date of the Participant’s termination of employment with the Company and its Affiliates on account of one of the Vesting Events shall be the Vesting Date for purposes of this Award.
 
 
1
 
 
5.   Other Terms and Conditions:
 
(a)   No Fractional Shares.  All provisions of this Award concern whole shares of Stock.  If the application of any provision hereunder would yield a fractional share, such fractional share shall be rounded down to the next whole share.
 
(b)   Not an Employment or Service Agreement.  This Award is not an employment agreement, and this Award shall not be, and no provision of this Award shall be construed or interpreted to create any right of Participant to continue employment with or provide services to the Company or any of its Affiliates.
 
(c)   Code Section 409A.  To the extent that this Award of RSUs is deferred compensation subject to Code Section 409A, this Award is intended and will be interpreted to comply with the requirements of Code Section 409A, and the Committee shall use the applicable definitions from Code Section 409A in the administration of this Award, such as a more restrictive definition of Change in Control or Disability to comply with Code Section 409A to the extent that it is required and a termination of employment shall mean a Separation from Service (as defined below).  To the extent required by Code Section 409A, if the Participant is Specified Employee (as defined below), a distribution on account of a Separation from Service may not be made before the date which is the first business day that is six months after the date of the Participant’s Separation from Service (or, if earlier, the date of the Participant’s death).  The terms “ Separation from Service ” and “ Specified Employee, ” shall be defined in the same manner as those terms are defined for purposes of Section 409A of the Code, and the limitations set forth herein shall be applied in such manner (and only to the extent) as shall be necessary to comply with any requirements of Section 409A of the Code that are applicable to this Award.  To the extent that this Award is subject to Code Section 409A, the Committee shall not have any discretion otherwise provided in this Plan to the extent such discretion is prohibited under Code Section 409A with respect to deferred compensation including, without limitation, any discretion to accelerate or substitute under Section 25.  In addition, if this Award is subject to Code Section 409A, the Committee may interpret or amend this Award to comply with Code Section 409A without the Participant’s consent even if such amendment would have an adverse effect on this Award.
 
(d)   Independent Tax Advice and Acknowledgments.  The Participant acknowledges he or she has been advised to consult his or her tax advisor with respect to this Award and the tax consequences of this Award and any payments hereunder.  None of the Company, any Affiliate nor any officer, director, employee, shareholder or any agent of any of them guarantees or is responsible for the tax consequences to a Participant with respect to this Award under the Plan and the administration of this Award and Plan, including without limitation, any excise or penalty tax or interest under Code Section 409A.  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 this Award subject to all the terms and provisions of the Plan and this Award.
 
The RSUs granted hereunder and the issuance of the Stock will be subject to all applicable federal, state and local taxes domestic and foreign and withholding requirements.  The Participant hereby agrees to accept as binding, conclusive, and final all decisions or interpretations of the Committee or the Board, as appropriate, upon any questions arising under the Plan or this Award.
 
 
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PARTICIPANT:  Name
   
 
Signature: ______________________________
 
Date: _____________________
   
 
VICTORY ENERGY CORPORATION
   
 
By:_____________________________________
 
Date: _____________________
 
 
 
 
 3
EXHIBIT 10.3
 
VICTORY ENERGY CORPORATION
AWARD OF RESTRICTED STOCK UNITS
(Director)
 
In this Award, Victory Energy Corporation (the “ Company ”) grants [name] (the “ Participant ”), a non-Employee Director, Restricted Stock Units (“ RSUs ”) which upon becoming “ Vested ” (as provided below), on the applicable “ Vesting Date ” (as defined below), will entitle the Participant to receive the number of shares of Stock equal to the number of RSUs granted hereunder that have become vested on that date.  All terms and conditions of the RSUs and Stock that may be issued are granted under and governed by the terms of the Victory Energy Corporation 2014 Long Term Incentive Plan (“ Plan ”) and this Award.  All capitalized terms not defined in this Award shall have the meaning of such terms as provided in the Plan.
 
