PHX Minerals Inc.
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SEC Document
SEC Filing

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

SCHEDULE 14A

 

Proxy Statement Pursuant to Section 14(a) of

the Securities Exchange Act of 1934

 

Filed by the Registrant

Filed by a Party other than the Registrant

 

Check the appropriate box:

Preliminary Proxy Statement

Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))

Definitive Proxy Statement

Definitive Additional Materials

Soliciting Material under §240.14a-12

 

PHX MINERALS INC.

(Name of Registrant as Specified in its Charter)

_______________________________________________

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

 

Payment of Filing Fee (Check the appropriate box):

No fee required.

Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.

(1)
Title of each class of securities to which transaction applies:

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(2)
Aggregate number of securities to which transaction applies:

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(3)
Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):

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(4)
Proposed maximum aggregate value of transaction:

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(5)
Total fee paid:

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Fee paid previously with preliminary materials

Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, of the Form or Schedule and the date of its filing.

(1)
Amount Previously Paid:

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(2)
Form, Schedule or Registration Statement No.:

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(3)
Filing Party:

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(4)
Date Filed:

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Notice of Annual Meeting of Stockholders

To be held March 6, 2023

To the Stockholders of PHX Minerals Inc.:

Notice is hereby given that the annual meeting of the stockholders (“Annual Meeting”) of PHX Minerals Inc. (the “Company”) will be held virtually, on Monday, March 6, 2023, at 9:00 a.m. Central Standard Time. The virtual meeting can be accessed at www.proxydocs.com/PHX. At the Annual Meeting, we plan to ask you:

1. To elect the two director nominees named in the accompanying proxy statement to serve on the Company’s Board of Directors until the Company’s 2026 annual meeting of stockholders or until their successors are duly elected and qualified;

2. To approve, on a non-binding advisory basis, the compensation of the Company’s named executive officers;

3. To ratify the selection and appointment of Ernst & Young LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2023;

4. To approve an amendment to the PHX Minerals Inc. 2021 Long-Term Incentive Plan to increase the number of authorized shares by 2,400,000 shares; and

5. To consider and act upon any other matter as may properly come before the meeting or any adjournment or postponement thereof.

We have set the close of business on January 9, 2023 as the record date for the Annual Meeting and only holders of record of the Company’s common stock at such date will be entitled to vote at the Annual Meeting and any adjournments or postponements thereof. The Annual Meeting will be held in a virtual-only meeting format, via live video webcast, that will provide stockholders with the ability to participate in the Annual Meeting, vote their shares and ask questions. We have implemented a virtual-only meeting format in order to leverage technology to enhance stockholder access to the Annual Meeting by enabling attendance and participation from any location around the world. We believe that the virtual-only meeting format will give stockholders the opportunity to exercise the same rights as if they had attended an in-person meeting and believe that these measures enhance stockholder access and encourage participation and communication with our Board of Directors and management. Please note that you will only be able to attend the Annual Meeting by means of remote communication – you will not be able to attend the Annual Meeting if you do not have Internet access. There will not be a physical meeting location. You or your proxyholder will be able to attend the Annual Meeting online, examine a list of our stockholders of record, and submit your questions and vote your shares electronically by visiting www.proxydocs.com/PHX. To be admitted to the Annual Meeting and vote your shares, you must register and provide the Control Number as described in the Notice of Internet Availability of Proxy Materials and proxy card. We have designed the format of the Annual Meeting to ensure that you are afforded the same rights and opportunities to participate as you would have at an in-person meeting.

 


 

The Annual Meeting webcast will begin promptly at 9:00 a.m. Central Standard Time, on March 6, 2023. Online access to the virtual meeting website will begin at 8:45 a.m. Central Standard Time, and we encourage you to access the Annual Meeting prior to the start time.

Pursuant to rules promulgated by the U.S. Securities and Exchange Commission (the “SEC”), we are providing access to our proxy materials over the Internet. As a result, we are mailing to most of our stockholders a Notice of Internet Availability of Proxy Materials (“Notice”) instead of a paper copy of this proxy statement, a proxy card and our 2022 annual report. The Notice contains instructions on how to access those documents over the Internet, as well as instructions on how to vote. All stockholders who do not receive a Notice should receive a paper copy of the proxy materials by mail. We believe that the Notice process allows us to provide our stockholders with information in a timelier manner, reduces our printing and mailing costs, and helps to conserve resources. The Company anticipates the Notice will be mailed to stockholders on or about January 23, 2023.

Whether you plan to attend the Annual Meeting or not, we encourage you to vote by following the instructions on the Notice or, if you received a paper copy of the proxy card, by signing and returning it in the postage-paid envelope. Voting by proxy will ensure your shares are represented at the Annual Meeting. Please review the instructions on the Notice or the information forwarded by your bank, broker or other holder of record regarding each of these voting options.

We thank you for your continued support and look forward to seeing you at the Annual Meeting.

 

By Order of the Board of Directors

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Ralph D’Amico, Secretary

 

Fort Worth, Texas

January 23, 2023

YOUR VOTE IS IMPORTANT.

YOUR VOTE IS IMPORTANT, AND WE ENCOURAGE YOU TO VOTE EVEN IF YOU ARE UNABLE TO ATTEND THE ANNUAL MEETING. YOU MAY VOTE BY INTERNET OR TELEPHONE USING THE INSTRUCTIONS ON THE NOTICE, OR BY MARKING, SIGNING AND DATING THE ENCLOSED PROXY AND MAILING IT PROMPTLY IN THE POSTAGE-PAID ENVELOPE PROVIDED IF YOU RECEIVED A PAPER COPY OF THE PROXY CARD.

Important Notice Regarding the Availability of Proxy Materials for the Stockholders Meeting to be held on March 6, 2023. This proxy statement, form of proxy card and the Company’s 2022 Annual Report to Stockholders are available at the following website: www.proxydocs.com/PHX or by writing to the Company at the address above. The Annual Report contains the financial documents of the Company.

