8-K
New ERA Energy & Digital, Inc. (NUAI)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934
March 16, 2026 (March 15, 2026)
Date of Report (Date of earliest event reported)
NEW ERA ENERGY & DIGITAL, INC.
(Exact Name of Registrant as Specified in Charter)
| Nevada | 001-42433 | 99-3749880 |
|---|---|---|
| (State or Other Jurisdiction <br><br>of Incorporation) | (Commission File Number) | (I.R.S. Employer <br><br>Identification Number) |
| 200 N. Loraine Street, Suite 1324Midland, TX | 79701 | |
| --- | --- | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s telephone number, including area code: (432) 695-6997
Not Applicable
(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:
| ☐ | Written communications pursuant<br>to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ☐ | Soliciting material pursuant<br>to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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| ☐ | Pre-commencement communications<br>pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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| ☐ | Pre-commencement communications<br>pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
|---|---|---|
| Common Stock | NUAI | The Nasdaq Stock Market LLC |
| Warrants | NUAIW | The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR § 230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02 Departure of Directors or CertainOfficers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Appointment of Chief Financial Officer
On March 16, 2026, New Era Energy & Digital, Inc. (the “Company”) announced that the Board of Directors (the “Board”) of the Company appointed Ted Warner to serve as Chief Financial Officer of the Company and designated him as the principal financial officer of the Company, effective March 16, 2026. In connection with Mr. Warner’s appointment, E. Will Gray II, the Company’s current Chief Executive Officer and interim Chief Financial Officer and principal financial officer will cease serving as interim Chief Financial Officer and principal financial officer and return to his role as Chief Executive Officer, effective March 16, 2026.
Mr. Warner, age 45, served as Managing Director, Energy, Power & Digital Infrastructure Investment Banking at Northland Capital Markets, a division of Northland Securities, Inc. and a full-service investment bank that provides financing and M&A advisory services, since 2020. Mr. Warner holds Series 7, 79, and 63 licenses, a B.A. from the University of Michigan, Ann Arbor and an MBA from the Carlson School of Management at the University of Minnesota.
There are no arrangements or understandings between Mr. Warner and any other person pursuant to which Mr. Warner was selected to serve as the Company’s Chief Financial Officer. Mr. Warner does not have any family relationship with any director or executive officer of the Company, or any person nominated or chosen by the Company to become a director or executive officer. There are no transactions in which Mr. Warner has an interest requiring disclosure under Item 404(a) of Regulation S-K.
Warner Employment Agreement
In connection with Mr. Warner’s appointment as Chief Financial Officer, the Company and Mr. Warner entered into an employment agreement (the “Warner Employment Agreement”), effective March 16, 2026. Under the Warner Employment Agreement, Mr. Warner’s annual base salary is $500,000, subject to adjustment by the Compensation Committee of the Board (the “Compensation Committee”). Mr. Warner will have an annual target bonus opportunity of up to 40% of his annual base salary based on the achievement of specified performance goals set by the Compensation Committee. Mr. Warner may also become eligible for an additional one-time discretionary bonus payment equal to $200,000 upon the Company’s successful completion of certain operational and financial milestones as determined and approved by the Compensation Committee. Mr. Warner will be entitled to participate, on the same basis as other executives of the Company, in those employee benefit programs for which substantially all of the executive officers of the Company are from time to time generally eligible, as determined by the Board. Mr. Warner may be eligible to receive grants of equity, equity-based or similar compensation awards pursuant to the Company’s Equity Incentive Plan (the “Plan”) or as otherwise approved by the Compensation Committee.
In the event of a termination by the Company without Cause or a termination by Mr. Warner for Good Reason at any time before a Change in Control (as such terms are defined in the Employment Agreement), the Company will pay to Mr. Warner: (i) severance compensation in an amount equal to 100% of his annual base salary, (ii) any unpaid annual target bonus earned for the prior year, (iii) a pro-rated portion of the annual target bonus for the year in which the Warner Employment Agreement is terminated, and (iv) a lump sum payment equal to the total cost of premium payments for 12 months of coverage under the Company’s benefit plans.
In the event of a termination by the Company without Cause or a termination by Mr. Warner for Good Reason on or after a Change in Control, the Company will pay to Mr. Warner: (i) severance compensation in an amount equal to 150% of his annual base salary, (ii) any unpaid annual target bonus earned for the prior year, (iii) a pro-rated portion of the annual target bonus for the year in which the Employment Agreement is terminated, and (iv) a lump sum payment equal to the total cost of premium payments for 18 months of coverage under the Company’s benefit plans. Severance payments described above are contingent upon the execution of a release of claims against the Company.
The Warner Employment Agreement also contains certain restrictive covenants, including confidentiality and non-disparagement covenants, a covenant not to solicit clients for a period of 18-months following the termination of his employment and not to solicit employees for a period of 24 months following the termination of his employment.
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Warner PSU and RSU Award Agreements
Mr. Warner was granted an award of performance shares (“PSUs”) covering a total of 1,221,346 shares of the Company’s common stock, par value $0.0001 (the “common stock”), which shall be eligible to vest over a five-year performance period beginning on January 1, 2026 in accordance with the achievement of certain performance-based and time-based service conditions set forth in the Performance Award Agreement, dated as of March 16, 2026, by and between the Company and Mr. Warner (the “Warner PSU Agreement”). The PSUs are intended to serve as inducement grants, and were not issued pursuant to the Plan.
Mr. Warner was also granted an award of restricted stock units (“RSUs”) covering a total of 610,673 shares of the Company’s common stock which shall vest each month over a four-year period beginning on March 16, 2026 subject to Mr. Warner’s continued employment with the Company and in accordance with the terms set forth in the Restricted Stock Unit Award Agreement, dated as of March 16, 2026, by and between the Company and Mr. Warner (the “Warner RSU Agreement”). The RSUs are intended to serve as inducement grants, and were not granted pursuant to the Plan.
The foregoing description of the Warner Employment Agreement, Warner PSU Agreement and Warner RSU Agreement does not purport to be complete and is qualified in its entirety by reference to the Warner Employment Agreement, Warner PSU Agreement and Warner RSU Agreement, copies of which are filed herewith as Exhibits 10.1, 10.2 and 10.3, respectively, and are incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits.
| Exhibit Number | Description |
|---|---|
| 10.1 | Employment Agreement, dated March 16, 2026, by and between the Company and Ted Warner. |
| 10.2 | Performance Award Agreement, dated March 16, 2026, by and between the Company and Ted Warner. |
| 10.3 | Restricted Stock Unit Award Agreement, dated March 16, 2026, by and between the Company and Ted Warner. |
| 104 | Cover Page Interactive Data File (the cover page XBRL tags are embedded within the inline XBRL document). |
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SIGNATURES
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.
Dated: March 18, 2026
| NEW ERA ENERGY & DIGITAL, INC. | |
|---|---|
| By: | /s/ E. Will Gray II |
| Name: | E. Will Gray II |
| Title: | Chief Executive Officer |
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Exhibit 10.1
Execution Version
EMPLOYMENT AGREEMENT
This Employment Agreement (this “Agreement”) is entered into effective as of March 16, 2026 (the “Effective Date”), between New Era Energy & Digital, Inc., a Nevada corporation (the “Company”), and Ted G. Warner (“Executive”).
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
| 1. | Employment. The Company shall employ Executive, and Executive accepts employment with the Company<br>as of the Effective Date, upon the terms and conditions set forth in this Agreement for the period beginning on the Effective Date and<br>ending upon Executive’s termination of employment for any reason (such period of employment, the “Employment Period”). |
|---|---|
| 2. | Position and Duties. During the Employment Period, Executive shall serve as the Chief Financial<br>Officer of the Company, reporting to the Chief Executive Officer and the President of the Company, and shall have the normal duties, responsibilities<br>and authority of an executive serving in such position, subject to the power of the Board of Directors of the Company (the “Board”)<br>to expand or limit such duties, responsibilities and authority, either generally or in specific instances. During the Employment Period,<br>Executive shall devote Executive’s best efforts and Executive’s full business time and attention (except for permitted vacation<br>periods, reasonable periods of illness or other incapacity) to the business and affairs of the Company, its subsidiaries and affiliates.<br>During the Employment Period, Executive shall owe a fiduciary duty of loyalty, fidelity, and allegiance to act in the best interests of<br>the Company and each of its subsidiaries and affiliates to which he provides services, and to not act in a manner that would materially<br>injure their business, interests, or reputations. In keeping with these duties, Executive shall make full disclosure to the Chairman of<br>the Board of all Business Opportunities and not appropriate for his own benefit any such Business Opportunities. For purposes of this<br>Agreement, “Business Opportunities” shall mean all material business ideas, prospects, proposals, and other<br>opportunities pertaining to the Business of the Company and its subsidiaries and affiliates that come to Executive’s attention during<br>the Employment Period that he determines, while acting reasonably in good faith and as a fiduciary to the Company, should be further considered<br>by the Board. |
| --- | --- |
| 3. | Compensation and Benefits. |
| --- | --- |
| (a) | Base Salary. The Company agrees to pay Executive a base salary (the “Base Salary”)<br>during the Employment Period in installments based on the Company’s practices as may be in effect from time to time. Executive’s<br>Base Salary shall initially be at the rate of at least $500,000.00 per year and shall be subject to adjustment by the Compensation Committee<br>of the Board (the “Committee”). |
| --- | --- |
| (b) | Target Bonus. During the Employment Period, Executive will be eligible to earn an annual target<br>bonus of up to forty percent (40%) of the Base Salary (the “Target Bonus”), based on the achievement of specified<br>performance goals (as determined in good faith by the Committee); provided, however, that Executive shall not be eligible<br>for any such Target Bonus for a calendar year unless Executive remains in the continuous employ of the Company until the date such bonus<br>is paid (except as otherwise set forth herein). Any Target Bonus earned pursuant to this Section 3(b) shall be paid to Executive<br>in a single lump sum following receipt of the Company’s audited financial statements, but in any event such Target Bonus will be<br>paid by March 15^th^ of the calendar year following the calendar year for which such Target Bonus was earned. |
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| (c) | Additional Bonus. Executive may become eligible for an additional one-time discretionary bonus<br>payment equal to $200,000 (the “Additional Bonus”) upon the Company’s successful completion of certain<br>operational and financial milestones as determined and approved by the Committee. The Additional Bonus will be paid within thirty (30) days<br>following approval by the Committee and will be contingent on Executive’s continued employment through the payment date. |
|---|---|
| (d) | Standard Benefits Package. Executive shall be entitled during the Employment Period to participate,<br>on the same basis as other executives of the Company, in those employee benefit programs, for which substantially all of the executives<br>of the Company are from time to time generally eligible (including insurance and other benefits, but excluding, except as provided in<br>Section 5(b), any severance pay programs or policies of the Company), as determined from time to time by the Board. Such employee<br>benefits will be governed by the applicable plan documents, insurance policies, or employment policies, and may be modified, suspended,<br>or revoked in accordance with the terms of the applicable documents or policies without violating this Agreement. |
| --- | --- |
| (e) | Equity Compensation Plan. Executive may be eligible to receive grants of equity, equity-based or<br>similar compensation awards pursuant to the Company’s Equity Incentive Plan or otherwise as may be approved in the sole discretion<br>of the Committee from time to time. Any such grant will be represented by an award agreement and will be subject to the terms of the Company’s<br>Equity Incentive Plan (if applicable) and such award agreement under all circumstances (including in connection with Executive’s<br>termination of employment). |