1.   The “ Date of Grant ” is _____________ .
 
2.   The total number of RSUs granted is _______________ .
 
3.   The Vesting Dates for the RSUs granted in this Award are as follows:
 
Subject to item 4 below, Participant shall not become vested in any of the RSUs granted unless he or she is continuously providing Services to the Company from the Date of Grant through the applicable Vesting Date, and Participant may not sell, assign, transfer, exchange, pledge, encumber, gift, devise, hypothecate or otherwise dispose of any RSUs until such RSUs become Vested as provided herein.  The transfer restrictions and substantial risk of forfeiture imposed in the foregoing sentence shall lapse on the following applicable dates (each a “ Vesting Date ”) as selected and checked by the Committee: _____ (a) 33.3% on the first anniversary of the Grant Date, 33.3% on the second anniversary of the Grant Date and 33.4% on the third anniversary of the Grant Date or _____ (b) as to 100% of the RSUs on the second anniversary of the Date of Grant.  The RSUs as to which such restrictions so lapse are referred to as “ Vested .”
 
4.   Other Vesting Events are as follows:
 
Notwithstanding the foregoing vesting schedule in item 3, the RSUs will be 100% Vested upon any one of the following “ Vesting Events ”:  (a) Participant’s termination as a Director and Service due to death or Disability or (b) upon the Participant’s involuntary termination of Service without Cause on or within 12 months after the date of a Change in Control including the non-election by successor stockholders without Cause.  The date of the Participant’s termination of directorship and Service on account of one of the Vesting Events shall be the Vesting Date for purposes of this Award.
 
 
1
 
 
5.   Other Terms and Conditions:
 
(a)   No Fractional Shares.  All provisions of this Award concern whole shares of Stock.  If the application of any provision hereunder would yield a fractional share, such fractional share shall be rounded down to the next whole share.
 
(b)   Not a Service Agreement.  This Award is not an agreement for continued Services, and this Award shall not be, and no provision of this Award shall be construed or interpreted to create any right of Participant to provide services to the Company or any of its Affiliates or otherwise continue as a Director.
 
(c)   Code Section 409A.  To the extent that this Award of RSUs is deferred compensation subject to Code Section 409A, this Award is intended and will be interpreted to comply with the requirements of Code Section 409A, and the Committee shall use the applicable definitions from Code Section 409A in the administration of this Award, such as a more restrictive definition of Change in Control or Disability to comply with Code Section 409A to the extent that it is required and a termination of employment shall mean a Separation from Service (as defined below).  To the extent required by Code Section 409A, if the Participant is Specified Employee (as defined below), a distribution on account of a Separation from Service may not be made before the date which is the first business day that is six months after the date of the Participant’s Separation from Service (or, if earlier, the date of the Participant’s death).  The terms “ Separation from Service, ” and “ Specified Employee, ” shall be defined in the same manner as those terms are defined for purposes of Section 409A of the Code, and the limitations set forth herein shall be applied in such manner (and only to the extent) as shall be necessary to comply with any requirements of Section 409A of the Code that are applicable to this Award.  To the extent that this Award is subject to Code Section 409A, the Committee shall not have any discretion otherwise provided in this Plan to the extent such discretion is prohibited under Code Section 409A with respect to deferred compensation including, without limitation, any discretion to accelerate or substitute under Section 25.  In addition, if this Award is subject to Code Section 409A, the Committee may interpret or amend this Award to comply with Code Section 409A without the Participant’s consent even if such amendment would have an adverse effect on this Award.
 
(d)   Independent Tax Advice and Acknowledgments.  The Participant acknowledges he or she has been advised to consult his or her tax advisor with respect to this Award and the tax consequences of this Award and any payments hereunder.  None of the Company, any Affiliate nor any officer, director, employee, shareholder or any agent of any of them guarantees or is responsible for the tax consequences to a Participant with respect to this Award under the Plan and the administration of this Award and Plan, including without limitation, any excise or penalty tax or interest under Code Section 409A.  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 this Award subject to all the terms and provisions of the Plan and this Award.
 
The RSUs granted hereunder and the issuance of the Stock will be subject to all applicable federal, state and local taxes domestic and foreign.  The Participant hereby agrees to accept as binding, conclusive, and final all decisions or interpretations of the Committee or the Board, as appropriate, upon any questions arising under the Plan or this Award.
 