 

 


 

 

 


 

Table of Contents

 

 

Page

Notice of Annual Meeting

 

Proxy Statement Summary

1

Questions and Answers About the Annual Meeting and Voting

2

Proposal No. 1 – Election of Two Directors for Three-Year Terms Ending at the Annual Meeting in 2026

9

Directors

9

Directors Nominated for Re-Election at the Annual Meeting

9

Directors Continuing in Office

10

Corporate Governance and Our Board

13

Board Leadership Structure and Non-Executive Chairman of the Board

13

Board Independence

13

Meetings and Committees of the Board of Directors

13

Board Committees

14

Board Role in Risk Oversight

16

Compensation of Directors

16

Director Compensation for Fiscal 2022

17

Share Ownership Guidelines for Directors

18

Related Person Transactions

18

Compensation Committee Interlocks and Insider Participation

19

Codes of Ethics

19

Communications with the Board of Directors

19

Proposal No. 2 – Advisory Vote on Executive Compensation

20

Executive Officers

20

Compensation Discussion and Analysis

21

Executive Compensation Overview

21

Summary of Current Compensation Program

22

Compensation Philosophy and Objectives

23

Role of Compensation Committee and Board

24

Role of the Compensation Consultant

24

Role of Stockholder Say-On-Pay Vote

25

Elements of 2022 Compensation Program

25

Clawback Policy

30

Other Compensation and Benefits

30

Change in Control Executive Severance Agreements

31

Indemnification Agreements

31

Other Compensation Matters

31

Report of the Compensation Committee

32

Executive Compensation

32

Pay Ratio Disclosure

35

Proposal No. 3 – Approval and Ratification of Selection of Independent Registered Public Accounting Firm

37

Report of the Audit Committee

37

Independent Accountants’ Fees and Services

38

Proposal No. 4 – Approval of Amendment to the PHX Minerals Inc. 2021 Long-Term Incentive Plan

39

Background Purpose of the Proposal

39

Reasons for the LTIP Amendment

39

Burn Rate and Overhang Disclosure

40

Summary of the LTIP

40

Purpose of the LTIP

41

Shares Subject to the LTIP

41

Administration

42

Eligibility

42

Term of the LTIP

42

Stock Options

42

Bonus Stock Awards

43

(i)


 

Stock Appreciation Rights

43

Phantom Stock Awards

43

Restricted Stock Awards

44

Restricted Stock Unit Awards

44

Performance Awards

44

Other Stock or Performance-Based Awards

45

Adjustments upon Changes in Capitalization and Corporate Events

45

General Provisions Applicable to All Awards

46

Amendment; Termination

46

Federal Income Tax Aspects of the LTIP

47

Tax-Qualified Status of the LTIP

49

Section 409A of the Internal Revenue Code

49

Inapplicability of ERISA

49

New Plan Benefits

49

Vote Required

49

Other Matters

50

Stock Ownership of Management and Certain Beneficial Owners

50

Equity Compensation Plan Information

51

Delinquent Section 16(a) Reports

51

Stockholder Proposals

52

Annual Report to Stockholders

53

 

 

Appendix A – Amended and Restated PHX Minerals Inc. 2021 Long-Term Incentive Plan

A-1

 

 

 

 

 

 

 

 

(ii)


 

Proxy Statement Summary

 

This summary is included to provide an introduction and overview of the information contained in this Proxy Statement. This summary does not contain all of the information you should consider, and you should carefully read the Proxy Statement in its entirety before voting. Additional information regarding the Company and its performance in fiscal year 2022 can be found in our Annual Report on Form 10-K for the year ended September 30, 2022.

 

2023 ANNUAL MEETING OF STOCKHOLDERS

Date and Time:

March 6, 2023, at 9:00 a.m., Central Standard Time

Location:

Virtual access at www.proxydocs.com/PHX

Record Date:

January 9, 2023

Stockholders Entitled to Vote:

Holders of our Common Stock, par value $0.01666 per share (“Common Stock”), as of the close of business on the Record Date are entitled to vote. Each share of Common Stock is entitled to one vote by proxy or in person at the Annual Meeting.

 

 PROPOSALS AND BOARD RECOMMENDATIONS

 

 

 

 

Proposal

 

Board
Recommendation

No. 1

 

Election of two directors to serve on the Company’s board of directors for three-year terms ending at the Company’s annual meeting in 2026.

 

FOR
each nominee

No. 2

 

Advisory vote to approve the compensation of the Company’s named executive officers.

 

FOR

No. 3

 

Ratification of the selection and appointment of Ernst & Young LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2023.

 

FOR

No. 4

 

Approval of an amendment to the PHX Minerals Inc. 2021 Long-Term Incentive Plan to increase the number of authorized shares by 2,400,000 shares.

 

FOR

 

(1)


 

QUESTIONS AND ANSWERS ABOUT

THE ANNUAL MEETING AND VOTING

 

 

What is the purpose of the Annual Meeting?

 

At the Annual Meeting, our stockholders will act upon the matters outlined in the Notice of Annual Meeting, including (1) the election of two director nominees to serve on our board of directors (the “Board”) for three-year terms ending at the annual meeting of stockholders in 2026 (this proposal is referred to as the “Election of Directors”); (2) a non-binding, advisory vote to approve the compensation of our named executive officers (this proposal is referred to as “Executive Compensation”); (3) the ratification of the selection and appointment of Ernst & Young LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2023 (this proposal is referred to as “Ratification of Accounting Firm”); (4) the approval an amendment to the PHX Minerals Inc. 2021 Long-Term Incentive Plan to increase the number of authorized shares by 2,400,000 shares (this proposal is referred to as “LTIP Amendment”); and (5) the transaction of such other business as may arise that can properly be conducted at the Annual Meeting or any adjournment or postponement thereof.

 

What is a proxy?

 

A proxy is another person that you legally designate to vote your stock. If you designate a person or entity as your proxy in a written document, such document is also called a proxy or a proxy card. All duly executed proxies received prior to the Annual Meeting will be voted in accordance with the choices specified thereon and, in connection with any other business that may properly come before the meeting, in the discretion of the persons named in the proxy.

 

What is a proxy statement?

 

A proxy statement is a document that regulations of the SEC require that we make available to you when we ask you to sign a proxy card to vote your stock at the Annual Meeting. This proxy statement describes matters on which we would like you, as a stockholder, to vote and provides you with information on such matters so that you can make an informed decision.

 

Why did I receive a Notice of Internet Availability of Proxy Materials instead of printed proxy materials?