| --- | --- |
| (f) | Business Expenses. The Company shall reimburse Executive for all reasonable expenses incurred by<br>Executive during the Employment Period in the course of performing Executive’s duties under this Agreement that are consistent with<br>the Company’s policies as in effect from time to time with respect to travel, entertainment and other business expenses, subject<br>to the Company’s requirements applicable generally with respect to reporting and documentation of such expenses. |
| --- | --- |
| 4. | Notice of Termination. The Company may terminate Executive’s employment at any time. Executive<br>may voluntarily terminate his employment without Good Reason with ninety (90) days advance notice or for Good Reason in accordance<br>with the procedures set forth in Section 7(e). In the event Executive provides notice to the Company of his voluntary termination<br>of employment, the Company may accept such resignation, waive any remaining notice period, and accelerate the date of Executive’s<br>termination of employment, and any such waiver and earlier termination of employment will not constitute a Termination Without Cause.<br>Executive’s employment shall also terminate on the date of his death or as a result of a Disability (as determined by the Committee). |
| --- | --- |
| 5. | Post-Employment Payments. |
| --- | --- |
| (a) | Accrued Obligations. Except as otherwise set forth in this Agreement, at the end of Executive’s<br>employment for any reason, Executive shall cease to have any rights to further compensation or employee benefits except for (i) any<br>Base Salary earned prior to Executive’s termination of employment that remains unpaid as of such termination; (ii) any unreimbursed<br>business expenses incurred prior to Executive’s termination that are reimbursable in accordance with the Company’s policies<br>as in effect from time to time; (iii) vested benefits to which Executive may be entitled under any employee benefit plans of the<br>Company (or an affiliate thereof), which vested benefits will be payable in accordance with the terms of the applicable employee benefit<br>plan; and (iv) pursuant to any equity compensation, equity-based or similar award (or any portion thereof) which either vests by<br>its terms due to the circumstances of termination of Executive’s employment or extends by its terms beyond termination of Executive’s<br>employment. |
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| (b) | Severance Benefits. |
|---|---|
| (i) | Termination Without Cause or Termination For Good Reason Before a Change in Control. Subject to<br>Section 5(c), if the Employment Period ends on account of a Termination Without Cause or a Termination For Good Reason at<br>any time before a Change in Control, the Company shall pay Executive the following payments: |
| --- | --- |
| (A) | severance compensation in an amount equal to one (1) multiplied by: the Base Salary, payable in equal<br>installments across a twelve (12)-month period based on the Company’s normal payroll cycles; |
| --- | --- |
| (B) | any annual Target Bonus earned for a calendar year prior to the calendar year in which the termination<br>of employment occurs that remains unpaid as of such termination of employment (the “Prior Year Bonus”), payable<br>at the same time as paid to active employees in accordance with Section 3(b) herein; |
| --- | --- |
| (C) | a pro-rated portion of the Target Bonus for the year in which Executive terminates employment, pro-rated<br>based on the number of days that elapse during such calendar year prior to the date of Executive’s termination of employment out<br>of the entire calendar year (the “Pro-Rated Bonus”), payable in equal installments in the same time and manner<br>as set forth in Section 5(b)(i)(A); and |
| --- | --- |
| (D) | payment of a lump sum amount within sixty (60) days following such termination of employment equal<br>to the total cost of premium payments (including both the employer and employee portions) for twelve (12) months of coverage under<br>the Company’s medical, dental and vision plans for the same level of coverage Executive participated in with his dependents or family<br>immediately prior to Executive’s Termination Without Cause or Termination For Good Reason. |
| --- | --- |
| (ii) | Termination Without Cause or Termination For Good Reason on or After a Change in Control.<br>Subject to Section 5(c), if the Employment Period ends on account of a Termination Without Cause or a Termination For Good<br>Reason either on the date of consummation of a Change in Control or within twelve (12) months following such date, the Company shall<br>pay Executive the following payments: |
| --- | --- |
| (A) | severance compensation in an amount equal to one and one-half (1.5) multiplied by: the Base Salary, payable<br>in a lump sum within sixty (60) days following such termination of employment; |
| --- | --- |
| (B) | the Prior Year Bonus, payable at the same time as paid to active employees in accordance with Section 3(b)<br>herein; |
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| (C) | the Pro-Rated Bonus, payable in a lump sum within sixty (60) days following such termination of employment;<br>and |
|---|---|
| (D) | payment of a lump sum amount within sixty (60) days following such termination of employment equal<br>to the total cost of premium payments (including both the employer and employee portions) for eighteen (18) months of coverage under<br>the Company’s medical, dental and vision plans for the same level of coverage Executive participated in with his dependents or family<br>immediately prior to Executive’s Termination Without Cause or Termination For Good Reason. |
| --- | --- |
It is expressly understood that the Company’s payment obligations under this Section 5(b) shall cease in the event Executive breaches any of the agreements in Section 6 hereof or any other restrictive covenant agreements entered with the Company or any of its affiliates. Any payment made pursuant to this Section 5(b) that is not made following Executive’s Termination Without Cause or Termination For Good Reason because Executive has not executed the release described in Section 5(c) shall be paid to Executive in a single lump sum on the first payroll date following the last day of any applicable revocation period after Executive executes the release.
| (c) | Release. Notwithstanding anything herein to the contrary, the Company shall not be obligated to<br>make any payment under Section 5(b) hereof unless on or prior to the sixtieth (60th) day following the Termination Without<br>Cause or Termination For Good Reason: (i) Executive executes a release of all current or future claims, known or unknown, arising<br>on or before the date of the release against the Company and its subsidiaries and the directors, managers, officers, employees and affiliates<br>of any of them in a form approved by the Company in the form attached as Exhibit A (such release, the “Release”);<br>and (ii) Executive does not revoke the Release and such Release becomes effective and nonrevocable. |
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| 6. | Confidentiality; Non-Solicitation. |
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| (a) | Acknowledgements and Agreements. Executive hereby acknowledges and agrees that in the performance<br>of Executive’s duties to the Company during the Employment Period, Executive will be brought into frequent contact with the Company’s<br>existing and potential customers throughout the world and the Company’s trade secrets. Executive also agrees that trade secrets<br>and confidential information of the Company gained by Executive during Executive’s association with the Company, have been developed<br>by the Company through substantial expenditures of time, effort and money and constitute valuable and unique property of the Company. |
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| (b) | Covenants. |
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| (i) | Non-Solicitation of Customers. While employed by the Company and for a period of eighteen (18) months<br>following the termination of Executive’s employment, Executive will not take any act or make any omission which is contrary to the<br>best interests of the Company or its affiliates. In accordance with this restriction, but without limiting its terms, while employed by<br>the Company, Executive will not divert, entice or otherwise take away any customers, business, patronage or orders of the Company or attempt<br>to do so. |
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Notwithstanding any provision in this Section 6(b) to the contrary, the prohibitions in Section 6(b)(i) shall be limited to customers with whom Executive had material business contact with on behalf of the Company, or about whom Executive received from the Company its confidential information, during the last two years of the Employment Period.
| (ii) | Indirect Solicitation; Passive Investments. Executive will be in violation of any of the restrictions<br>in Section 6(b)(i) if Executive engages in any or all of the activities set forth therein directly as an individual on Executive’s<br>own account, or indirectly as a partner, joint venturer, employee, agent, salesperson, consultant, officer or director of any firm, association,<br>partnership, corporation or other entity, or as a stockholder of any corporation in which Executive or Executive’s spouse, child<br>or parent owns, directly or indirectly, individually or in the aggregate, more than five percent (5%) of the outstanding stock. Notwithstanding<br>any provision of this Section 6(b) to the contrary, any passive investment by Executive in a publicly traded company of two<br>percent (2%) or less of such company’s outstanding stock shall not be a violation of this Section 6(b). |
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| (iii) | Tolling. If it shall be judicially determined that Executive has violated this Section 6(b),<br>then the period applicable to each obligation that Executive shall have been determined to have violated shall automatically be extended<br>by a period of time equal in length to the period during which such violation(s) occurred. |
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| (c) | Company. For the purposes of Section 6, the Company shall include any and all direct<br>and indirect subsidiary, parent, affiliated, or related companies of the Company for which Executive worked, had responsibility, or had<br>access to confidential information at the time of termination of his employment and at any time during the two (2)-year period prior to<br>such termination. |
| --- | --- |
| (d) | Non-Solicitation of Employees. Executive will not directly or indirectly at any time during the<br>period of Executive’s employment or the two (2)-year period thereafter attempt to disrupt, damage, impair or interfere with the<br>Company by raiding any of the Company’s employees or soliciting any of them to resign from their employment by the Company, or by<br>disrupting the relationship between the Company and any of its consultants, agents, representatives or vendors. Executive acknowledges<br>that this covenant is necessary to enable the Company to maintain a stable workforce and remain in business. Notwithstanding any provision<br>in this Section 6(d) to the contrary, the post-termination prohibitions in the preceding sentence shall be limited to Company<br>employees, consultants, agents, representatives, and vendors with whom Executive had material business contact with on behalf of the Company,<br>or about whom Executive received from the Company confidential information, during the last two years of the Employment Period. |
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| (e) | Non-Disparagement. During the Employment Period and for a period of two (2) years thereafter,<br>Executive agrees not to disparage or authorize to be made any written or oral disparagement of the Company or any of its past, present<br>or future shareholders (equityholders), directors, accounting firms, third party investigators, attorneys, officers, employees, or agents<br>or any aspect of Executive’s employment with the Company or termination thereof except to the extent required by applicable law.<br>Notwithstanding the foregoing, (i) truthful statements necessary to be made in the good faith performance of Executive’s duties<br>for the Company, (ii) reporting any actions or inactions to a governmental agency that Executive believes to be unlawful, (iii) participating<br>in or cooperating with a governmental investigation, and (iv) discussing or disclosing underlying facts of any alleged discriminatory<br>or unfair employment practice will not result in a breach of this Section 6(e). |
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During the Employment Period and for a period of two (2) years thereafter, the Company agrees that it shall instruct the members of the Board and the Company’s executive officers not to disparage or authorize to be made any written or oral disparagement of the Executive except to the extent required by applicable law. Notwithstanding the foregoing, (A) truthful statements necessary to be made in the good faith performance of the duties of the directors or executive officers of the Company, (B) reporting any actions or inactions to a governmental agency that the Company believes to be unlawful, (C) participating in or cooperating with a governmental investigation, and (D) discussing or disclosing underlying facts of any alleged discriminatory or unfair employment practice will not result in a breach of this Section 6(e).