 
2
 
 
 
PARTICIPANT:  Name
   
 
Signature: ______________________________
 
Date: _____________________
   
 
VICTORY ENERGY CORPORATION
   
 
By:_____________________________________
 
Date: _____________________
 
 
3
EXHIBIT 10.4
 
VICTORY ENERGY CORPORATION
AWARD OF RESTRICTED STOCK
(Employee)
 
In this Award, Victory Energy Corporation (the “ Company ”) grants to [name] (the “ Participant ”), an Employee, Restricted Stock under the Victory Energy Corporation 2014 Long Term Incentive Plan (“ Plan ”).  This Award of Restricted Stock is governed by the terms of this Award document and the Plan.  All capitalized terms not defined in this Award shall have the meaning of such terms as provided in the Plan.
 
1.   The “ Date of Grant ” is _____________ .
 
2.   The total number of shares of Restricted Stock granted is _______________ .
 
3.   The Vesting Dates for the Restricted Stock granted in this Award are as follows:
 
Subject to item 4 below, Participant shall not become vested in any of the Restricted Stock granted unless he or she is continuously providing Services to the Company or an Affiliate from the Date of Grant through the applicable Vesting Date, and Participant may not sell, assign, transfer, exchange, pledge, encumber, gift, devise, hypothecate or otherwise dispose of any Restricted Stock until such Restricted Stock become Vested as provided herein.  The transfer restrictions and substantial risk of forfeiture imposed in the foregoing sentence shall lapse on the following applicable dates (each a “ Vesting Date ”): as to 33.3% of the Restricted Stock on the first anniversary of the Date of Grant and 33.3% of the Restricted Stock on the Second subsequent anniversary of the Date of Grant and 33.4% in the third anniversary of the Date of Grant.  The Restricted Stock as to which such restrictions so lapse are referred to as “ Vested .”
 
4.   Other Vesting Events are as follows:
 
Notwithstanding the foregoing vesting schedule in item 3, the Restricted Stock will be 100% Vested upon any one of the following “ Vesting Events ”:  (a) Participant’s termination of employment with the Company and its Affiliates or any successor thereto due to death or Disability or (b) upon the Participant’s termination of employment without Cause by the Company, its Affiliates or their successor on or within 12 months after a Change in Control without Cause.  The date of the Participant’s termination of employment with the Company and its Affiliates on account of one of the Vesting Events shall be the Vesting Date for purposes of this Award.
 
5.   Other Terms and Conditions:
 
(a)   No Fractional Shares.  All provisions of this Award concern whole shares of Stock.  If the application of any provision hereunder would yield a fractional share, such fractional share shall be rounded down to the next whole share.
 
 
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(b)   Not an Employment or Service Agreement.  This Award is not an employment agreement, and this Award shall not be, and no provision of this Award shall be construed or interpreted to create any right of Participant to continue employment with or provide services to the Company or any of its Affiliates.
 
(c)   Independent Tax Advice and Acknowledgments.  Participant has been advised and Participant hereby acknowledges that he or she has been advised to obtain independent legal and tax advice regarding this Award, the grant of the Restricted Stock and the disposition of such shares, including, without limitation, the election available under Section 83(b) of the Internal Revenue Code.  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 this Award subject to all the terms and provisions of the Plan and this Award.
 
The Restricted Stock granted hereunder will be subject to all applicable federal, state and local taxes domestic and foreign and withholding requirements.  The Participant hereby agrees to accept as binding, conclusive, and final all decisions or interpretations of the Committee or the Board, as appropriate, upon any questions arising under the Plan or this Award.
 
 
PARTICIPANT:   Name
   
 
Signature: ______________________________
 
Date: _____________________
   
 
VICTORY ENERGY CORPORATION
   
 
By:_____________________________________
 
Date: _____________________
 
 
2
EXHIBIT 10.5
 
VICTORY ENERGY CORPORATION
AWARD OF RESTRICTED STOCK
(Director)
 
In this Award, Victory Energy Corporation (the “ Company ”) grants to [name] (the “ Participant ”), a non-Employee Director, Restricted Stock under the Victory Energy Corporation 2014 Long Term Incentive Plan (“ Plan ”).  This Award of Restricted Stock is governed by the terms of this Award document and the Plan.  All capitalized terms not defined in this Award shall have the meaning of such terms as provided in the Plan.
 