 

Pursuant to rules adopted by the SEC, we have elected to provide access to our proxy materials over the Internet. Accordingly, we are sending a Notice of Internet Availability of Proxy Materials (the “Notice”) to our stockholders. All stockholders will have the ability to access the proxy materials on the website referred to in the Notice or to request a printed set of the proxy materials. Instructions on how to access the proxy materials over the Internet or to request a printed copy may be found in the Notice. We encourage you to take advantage of the availability of the proxy materials on the Internet in order to help reduce the costs and environmental impact of the Annual Meeting.

 

How can I access the proxy materials over the Internet?

 

Pursuant to rules adopted by the SEC, we provide stockholders access to our proxy materials for the Annual Meeting over the Internet. The proxy materials for the meeting are available at www.proxydocs.com/PHX. To access these materials and to vote, follow the instructions shown on the proxy card, voting instruction card from your broker or the Notice.

 

Can I get paper copies of the proxy materials?

 

You may request paper copies of the proxy materials, including our 2022 annual report, by calling 1-866-648-8133 or e-mailing paper@investorelections.com with “Proxy Materials PHX Minerals Inc.” in the subject line. Include your full name and address, plus the control number located in the shaded bar on the reverse side of the

(2)


 

Notice received and state that you want a paper copy of the Annual Meeting materials. You also may request paper copies when prompted at www.investorelections.com/PHX.

 

Can I choose the method in which I receive future proxy materials?

 

Below are descriptions of the methods in which stockholders of record may receive future proxy materials or notice thereof:

 

Notice and Access: The Company furnishes proxy materials over the Internet and mails the Notice to most stockholders.

 

Mail: You may request distribution of paper copies of future proxy materials by mail by calling 1-866-648-8133, or by e-mailing paper@investorelections.com with “Proxy Materials PHX Minerals Inc.” in the subject line. Include your full name and address, plus the control number located in the shaded bar on the reverse side of the Notice received and state that you want a paper copy of the Annual Meeting materials. If you are voting electronically at www.proxypush.com/PHX, follow the instructions to enroll for paper copies by mail after you vote.

 

E-mail: If you would like to have earlier access to future proxy materials and reduce our costs of printing and delivering the proxy materials, you can instruct us to send all future proxy materials to you via e-mail. If you request future proxy materials via e-mail, you will receive an e-mail next year with instructions containing a link to those materials and a link to the proxy voting website. Your election to receive proxy materials via e-mail will remain in effect until you change it. If you wish to receive all future materials electronically, please log in to www.investorelections.com/PHX to enroll or, if voting electronically at www.investorelections.com/PHX, follow the instructions to enroll for electronic delivery.

 

If you are a beneficial owner, you should consult the directions provided by your broker, bank, or other nominee with respect to how you receive your proxy materials and how to vote your shares.

 

Can I vote my shares by completing and returning the Notice?

 

No, the Notice simply instructs you on how to vote. You may vote by Internet or telephone using the instructions on the Notice, or by marking, signing and dating the enclosed proxy card and mailing it promptly in the postage-paid envelope, provided you received a paper copy of the proxy card.

 

What is “householding”?

 

The SEC permits companies and intermediaries (such as brokers, banks and other nominees) to satisfy delivery requirements for proxy statements and annual reports with respect to two or more stockholders sharing the same address by delivering a single proxy statement and annual report to those stockholders. This practice, known as “householding,” is designed to reduce duplicate mailings and save significant printing and postage costs. If you received a householded mailing this year and you would like to have additional copies of our Notice or paper copies of our proxy statement, proxy card and annual report (the “Proxy Materials”) mailed to you or you would like to opt out of this practice for future mailings, please submit your request in writing to Computershare, P.O. Box 43078, Providence, RI 02940-3078, or by telephone by calling 1-800-884-4225, and we will promptly deliver such additional materials to you. You may also contact us in the same manner if you received multiple copies of the Proxy Materials and would prefer to receive a single copy in the future. The Proxy Materials are also available at: www.proxydocs.com/PHX.

(3)


 

What should I do if I receive more than one set of voting materials?

 

Despite our efforts related to householding, you may receive more than one copy of the Notice and multiple proxy cards or voting instruction cards. For example, if you hold your shares in more than one brokerage account, you will receive a separate voting instruction card for each brokerage account in which you hold shares. Similarly, if you are a stockholder of record and hold shares in a brokerage account, you will receive a proxy card and a voting instruction card. Please complete, sign, date and return each proxy card and voting instruction card that you receive to ensure that all your shares are voted at the Annual Meeting.

 

Who is entitled to notice of, and to vote at, the Annual Meeting?

 

Governing laws and our governance documents require our Board to establish a record date in order to determine who is entitled to receive notice of, attend and vote at the Annual Meeting, and any continuations, adjournments or postponements thereof.

 

The record date for the determination of stockholders entitled to notice of and to vote at the Annual Meeting is the close of business on January 9, 2023 (the “Record Date”).

 

As of the Record Date, we had 36,491,333 shares of Common Stock outstanding. All holders of Common Stock of record at the close of business on the Record Date will be entitled to vote at the Annual Meeting or any adjournments or postponements.

 

A list of all stockholders of record entitled to vote at our Annual Meeting will be available for examination at least 10 days prior to the Annual Meeting at our office located at 1320 S. University Dr., Suite 720, Fort Worth, TX 76107, during normal business hours, and will be available for inspection at the Annual Meeting.

 

How do I attend and participate in the Annual Meeting?

 

Attendance at the Annual Meeting is limited to stockholders as of the Record Date. Stockholders can register to attend the Annual Meeting by visiting www.proxydocs.com/PHX. The Annual Meeting will begin promptly at 9:00 a.m. Central Standard Time. We encourage you to allow ample time for online check-in, which will open at 8:45 a.m. Central Standard Time. If you plan to participate, submit questions or vote during the virtual Annual Meeting, you will need the Control Number included in the Notice or proxy card.

 

How can I request technical assistance during the Annual Meeting?

 

If you encounter any difficulties accessing the Annual Meeting during the check-in or during the meeting, please call the technical support number that will be posted on the virtual meeting log-in page at www.proxydocs.com/PHX.

 

Will I be able to ask questions during the Annual Meeting?

 

Stockholders will be able to transmit questions through www.proxydocs.com/PHX. Only stockholders with a valid Control Number will be allowed to ask questions. Questions pertinent to meeting matters will be answered during the Annual Meeting, subject to time constraints.

