LOCK-UP AGREEMENT Agreement and Plan of Merger and Reorganization dated as of February 10, 2016 by and among Yuma Energy, Inc., Yuma Delaware Merger Subsidiary, Inc., Yuma Merger Subsidiary, Inc., and Davis Petroleum Acquisition Corp.
Exhibit 4
Agreement and Plan of Merger and Reorganization
dated as of February 10, 2016
by and among
Yuma Energy, Inc.,
Yuma Delaware Merger Subsidiary, Inc.,
Yuma Merger Subsidiary, Inc.,
and
Xxxxx Petroleum Acquisition Corp.
Dated
as of October 26, 2016
Yuma
Energy, Inc.
0000
Xxxx Xxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
Yuma
Delaware Merger Subsidiary, Inc.
0000
Xxxx Xxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
Ladies
and Gentlemen:
This agreement is being delivered to Yuma Energy,
Inc. (“Yuma”) and Yuma Delaware Merger Subsidiary, Inc.
(“Yuma
Delaware”) in connection
with the Agreement and Plan of Merger and Reorganization, dated as
of February 10, 2016, by and among Yuma, Yuma Delaware, Yuma Merger
Subsidiary, Inc., and Xxxxx Petroleum Acquisition Corp.
(“Xxxxx”) (the “Merger
Agreement”). Capitalized
terms not defined herein shall have the meanings set forth in the
Merger Agreement.
In order to induce you to enter into the Merger
Agreement, and in light of the benefits that the Merger
Agreement will confer upon the undersigned in its capacity as a
securityholder of Xxxxx, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees with Yuma and Yuma Delaware
that, during the period beginning on and including the date of the
Closing through and including the date that is the 180th day after the date
of the Closing (the “Lock-Up
Period”), the undersigned will not, without the prior
written consent of Yuma Delaware, directly or
indirectly:
(i) offer,
pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend or otherwise transfer or
dispose of any shares of Yuma Delaware’s Common Stock, its
Series D Convertible Preferred Stock or any other class of its
capital stock (collectively, “Capital Stock”) or any other
securities convertible into or exercisable or exchangeable for any
Capital Stock, whether now owned or hereafter acquired by the
undersigned during the Lock-Up Period or with respect to which the
undersigned has or hereafter acquires the power of disposition
during the Lock-Up Period, or
(ii) enter
into any swap or other agreement, arrangement or transaction that
transfers to another, in whole or in part, directly or indirectly,
any of the economic consequence of ownership of any Capital Stock
or any securities convertible into or exercisable or exchangeable
for any Capital Stock, whether any
transaction described in clause (i) or (ii) above is to be settled
by delivery of any Capital Stock, other securities, in cash or
otherwise.
1
Notwithstanding
the provisions set forth in the immediately preceding paragraph,
the undersigned may, without the prior written consent of Yuma or
Yuma Delaware, transfer any Capital Stock or any securities
convertible into or exchangeable or exercisable for any Capital
Stock:
(1) if
the undersigned is a natural person, as a bona fide gift or gifts,
or by will or intestacy, to any member of the immediate family (as
defined below) of the undersigned or to a trust the beneficiaries
of which are exclusively the undersigned or members of the
undersigned’s immediate family or as a bona fide gift or
gifts to a charity or educational institution,
(2) if
the undersigned is a partnership or a limited liability company, to
a partner or member, as the case may be, of such partnership or
limited liability company if, in any such case, such transfer is
not for value,
(3) if
the undersigned is a corporation, partnership, limited liability
company or other business entity, any transfer made by the
undersigned to another corporation, partnership, limited liability
company or other business entity so long as the transferee is an
affiliate (as defined below) of the undersigned and such transfer
is not for value,
(4) if
the undersigned is a corporation, partnership, limited liability
company or other business entity, any transfer made by the
undersigned in connection with the sale or other bona fide transfer
in a single transaction of all or substantially all of the
undersigned’s capital stock, partnership interests,
membership interests or other similar equity interests, as the case
may be, or all or substantially all of the undersigned’s
assets, in any such case not undertaken for the purpose of avoiding
the restrictions imposed by this agreement, and
(5) the
conversion, exchange or exercise of any securities convertible into
or exercisable or exchangeable for Yuma Delaware’s Common
Stock, including Yuma Delaware’s Series D Preferred Stock,