1.   The “ Date of Grant ” is _____________ .
 
2.   The total number of shares of Restricted Stock granted is _______________ .
 
3.   The Vesting Dates for the Restricted Stock granted in this Award are as follows:
 
Subject to item 4 below, Participant shall not become vested in any of the Restricted Stock granted unless he or she is continuously providing Services to the Company from the Date of Grant through the applicable Vesting Date, and Participant may not sell, assign, transfer, exchange, pledge, encumber, gift, devise, hypothecate or otherwise dispose of any Restricted Stock until such Restricted Stock become Vested as provided herein.  The transfer restrictions and substantial risk of forfeiture imposed in the foregoing sentence shall lapse on the following applicable dates (each a “ Vesting Date ”) as selected and checked by the Committee as follows: _____ (a) 33.3% on the first anniversary of the Grant Date, 33.3% on the second anniversary of the Grant Date and 33.4% on the third anniversary of the Grant Date or _____ (b) as to 100% of the Restricted Stock on the second anniversary of the Date of Grant.  The Restricted Stock as to which such restrictions so lapse are referred to as “ Vested .”
 
4.   Other Vesting Events are as follows:
 
Notwithstanding the foregoing vesting schedule in item 3, the Restricted Stock will be 100% Vested upon any one of the following “ Vesting Events ”:  (a) Participant’s termination as a Director and Service due to death, or Disability or (b) upon Participant’s involuntary termination of Service without Cause including non-election by successor stockholders without Cause on or within 12 months after the date of a Change in Control.  The date of the Participant’s termination of directorship and Service on account of one of the Vesting Events shall be the Vesting Date for purposes of this Award.
 
5.   Other Terms and Conditions:
 
(a)   No Fractional Shares.  All provisions of this Award concern whole shares of Stock.  If the application of any provision hereunder would yield a fractional share, such fractional share shall be rounded down to the next whole share.
 
 
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(b)   Not a Service Agreement.  This Award is not an agreement providing Services, and this Award shall not be, and no provision of this Award shall be construed or interpreted to create any right of Participant to provide services to the Company or any of its Affiliates or otherwise continue as a Director.
 
(c)   Independent Tax Advice and Acknowledgments.  Participant has been advised and Participant hereby acknowledges that he or she has been advised to obtain independent legal and tax advice regarding this Award, the grant of the Restricted Stock and the disposition of such shares, including, without limitation, the election available under Section 83(b) of the Internal Revenue Code.  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 this Award subject to all the terms and provisions of the Plan and this Award.
 
The Restricted Stock granted hereunder will be subject to all applicable federal, state and local taxes domestic and foreign.  The Participant hereby agrees to accept as binding, conclusive, and final all decisions or interpretations of the Committee or the Board, as appropriate, upon any questions arising under the Plan or this Award.
 
 
PARTICIPANT:   Name
   
 
Signature: ______________________________
 
Date: _____________________
   
 
VICTORY ENERGY CORPORATION
   
 
By:_____________________________________
 
Date: _____________________
 
 
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EXHIBIT 10.6
 
VICTORY ENERGY CORPORATION
NONSTATUTORY STOCK OPTION AGREEMENT
(Employee)
 
1.   Grant of Stock Option .  As of the Grant Date (identified in the Award Notice attached hereto (the “ Award Notice ”), Victory Energy Corporation, a Nevada corporation (the “ Company ”), hereby grants a Nonstatutory Stock Option (the “ Option ”) to the Optionee (identified in the Award Notice), an Employee of the Company, to purchase the number of shares of the Company’s common stock, $ 0.001 par value per share (the “ Stock ”) identified in the Award Notice (the “ Stock ”), subject to the terms and conditions of this agreement (the “ Agreement ”) and the Victory Energy Corporation  2014 Long Term Incentive Plan (the “ Plan ”) which is hereby incorporated herein in its entirety by reference and is attached as Exhibit A.  The Option is not an “incentive stock option” as defined in Section 422 of the Internal Revenue Code.
 