 

What is a quorum?

 

A quorum is the presence, in person or by proxy, of a majority of the shares of our Common Stock outstanding and entitled to vote as of the Record Date. There must be a quorum for the transaction of business at the Annual Meeting. If a quorum is not present, the Annual Meeting may be adjourned until a quorum is reached. Proxies received but marked as abstentions or broker non-votes will be included in the calculation of votes considered to be present at the Annual Meeting for the purpose of determining a quorum.

 

(4)


 

What are the voting rights of our stockholders?

 

Each record holder of Common Stock is entitled to one vote per share of Common Stock on all matters to be acted upon at the Annual Meeting.

 

What is the difference between a stockholder of record and a “street name” holder?

 

Most stockholders hold their shares in “street name” through a broker, bank or other nominee rather than directly in their own name. As summarized below, there are some distinctions between shares held of record and those owned in street name.

 

 

Stockholder of Record. If your shares are registered directly in your name with our transfer agent, you are considered the stockholder of record with respect to those shares. As the stockholder of record, you have the right to grant your voting proxy directly or to vote in person at the Annual Meeting.

 

 

Street Name Stockholder. If your shares are held in a stock brokerage account or by a bank, fiduciary or other nominee, you are considered the beneficial owner of shares held in “street name.” In this case, such broker, bank or other nominee is considered the stockholder of record for purposes of voting at the Annual Meeting. As the beneficial owner, you have the right to direct your broker, bank or nominee how to vote and are also invited to attend the Annual Meeting. If you hold your shares in “street name,” follow the voting instructions provided by your broker, bank or other nominee to vote your shares. Since you are not the stockholder of record, you may not vote these shares in person at the Annual Meeting unless you obtain a signed proxy from the record holder (your bank, broker or other nominee) giving you the right to vote the shares.

 

How do I vote my shares?

 

Stockholders of Record: Stockholders of record may vote their shares or submit a proxy to have their shares voted by one of the following methods:

 

 

By Proxy. You may give us your proxy by calling the toll-free telephone number or using the Internet as further described on the Notice. Telephone and Internet voting procedures have been designed to verify your identity through a personal identification or control number and to confirm that your voting instructions have been properly recorded. If you received a paper proxy card, you may give us your proxy by completing the proxy card and returning it to us in the U.S. postage-prepaid envelope accompanying the proxy card.

 

 

To Vote During the Annual Meeting. You must do so through www.proxydocs.com/PHX. To be admitted to the Annual Meeting and vote your shares, you must register and provide the Control Number as described in the Notice and proxy card. After completion of your registration, further instructions, including a unique link to access the Annual Meeting, will be emailed to you.

 

Street Name Stockholders: Street name stockholders may vote their shares or direct their broker, bank or other nominee to vote their shares by one of the following methods:

 

 

By Voting Instruction Card. If you hold your shares in street name, your broker, bank or other nominee will explain how you can access a voting instruction card for you to use in directing the broker, bank or other nominee how to vote your shares. The availability of telephone or Internet voting depends on the voting process used by the broker or nominee that holds your shares.

 

 

To Vote During the Annual Meeting with a Proxy from the Record Holder. You may vote during the Annual Meeting if you obtain a legal proxy from your broker, bank or other nominee. Please consult the instruction card or other information sent to you by your broker, bank or other nominee to determine how to obtain a legal proxy in order to vote at the Annual Meeting.

 

(5)


 

If you are a stockholder of record, your shares will be voted by the management proxy holder in accordance with the instructions on the proxy card you submit.

 

Can I revoke my proxy or change my vote?

 

Yes. If you are a stockholder of record, you can revoke your proxy at any time before it is voted at the Annual Meeting by doing one of the following:

 

 

submitting written notice of revocation stating that you would like to revoke your proxy to PHX Minerals Inc., Attention: Chad True, 1601 NW Expressway, Suite 1100, Oklahoma City, Oklahoma, 73118, which must be received prior to the Annual Meeting;

 

 

using the same method (by telephone, Internet or mail) that you first used to vote your shares, in which case the later submitted proxy will be recorded and the earlier proxy revoked; or

 

 

during the Annual Meeting, notifying the inspector of election that you wish to revoke your proxy and voting your shares during the Annual Meeting. Attendance at the Annual Meeting without submitting a ballot to vote your shares will not revoke or change your vote.

 

If you are a beneficial or street name stockholder, you should follow the directions provided by your broker, bank or other nominee to revoke your voting instructions or otherwise change your vote before the applicable deadline. You may also vote during the Annual Meeting if you obtain a legal proxy from your broker, bank or other nominee as described in “How do I vote my shares?” above.

 

What are abstentions and broker non-votes?

 

An abstention occurs when the beneficial owner of shares, or a broker, bank or other nominee holding shares for a beneficial owner, is present, in person or by proxy, and entitled to vote at the Annual Meeting but fails to vote or voluntarily withholds its vote for any of the matters upon which the stockholders are voting.

 

Broker “non-votes” are shares held by brokers, banks or other nominees over which the broker, bank or other nominee lacks discretionary power to vote (such as for the election of directors) and for which the broker or nominee has not received specific voting instructions from the beneficial owner. If you are a beneficial owner and hold your shares in “street name,” you will receive instructions from your broker, bank or other nominee describing how to vote your shares. If you do not instruct your broker or nominee how to vote your shares, they may vote your shares as they decide as to each matter for which they have discretionary authority under the rules of the New York Stock Exchange (NYSE). There are non-discretionary matters for which brokers, banks and other nominees do not have discretionary authority to vote unless they receive timely instructions from you. If a broker, bank or other nominee does not have discretion to vote on a particular matter and you have not given timely instructions on how the broker, banker or other nominee should vote your shares, then such broker, bank or other nominee indicates it does not have authority to vote such shares on its proxy and a “broker non-vote” results. Although broker non-votes will be counted as present at the Annual Meeting for purposes of determining a quorum, they are not entitled to vote with respect to non-discretionary matters.

 

If your shares are held in street name and you do not give voting instructions, the record holder will not be permitted to vote your shares with respect to Proposal 1 (Election of Directors), Proposal 2 (Executive Compensation) and Proposal 4 (LTIP Amendment), and your shares will be considered broker non-votes with respect to these proposals. If your shares are held in street name and you do not give voting instructions, the record holder will have discretionary authority to vote your shares with respect to Proposal 3 (Ratification of Accounting Firm).