| (f) | Further Covenants. |
|---|---|
| (i) | Confidential Information. Executive will keep in strict confidence, and will not, directly or indirectly,<br>at any time, during or after Executive’s employment with the Company, disclose, furnish, disseminate, make available or, except<br>in the course of performing Executive’s duties of employment, use any trade secrets or confidential business and technical information<br>of the Company or its customers or vendors, without limitation as to when or how Executive may have acquired such information. Such confidential<br>information is material that is not generally available to the public and shall include, without limitation, the Company’s unique<br>selling, manufacturing and servicing methods and business techniques, training, service and business manuals, promotional materials, training<br>courses and other training and instructional materials, vendor and product information, employee evaluations and employee performance<br>information, customer and prospective customer lists, other customer and prospective customer information and other business information.<br>Executive specifically acknowledges that all such confidential information, whether reduced to writing, maintained on any form of electronic<br>media, or maintained in the mind or memory of Executive and whether compiled by the Company or Executive, derives independent economic<br>value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or<br>use, that reasonable efforts have been made by the Company to maintain the secrecy of such information, that such information is the sole<br>property of the Company and that any retention and use of such information by Executive during his employment with the Company (except<br>in the course of performing his duties and obligations to the Company) or after the termination of his employment shall constitute a misappropriation<br>of the Company’s trade secrets. Executive’s obligations in this Section 6(f)(i) with regard to (A) trade<br>secrets will continue for so long as such information remains trade secrets under applicable law; and (B) the Company’s confidential<br>information will continue for ten (10) years following Executive’s termination of employment from the Company. Nothing in this<br>Agreement prevents Executive from providing, without prior notice to the Company, information to governmental or administrative authorities<br>regarding possible violations of law or otherwise testifying or participating in any investigation or proceeding by any governmental or<br>administrative authorities regarding possible violations of law. |
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| (ii) | Return of Property. Executive agrees that upon termination of Executive’s employment with<br>the Company for any reason, Executive shall return to the Company all property of the Company without being intentionally damaged, including<br>without limitation, any Company-provided laptop, cell phone, keys or keycards, work papers, reports, drawings, photographs, negatives,<br>prototypes, and the originals and all copies of any materials that contain, reflect, summarize, describe, analyze or refer or relate to<br>any items of information listed in Section 6(f)(i), whether in hard copy or generated and maintained on any form of electronic<br>media. In the event that such items are not so returned, the Company will have the right to charge Executive for all reasonable damages,<br>costs, attorneys’ fees and other expenses incurred in searching for, taking, removing or recovering such property. |
|---|---|
| (iii) | Defend Trade Secrets Act Notice of Immunity. The U.S. Defend Trade Secrets Act of 2016 (“DTSA”)<br>provides that an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure<br>of a trade secret that (A) is made (1) in confidence to a federal, state, or local government official, either directly or indirectly,<br>or to an attorney and (2) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made<br>in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, the DTSA provides<br>that an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade<br>secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (x) files<br>any document containing the trade secret under seal and (y) does not disclose the trade secret, except pursuant to court order. |
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| (g) | Discoveries and Inventions; Work Made for Hire. |
| --- | --- |
| (i) | Executive agrees that upon conception or development of any idea, discovery, invention, improvement, software,<br>writing or other material or design that: |
| --- | --- |
| (A) | relates to the business of the Company; |
| --- | --- |
| (B) | relates to the Company’s actual or demonstrably anticipated research or development; or |
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| (C) | results from any work performed by Executive for the Company, Executive does hereby assign to the Company<br>the entire right, title and interest in and to any such idea, discovery, invention, improvement, software, writing or other material or<br>design. Executive has no obligation to assign any idea, discovery, invention, improvement, software, writing or other material or design<br>that Executive conceives or develops entirely on Executive’s own time without using the Company’s equipment, supplies, facilities,<br>or trade secret information unless the idea, discovery, invention, improvement, software, writing or other material or design (x) relates<br>to the business of the Company; (y) relates to the Company’s actual or demonstrably anticipated research or development; or<br>(z) results from any work performed by Executive for the Company. Executive agrees that any idea, discovery, invention, improvement,<br>software, writing or other material or design that relates to the business of the Company or relates to the Company’s actual or<br>demonstrably anticipated research or development that is conceived or suggested by Executive, either solely or jointly with others, within<br>one (1) year following termination of Executive’s employment under this Agreement or any successor agreements shall be presumed<br>to have been so made, conceived or suggested in the course of such employment with the use of the Company’s equipment, supplies,<br>facilities, or trade secrets. |
| --- | --- |
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| (ii) | In order to determine the rights of Executive and the Company in any idea, discovery, invention, improvement,<br>software, writing or other material or design, and to ensure the protection of the same, Executive agrees that during Executive’s<br>employment and for one (1) year after termination of Executive’s employment under this Agreement or any successor agreements,<br>Executive will disclose immediately and fully to the Company any idea, discovery, invention, improvement, software, writing or other material<br>or design conceived, made or developed by Executive solely or jointly with others that relates to the business of the Company or relates<br>to the Company’s actual or demonstrably anticipated research or development. The Company agrees to keep any such disclosures confidential.<br>Executive also agrees to record descriptions of all work in the manner directed by the Company and agrees that all such records and copies,<br>samples, and experimental materials will be the exclusive property of the Company. Executive agrees that at the request of and without<br>charge to the Company, but at the Company’s expense, Executive will execute a written assignment of the idea, discovery, invention,<br>improvement, software, writing or other material or design to the Company and will assign to the Company any application for letters patent<br>or for trademark registration made thereon, and to any common-law or statutory copyright therein; and that Executive will do whatever<br>may be necessary or desirable to enable the Company to secure any patent, trademark, copyright, or other property right therein in the<br>United States and in any foreign country, and any division, renewal, continuation, or continuation in part thereof, or for any reissue<br>of any patent issued thereon. In the event the Company is unable, after reasonable effort, and in any event after ten (10) business<br>days, to secure Executive’s signature on a written assignment to the Company of any application for letters patent or to any common-law<br>or statutory copyright or other property right therein, whether because of Executive’s physical or mental incapacity or for any<br>other reason whatsoever, Executive irrevocably designates and appoints the Corporate Secretary of the Company as Executive’s attorney-in-fact<br>to act on Executive’s behalf to execute and file any such application and to do all other lawfully permitted acts to further the<br>prosecution and issuance of such letters patent, copyright or trademark. |
|---|---|
| (iii) | Work Made for Hire. Executive acknowledges<br> that, to the extent permitted by law, all work papers, reports, documentation, drawings,<br> photographs, negatives, tapes and masters therefor, prototypes and other materials (hereinafter,<br> “items”), including without limitation, any and all such items<br> generated and maintained on any form of electronic media, generated by Executive while performing<br> work for the Company shall be considered a “work made for hire” and that<br> ownership of any and all copyrights in any and all such items shall belong to the Company. |
| --- | --- |
| (h) | Communication of Contents of Agreement. While employed by the Company and for two (2) years<br>thereafter, Executive will communicate the contents of Section 6 of this Agreement to any person, firm, association, partnership,<br>corporation or other entity that Executive intends to be employed by, associated with, or represent. |
| --- | --- |
8
| (i) | Confidentiality Agreements. Executive agrees that Executive shall not disclose to the Company or<br>induce the Company to use any secret or confidential information belonging to Executive’s former employers. Executive warrants that<br>Executive is not bound by the terms of a confidentiality agreement or other agreement with a third party that would preclude or limit<br>Executive’s right to work for the Company or to disclose to the Company any ideas, inventions, discoveries, improvements or designs<br>or other information that may be conceived during employment with the Company. |
|---|---|
| (j) | Relief. Executive acknowledges and agrees that the remedy at law available to the Company for breach<br>of any of Executive’s obligations under this Agreement would be inadequate and any such breach would result in irreparable harm<br>for which damages are difficult to calculate. Executive therefore agrees that, in addition to any other rights or remedies that the Company<br>may have at law or in equity, temporary and permanent injunctive relief may be granted in any proceeding that may be brought to enforce<br>any provision contained in Section 6 inclusive, of this Agreement, without the necessity of proof of actual damage and without<br>posting of a bond. |
| --- | --- |
| (k) | Reasonableness. Executive acknowledges that Executive’s obligations under this Section 6<br>are reasonable in the context of the nature of the Company’s business and the competitive injuries likely to be sustained by the<br>Company if Executive were to violate such obligations and that these obligations do not place an undue burden on Executive. Executive<br>further acknowledges that this Agreement is made in consideration of, and is adequately supported by, the agreement of the Company to<br>perform its obligations under this Agreement and by other consideration, including Executive’s employment with the Company, which<br>Executive acknowledges constitutes good, valuable and sufficient consideration. It is the desire and intent of the parties hereto that<br>the provisions of this Agreement shall be enforced to the fullest extent legally permissible. Accordingly, if any particular provision(s)<br>of this Agreement shall be adjudicated to be invalid or unenforceable, the court may modify or sever such provision(s), such modification<br>or deletion to apply only with respect to the operation of such provision(s) in the particular jurisdiction in which such adjudication<br>is made. Further, Section 6 herein is independent of other obligations under this Agreement, and therefore, no claim by Executive<br>against the Company or its affiliates for breach of this Agreement or otherwise will constitute a defense to enforceability of the covenants<br>contained in Section 6. In addition, if any one or more of the provisions contained in this Agreement shall for any reason<br>be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing<br>it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear. The remaining provisions of this<br>Agreement shall remain in full force and effect. |
| --- | --- |
| 7. | Definitions. |
| --- | --- |
| (a) | “Change in Control” shall have the meaning set forth in the Company’s<br>2024 Equity Incentive Plan (or any successor plan thereto). Notwithstanding anything to the contrary in this Agreement, a “Change<br>in Control” shall only be deemed to occur for purposes of this Agreement if such event constitutes a “change in control event”<br>within the meaning of Section 409A (as defined below). |
| --- | --- |
9
| (b) | “Disability” means the determination by a physician selected by the Committee<br>(that is reasonably acceptable to Executive) that Executive is reasonably likely to be unable to perform the essential functions of his<br>position, with or without reasonable accommodation, due to a physical or mental impairment, for a period of one hundred and eighty (180)<br>consecutive days (or one hundred and eighty (180) days within a twelve (12)-month period) or that Executive has a physical or mental impairment<br>that is reasonably likely to result in Executive’s death. |
|---|---|
| (c) | “Termination For Cause”<br> means the termination by the Company or any subsidiary of Executive’s employment with<br> the Company or any affiliate as a result of: (i) the indictment or conviction of Executive<br> or plea of nolo contendere by Executive for a felony, fraud or other crime of moral<br> turpitude; (ii) gross negligence or gross misconduct by Executive, which is not cured<br> within fourteen (14) days after written notice thereof to Executive; (iii) Executive’s<br> failure to follow the directions of the Board which is not cured within fourteen (14) days<br> after written notice thereof to Executive; (iv) Executive’s violation of Section 6<br> of this Agreement or any other restrictive covenant agreement entered with the Company or<br> any of its affiliates, which is not cured (if curable) within fourteen (14) days after<br> written notice thereof to Executive; (v) any conduct by or at the direction of Executive<br> that would reasonably be expected to result in material injury or reputational harm to the<br> Company (or any of its affiliates), which is not cured within fourteen (14) days after<br> written notice thereof to Executive; (vi) Executive’s breach of a material employment<br> policy of the Company (or any of its affiliates), which is not cured within fourteen (14) days<br> after written notice thereof to Executive; (vii) Executive’s breach of the Company’s<br> Code of Conduct and Ethics or the New Era Helium Inc. Policy for Recovery of Erroneously<br> Awarded Compensation, which is not cured within fourteen (14) days after written notice<br> thereof to Executive or (viii) any other breach by Executive of this Agreement or any<br> other agreement with the Company (or any of its affiliates) that is material and that is<br> not cured within fourteen (14) days after written notice thereof to Executive. |
| --- | --- |
| (d) | “Termination For Good Reason”<br> means Executive’s termination of Executive’s employment with the Company or any<br> affiliate as result of any of the following without Executive’s consent: (i) a<br> decrease in the Base Salary; (ii) any action or inaction that results in a material<br> breach of this Agreement (including Section 22 herein) or any other agreement<br> between the Company and Executive by the Company; (iii) any material diminution in Executive’s<br> position, duties, authority, or responsibilities; or (iv) a requirement that Executive<br> work full-time from an office that is more than fifty (50) miles from Minneapolis, Minnesota.<br> Notwithstanding the foregoing, no termination of employment by Executive shall constitute<br> a “Termination For Good Reason” unless (A) Executive gives<br> the Company notice of the existence of an event described above within sixty (60) days<br> following the initial occurrence thereof; (B) the Company does not remedy such event<br> within thirty (30) days of receiving the notice described in the preceding clause (A);<br> and (C) Executive terminates employment within ninety (90) days of the end of the<br> cure period specified in clause (B) above. |
| --- | --- |
| (e) | “Termination Without Cause”<br> means the termination by the Company or any of its affiliates of Executive’s employment<br> for any reason other than a termination by the Company as a result of Executive’s Disability<br> or death or a Termination For Cause. |