2.   Definitions .  All capitalized terms used herein shall have the meanings set forth in the Plan unless otherwise specifically provided herein.  The Award Notice sets forth meanings for various capitalized terms used in this Agreement.
 
3.   Option Term .  The Option shall commence on the Grant Date (identified in the Award Notice) and terminate on the date immediately prior to the tenth (10 th )   anniversary of the Grant Date.  The period during which the Option is in effect and may be exercised is referred to herein as the “ Option Period.”
 
4.   Option Price .  The Option Price per share of Stock is identified in the Award Notice.
 
5.   Vesting .  This Option may be exercised for the total number of shares Stock subject to this Option in accordance with the Vesting Dates as follows:  33.3% on the first anniversary of the Grant Date, 33.3% on the second anniversary of the Grant Date and 33.4% on the third anniversary of the Grant Date provided that the Optionee is continuously providing Services to the Company or an Affiliate through the applicable vesting date.  The Stock may be purchased at any time after they become vested, in whole or in part, during the Option Period; provided, however, the Option may only be exercisable to acquire whole Stock.  The right of exercise provided herein shall be cumulative so that if the Option is not exercised to the maximum extent permissible after vesting, the vested portion of the Option shall be exercisable, in whole or in part, at any time during the Option Period.
 
6.   Method of Exercise .  The Option is exercisable by delivery of a written notice to the Secretary of the Company, at the address for notices to the Company provided below, signed by the Optionee, specifying the number of shares of Stock to be acquired on, and the effective date of, such exercise.  The Optionee may withdraw notice of exercise of this Option, in writing, at any time prior to the close of business on the business day preceding the proposed exercise date.
 
 
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7.   Restrictions on Exercise .  The Option may not be exercised if the issuance of such Stock or the method of payment of the consideration for such Stock would constitute a violation of any applicable federal or state securities or other laws or regulations, including any laws or regulations or Company policies respecting blackout periods, or any rules or regulations of any stock exchange on which the Stock may be listed.
 
8.   Termination of Employment .  Voluntary or involuntary termination of the Optionee as an Employee of the Company and its Affiliates or any successor thereto shall affect Optionee’s rights under the Option as follows:
 
(a)   Termination for Cause or Breach of Noncompetition or Confidentiality Agreement .  The vested and non-vested portions of the Option shall expire on 12:01 a.m. (CST) on the date of termination of Participant’s employment for Cause or the date of the breach of the non-competition and/or confidentiality agreement, as applicable and shall not be exercisable to any extent if Optionee’s employment is terminated for Cause or the Optionee breaches a noncompetition and/or confidentiality agreement between Optionee and the Company or any of its Affiliates at any time.
 
(b)   Death or Disability .  If Optionee’s employment is terminated by death or Disability (as determined by the Committee at the time of such termination as a member of the Company’s Board of Directors), then the vesting of the Option shall be accelerated and the entire Option shall automatically become 100% vested as of the date of such termination and shall expire 365 calendar days after the date of such termination of employment to the extent not exercised by Optionee or, in the case of death, by the person or persons to whom Optionee’s rights under the Option have passed by will or by the laws of descent and distribution or, in the case of Disability, by Optionee or Optionee’s legal representative.  In no event may the Option be exercised by anyone after the earlier of (i) the expiration of the Option Period or (ii) 365 days after the date of Optionee’s death or termination of employment due to Disability.
 
(c)   Other Involuntary Termination or Voluntary Termination .  If Optionee’s employment with the Company and its Affiliates is terminated for any reason other than for Cause, death or Disability, then (i) the non-vested portion of the Option shall immediately expire on the date of termination of employment and (ii) the vested portion of the Option shall expire to the extent not exercised 3 months after the date of such termination of employment.  The no event may the Option be exercised by anyone after the earlier of(i) the expiration of the Option Period or (ii) 3 months after the date of termination.
 
(d)   Change in Control .  Notwithstanding the vesting provisions in this Agreement, in the event of the Participant’s termination of Service without Cause on or within 12 months after a Change in Control by the Company, its Affiliates or their successor, vesting of the Option shall be accelerated and the entire Option shall automatically become 100% vested as of the day of the Change in Control date and the Option shall otherwise be affected as provided in the Plan.
 