 

(6)


 

What vote is required for the proposals to be approved?

 

 

Proposal 1 (Election of Directors): To be elected, for an uncontested election, each nominee for election as a director must receive the affirmative vote of a majority of the votes cast by the holders of our Common Stock at the Annual Meeting. Votes may be cast “FOR” or “AGAINST” the election of each nominee. Abstentions and broker non-votes will have no effect on the outcome of this proposal.

 

 

Proposal 2 (Executive Compensation): To consider and vote upon, on a non-binding, advisory basis, a resolution to approve the compensation of our named executive officers as disclosed pursuant to the compensation disclosure rules of the SEC. This non-binding advisory vote will be approved if it receives the affirmative vote of a majority of the shares of our Common Stock represented in person or by proxy at the Annual Meeting. Abstentions and broker non-votes will have the effect of a vote “AGAINST” approval.

 

 

Proposal 3 (Ratification of Accounting Firm): Ratification of the selection and appointment of Ernst & Young LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2023 requires the affirmative vote of a majority of the shares of our Common Stock represented in person or by proxy at the Annual Meeting. Abstentions will have the effect of a vote “AGAINST” approval. Brokers will have discretionary authority to vote on Proposal 3 and, accordingly, there will be no broker non-votes for this proposal.

 

 

Proposal 4 (LTIP Amendment): The approval of an amendment to the PHX Minerals Inc. 2021 Long-Term Incentive Plan to increase the number of authorized shares by 2,400,000 shares (as described herein) requires the affirmative vote of a majority of shares of our Common Stock represented in person or by proxy at the Annual Meeting. Abstentions and broker non-votes will have the effect of a vote “AGAINST” approval.

 

 

How does the Board recommend that I vote?

 

Our Board recommends a vote:

 

FOR each of the nominees for director;

 

 

FOR the non-binding, advisory approval of named executive officer compensation;

 

 

FOR the ratification of the selection and appointment of Ernst & Young LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2023; and

 

 

FOR the approval of the amendment to the PHX Minerals Inc. 2021 Long-Term Incentive Plan to increase the number of authorized shares by 2,400,000 shares.

 

What happens if I provide my signed proxy but do not specify how I want my shares to be voted, or if additional proposals are presented at the Annual Meeting?

 

If you provide us your signed proxy but do not specify how to vote, we will vote your shares as follows:

 

Proposal 1. FOR the election of each director nominee;

 

Proposal 2. FOR the approval, on an advisory basis, of the compensation of our named executive officers;

 

Proposal 3. FOR the ratification of the selection and appointment of Ernst & Young LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2023; and

 

(7)


 

Proposal 4. FOR the approval of the amendment to the PHX Minerals Inc 2021 Long-Term Incentive Plan to increase the number of authorized shares by 2,400,000 shares.

 

Management knows of no other matters to be brought before the Annual Meeting. However, if any other matters do properly come before the meeting, it is intended that the shares represented by the proxies in the accompanying form will be voted as the Board may recommend.

 

Who will bear the cost of soliciting votes for the Annual Meeting?

 

The cost of soliciting proxies for the Annual Meeting will be paid by the Company. In addition to solicitation by mail, arrangements may be made with brokerage firms, banks or other nominees to send Proxy Materials to beneficial owners. The Company will reimburse these institutions for their reasonable costs in forwarding solicitation materials to such beneficial owners. The Company may engage third-party solicitors to solicit proxies for the Annual Meeting.

 

May I propose actions for consideration at the 2024 annual meeting of stockholders or nominate individuals to serve as directors?

 

You may submit proposals for consideration at future stockholder meetings, including director nominations. Please read the “Stockholder Proposals” section of this proxy statement for information regarding the submission of stockholder proposals and director nominations for consideration at the Company’s 2024 annual meeting of stockholders.

 

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Proposal No. 1

Election of Two Directors for Three-Year Terms Ending at the Annual Meeting in 2026

Directors

The current directors of the Company and their current Board Committee memberships are as follows:

 

 

 

 

 

Positions/Offices Presently

 

Served As

 

Present

Name

 

Age

 

Held with the Company

 

Director Since

 

Term Ends

Mark T. Behrman (1)(2)

 

60

 

Director, Non-Executive Chairman of the Board

 

2017

 

2025

Glen A. Brown (1)(2)

 

66

 

Director

 

2021

 

2024

Lee M. Canaan (1)(3)

 

66

 

Director

 

2015

 

2024

Peter B. Delaney (2)(3)

 

69

 

Director

 

2018

 

2024

Steven L. Packebush (1)

 

57

 

Director

 

2022

 

2023

John H. Pinkerton (2)(3)

 

68

 

Director

 

2021

 

2025

Chad L. Stephens

 

67

 

Director, Chief Executive Officer

 

2017

 

2023

(1)
Member of the Audit Committee.
(2)
Member of the Compensation Committee.
(3)
Member of the Governance and Sustainability Committee.

Our Bylaws state that the Board shall be comprised of not less than five members with the exact number determined by resolution of the Board adopted by a vote of two-thirds (2/3) of the Board or at an annual or special meeting of the stockholders by the affirmative vote of sixty-six and two-thirds percent (66-2/3%) of the shares of outstanding Common Stock entitled to vote. The Board has set the current size of the Board at seven members. The Board is divided into three classes. At each annual stockholders’ meeting, the term of one class expires. Directors in each class ordinarily serve three-year terms, or until the director’s retirement or until his or her successor is elected and qualified.

The Board believes it is in the Company’s best interest to continue to have a classified board structure, with three-year terms for its directors, due to the uniqueness of the Company’s assets and strategies. The Company’s focus on ownership of perpetual fee mineral acres requires business strategies that are more long-term oriented as compared to more traditional oil and gas exploration and production companies. We believe that this requires the Company’s directors to have a long-term outlook and understanding rather than a focus on short-term results. This focus on long-term results will serve the Company well and create value for our stockholders.