| --- | --- |
| 8. | Survival. Subject to any limits on applicability contained therein, Section 6, Section 9,<br>Section 10 and Section 22 hereof shall survive and continue in full force in accordance with its terms notwithstanding<br>any termination of the Employment Period. |
| --- | --- |
10
| 9. | Clawback. Notwithstanding any provision of this Agreement or any other agreement to the contrary,<br>performance-based compensation provided to Executive under this Agreement or pursuant to any other agreement or understanding shall be<br>subject to the Company’s Policy for Recovery of Erroneously Awarded Compensation or any successor or other clawback or recoupment<br>policy as in effect from time to time, and any amendments thereto, as required by applicable law, including but not limited to Section 10D<br>of the Securities Exchange Act of 1934 and the rules and regulations of the U.S. Securities and Exchange Commission and the rules of the<br>Nasdaq. Further notwithstanding any provision of this Agreement or any other agreement to the contrary, in the event the Company acquires<br>evidence within the twenty-four (24) month period following Executive’s termination of employment that would have given the<br>Company grounds to terminate Executive’s employment as a result of a Termination For Cause if the Company had had such evidence<br>at the time of Executive’s termination, the Company may require Executive to return to the Company all benefits and compensation<br>paid to Executive pursuant to Section 5(b) herein and may cease payment of any further benefits under Section 5(b).<br>In the event the Company notifies Executive that it has obtained evidence of grounds to terminate Executive’s employment as a result<br>of a Termination For Cause, Executive shall be given fourteen (14) days to appear in front of the Committee to discuss such grounds.<br>Executive expressly agrees to return or repay any amounts to the Company as required under this Section 9 following a final<br>determination hereunder by the Committee promptly and further expressly agrees to the Company’s offsetting any amounts owed to the<br>Company under this Section 9 by any amounts otherwise owed by the Company to Executive to the extent permissible under Section 409A<br>(as defined below). |
|---|---|
| 10. | Tax Matters. |
| --- | --- |
| (a) | Withholding. The Company may withhold from any amounts payable under this Agreement all federal,<br>state, city or other taxes as the Company is required to withhold pursuant to any applicable law, regulation or ruling. Notwithstanding<br>any other provision of this Agreement, the Company shall not be obligated to guarantee any particular tax result for Executive with respect<br>to any payment provided to Executive hereunder, and Executive shall be responsible for any taxes imposed on Executive with respect to<br>any such payment. |
| --- | --- |
| (b) | Section 409A. |
| --- | --- |
| (i) | This Agreement is intended to comply with or be exempt from Section 409A of the Internal Revenue<br>Code of 1986, as amended (“Section 409A”) and all provisions of this Agreement shall be administered, construed<br>and interpreted in a manner consistent with such intent. If the Company independently determines any provision of this Agreement fails<br>to comply with or be exempt from Section 409A, the Company shall, after consulting with Executive, reform such provision to the minimum<br>extent reasonably appropriate and necessary to attempt to avoid any additional tax or interest under Section 409A. To the extent<br>that any such modification becomes reasonably appropriate and necessary, such modification shall be made in good faith and shall, to the<br>maximum extent reasonably possible, maintain the original intent and economic benefit to Executive and the Company of the applicable provision<br>without violating the provisions of Section 409A. The Company does not guarantee any particular tax result for Executive and has<br>no obligation to provide Executive with a gross up or indemnity with respect to any taxes that Executive may incur with respect to any<br>payments or benefits received pursuant to this Agreement. |
| --- | --- |
11
| (ii) | Any expense reimbursements required to be made under this Agreement shall be for covered expenses incurred<br>by Executive during his lifetime, and such reimbursements shall be made not later than December 31st of the year following the year<br>in which Executive incurs the expense; provided that in no event shall the amount of expenses eligible for payment or reimbursement, or<br>in-kind benefits provided, by the Company in one calendar year affect the amount of expenses to be paid or reimbursed, or in-kind benefits<br>to be provided, in any other calendar year. Executive’s right to expense reimbursement shall not be subject to liquidation or exchange<br>for another benefit. |
|---|---|
| (iii) | To the extent that this Agreement provides for the payment of “deferred compensation” (within<br>the meaning of Section 409A) to Executive or Executive’s beneficiaries upon or as a result of Executive’s termination<br>of employment, Executive shall be considered to have experienced a termination of employment as of the date that Executive incurs a “separation<br>from service” within the meaning of Section 409A. |
| --- | --- |
| (iv) | Each payment or benefit to which Executive becomes entitled under this Agreement will be considered, and<br>is hereby designated as, a separate payment for purposes of Section 409A (and consequently Executive’s entitlement to such<br>payment or benefit will not be considered an entitlement to a single payment of the aggregate amount to be paid). Each such payment shall<br>be deemed exempt from Section 409A to the greatest extent possible. To the extent that any payments pursuant to this Agreement are<br>contingent upon Executive entering into the Release and if the period for review or revocation of the Release crosses calendar years,<br>such payments shall be made or commence in the later calendar year if necessary to avoid taxes or penalties under Section 409A. Any<br>payments that would otherwise be made during the period for review and revocation of the Release will be made as soon as practicable after<br>such period ends. |
| --- | --- |
| (v) | If the Company makes a good faith determination that a payment under this Agreement (A) constitutes<br>a deferral of compensation for purposes of Section 409A, (B) is made to Executive by reason of his separation from service,<br>(C) at the time such payment would otherwise be made, Executive is a “specified employee” within the meaning of Section 409A<br>(and using the identification methodology specified by the Company from time to time), and (D) a delay in payment is required in<br>order to avoid the imposition of excise taxes under Section 409A, then the payment shall be delayed until the earlier of (1) the<br>first (1st) business day following the six (6)-month anniversary of Executive’s separation from service, or (2) Executive’s<br>death. |
| --- | --- |
| (c) | Parachute Payments. |
| --- | --- |
| (i) | Notwithstanding any provision of this Agreement<br> to the contrary, if any amount or benefit to be paid or provided under this Agreement would<br> be an “Excess Parachute Payment” within the meaning of Section 280G of the<br> Internal Revenue Code of 1986, as amended (the “Code”) but for<br> the application of this sentence, then the payments and benefits to be paid or provided under<br> this Agreement will be reduced to the minimum extent necessary (but in no event to less than<br> zero (0)) so that no portion of any such payment or benefit, as so reduced, constitutes an<br> Excess Parachute Payment; provided, however, that the foregoing reduction will<br> be made only if and to the extent that such reduction would result in an increase in the<br> aggregate payment and benefits to be provided, determined on an after-tax basis (taking into<br> account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed<br> by any comparable provision of state law, and any applicable federal, state and local income<br> and employment taxes). The fact that Executive’s right to payments or benefits may<br> be reduced by reason of the limitations contained in this Section 10(c)(i) will<br> not of itself limit or otherwise affect any other rights of Executive other than pursuant<br> to this Agreement. In the event that any payment or benefit intended to be provided under<br> this Agreement or otherwise is required to be reduced pursuant to this Section 10(c)(i),<br> the Company will effect such reduction to the extent necessary in the following order: first,<br> performance-based equity grants; second, time-based equity grants; third other noncash benefits;<br> and fourth, cash payments. Within each group, such benefits or payments shall be reduced<br> in the reverse order in which they would otherwise have been vested or paid. |
| --- | --- |
12
| (ii) | All computations and determinations relevant<br> to this Section 10(c)(ii) shall be implemented in a manner that maximizes the<br> Executive’s after-tax economic benefit and be made by an independent accounting firm<br> selected and paid by the Company and reasonably acceptable to Executive (the “Accounting Firm”), which firm may be the Company’s ordinary course accountants.<br> If the Accounting Firm determines that any amounts are Excess Parachute Payments, the Accounting<br> Firm shall provide its determination (the “Determination”), together<br> with detailed supporting calculations both to the Company and Executive. If the Accounting<br> Firm determines that no amounts are Excess Parachute Payments, it shall furnish Executive<br> and the Company with a written statement that such Accounting Firm has so concluded that<br> no excise tax is payable (including the reasons therefor) and that Executive has substantial<br> authority not to report any excise tax on his federal income tax. The Company and Executive<br> shall furnish to the Accounting Firm such information and documents as the Accounting Firm<br> may reasonably request in order to make the Determination hereunder. The Accounting Firm<br> shall make its Determination on the basis of substantial authority and shall provide opinions<br> to that effect to both the Company and Executive upon the request of either of them. |
|---|---|
| (iii) | The Executive shall have the right, at the Executive’s expense, to contest the determination of<br>the Accounting Firm by providing written notice to the Company within fifteen (15) days following receipt of the determination, together<br>with alternative calculations prepared by an independent advisor reasonably acceptable to the Company. If the Company and the Executive<br>are unable to resolve such dispute within ten (10) days, the matter shall be submitted to a mutually agreed independent nationally<br>recognized accounting firm, whose determination shall be final and binding. Pending final resolution, payments shall be made in accordance<br>with the original determination, subject to adjustment (including repayment or additional payment, as applicable) promptly following final<br>determination. |
| --- | --- |
| 11. | Securities. Notwithstanding anything<br> to the contrary in this Agreement (or in any other agreement, contract or arrangement with<br> the Company or any parent or subsidiary of the Company, or in any policy, procedure or practice<br> of the Company or any subsidiary or affiliate (collectively, the “Arrangements”)):<br> (a) nothing in the Arrangements or otherwise limits Executive’s right to any monetary<br> award offered by a government-administered whistleblower award program for providing information<br> directly to a government agency (including the Securities and Exchange Commission pursuant<br> to Section 21F of the Exchange Act, the Dodd-Frank Wall Street Reform and Consumer Protection<br> Act or The Sarbanes-Oxley Act of 2002), and (b) nothing in the Arrangements or otherwise<br> prevents the Executive from providing, without prior notice to the Company, information to<br> governmental authorities regarding possible legal violations or otherwise testifying or participating<br> in any investigation or proceeding by any governmental authorities regarding possible legal<br> violations, and for purposes of clarity, the Executive is not prohibited from providing information<br> voluntarily to the Securities and Exchange Commission pursuant to Section 21F of the<br> Exchange Act. |
| --- | --- |
13
| 12. | Notices. Any notice provided to the Company provided for in this Agreement shall be in writing<br>to the Company, marked Attention: Compensation Committee Chair, and any notice to Executive shall be addressed to Executive at his address<br>on file with the Company. Except as otherwise provided herein, any written notice shall be deemed to be duly given if and when delivered<br>personally or deposited in the United States mail, first class registered mail, postage and fees prepaid, and addressed as aforesaid. |
|---|---|
| 13. | Severability. If one or more of the provisions of this Agreement is invalidated for any reason<br>by a court of competent jurisdiction, any provision so invalidated shall be deemed to be separable from the other provisions hereof, and<br>the remaining provisions hereof shall continue to be valid and fully enforceable. |
| --- | --- |
| 14. | Complete Agreement. This Agreement embodies the complete agreement and understanding between the<br>parties with respect to the subject matter hereof and effective as of its date supersedes and preempts any prior understandings, agreements<br>or representations by or between the parties, written or oral, that may have related to the subject matter hereof in any way. Notwithstanding<br>the foregoing, this Agreement does not supersede or in any way limit or otherwise affect (a) Executive’s rights with respect<br>to equity, equity-based, or similar compensation granted under other agreements between the Company (or an affiliate thereof) and Executive,<br>or (b) restrictive covenants that may be included in other agreements between the Company (or an affiliate thereof) and Executive<br>to which Executive may be bound. Executive acknowledges and agrees that, in signing this Agreement, he is not relying on any prior oral<br>or written statement or representation by the Company or its representatives outside of this Agreement but is instead relying solely on<br>his own judgment and his legal and tax advisors, if any. |
| --- | --- |
| 15. | Counterparts. This Agreement may be executed in separate counterparts (including counterparts transmitted<br>by facsimile or Adobe PDF attached to an email), each of which shall be deemed to be an original and both of which taken together shall<br>constitute one and the same agreement. |
| --- | --- |
| 16. | Successors and Assigns. This Agreement shall bind and inure to the benefit of and be enforceable<br>by Executive, the Company and their respective heirs, executors, personal representatives, successors and assigns, except that Executive<br>may not assign any rights or delegate any obligations hereunder without the prior written consent of the Company. Executive hereby consents<br>to the assignment by the Company of all of its rights and obligations hereunder to any successor to the Company by merger or consolidation<br>or purchase of all or substantially all of the Company’s assets, provided that such transferee or successor assumes the liabilities<br>of the Company hereunder. |
| --- | --- |
| 17. | Choice of Law. This Agreement shall be governed by, and construed<br>in accordance with, the internal, substantive laws of the State of Nevada. Executive agrees that the state and federal courts located<br>in the State of Texas shall have exclusive jurisdiction in any action, suit or proceeding by or against Executive based on or arising<br>out of this Agreement and Executive hereby: (a) submits to the personal jurisdiction of such courts; (b) consents to service<br>of process in connection with any action, suit or proceeding against Executive; and (c) waives any other requirement (whether imposed<br>by statute, rule of court or otherwise) with respect to personal jurisdiction, venue or service of process. In addition, the parties hereby<br>irrevocably consent to the binding and exclusive venue for any dispute, controversy, claim, or cause of action between them arising out<br>of or related to this Agreement being in the state or federal court of competent jurisdiction that regularly conducts proceedings or has<br>jurisdiction in Midland County, Texas. Nothing in this Agreement, however, precludes either party from seeking to remove a civil action<br>from any state court to federal court. |
| --- | --- |
14
| 18. | Alternative-Dispute Resolution Protocol. |
|---|---|
| (a) | Definition of Dispute. Any dispute, controversy, claim or cause of action between the parties arising<br>out of or relating to this Agreement (each, a “Dispute”), shall be resolved solely in accordance with the terms<br>of this Section 18. Notwithstanding the preceding sentence, the Company may seek injunctive relief from any court of competent<br>jurisdiction for breaches of Section 6. |