9.   Independent Legal and Tax Advice .  Optionee acknowledges that the Company has advised Optionee to obtain independent legal and tax advice regarding the grant and exercise of the Option and the disposition of any Stock acquired thereby.
 
 
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10.   No Rights in Stock .  Subject to the terms of the Plan, Optionee shall have no rights as a stockholder until the Optionee becomes the record holder of such Stock, or upon a Change in Control, with respect to the Stock.
 
11.   Investment Representation .  Optionee will enter into such written representations, warranties and agreements as Company may reasonably request in order to comply with any federal or state securities law.  Moreover, any stock certificate for any Stock issued to Optionee hereunder may contain a legend restricting their transferability as determined by the Company in its discretion.  Optionee agrees that Company shall not be obligated to take any affirmative action in order to cause the issuance or transfer of Stock hereunder to comply with any law, rule or regulation that applies to the Stock subject to the Option.
 
12.   No Guarantee of Employment or Services .   The Option shall not confer upon Optionee any right to continued employment or Services with the Company or any Affiliate.
 
13.   Withholding of Taxes .  The Option is subject to and the Company shall have the right to take any action as may be necessary or appropriate to satisfy any federal, state, or local (foreign and domestic) tax and withholding obligations upon exercise of the Option.
 
14.   General .
 
(a)   Notices .  All notices under this Agreement shall be mailed or delivered by hand to the parties at their respective addresses set forth beneath their signatures below or at such other address as may be designated in writing by either of the parties to one another.  Notices shall be effective upon receipt.
 
(b)   Nontransferability of Option .  The Option granted pursuant to this Agreement is not transferable other than by will or by the laws of descent and distribution or by a qualified domestic relations order (as defined in Section 4l4(p) of the Internal Revenue Code).  The Option will be exercisable during Optionee’s lifetime only by Optionee or by Optionee’s legal representative in the event of Optionee’s Disability.  No right or benefit hereunder shall in any manner be liable for or subject to any debts, contracts, liabilities, obligations or torts of Optionee.
 
(c)   Amendment and Termination .  No amendment, modification or termination of the Option or this Agreement shall be made at any time without the written consent of Optionee and Company.
 
(d)   No Guarantee of Tax Consequences, Legal Consult .  The Company and the Committee make no commitment or guarantee that any federal or state tax treatment will apply or be available to any person eligible for benefits under the Option.  The Optionee has been advised and been provided the opportunity to obtain independent legal and tax advice regarding this Award including, without limitation, with respect to the grant and exercise of the Option and the disposition of any Stock acquired thereby.
 
(e)   Severability .  In the event that any provision of this Agreement shall be held illegal, invalid, or unenforceable for any reason, such provision shall be fully severable, but shall not affect the remaining provisions of the Agreement, and the Agreement shall be construed and enforced as if the illegal, invalid, or unenforceable provision had not been included herein.
 
 
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(f)   Supersedes Prior Agreements .  This Agreement shall supersede and replace all prior agreements and understandings, oral or written, between the Company and the Optionee regarding the grant of the Options covered hereby.
 
(g)   Governing Law .  The Option shall be construed in accordance with the laws of the State of Nevada without regard to its conflict of law provisions, to the extent federal law does not supersede and preempt Nevada law.
 
15.   Counterparts :  This Agreement may be executed in multiple original counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
 

[SIGNATURE PAGE FOLLOWS]
 
 
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IN WITNESS WHEREOF, the Company, as of the Grant Date has caused this Agreement to be executed on its behalf by its duly authorized officer and Optionee has hereunto executed this Agreement as of the same date.
 
 
VICTORY ENERGY CORPORATION


By: ________________________________
Name:
Title:

Address for Notices:

3355 Bee Caves Road, Suite 608
Austin, Texas  78746

Attention: Kenny Hill
   
 
OPTIONEE :

___________________________________
Signature


___________________________________
Printed Name
Address:   ___________________________
                   ___________________________
                   ___________________________
 
 
 
5
EXHIBIT 10.7
 
VICTORY ENERGY CORPORATION
NONSTATUTORY STOCK OPTION AGREEMENT
(Director)
 