Based on the recommendations from the Governance and Sustainability Committee, our Board has nominated two continuing directors, Chad L. Stephens and Steven L. Packebush, to stand for election to the Board at the Annual Meeting, each to serve a three-year term expiring at the 2026 annual meeting or until the election and qualification of their respective successors or until their earlier death, retirement, resignation or removal.

Mr. Stephens and Mr. Packebush were recommended as nominees for election by the Governance and Sustainability Committee and approved by the Board. Each nominee has consented to being named as a nominee in this proxy statement and has indicated a willingness to serve on the Board if elected. However, if any nominee should be unable for any reason to accept nomination or election, it is the intention of the persons named in the proxy to vote such proxies for the election of such other person or persons as the Board may recommend.

Directors Nominated for Election at the Annual Meeting

Below is information about our nominees for election to the Board for three-year terms ending at the Company’s annual meeting in 2026. The biographical information reflects the particular experience, qualifications, attributes and skills that led the Board to conclude that each nominee should stand for election to the Board.

 

Steven L. Packebush, 57, is a founder and partner in Elevar Partners, LLC, a company providing advisory services and capital solutions for companies in the agriculture and energy markets. Prior to Elevar Partners, Mr. Packebush worked at Koch Industries, Inc. for over 30 years, retiring in March 2018. Until his retirement, he was

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the president of Koch Ag & Energy Solutions (“KAES”). Under his leadership, KAES grew to be one of world’s largest fertilizer companies. Mr. Packebush also oversaw the expansion of KAES, which included the addition of three start-up businesses: Koch Energy Services became one of the largest natural gas marketing companies in North America; Koch Methanol supplied methanol to global customers in the plywood, carpet, fuels, and plastics markets; and Koch Agronomic Services became a global leader in enhanced-efficiency fertilizer production and marketing. Mr. Packebush currently serves on the LSB Industries, Inc. board of directors. He is a graduate of Kansas State University with a bachelor’s degree in agricultural economics. Mr. Packebush was appointed to the Board effective April 2022.

 

Mr. Packebush’s qualifications to serve on the Board include his extensive management and operational experience, and his management of a natural gas marketing company, which provided him with a broad knowledge of the energy market.

Chad L. Stephens, 67, was appointed Chief Executive Officer of the Company on January 16, 2020. Prior to his appointment as Chief Executive Officer, Mr. Stephens served as the Interim Chief Executive Officer of the Company, a position he was appointed to in August 2019. Mr. Stephens previously served as Senior Vice President – Corporate Development of Range Resources Corporation (“Range”), a position he held from 2002 until his retirement effective December 31, 2018. Mr. Stephens joined Range in 1990 as Senior Vice President – Southwest. While at Range, he was responsible for the origination, valuation and acquisition or divestiture of over $6.0 billion of oil and gas producing properties. Mr. Stephens served on Range’s internal hedging committee and was responsible for the oversight of all gas, oil and NGL marketing and sales. Mr. Stephens holds a Bachelor of Arts degree in Finance and Land Management from the University of Texas. He was appointed to the Board in 2017 and previously served as its Lead Independent Director.

Mr. Stephens’ qualifications to serve on the Board include his 40 years of oil and gas experience, having served 28 years in various senior management roles with Range, including significant experience with mergers and acquisitions, land and risk management, midstream logistics and commodity sales.

To elect a nominee for director, a majority of the votes cast on Proposal No. 1 with respect to such nominee must vote “FOR” such nominee.

BOARD RECOMMENDATION

The Board of Directors Recommends Stockholders Vote “FOR” each of the Director Nominees Named in this Proxy Statement.

Directors Continuing in Office

Below is information about our continuing directors whose terms of office do not expire at the Annual Meeting. These individuals are not standing for re-election at this time:

Directors Whose Terms End at the 2024 Annual Meeting

Lee M. Canaan, 66, is the founder and portfolio manager of Braeburn Capital Partners, LLC (a private investment management firm), established in 2003 in Bloomfield Hills, MI. Ms. Canaan has over 35 years of oil and gas and investment management experience, starting her career as an Exploration Geophysicist at Amoco Production Company, then ARCO, and AIM/Invesco. She was elected to the Board in 2015.

Ms. Canaan currently serves on the board of EQT Corporation (natural gas production company operating exclusively in the Appalachian Basin of the U.S.), ROC Energy Acquisition Corporation (a special purpose acquisition corporation looking to acquire non-operated exploration and production working interest properties) and Aethon Energy, LLC (private exploration and production company with main operations in East Texas and western Louisiana). She has also served on the board of directors of the following publicly held companies: Noble International Ltd. (a supplier to the automotive industry), from 2000 to 2004, where she served as the Compensation Committee Chairman from 2002 to 2004; Oakmont Acquisition Corporation (a special purpose acquisition corporation), from 2005 to 2007; Equal Energy Ltd. (oil and gas exploration and production), from 2013 until its sale in 2014; and Rock Creek Pharmaceuticals (pharmaceutical research and development), from 2014 to 2016,

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where she also served as the chairman of the Audit and Nominating and Corporate Governance committees. She also served on the board of Philadelphia Energy Solutions, LLC(a private downstream energy company and the largest crude oil refining complex on the East Coast of the U.S.), from 2018 to 2020. She holds a bachelor’s degree in Geological Sciences from the University of Southern California, a master’s degree in Geophysics from the University of Texas at Austin, and an MBA degree in Finance from The Wharton School of the University of Pennsylvania. She is also a Chartered Financial Analyst.

Ms. Canaan’s qualifications to serve on the Board include her corporate finance, capital markets and merger and acquisition experience; her scientific background in geology and geophysics; her oil and gas exploration knowledge of North American basins; and her experience serving as a director of several public and private companies.

Peter B. Delaney, 69, is currently a principal with Tequesta Capital Partners, an entity that provides funding for various real estate and other ventures. He has held this position since 2016. Mr. Delaney was previously the Chairman and Chief Executive Officer of OGE Energy Corporation (“OGE Energy”) from 2007 to 2015. OGE Energy is a NYSE listed company and the parent company of OG&E, an electric utility provider, and owned a 50% interest in the General Partner of Enable Midstream Partners (NYSE: ENBL). Mr. Delaney was elected President of OGE Energy and as a member of its Board in 2007. Mr. Delaney retired as Chief Executive Officer of OGE Energy in May 2015 to step in as the Interim Chief Executive Officer of Enable Midstream Partners, a position he held until December 2015. From 2002 to 2013, Mr. Delaney also served as Chief Executive Officer of Enogex, an OGE Energy subsidiary involved in natural gas midstream services, and one of the predecessor companies to Enable Midstream Partners.