and any shares of Common Stock or received upon such conversion,
exchange or exercise shall continue to be subject to the terms of
this agreement,
provided,
however, that in the case of
any transfer described in clause (1), (2), (3) or (4) above,
it shall be a condition to the transfer that (A) the
transferee executes and delivers to Yuma Delaware not later than one business day prior
to such transfer, a written agreement, in substantially the form of
this agreement (it being understood that any references to
“immediate family” in the agreement executed by such
transferee shall expressly refer only to the immediate family of
the undersigned and not to the immediate family of the transferee)
and otherwise satisfactory in form and substance to Yuma Delaware, and (B) if the
undersigned is required to file a report under Section 16(a) of the
Securities Exchange Act of 1934, as amended, reporting a reduction
in beneficial ownership of shares of any Capital Stock or any
securities convertible into or exercisable or exchangeable for any
Capital Stock by the undersigned during the Lock-Up Period (as the
same may be extended as described above), the undersigned shall
include a statement in such report to the effect that such transfer
or distribution is not a transfer for value and (w) in the
case of any transfer pursuant to clause (1), that such transfer is
being made as a gift or by will or intestacy, as the case may be,
(x) in the case of any transfer pursuant to clause (2), that
such transfer is being made to the partners or members, as the case
may be, of the applicable partnership or limited liability company,
as the case may be, (y) in the case of any transfer pursuant
to clause (3), that such transfer is being made to another
corporation, partnership, limited liability company or other
business entity that is an affiliate of the undersigned, and
(z) in the case of any transfer pursuant to clause (4), that
such transfer is being made in connection with the sale or other
bona fide transfer in a single transaction of all or substantially
all of the undersigned’s capital stock, partnership
interests, membership interests or other similar equity interests,
as the case may be, or all or substantially all of the
undersigned’s assets. For purposes of this paragraph,
“immediate family” shall mean a spouse, father, mother,
child, grandchild or other lineal descendant (including by
adoption), brother or sister of the undersigned, and
“affiliate” shall have the meaning set forth in Rule
405 under the Securities Act of 1933, as amended (the
“1933 Act”). Any
Common Stock of Yuma Delaware acquired by the undersigned in the
open market after the date hereof will not be subject to the
restrictions set forth in this agreement.
2
Furthermore,
nothing in this agreement shall prohibit the undersigned from
receiving shares of Capital Stock, including Yuma Delaware’s
Series D Preferred Stock, by reason of a stock dividend,
reclassification, recapitalization, split, combination, exchange of
shares or similar event or transaction, and any such shares
received will also be subject to the terms of this
agreement.
The undersigned further agrees that (i) it
will not, during the Lock-Up Period make any demand for or exercise any right with
respect to the registration under the 1933 Act, of any shares of any Capital Stock or any
securities convertible into or exercisable or exchangeable for any
Capital Stock, and (ii) Yuma Delaware may, with respect to any
Capital Stock or any securities convertible into or exercisable or
exchangeable for any Capital Stock owned or held (of record or
beneficially) by the undersigned that is subject to the
restrictions set forth in this agreement, cause the transfer agent
or other registrar to enter stop transfer instructions and
implement stop transfer procedures with respect to such securities
during the Lock-Up Period.
The
undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this agreement and that this
agreement has been duly authorized (if applicable), executed and
delivered by the undersigned and is a valid and binding agreement
of the undersigned. This agreement and all authority herein
conferred are irrevocable and shall survive the death or incapacity
of the undersigned (if a natural person) and shall be binding upon
the heirs, personal representatives, successors and assigns of the
undersigned.
[Signature Page Immediately Follows]
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IN
WITNESS WHEREOF, the undersigned has executed and delivered this
agreement as of the date first set forth above.
Yours
very truly,
/s/ Xxx X.
Xxxxx
Print
Name: Xxx X. Xxxxx
[Signature
Page to Lock-Up Agreement]
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