1.   Grant of Stock Option .  As of the Grant Date (identified in the Award Notice attached hereto (the “ Award Notice ”), Victory Energy Corporation, a Nevada corporation (the “ Company ”), hereby grants a Nonstatutory Stock Option (the “ Option ”) to the Optionee (identified in the Award Notice), a non-Employee Director of the Company, to purchase the number of shares of the Company’s common stock, $ 0.001 par value per share (the “ Stock ”) identified in the Award Notice (the “ Stock ”), subject to the terms and conditions of this agreement (the “ Agreement ”) and the Victory Energy Corporation  2014 Long Term Incentive Plan (the “ Plan ”) which is hereby incorporated herein in its entirety by reference and is attached as Exhibit A.  The Option is not an “incentive stock option” as defined in Section 422 of the Internal Revenue Code.
 
2.   Definitions .  All capitalized terms used herein shall have the meanings set forth in the Plan unless otherwise specifically provided herein.  The Award Notice sets forth meanings for various capitalized terms used in this Agreement.
 
3.   Option Term .  The Option shall commence on the Grant Date (identified in the Award Notice) and terminate on the date immediately prior to the tenth (10 th )   anniversary of the Grant Date.  The period during which the Option is in effect and may be exercised is referred to herein as the “ Option Period.”
 
4.   Option Price .  The Option Price per share of Stock is identified in the Award Notice.
 
5.   Vesting .  This Option may be exercised for the total number of shares Stock subject to this Option in accordance with the Vesting Dates as follows as selected and checked off by the Committee as follows: _____ (a) 33.3% on the first anniversary of the Grant Date, 33.3% on the second anniversary of the Grant Date and 33.4% on the third anniversary of the Grant Date or _____ (b) 100% on the second anniversary of the Grant Date provided that the Optionee is continuously providing Services to the Company or an Affiliate through the applicable Vesting Date.  The Stock may be purchased at any time after they become vested, in whole or in part, during the Option Period; provided, however, the Option may only be exercisable to acquire whole Stock.  The right of exercise provided herein shall be cumulative so that if the Option is not exercised to the maximum extent permissible after vesting, the vested portion of the Option shall be exercisable, in whole or in part, at any time during the Option Period.
 
6.   Method of Exercise .  The Option is exercisable by delivery of a written notice to the Secretary of the Company, at the address for notices to the Company provided below, signed by the Optionee, specifying the number of shares of Stock to be acquired on, and the effective date of, such exercise.  The Optionee may withdraw notice of exercise of this Option, in writing, at any time prior to the close of business on the business day preceding the proposed exercise date.
 
 
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7.   Restrictions on Exercise .  The Option may not be exercised if the issuance of such Stock or the method of payment of the consideration for such Stock would constitute a violation of any applicable federal or state securities or other laws or regulations, including any laws or regulations or Company policies respecting blackout periods, or any rules or regulations of any stock exchange on which the Stock may be listed.
 
8.   Termination of Service .  Voluntary or involuntary termination of the Optionee’s Service to the Company and its Affiliates or any successor thereto shall affect Optionee’s rights under the Option as follows:
 
(a)   Death or Disability .  If Optionee’s Service is terminated by death or Disability (as determined by the Committee at the time of such termination as a member of the Company’s Board of Directors), then the vesting of the Option shall be accelerated and the entire Option shall automatically become 100% vested as of the date of such termination and shall expire 365 calendar days after the date of such termination of employment to the extent not exercised by Optionee or, in the case of death, by the person or persons to whom Optionee’s rights under the Option have passed by will or by the laws of descent and distribution or, in the case of Disability, by Optionee or Optionee’s legal representative.  In no event may the Option be exercised by anyone after the earlier of (i) the expiration of the Option Period or (ii) 365 days after the date of Optionee’s death or termination of employment due to Disability.
 
(b)   Other Termination or Voluntary Termination Prior to a Change in Control .  If Optionee’s Service with the Company and its Affiliates is terminated for any reason other than death or Disability, then (i) the non-vested portion of the Option shall immediately expire on the date of termination of employment and (ii) the vested portion of the Option shall expire to the extent not exercised 3 months after the date of such termination of employment.  The no event may the Option be exercised by anyone after the earlier of(i) the expiration of the Option Period or (ii) 3 months after the date of termination.
 