During his tenure as Chief Executive Officer, OG&E received numerous industry awards, among them the 2012 Utility of the Year and the 2013 Edison Award, the industry’s highest honor. Mr. Delaney previously completed a 16-year investment banking career on Wall Street, specializing in corporate finance and in providing other advisory services to electric utilities and other energy companies. In addition to extensive capital markets experience, he provided advisory services in tender offer defenses and mergers and acquisitions.

Mr. Delaney was elected to the Company’s Board in 2018. He has also served on the Board of Directors of the following companies: OGE Energy (Chairman) from 2007 to 2015; Enable Midstream Partners (Chairman) from 2013 to 2017: the Federal Reserve Bank of Kansas City from 2012 to 2017; and the Oklahoma City Boathouse Foundation (US Olympic and Paralympic Training Site) (Chairman) from 2007 to 2018. He currently serves on the Board of Directors of Integris Health System (comprised of hospitals and health providers throughout Oklahoma) (Chairman) since 2009; and Cabot Oil and Gas for a 3-year period ending October 4, 2021 upon the closing of the merger with Cimarex Energy Co.

Mr. Delaney’s qualifications to serve on the Board include his extensive management experience in the energy industry, extensive investment banking experience, financial expertise and his record of service on the board of directors of public and non-public companies. His management experience in the natural gas midstream sector provides him with a sound knowledge base and perspective on issues affecting the energy business.

Glen A. Brown, 66, has broad oil and gas experience both as a senior executive and as an independent explorationist. Mr. Brown served as the Senior Vice President of Exploration for Continental Resources (“Continental”) from 2015 to 2017. He joined Continental in 2012 as Manager of New Ventures and in 2013 was named Vice President of Geology. During his career at Continental, he managed annual budgets of $2 to $4 billion with active leasing, drilling and completion programs. Prior to joining Continental, he was an independent owner of NE LLC from 2003 to 2012, which developed projects that resulted in over 200 wells being drilled and completed with 12 different operators. From 1991 to 2003, he served as an Exploration Manager for EOG Resources-Midcontinent Division where he was responsible for various drilling programs and numerous field discoveries. From 1985 to 1991, Mr. Brown held middle management positions with TXO Production Company. From 1982 to 1985, he began his career as an Exploration Geologist with Marshall R. Young oil company. He holds a bachelor’s degree in Geology from State University of New York at Plattsburgh and a master’s degree in Geology from New Mexico State University in Las Cruces. Mr. Brown was elected to the Board in 2021.

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Mr. Brown’s qualifications to serve on the Board include his 40 years of oil and gas experience identifying acquisition and divestiture targets and assessing risks of projects, his extensive knowledge of prospect economics and of horizontal drilling and completions in unconventional resource plays, and his 33 years in various management roles.

Directors Whose Terms End at the 2025 Annual Meeting

Mark T. Behrman, 60, has been with LSB Industries, Inc. (“LSB”), Oklahoma City, (a publicly traded manufacturer and marketer of chemical products for the agricultural, mining and industrial markets) since 2014. Mr. Behrman currently serves as LSB’s President and Chief Executive Officer, a position he has held since December 30, 2018. Mr. Behrman joined LSB as Senior Vice President of Corporate Development and served in that capacity until June 2015 and served as Executive Vice President – Chief Financial Officer from June 2015 through December 2018. Prior to LSB, Mr. Behrman was Managing Director, Head of Investment Banking and Head of the Industrial and Energy Practices of Sterne Agee, Inc., from 2007 to 2014. Mr. Behrman has over 35 years of operational, financial, executive management, and investment banking experience.

Mr. Behrman has served on the Board since 2017, as its Chairman since 2019 and as Audit Committee Chairman from 2018 to 2022. He also has served on the Board of Directors of LSB since 2018 and on the Board of Directors of The Fertilizer Institute since 2019. Mr. Behrman previously has served on the board of directors of the following publicly held companies: Noble International Ltd., (a supplier to the automotive industry) from 1998 to 2007, where he also served as Audit Committee Chairman from 1998 to 2003; Oakmont Acquisition Corporation (a special purpose acquisition corporation), from 2005 to 2007 and; Robocom Systems International (a developer and marketer of advanced warehouse management software solutions), from 1998 to 2000.

Mr. Behrman holds an MBA in Finance from Hofstra University and a Bachelor of Science in Accounting, Minor in Finance from Binghamton University.

Mr. Behrman’s qualifications to serve on the Board include his executive management and operational experience, his extensive investment banking experience, his experience in accounting and finance, including as Chief Financial Officer of LSB Industries, his co-founding and management of several diverse businesses and his previous experience as a director of several public companies.

John H. Pinkerton, 68, has served on the Board since February 1, 2021. Mr. Pinkerton has had a long and distinguished career in the oil and gas industry, including serving at Range Resources Corporation (NYSE: RRC), a petroleum and natural gas exploration and production company, as President in 1990 and as Chief Executive Officer from 1992 until 2012. During his 27-year tenure, Range Resources grew from its small cap origins to be a $13 billion enterprise with a preeminent position in the Marcellus Shale. As CEO of Range Resources, Mr. Pinkerton established the technical expertise to enable a drilling-led strategy complemented by bolt-on acquisitions where synergies would enhance growth. Prior to joining Range Resources, Mr. Pinkerton served in various capacities at Snyder Oil Corporation for 12 years, including the position of Senior Vice President.

Mr. Pinkerton began serving as a director of Range Resources in 1988 and was Chairman of its board of directors from 2008 until his retirement as a director in January 2015. Since 2017, Mr. Pinkerton has served as Executive Chairman and is Chairman of the Board of Directors of Encino Energy, LLC, a Houston-based private oil and gas company. Mr. Pinkerton is also a director of EP Energy Corporation where he has served since October 2020. Mr. Pinkerton received his Bachelor of Arts degree in Business Administration from Texas Christian University, where he now serves on the board of trustees, and a Master’s degree from the University of Texas at Arlington. He has represented the energy industry in policy matters, serving on the executive committee of America’s Natural Gas Alliance.