| --- | --- |
| (b) | Mandatory Arbitration. A Dispute may be submitted by either party for definitive resolution through<br>binding arbitration (an “Arbitration”) with a single neutral arbitrator (the “Arbitrator”)<br>mutually agreed upon by the parties or otherwise selected in accordance with the Rules (as defined below) in Midland, Texas. In the event<br>the parties cannot agree on an Arbitrator, the Arbitrator shall be selected by the Dallas, Texas office of the Judicial Arbitration and<br>Mediation Services, Inc. (“JAMS”) or its successor in accordance with its arbitrator selection procedures. The<br>Arbitration shall be brought before the Arbitrator and heard in accordance with then-applicable JAMS Employment Arbitration Rules and<br>Procedures (the “Rules”). The arbitrator shall (i) have the authority to compel adequate discovery for<br>the resolution of the Dispute and to award such relief as would otherwise be permitted by applicable law; and (ii) issue a written<br>arbitration decision including the Arbitrator’s essential findings and conclusions and a statement of the award. The Arbitrator<br>shall determine if any Dispute or issue is subject to this arbitration obligation, and to award any or all remedies that either party<br>would be entitled to seek in a court of law. The Company shall bear the administrative costs and expenses of the Arbitration, including<br>the Arbitrator’s fee, and each party shall bear its own attorney’s fees and associated expenses, subject to re-allocation<br>as permitted under the Rules and applicable substantive law. Except as required by law or as may be reasonably required in connection<br>with ancillary judicial proceedings to compel arbitration, to obtain temporary or preliminary judicial relief in aid of arbitration, or<br>to confirm or challenge an arbitration award, the Arbitration proceedings, including any hearings, evidence, and award, shall be confidential,<br>and the parties shall not disclose any awards, any materials in the proceedings created for the purpose of the Arbitration, or any documents<br>produced by another party in the proceedings not otherwise in the public domain. Judgment on any award rendered by an arbitration tribunal<br>may be entered in any court having jurisdiction thereover. Notwithstanding the foregoing, the parties may bring an action or special proceeding<br>in any court of competent jurisdiction for the purpose of compelling arbitration. |
| --- | --- |
| (c) | Waiver of Right to Jury Trial. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXECUTIVE<br>AND THE COMPANY SHALL, AND HEREBY DO, IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY DISPUTE AGAINST THE COMPANY OR<br>ITS AFFILIATES ARISING OUT OF OR RELATING TO THIS AGREEMENT (EITHER ALLEGED BREACH OR ENFORCEMENT). |
| --- | --- |
15
| (d) | Confidentiality. Except as required by law, Executive and the Company agree that all aspects of<br>any arbitration or mediation proceeding arising under or relating to this Agreement, including, without limitation, all filings, evidence,<br>testimony, transcripts, briefs, settlement discussions, rulings, and any final award or order, shall be kept strictly confidential. Neither<br>the Company nor Executive shall, directly or indirectly, disclose, publish, or communicate any such information to any person or entity,<br>except: (i) to the extent required by law or court order; (ii) to Executive’s spouse, or the Company’s or Executive’s<br>respective legal counsel, tax advisors, or other professional advisors who have a need to know and are bound by confidentiality obligations;<br>or (iii) as necessary to enforce or challenge the arbitration award in a court of competent jurisdiction. Executive and the Company<br>shall each take all reasonable steps to ensure compliance with this confidentiality obligation and shall remain responsible for any unauthorized<br>disclosure by persons to whom disclosure is permitted under this provision. |
|---|---|
| 19. | Amendment and Waiver. The provisions of this Agreement may be amended or waived only with the prior<br>written consent of the Company and Executive; provided, however, the Company may modify or amend the Agreement in its sole<br>discretion at any time without the further consent of Executive in any manner necessary to comply with applicable law and regulations<br>or the listing or other requirements of any stock exchange upon which the Company or its affiliate is listed. Any such amendment shall<br>preserve the rights and benefits of Executive as reasonably possible, and the Company will use reasonable efforts to consult with Executive<br>prior to and regarding any such proposed amendment. No waiver by either party of a breach of any term of this Agreement will operate or<br>be construed as a waiver of a subsequent breach of the same provision by either party or of the breach of any other term or provision<br>of this Agreement, unless so stated in writing. |
| --- | --- |
| 20. | Third-Party Beneficiaries. The Company and the Company’s subsidiaries and affiliates to which<br>Executive provides services shall be included within the definition of “Company” for purposes of this Agreement, are intended<br>to be third-party beneficiaries of this Agreement, and therefore may enforce this Agreement. |
| --- | --- |
| 21. | Representations. |
| --- | --- |
| (a) | Executive: Executive represents and warrants that (i) he has not previously assumed any obligations<br>inconsistent with those in this Agreement; (ii) his execution of this Agreement, and his employment with the Company, shall not violate<br>any other contract or obligation between Executive and any former employer or other third party; and (iii) during the Employment<br>Period, he shall not use or disclose to anyone within the Company or its subsidiaries or affiliates any proprietary information or trade<br>secrets of any former employer or other third party. Executive further represents and warrants that he has entered into this Agreement<br>pursuant to his own initiative and that the Company did not induce him to execute this Agreement in contravention of any existing commitments.<br>Executive further acknowledges that the Company has entered into this Agreement in reliance upon the foregoing representations of Executive. |
| --- | --- |
| (b) | Company: The Company represents and warrants that (i) it has not previously assumed any obligations<br>inconsistent with those in this Agreement; (ii) the execution of this Agreement, the employment of the Executive and the provision<br>of the compensation, benefits or awards referenced hereunder shall not violate any other contract or obligation between the Company and<br>any other third party. |
| --- | --- |
| 22. | Indemnification. The Company agrees to indemnify Executive and hold Executive harmless against<br>any and all losses, claims, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred by Executive<br>arising out of or relating to any claim, action, suit, proceeding, or investigation in which Executive is involved by reason of Executive’s<br>services as an officer of the Company or by reason of any action taken or omitted to be taken by Executive in such capacity, in each case,<br>to the greatest extent permitted by applicable law. The Company shall maintain directors’ and officers’ liability insurance<br>covering Executive on terms no less favorable than such coverage provided to other executive officers of the Company during Executive’s<br>employment and for any period thereafter during which Executive may be subject to liability for actions taken in Executive’s capacity<br>as an officer of the Company. |
| --- | --- |
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth below to be effective as of the date first written above.
| NEW ERA ENERGY & DIGITAL, INC. | |
|---|---|
| By: | /s/ E. Will Gray II |
| Name: | E. Will Gray II |
| Title: | Chief Executive Officer |
| Dated: | 3/15/2026 |
| TED G. WARNER | |
| /s/ Ted G. Warner | |
| Dated: | 3/15/2026 |
Exhibit A
RELEASE
General Release Agreement
This General Release Agreement (this “Agreement”) constitutes the Release referred to in that certain Employment Agreement (the “EmploymentAgreement”) effective as of March 16, 2026, by and among New Era Energy & Digital, Inc., a Nevada corporation (the “Company”), and Ted G. Warner (“Employee”).
(a) Capitalized words used but not defined in this Agreement shall have the same meaning as such terms are assigned by the Employment Agreement. In exchange for the post-employment benefits set forth in Section 5 of the Employment Agreement (the “SeparationPayments”), to be provided to Employee by the Company in accordance with the Employment Agreement, the Employee releases, waives, acquits, and forever discharges to the maximum extent permitted by law any and all rights, claims, and demands of whatever kind or character, whether presently known to me or unknown, and whether vicarious, derivative, or direct or indirect, that he may have or assert against: (i) the Company; (ii) any parent, subsidiary, or affiliate of the Company; (iii) any past or present officer, director, or employee of the entities just referred to in (i)-(ii), in their individual and official capacities; and (iv) any past or present predecessors, parents, subsidiaries, affiliates, owners, shareholders, members, managers, benefit plans, operating units, divisions, agents, representatives, officers, directors, partners, employees, fiduciaries, insurers, attorneys, successors, and assigns of the entities just named in (i)-(iii) (the “Released Parties”). This release includes without limitation any claims arising under federal, state, or local laws prohibiting employment discrimination, including without limitation the Age Discrimination in Employment Act (“ADEA”); any claims growing out of any legal restrictions, contractual or otherwise, on the Company’s right to terminate the employment of its employees; any claims arising out of Employee’s employment with the Company or the termination of that employment; any claims relating to or arising out of any agreement or contract between Employee and any of the Released Parties; and any claims arising out of or based on any other act, conduct, or omission of any of the Released Parties (collectively, the rights, claims, and demands referenced above are referred to as the “Released Claims”). This release does not prevent Employee from filing any administrative claims for unemployment compensation or workers’ compensation benefits. This Agreement is not intended to indicate that any Released Claims exist or that, if they do exist, they are meritorious. Rather, Employee is simply agreeing that, in exchange for the Separation Payments, any and all potential claims of this nature that Employee may have against the Released Parties, regardless of whether they actually exist, are expressly settled, compromised, and waived.
In no event shall the Released Claims include (a) any claim which arises after the date this Agreement is signed by Employee, (b) any claim to vested benefits or compensation under an employee benefit plan or equity compensation plan (in accordance with the terms of such plans), or (c) any claim to receive the Separation Payments.
By signing this Agreement, Employee is bound by it. Anyone who succeeds to Employee’s rights and responsibilities, such as heirs or the executor of Employee’s estate, is also bound by this Agreement. The release set forth in this Agreement also applies to any claims brought by any person or agency or class action under which Employee may have a right or benefit.
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Notwithstanding the release in this Agreement, nothing in this Agreement prevents Employee from (i) contacting, filing a charge or complaint with, providing information to, or cooperating with an investigation conducted by, any governmental agency, (ii) making disclosures or giving truthful testimony as required by law or valid legal process (such as by a subpoena), or (iii) engaging in other legally-protected activities. Employee acknowledges and agrees, however, that he forever waives any right to recover, and he will not request or accept, anything of monetary value from any of the Released Parties arising out of or connected in any way with his employment or the ending of his employment with the Company, the employment practices of the Company, or with any other act, conduct, or omission of any of the Released Parties, other than the Separation Payments, whether sought directly by him or by any governmental agency, individuals, or group of individuals on his behalf.
THIS RELEASE INCLUDESMATTERS ATTRIBUTABLE TO THE SOLE OR PARTIAL NEGLIGENCE (WHETHER GROSS OR SIMPLE) OR OTHER FAULT, INCLUDING STRICT LIABILITY, OF ANY OFTHE RELEASED PARTIES.
(b) Employee agrees not to bring or join any lawsuit, arbitration, or other proceeding against any of the Released Parties in any court relating to any of the Released Claims. Employee represents that Employee has not brought or joined any lawsuit or filed any charge or claim against any of the Released Parties in any court or before any government agency and has made no assignment of any rights Employee has asserted or may have against any of the Released Parties to any person (including any entity), in each case, with respect to any Released Claims.
(c) Employee further agrees to keep confidential and not to disclose to anyone the terms of this Agreement, except as permitted below or by law and except that he may disclose the terms to his family, attorney, or tax or financial advisor, if any, provided such persons have agreed to keep such information confidential.
(d) Employee’s covenants in Section 6 of the Employment Agreement (and those provisions necessary to enforce and interpret them) remain in full force and effect, and Employee promises to abide by such covenants. Notwithstanding the foregoing, nothing in this Agreement or the Employment Agreement shall prohibit or restrict Employee from lawfully (a) initiating communications directly with, cooperating with, providing information to, causing information to be provided to, or otherwise assisting in an investigation by, any governmental agency regarding a possible violation of any law; (b) responding to any inquiry or legal process directed to the Employee from any governmental agency; (c) testifying, participating or otherwise assisting in an action or proceeding by any governmental agency relating to a possible violation of law or (d) making any other disclosures that are protected under the whistleblower provisions of any applicable law. Further, nothing herein or in the Employment Agreement shall prevent Employee from, nor shall Employee be criminally or civilly liable under any federal or state trade secret law for, making a disclosure of trade secrets or other confidential information that is: (a) made (i) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of applicable law; (b) made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; or (c) protected under the whistleblower provisions of applicable law.
(e) By executing and delivering this Agreement, Employee acknowledges that: (i) Employee has carefully read this Agreement; (ii) Employee has had at least twenty (21) days to consider this Agreement before the execution and delivery hereof to the Company; (iii) Employee has been and hereby is advised in writing that Employee may, at Employee’s option, discuss this Agreement with an attorney of Employee’s choice and that Employee has had adequate opportunity to do so; (iv) Employee fully understands the final and binding effect of this Agreement and agrees that the only promises made to Employee to sign this Agreement are those stated in the Employment Agreement and herein; (v) Employee is signing this Agreement voluntarily and of Employee’s own free will and Employee understands and agrees to each of the terms of this Agreement; and (vi) Employee has been paid all wages and other compensation to which Employee is entitled pursuant to his employment with the Company (other than any Separation Payments due after Employee’s termination of employment) and received all leaves (paid and unpaid) to which Employee was entitled during such employment.
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Employee further acknowledges and agrees that (1) he has been given a reasonable period to read and consider this Agreement before signing it; (2) this Agreement and the Employment Agreement contain the entire understandings and agreements between the Company and him regarding their subject matters and supersede all prior agreements and understandings between them; (3) he has read this Agreement and fully understands the effect of his signing this Agreement; (4) in signing this Agreement, he is not relying on any written or oral statement or promise from the Company other than in this Agreement and the Employment Agreement; (5) this Agreement shall be governed by Nevada law and exclusive venue for any claim between the parties or their affiliates arising out of or related this Agreement is in any state or federal court of competent jurisdiction in the State of Texas; and (6) nothing in this Agreement constitutes any sort of admission of liability.