(c)   Termination for Cause .  If Optionee is terminated for Cause all vested and unvested Options shall immediately expire and shall not be exercisable.
 
(d)   Change in Control .  Notwithstanding the vesting provisions in this Agreement, in the event of a “Change in Control” of the Company, vesting of the Option shall be accelerated and the entire Option shall automatically become 100% vested if the Optionee’s Service is involuntary terminated without Cause on or within 12 months after the date of a Change in Control including the non-election of the Optionee by the successor stockholders without Cause, and the Option shall otherwise be affected as provided in the Plan.
 
9.   Independent Legal and Tax Advice .  Optionee acknowledges that the Company has advised Optionee to obtain independent legal and tax advice regarding the grant and exercise of the Option and the disposition of any Stock acquired thereby.
 
 
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10.   No Rights in Stock .  Subject to the terms of the Plan, Optionee shall have no rights as a stockholder until the Optionee becomes the record holder of such Stock, or upon a Change in Control, with respect to the Stock.
 
11.   Investment Representation .  Optionee will enter into such written representations, warranties and agreements as Company may reasonably request in order to comply with any federal or state securities law.  Moreover, any stock certificate for any Stock issued to Optionee hereunder may contain a legend restricting their transferability as determined by the Company in its discretion.  Optionee agrees that Company shall not be obligated to take any affirmative action in order to cause the issuance or transfer of Stock hereunder to comply with any law, rule or regulation that applies to the Stock subject to the Option.
 
12.   No Guarantee of Services .   The Option shall not confer upon Optionee any right to continued Service with the Company or any Affiliate.
 
13.   Withholding of Taxes .  The Option is subject to all applicable federal, state, or local tax (foreign or domestic).
 
14.   General .
 
(a)   Notices .  All notices under this Agreement shall be mailed or delivered by hand to the parties at their respective addresses set forth beneath their signatures below or at such other address as may be designated in writing by either of the parties to one another.  Notices shall be effective upon receipt.
 
(b)   Nontransferability of Option .  The Option granted pursuant to this Agreement is not transferable other than by will or by the laws of descent and distribution or by a qualified domestic relations order (as defined in Section 4l4(p) of the Internal Revenue Code).  The Option will be exercisable during Optionee’s lifetime only by Optionee or by Optionee’s legal representative in the event of Optionee’s Disability.  No right or benefit hereunder shall in any manner be liable for or subject to any debts, contracts, liabilities, obligations or torts of Optionee.
 
(c)   Amendment and Termination .  No amendment, modification or termination of the Option or this Agreement shall be made at any time without the written consent of Optionee and Company.
 
(d)   No Guarantee of Tax Consequences, Legal Consult .  The Company and the Committee make no commitment or guarantee that any federal or state tax treatment will apply or be available to any person eligible for benefits under the Option.  The Optionee has been advised and been provided the opportunity to obtain independent legal and tax advice regarding this Award including, without limitation, with respect to the grant and exercise of the Option.
 
(e)   Severability .  In the event that any provision of this Agreement shall be held illegal, invalid, or unenforceable for any reason, such provision shall be fully severable, but shall not affect the remaining provisions of the Agreement, and the Agreement shall be construed and enforced as if the illegal, invalid, or unenforceable provision had not been included herein.
 
 
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(f) Supersedes Prior Agreements . This Agreement shall supersede and replace all prior agreements and understandings, oral or written, between the Company and the Optionee regarding the grant of the Options covered hereby.
 
15. Counterparts : This Agreement may be executed in multiple original counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
 
 
[SIGNATURE PAGE FOLLOWS]
 
 
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IN WITNESS WHEREOF, the Company, as of the Grant Date has caused this Agreement to be executed on its behalf by its duly authorized officer and Optionee has hereunto executed this Agreement as of the same date.
 
 
VICTORY ENERGY CORPORATION

By: ________________________________
Name:
Title:

Address for Notices:

3355 Bee Caves Road, Suite 608
Austin, Texas  78746

Attention: Kenny Hill
   
 
OPTIONEE :

___________________________________
Signature


___________________________________
Printed Name
Address:   ___________________________
                   ___________________________
                   ___________________________
 
 
 
 
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