Notwithstanding the initial effectiveness of this Agreement, Employee may revoke the delivery (and therefore the effectiveness) of this Agreement within the seven (7) day period beginning on the date Employee delivers this Agreement to the Company (such seven-day period being referred to herein as the “Release Revocation Period”). To be effective, such revocation must be in writing signed by Employee and must be delivered to the Company’s Board on or before 11:59 p.m., C.S.T., on the last day of the Release Revocation Period. If an effective revocation is delivered in the foregoing manner and timeframe, this Agreement shall be of no force or effect and shall be null and void ab initio. No Separation Payments shall be paid if this Agreement is revoked by Employee in the foregoing manner.
IN WITNESS WHEREOF, the Employee has executed this Agreement as of the date written below.
| Ted G. Warner |
|---|
| Dated: |
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Exhibit 10.2
New Era Energy & Digital, Inc.
Performance Award Agreement
You have been selected to receive a Performance Award as specified below:
Participant: Ted G. Warner
Date of Grant: March 16, 2026
Number of Performance SharesGranted: 1,221,346
Performance Period: The five-year period beginning on January 1, 2026, during which the Management Objectives (each as defined on Exhibit A) for each Performance Tranche (as defined on Exhibit A)must be achieved (the “Performance Period”).
Formula for Determining Shares Earned: Except as otherwise provided in Section 4 or Section 5 of this Agreement, the number of Shares subject to this Performance Award (hereinafter, the “Performance Shares”) that become vested, if any, will be determined based on achievement of the Management Objectives (as defined on Exhibit A). Except as otherwise provided in Section 4 or Section 5 of this Agreement, before the Performance Shares for a Performance Tranche are treated as earned and vested by the Participant as of the date on which the Committee certifies that the applicable Management Objectives have been achieved, which the Committee shall do as soon as practicable following achievement of the applicable Management Objectives.
THIS PERFORMANCE AWARD AGREEMENT (this “Agreement”), effective as of the Date of Grant, evidences the grant of Performance Shares by New Era Energy & Digital, Inc, (formerly known as New Era Helium Corp.), a Nevada corporation (the “Company”), to the Participant named above (the “Participant”).
The Performance Shares granted pursuant to this Agreement are granted as an inducement material to the Participant’s acceptance of employment with the Company in accordance with Nasdaq Listing Rule 5635(c)(4). This Award is not granted under the New Era Helium Corp. 2024 Equity Incentive Plan (as amended from time to time, the “Plan”); however, for purposes of interpreting this Agreement, all capitalized terms not otherwise defined herein shall have the meanings set forth in the Plan, and the provisions of the Plan (other than Sections 3.1, 3.2 and 3.3 therein) shall apply to this Agreement as if incorporated herein, except to the extent inconsistent with this Agreement.
This Agreement, Exhibit A and the Plan collectively provide a complete description of the terms and conditions governing the Performance Shares granted hereunder. If there is any inconsistency between the terms of this Agreement, on the one hand, and the terms of the Plan, on the other hand, this Agreement’s terms shall control. This grant of Performance Shares shall not confer any right to the Participant (or any other Participant) to be granted Performance Shares or other awards in the future under the Plan.
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1. Grant of Performance Shares.
The Performance Shares covered by this Agreement are granted to the Participant effective on the Date of Grant and are subject to, and granted upon, the terms, conditions and restrictions set forth in this Agreement, Exhibit A hereto and the Plan. The Performance Shares granted hereunder shall vest in accordance with the achievement of the Management Objectives set forth on Exhibit A (except as otherwise provided herein).
2. Issuance of the Shares.
(a) Each Performance Shore granted hereunder that vests shall entitle the Participant to receive one (1) Share, subject to adjustment in accordance with Section 15 of the Plan.
(b) The Company shall issue or deliver Shares to the Participant (or, in the event the issuance or delivery of Shares occurs after the Participant’s death, to the person or persons that have been named as the Participant’s beneficiary as contemplated by Section 7 of this Agreement or to the person or persons that have acquired rights to such Performance Shares by will or the laws of descent and distribution) to settle vested Performance Shares granted hereunder on or as promptly as practicable following the date such Performance Shares become vested in accordance with the terms of this Agreement, but in no event later than the end of the calendar year during which the Committee certifies achievement of the applicable Management Objectives or, if later, the date that is two and a half months following the date on which the Committee certifies achievement of the applicable Management Objectives.
(c) Except to the extent determined by the Committee and permitted by the Plan and applicable law, the Company may not issue or deliver Shares to the Participant in respect of the Performance Shares granted hereunder at a time earlier than otherwise expressly provided in this Agreement.
(d) The Company’s obligations to the Participant with respect to this Agreement and the Performance Shares granted and vested hereunder shall be satisfied in full upon the issuance or delivery of Shares in respect of such Performance Shares.
3. No Rights as Stockholder.
(a) The Participant shall have no rights of ownership in the Performance Shares granted hereunder and shall have no voting or other ownership rights in respect of the Shares underlying the Performance Shares granted hereunder until the date on which such Shares underlying the Performance Shares, if any, are issued or delivered to the Participant pursuant to Section 2 of this Agreement.
(b) The obligations of the Company under this Agreement are unfunded and unsecured, and the rights of the Participant hereunder will be no greater than those of an unsecured general creditor. No assets of the Company will be held or set aside as security for the obligations of the Company under this Agreement.
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4. Cessation of Employment
(a) By Death or Disability; Termination Other Than For Cause; Termination For Good Reason. In the event the Participant ceases to be an Employee prior to the date the Performance Shares are fully vested by reason of: (i) death, (ii) Disability, (iii) the Company (or any affiliate thereof) terminating the Participant’s employment for any reason other than for Cause (as defined in Section 10 of this Agreement), or (iv) the Participant terminating his or her employment for Good Reason (as defined in Section 10 of this Agreement), the number of Performance Shares granted hereunder that will vest will be determined in the following manner: (A) the Time Condition (as defined on Exhibit A) shall be deemed satisfied in full, and (B) one additional Performance Tranche for which the applicable Objective Condition(s) had not yet been achieved as of the date the Participant ceases to be an Employee, if any, will be deemed vested in full. Any Performance Shares with respect to a Performance Tranche which is not vaned in accordance with this Section 4(a) will be forfeited in full on the date the Participant ceases to be an Employee. The Company shall issue or deliver the Shares with respect to vested Performance Shares in accordance with Section 2(b) of this Agreement.
(b) For Other Reasons. In the event the Participant ceases to be an Employee for any reason other than a reason set forth in Section 4(a) of this Agreement prior to the date the Performance Shares are fully vested, all unvested Performance Shares granted hereunder will be forfeited in full on the date the Participant ceases to be an Employee.
5. Change in Control. In the event of a Change in Control prior to the date the Performance Shares are fully vested while the Participant continues to be an Employee, all Performance Shares shall fully vest and the Company shall issue and deliver the Shares underlying such Performance Shares to the Participant in accordance with Section 2(b) of this Agreement.
6. Restrictions on Transfer. Neither the Performance Shares granted hereunder nor any right or interest under this Agreement (including, without limitation, any interest in the Shares underlying such Performance Shares) shall be transferable prior to payment in accordance with Section 2 of this Agreement other than as contemplated by Section 7 of this Agreement or by will or the laws of descent and distribution. If Performance Shares granted hereunder or any right or interest under this Agreement (including, without limitation, any interest in the Shares underlying Performance Shares) are sold, transferred, pledged, assigned or otherwise alienated or hypothecated, whether voluntarily or involuntarily, other than in accordance with this Agreement or the Plan, or if any attachment, execution, garnishment or lien shall be issued against or placed upon Performance Shares granted hereunder or any right or interest under this Agreement (including, without limitation, any interest in the Shares underlying Performance Shares), all Performance Shares shall be immediately forfeited by the Participant and all obligations of the Company under this Agreement shall terminate.
7. Beneficiary Designation. The Participant may, from time to time, name any beneficiary or beneficiaries (who may be named contingently or successively) to whom any benefit under this Agreement into be paid in case of the Participant’s death before the Participant receives all of such benefit. Each such designation shall revoke all prior designations by the Participant, shall be in a form prescribed by the Company and shall be effective only when filed by the Participant in writing with the Company during the Participant’s lifetime. In the absence of any such designation, benefits remaining unpaid at the Participant’s death shall be paid in accordance with the Participant’s will or the laws of descent and distribution.
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8. Continuation of Employment. This Agreement shall not confer upon the Participant any right with respect to continuance of employment with the Company (or any affiliate thereof), nor shall this Agreement interfere in any way with any right that the Company (or any affiliate thereof) would otherwise have to terminate the Participant’s employment or other service at any time.
9. Miscellaneous.
(a) This Agreement and the rights of the Participant hereunder are subject to all the terms and conditions of the Plan, as the same may be amended from time to time, as well as to such rules and regulations as the Committee may adopt for administration of the Plan. It is expressly understood that the Committee is authorized to administer, construe and make all reasonable determinations necessary or appropriate to the administration of the Plan and this Agreement, all of which shall be binding upon the Participant.
(b) In accordance with Section 20 of the Plan, the Board may terminate, amend or modify the Plan.
(c) The Participant shall be obligated to pay to the Company or make arrangements satisfactory to the Committee for payment of any federal, state and local taxes (including the Participant’s FICA obligation), whether domestic or foreign, required by law to be withheld on account of any event under this Agreement. The Company shall have the power and the right to deduct or withhold from the Participant’s compensation an amount sufficient to satisfy federal, state and local taxes (including the Participant’s FICA obligation), whether domestic or foreign, required by law to be withheld with respect to any event under this Agreement Notwithstanding the above, unless otherwise determined by the Committee, the Company will, withhold Shares otherwise to be issued or delivered to settle vested Performance Shares having an aggregate fair market value on the date the tax is to be determined equal to the amount required to be withheld. Such withholding shall be subject to any procedural rules adopted by the Committee with respect thereto.
(d) The Participant shall be obligated to take all steps necessary to comply with all applicable provisions with respect to transfers of the Company’s securities imposed by the Company’s certificate of incorporation, bylaws and insider trading policies and federal and state securities laws, each as in effect from time to time, in exercising his or her rights under this Agreement.
(e) All obligations of the Company under the Plan and this Agreement shall be binding on any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business or assets of the Company.
(f) This Agreement shall be governed by and construed in accordance with the internal substantive laws of the State of Nevada.
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(g) Notice hereunder shall be given to the Company at its principal place of business or such other address as the Company may subsequently furnish to the Participant in writing and shall be given to the Participant at the address of such Participant that is specified in the Company’s records.
(h) The Participant is deemed to be bound by the terms and conditions governing the Performance Shares granted hereunder as the same are set forth in this Agreement and the Plan, regardless of whether the Participant acknowledges acceptance of such grant by electronic communication or other written communication.
(i) This Agreement and the Plan are intended to be exempt from or comply with Section 409A of the Cod; and all provisions of this Agreement and the Plan shall be administered, construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A of the Code. To the extent that the Performance Shares, or the issuance or delivery of the Shares underlying the Performance Shares are subject to Section 409A of the Cod; the Performance Shares shall be awarded and any Shares in respect thereof shall be issued or delivered in a manner that will comply with Section 409A of the Code, including proposed, temporary or final regulations or any other guidance issued by the Secretary of the Treasury and the Internal Revenue Service with respect thereto. Notwithstanding any provision of this Agreement to the contrary, in light of the uncertainty with respect to the proper application of Section 409A of the Code, the Company reserves the right to make amendments to this Agreement as the Company deems necessary or desirable to avoid the imposition of taxes or penalties under Section 409A of the Code. In any case, the Participant shall be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed in connection with this Agreement (including any taxes and penalties under Section 409A of the Code), and neither the Company nor any affiliate of the Company shall have any obligation to indemnify or otherwise hold the Participant harmless from any oct all of such taxes or penalties. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A of the Code Notwithstanding any other provision to the contrary, to the extent that any payment described in this Agreement constitutes a “deferral of compensation” subject to Section 409A of the Code (after taking into account to the maximum extent possible any applicable exemptions) treated as payable upon a “separation from service” (as defined in Section 409A of the Code), then, if on the date of the Participant’s separation from service, the Participant is a “specified employee” (as defined in Section 409A of the Code and using the identification methodology selected by the Company from time to time), to the extent required for the Participant not to incur additional taxes pursuant to Section 409A of the Cod; then such payment will be made to the Participant on the earlier of (i) the first business day following the six-month anniversary of the Participant’s separation from service or (ii) the Participant’s death. Notwithstanding any other provision to the contrary, a termination or cessation of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” upon or following a termination or cessation of employment unless such termination is also a “separation from service” from the Company, and, for purposes of any such provision of this Agreement, references to “employment termination,” “termination of employment,” “employment cessation,” “cessation of employment” or like terms shall mean “separation frail service.”
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(j) Notwithstanding anything to the contrary in this Agreement (or in any other agreement, contract or arrangement with the Company or any Parent or Subsidiary or affiliate of the Company, or in any policy, procedure or practice of the Company or any Parent or Subsidiary or affiliate (collectively, the “Arrangements”)): (i)nothing in the Arrangements or otherwise limits Participant’s right to any monetary award offered by a government-administered whistleblower award program for providing information directly to a government agency @lauding the Securities and Exchange Commission pursuant to Section 21F of the Exchange Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act or The Sarbanes-Oxley Act of 2002), and (ii) nothing in the Arrangements or otherwise prevents the Participant from providing, without prior notice to the Company, information to governmental authorities regarding possible legal violations or otherwise testifying or participating in any investigation or proceeding by any governmental authorities regarding possible legal violations, and for purposes of clarity, the Participant is not prohibited from providing information voluntarily to the Securities and Exchange Commission pursuant to Section 21F of the Exchange Act.
(k) Notwithstanding anything in this Agreement or anything in any other agreement between the Company (or any of its affiliates) and the Participant to the contrary, the Participant acknowledges and agrees that the terms and conditions set forth in the New Era Helium Inc. Policy for Recovery of Erroneously Awarded Compensation (the “Clawback Policy”) are incorporated in this Agreement by reference. To the extent the Clawback Policy is applicable to the Participant, it creates additional rights for the Company with respect to this award of Performance Shares, Shares received upon the settlement of the Performance Shares, and other applicable incentive-based compensation, including, without limitation, annual cash incentive compensation awards granted to the Participant by the Company. Notwithstanding any provisions in this Agreement or any provisions in any other agreement between the Company (or any of its affiliates) and the Participant to the contrary, any award of Performance Shares granted, Shares received upon the settlement of Performance Shares, and such other applicable incentive-based compensation, including, without limitation, annual cash incentive compensation, will be subject to potential mandatory cancellation, forfeiture and/or repayment by the Participant to the Company to the extent the Participant is, or in the future becomes, subject to (i) the Clawback Policy and any other policies that are adopted by the Company in order to comply with the requirements of any applicable laws, rules, regulations, or stock exchange listing standards, or (ii) any applicable laws that impose mandatory clawback or recoupment requirements under the circumstances set forth in such laws, including as required by the Sarbanes-Oxley Act of 2002, the Dodd-Frank Wall Street Reform and Consumer Protection Act, or other applicable laws, rules, regulations or stock exchange listing standards, as may be in effect from time to time, and which may operate to create additional rights for the Company with respect to awards and the recovery of amounts relating thereto. By accepting the award of Performance Shares pursuant to this Agreement, the Participant consents to be bound by the terms of the Clawback Policy, if applicable, and agrees and acknowledges that the Participant is obligated to cooperate with, and provide any and all assistance necessary to, the Company in its efforts to recover or recoup the Performance Shares and Shares received upon the settlement of the Performance Shares, any gains or earnings related to the Performance Shares or Shares received upon the settlement of the Performance Shares, or any other applicable compensation, including, without limitation, annual cash incentive compensation, that is subject to clawback or recoupment pursuant to such laws, rules, regulations, stock exchange listing standards or Company policy. Such cooperation and assistance shall include, but is not limited to, executing, completing and submitting any documentation necessary to facilitate the recovery or recoupment by the Company from the Participant of any such amounts, including from the Participant’s accounts or from any other compensation, to the extent permissible under Section 409A.
(l) If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any jurisdiction, or would disqualify the Plan or this Agreement under any applicable law, such provision will be construed or deemed amended or limited in scope to conform to applicable laws or, in the discretion of the Committee, it will be stricken and the remainder of this Agreement will remain in full force and effect.
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10. Definitions.
(a) “Cause” shall mean any of the following: (i) the indictment or conviction of the Participant or plea of nolo contendere by the Participant for a felony, fraud or other crime of moral turpitude; (ii) gross negligence or gross misconduct by the Participant, which is not cured within fourteen (14) days after written notice thereof to the Participant; (iii) the Participant’s failure to follow the directions of the Board which is not cured within fourteen (14) days after written notice thereof to the Participant (iv) the Participant’s violation of any restrictive covenant agreement (including, without limitation, any noncompete, nonsolicit, nondisparagement and confidentiality agreement) entered with the Company or any of its affiliates, which is not cured (if curable) with in fourteen (14) days after written notice thereof to the Participant; (v) any conduct by or at the direction of the Participant that would reasonably be expected to result in material injury or reputational harm to the Company (or any of its affiliates), which is not cured within fourteen (14) days after written notice thereof to the Participant; (vi) the Participant’s breach of a material employment policy of the Company (or any of its affiliates), which is not cured within fourteen (14)days after written notice thereof to the Participant; (vii) the Participant’s breach of the Company’s Code of Conduct and Ethics or the New Era Helium Inc. Policy for Recovery of Erroneously Awarded Compensation, which is not cured within fourteen (14) days after written notice thereof to the Participant or (viii) any other breach by the Participant of any agreement with the Company (or any of its affiliates) that is material and that is not cured within fourteen (14) days after written notice thereof to the Participant.
(b) “Good Reason” shall mean the Participant’s termination of his employment with the Company or any affiliate as result of any of the following without the Participant’s consent: (i) a decrease in the Participant’s base salary; (ii) any action or inaction that results in a material breach of any agreement between the Company and the Participant by the Company; (iii) any material diminution in the Participant’s position, duties, authority, or responsibilities; or (iv) a requirement that the Participant work full-time from an office that is more than fifty (50) miles frau Minneapolis, Minnesota. Notwithstanding the foregoing, no termination of employment by the Participant shall constitute a termination for “Good Reason” unless (A) the Participant gives the Company notice of the existence of an event described above within sixty (60) days following the initial occurrence thereof; (B) the Company does not remedy such event within thirty (30) days of receiving the notice described in the preceding clause (A); and (C) the Participant terminates employment within ninety (90) days of the end of the cure period specified in clause (B) above.
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IN WITNESS WHEREOF, this Performance Award Agreement has been executed as of the date first written above.
| COMPANY: | |
|---|---|
| New Era Energy & Digital, Inc., a Nevada corporation | |
| By: | /s/ E. Will Gray II |
| Name: | E. Will Gray II |
| Title: | Chief Executive Officer |
| PARTICIPANT: | |
| /s/ Ted G. Warner | |
| Ted G. Warner |
[Signature Page to Performance Award Agreement]
Exhibit A
Management Objectives
Except as otherwise provided in Section 4 and Section 5 of this Agreement, the Performance Shares granted pursuant to this Agreement shall vest in accordance with the achievement of the below performance-based and time-based service conditions.
The Performance Shares shall be divided into three Ranches as set forth in the table below (each a “Performance Tranche,” and collectively, the “PerformanceTranches”).
The vesting of each Performance Tranche is subject to (i) the time-based vesting conditions described below (the “Time Condition”) and (ii) one or more performance-based vesting conditions as described in the table below (the “Objective Conditions,” and collectively with the Time Condition, the “Management Objectives”), with each respective Performance Tranche vesting in the percentage of Performance Shares set forth in the table below once the Management Objectives applicable to such Performance Tranche have been certified by the Committee as met.
Time Condition
The Performance Shares shall be deemed to have satisfied the Time Condition in equal installments on the first business day of each calendar month over a four-year period beginning March 1, 2026, subject to the Participant’s continued employment with the Company (or any affiliate thereof) through each applicable vesting date except as otherwise set forth in this Agreement.
Objective Conditions
Each Performance Tranche shall be deemed to have satisfied the Objective Conditions based on the Committee’s certification of achievement and completion of the applicable Objective Conditions as set forth in the table below during the Performance Period:
| Performance Tranche | Objective Conditions |
|---|---|
| Tranche 1-16.66% of Performance Shares | The Company (or any affiliate thereof) enters into a binding commercial agreement with a hyper scaler (the “Lease”) at a campus producing at least 200 megawatts (“MW”). |
| Tranche 2-16.66% of Performance Shares | The Company (or any affiliate thereof) has achieved a financial close on senior secured project financing related to the Lease at the Company’s Ector County, TX site (the “Site”) |
| Tranche 3-16.68% of Performance Shares | The Company (or any affiliate thereof) achieved<br> commercial operation at the Site.<br><br> <br><br><br> <br>AND<br><br> <br><br><br> <br>The volume-weighted average closing price of the<br> Shares over any 90 day period during the Performance Period is at least $15.00 (“TSR Condition”). For the avoidance<br> of doubt, if the volume-weighted average closing price of the Shares reaches the applicable target during the Performance Period but later<br> drops below the applicable target, the TSR Condition will remain achieved. |
| Tranche 4-50% of Performance Shares | The Company (or any affiliate thereof) completed a material credit facility sufficient to support the Company’s project development with a major financial institution on or before June 30,2026. |
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Exhibit10.3
New Era Energy & Digital, Inc.
Restricted Stock Unit Award Agreement
You have been selected to receive a grant of Restricted Stock Units as specified below:
**Participant:**Ted G. Warner
Dateof Grant: March 16, 2026
Numberof Restricted Stock Units Granted: 610,673
VestingSchedule: The Restricted Stock Units granted shall vest in equal installments on the first business day of each calendar month following the Date of Grant over a period of four (4) years, subject to the Participant’s continued employment with the Company (or any affiliate thereof) through each applicable vesting date, except as otherwise set forth herein.
THIS RESTRICTED STOCK UNIT AWARD AGREEMENT (this “Agreement”), effective as of the Date of Grant, evidences the grant of Restricted Stock Units (“RSUs”) by New Era Energy & Digital, Inc. (formerly known as New Era Helium Corp.), a Nevada corporation (the “Company”), to the Participant named above (the “Participant”).
The RSUs granted pursuant to this Agreement are granted as an inducement material to the Participant’s acceptance of employment with the Company in accordance with Nasdaq Listing Rule 5635(c)(4). This Award is not granted under the New Era Helium Corp. 2024 Equity Incentive Plan (the “Plan”); however, for purposes of interpreting this Agreement, all capitalized terms not otherwise defined herein shall have the meanings set forth in the Plan, and the provisions of the Plan (other than Sections 3.1, 3.2 and 3.3 therein) shall apply to this Agreement as if incorporated herein, except to the extent inconsistent with this Agreement.
This Agreement and the Plan collectively provide a complete description of the terms and conditions governing the RSUs granted hereunder. If there is any inconsistency between the terms of this Agreement, on the one hand, and the terms of the Plan, on the other hand, this Agreement’s terms shall control. This grant of RSUs shall not confer any right to the Participant (or any other Participant) to be granted RSUs or other awards in the future under the Plan.
1. Grantof RSUs. The RSUs covered by this Agreement are granted to the Participant effective on the Date of Grant and are subject to, and granted upon, the terms, conditions and restrictions set forth in this Agreement and in the Plan. The RSUs granted hereunder shall vest in accordance with the “Vesting Schedule” set forth above (except as otherwise provided herein).
2. Issuanceof the Shares.
(a) Each RSU granted hereunder that vests shall entitle the Participant to receive one (1) Share, subject to adjustment in accordance with Section 15 of the Plan.
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(b) The Company shall issue or deliver Shares to the Participant (or, in the event the issuance or delivery of Shares occurs after the Participant’s death, to the person or persons that have been named as the Participant’s beneficiary as contemplated by Section 7 of this Agreement or to the person or persons that have acquired rights to such RSUs by will or the laws of descent and distribution) to settle vested RSUs granted hereunder on or as promptly as practicable following the date such RSUs become vested in accordance with the terms of this Agreement, but in no event later than March 15 of the calendar year following the calendar year in which the RSUs become vested.
(c) Except to the extent determined by the Committee and permitted by the Plan and applicable law, the Company may not issue or deliver Shares to the Participant in respect of the RSUs granted hereunder at a time earlier than otherwise expressly provided in this Agreement.
(d) The Company’s obligations to the Participant with respect to this Agreement and the RSUs granted and vested hereunder shall be satisfied in full upon the issuance or delivery of Shares in respect of such RSUs.
3. NoRights as Stockholder.
(a) The Participant shall have no rights of ownership in the RSUs granted hereunder and shall have no voting or other ownership rights in respect of the Shares underlying the RSUs granted hereunder until the date on which such Shares underlying the RSUs, if any, are issued or delivered to the Participant pursuant to Section 2 of this Agreement.
(b) The obligations of the Company under this Agreement are unfunded and unsecured, and the rights of the Participant hereunder will be no greater than those of an unsecured general creditor. No assets of the Company will be held or set aside as security for the obligations of the Company under this Agreement.
4. Cessationof Employment.
(a) ByDeath. In the event the Participant ceases to be an Employee by reason of death prior to the final vesting date in accordance with the Vesting Schedule set forth above, all RSUs granted hereunder shall become 100% vested on the date of death, and the Company shall issue or deliver the Shares underlying such RSUs to the Participant or other appropriate person in accordance with Section 2(b) of this Agreement.
(b) ByDisability. In the event the Participant ceases to be an Employee due to Disability prior to the final vesting date in accordance with the Vesting Schedule set forth above, all RSUs granted hereunder and held by the Participant at the time of the termination due to Disability shall become 100% vested, and the Company shall issue or deliver the Shares underlying such RSUs to the Participant in accordance with Section 2(b) of this Agreement.
(c) InvoluntaryTermination Other Than For Cause; Termination For Good Reason. In the event the Participant ceases to be an Employee prior to the final vesting date in accordance with the Vesting Schedule set forth above because either (i) the Company (or any affiliate thereof) terminates such employment for any reason other than for Cause (as defined in Section 10 of this Agreement) or (ii) the Participant terminates his or her employment for Good Reason (as defined in Section 10 of this Agreement), all RSUs granted hereunder and held by the Participant at the time of such employment termination shall become 100% vested, and the Company shall issue or deliver the Shares underlying such RSUs in accordance with Section 2(b) of this Agreement.
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(d) ForOther Reasons. In the event the Participant ceases to be an Employee for any reason other than a reason set forth in Section 4(a), 4(b) or 4(c) of this Agreement prior to the final vesting date in accordance with the Vesting Schedule set forth above, all unvested RSUs granted hereunder and held by the Participant at the time of employment cessation shall be forfeited by the Participant.
5. Changein Control. In the event of a Change in Control prior to the final vesting date in accordance with the Vesting Schedule set forth above while the Participant continues to be an Employee, all RSUs granted hereunder and held by the Participant at the time of such Change in Control shall become 100% vested, and the Company shall issue and deliver the Shares underlying such RSUs to the Participant in accordance with Section 2(b) of this Agreement.
6. Restrictionson Transfer. Neither the RSUs granted hereunder nor any right or interest under this Agreement (including, without limitation, any interest in the Shares underlying such RSUs) shall be transferable prior to payment in accordance with Section 2 of this Agreement other than as contemplated by Section 7 of this Agreement or by will or the laws of descent and distribution. If RSUs granted hereunder or any right or interest under this Agreement (including, without limitation, any interest in the Shares underlying RSUs) are sold, transferred, pledged, assigned or otherwise alienated or hypothecated, whether voluntarily or involuntarily, other than in accordance with this Agreement or the Plan, or if any attachment, execution, garnishment or lien shall be issued against or placed upon RSUs granted hereunder or any right or interest under this Agreement (including, without limitation, any interest in the Shares underlying RSUs), all RSUs shall be immediately forfeited by the Participant and all obligations of the Company under this Agreement shall terminate.
7. BeneficiaryDesignation. The Participant may, from time to time, name any beneficiary or beneficiaries (who may be named contingently or successively) to whom any benefit under this Agreement is to be paid in case of the Participant’s death before the Participant receives all of such benefit. Each such designation shall revoke all prior designations by the Participant, shall be in a form prescribed by the Company and shall be effective only when filed by the Participant in writing with the Company during the Participant’s lifetime. In the absence of any such designation, benefits remaining unpaid at the Participant’s death shall be paid in accordance with the Participant’s will or the laws of descent and distribution.
8. Continuationof Employment. This Agreement shall not confer upon the Participant any right with respect to continuance of employment with the Company (or any affiliate thereof), nor shall this Agreement interfere in any way with any right that the Company (or any affiliate thereof) would otherwise have to terminate the Participant’s employment or other service at any time.
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9. Miscellaneous.
(a) This Agreement and the rights of the Participant hereunder are subject to all the terms and conditions of the Plan, as the same may be amended from time to time, as well as to such rules and regulations as the Committee may adopt for administration of the Plan. It is expressly understood that the Committee is authorized to administer, construe and make all reasonable determinations necessary or appropriate to the administration of the Plan and this Agreement, all of which shall be binding upon the Participant.
(b) In accordance with Section 20 of the Plan, the Board may terminate, amend or modify the Plan.
(c) The Participant shall be obligated to pay to the Company or make arrangements satisfactory to the Committee for payment of any federal, state and local taxes (including the Participant’s FICA obligation), whether domestic or foreign, required by law to be withheld on account of any event under this Agreement. The Company shall have the power and the right to deduct or withhold from the Participant’s compensation an amount sufficient to satisfy federal, state and local taxes (including the Participant’s FICA obligation), whether domestic or foreign, required by law to be withheld with respect to any event under this Agreement. Notwithstanding the above, unless otherwise determined by the Committee, the Company will withhold Shares otherwise to be issued or delivered to settle vested RSUs having an aggregate fair market value on the date the tax is to be determined equal to the amount required to be withheld. Such withholding shall be subject to any procedural rules adopted by the Committee with respect thereto.
(d) The Participant shall be obligated to take all steps necessary to comply with all applicable provisions with respect to transfers of the Company’s securities imposed by the Company’s certificate of incorporation, bylaws and insider trading policies and federal and state securities laws, each as in effect from time to time, in exercising his or her rights under this Agreement.
(e) All obligations of the Company under the Plan and this Agreement shall be binding on any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business or assets of the Company.
(f) This Agreement shall be governed by and construed in accordance with the internal substantive laws of the State of Nevada.
(g) Notice hereunder shall be given to the Company at its principal place of business or such other address as the Company may subsequently furnish to the Participant in writing and shall be given to the Participant at the address of such Participant that is specified in the Company’s records.
(h) The Participant is deemed to be bound by the terms and conditions governing the RSUs granted hereunder as the same are set forth in this Agreement and the Plan, regardless of whether the Participant acknowledges acceptance of such grant by electronic communication or other written communication.
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(i) This Agreement and the Plan are intended to be exempt from or comply with Section 409A of the Code, and all provisions of this Agreement and the Plan shall be administered, construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A of the Code. To the extent that the RSUs, or the issuance or delivery of the Shares underlying the RSUs are subject to Section 409A of the Code, the RSUs shall be awarded and any Shares in respect thereof shall be issued or delivered in a manner that will comply with Section 409A of the Code, including proposed, temporary or final regulations or any other guidance issued by the Secretary of the Treasury and the Internal Revenue Service with respect thereto. Notwithstanding any provision of this Agreement to the contrary, in light of the uncertainty with respect to the proper application of Section 409A of the Code, the Company reserves the right to make amendments to this Agreement as the Company deems necessary or desirable to avoid the imposition of taxes or penalties under Section 409A of the Code. In any case, the Participant shall be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed in connection with this Agreement (including any taxes and penalties under Section 409A of the Code), and neither the Company nor any affiliate thereof shall have any obligation to indemnify or otherwise hold the Participant harmless from any or all of such taxes or penalties. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A of the Code. Notwithstanding any other provision to the contrary, to the extent that any payment described in this Agreement constitutes a “deferral of compensation” subject to Section 409A of the Code (after taking into account to the maximum extent possible any applicable exemptions) treated as payable upon a “separation from service” (as defined in Section 409A of the Code), then, if on the date of the Participant’s separation from service, the Participant is a “specified employee” (as defined in Section 409A of the Code and using the identification methodology selected by the Company from time to time), to the extent required for the Participant not to incur additional taxes pursuant to Section 409A of the Code, then such payment will be made to the Participant on the earlier of (i) the first business day following the six-month anniversary of the Participant’s separation from service or (ii) the Participant’s death. Notwithstanding any other provision to the contrary, a termination or cessation of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of “deferred compensation” upon or following a termination or cessation of employment unless such termination is also a “separation from service” from the Company, and, for purposes of any such provision of this Agreement, references to “employment termination,” “termination of employment,” “employment cessation,” “cessation of employment” or like terms shall mean “separation from service.”
(j) Notwithstanding anything to the contrary in this Agreement (or in any other agreement, contract or arrangement with the Company or any Parent, Subsidiary or affiliate of the Company, or in any policy, procedure or practice of the Company or any Parent, Subsidiary or affiliate of the Company (collectively, the “Arrangements”)): (i) nothing in the Arrangements or otherwise limits Participant’s right to any monetary award offered by a government-administered whistleblower award program for providing information directly to a government agency (including the Securities and Exchange Commission pursuant to Section 21F of the Exchange Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act or The Sarbanes-Oxley Act of 2002), and (ii) nothing in the Arrangements or otherwise prevents the Participant from providing, without prior notice to the Company, information to governmental authorities regarding possible legal violations or otherwise testifying or participating in any investigation or proceeding by any governmental authorities regarding possible legal violations, and for purposes of clarity, the Participant is not prohibited from providing information voluntarily to the Securities and Exchange Commission pursuant to Section 21F of the Exchange Act.
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(k) If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any jurisdiction, or would disqualify the Plan or this Agreement under any applicable law, such provision will be construed or deemed amended or limited in scope to conform to applicable laws or, in the discretion of the Committee, it will be stricken and the remainder of this Agreement will remain in full force and effect.
10. Definitions.
(a) “Cause” shall mean shall mean any of the following: (i) the indictment or conviction of the Participant or plea of nolo contendere by the Participant for a felony, fraud or other crime of moral turpitude; (ii) gross negligence or gross misconduct by the Participant, which is not cured within fourteen (14) days after written notice thereof to the Participant; (iii) the Participant’s failure to follow the directions of the Board which is not cured within fourteen (14) days after written notice thereof to the Participant; (iv) the Participant’s violation of any restrictive covenant agreement (including, without limitation, any noncompete, nonsolicit, nondisparagement and confidentiality agreement) entered with the Company or any of its affiliates, which is not cured (if curable) within fourteen (14) days after written notice thereof to the Participant; (v) any conduct by or at the direction of the Participant that would reasonably be expected to result in material injury or reputational harm to the Company (or any of its affiliates), which is not cured within fourteen (14) days after written notice thereof to the Participant; (vi) the Participant’s breach of a material employment policy of the Company (or any of its affiliates), which is not cured within fourteen (14) days after written notice thereof to the Participant; (vii) the Participant’s breach of the Company’s Code of Conduct and Ethics or the New Era Helium Inc. Policy for Recovery of Erroneously Awarded Compensation, which is not cured within fourteen (14) days after written notice thereof to the Participant or (viii) any other breach by the Participant of any agreement with the Company (or any of its affiliates) that is material and that is not cured within fourteen (14) days after written notice thereof to the Participant.
(b) “GoodReason” shall mean the Participant’s termination of his employment with the Company or any affiliate as result of any of the following without the Participant’s consent: (i) a decrease in the Participant’s base salary; (ii) any action or inaction that results in a material breach of any agreement between the Company and the Participant by the Company; (iii) any material diminution in the Participant’s position, duties, authority, or responsibilities; or (iv) a requirement that the Participant work full-time from an office that is more than fifty (50) miles from Minneapolis, Minnesota. Notwithstanding the foregoing, no termination of employment by the Participant shall constitute a termination for “Good Reason” unless (A) the Participant gives the Company notice of the existence of an event described above within sixty (60) days following the initial occurrence thereof; (B) the Company does not remedy such event within thirty (30) days of receiving the notice described in the preceding clause (A); and (C) the Participant terminates employment within ninety (90) days of the end of the cure period specified in clause (B) above.
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IN WITNESS WHEREOF, this Restricted Stock Unit Award Agreement has been executed as of the date first written above.
| COMPANY: | |
|---|---|
| New Era Energy & Digital, Inc., a Nevada corporation | |
| By: | /s/<br> E. Will Gray II |
| Name: | E.<br> Will Gray II |
| Title: | Chief<br> Executive Officer |
| PARTICIPANT: | |
| /s/<br> Ted G. Warner | |
| Ted G.<br> Warner |