Mr. Pinkerton’s qualifications to serve on the Board include his widespread skills in the management, acquisition and divestiture of oil and gas properties, including related corporate financing activities, hedging, risk analysis and the evaluation of drilling programs.

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CORPORATE GOVERNANCE AND OUR BOARD

Our Board

Board Leadership Structure and Non-Executive Chairman of the Board

The Company established the position of Non-Executive Chairman of the Board effective August 3, 2021, which replaced the role of Lead Independent Director. It is the policy of the Company that a Non-Executive Chairman of the Board shall be elected annually to preside over meetings of the Board and executive sessions of the Company’s independent directors, to facilitate information flow and communication between the directors and the Chief Executive Officer and to perform such other duties specified by the Board and outlined in the Charter of the Non-Executive Chairman of the Board. The Non-Executive Chairman of the Board determines the agenda and presides at all Board meetings and all executive sessions of non-employee directors. The Non-Executive Chairman of the Board also performs other duties that the Board may from time-to-time delegate to assist the Board in the fulfillment of its responsibilities.

Effective August 26, 2019, Mark T. Behrman was named Lead Independent Director by the Board and was reaffirmed as the Non-Executive Chairman of the Board at the December 8, 2022 Governance and Sustainability Committee meeting.

The Board adopted a “Non-Executive Chairman of the Board Guidelines,” which can be viewed at the Company’s website: www.phxmin.com under the “Governance Library” section of the “Corporate Governance” tab.

Board Independence

Our Board annually determines the independence of each director and nominee for election as a director based on a review of the information provided by the directors and nominees. The Board makes these determinations under the independence standards set forth in the NYSE Listed Company Manual, applicable SEC rules and our Corporate Governance Guidelines. A copy of our Corporate Governance Guidelines can be viewed at the Company’s website: www.phxmin.com under the “Governance Library” section of the “Corporate Governance” tab.

As a result of its annual evaluation, the Board affirmatively determined by resolution that each of the Company’s current non-employee directors is independent under the listing standards of the NYSE, the requirements of the SEC and our Corporate Governance Guidelines. The Board has determined that each of the following non-employee directors is independent and has no material relationship with the Company that could impair such director’s independence: Mark T. Behrman, Glen A. Brown, Lee M. Canaan, Peter B. Delaney, Steven L. Packebush, and John H. Pinkerton.

Chad L. Stephens is not independent based on his service as the Company’s President and Chief Executive Officer. Mr. Stephens is the only director who is an officer or employee of the Company, and he does not currently serve on any Board committee.

Meetings and Committees of the Board of Directors

During the fiscal year ended September 30, 2022 (“fiscal 2022”), the Board held 13 meetings. At each meeting, a quorum of directors was present. The non-employee directors held executive sessions at each regularly scheduled Board meeting without management present.

Pursuant to the Corporate Governance Guidelines, the Company expects all of its directors to attend regularly scheduled Board and committee meetings and the annual meeting of stockholders. During fiscal 2022, each director attended at least 75% of the meetings of the Board and each of the Board committees on which he or she served. All of the directors attended the Company’s 2022 annual meeting.

Each year, the Board conducts a formal evaluation of its performance. Additionally, each Board committee conducts a formal evaluation of such committee’s performance. The Board and Board committee evaluations address, among other matters, the qualifications and performance of individual directors, overall Board or committee dynamics, the quality of information received from management, the appropriateness of matters reviewed and the

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quality of Board or committee deliberations. The results of these evaluations are discussed with the chairs of the relevant committees, the Non-Executive Chairman of the Board, or the full Board in executive session, as appropriate.

Board Committees

The independent members of the Board are elected to serve on various Board committees. The Board presently has three standing committees: the Audit Committee, the Compensation Committee, and the Governance and Sustainability Committee. Each committee operates under a charter that has been approved by the Board, and the chair of each committee reports to the Board on actions taken at each committee meeting.

Audit Committee

The Audit Committee is currently comprised of Mark T. Behrman, Glen A. Brown, Lee M. Canaan (Chair) and Steven L. Packebush. The Board has determined that each member of the Audit Committee during fiscal 2022 met all applicable independence requirements during such member’s service on the committee and the financial literacy requirements of the SEC and the NYSE. Mark T. Behrman, Glen A. Brown, Lee M. Canaan and Steven L. Packebush have been determined by the Board to each meet the “audit committee financial expert” requirements of the SEC.

The purpose of the Audit Committee is to provide assistance to the Board in fulfilling its oversight responsibility to the Company’s stockholders, potential stockholders, the investment community and others, relating to: the integrity of the Company’s financial statements; the financial reporting process; the systems of internal accounting and financial controls; the performance of the Company’s internal audit function and independent auditors; the independent auditors’ qualifications and independence; and the Company’s compliance with ethics policies and legal and regulatory requirements. The primary responsibility of the Audit Committee is to oversee the Company’s financial reporting process on behalf of the Board and report the results of the Audit Committee’s activities to the Board. While the Audit Committee has the responsibilities and powers set forth in the Audit Committee Charter, it is not the duty of the Audit Committee to plan or conduct audits or to determine that the Company’s financial statements are complete and accurate and are in accordance with generally accepted accounting principles. Management is responsible for the preparation, presentation and integrity of the Company’s financial statements and for the appropriateness of the accounting principles and reporting policies that are used by the Company. The independent auditors are responsible for auditing the Company’s financial statements and for reviewing the Company’s unaudited interim financial statements. For additional information regarding the functions performed by the Audit Committee, see “Report of the Audit Committee.”

The Audit Committee met five times during fiscal 2022. The Audit Committee Charter, as amended in December 2017, is available at the Company’s website: www.phxmin.com under the “Governance Library” section of the “Corporate Governance” tab.

Compensation Committee

The Compensation Committee is currently comprised of Mark T. Behrman, Glen A. Brown, Peter B. Delaney (Chair), and John H. Pinkerton. Messrs. Brown, Delaney, and Pinkerton served on the Compensation Committee during fiscal 2022. Mr. Behrman joined the Compensation Committee effective April 1, 2022. During fiscal 2022, each member of the Compensation Committee met the applicable independence requirements during his service on the Compensation Committee, including the enhanced independence standards of the NYSE, and qualifies as a “Non-Employee Director” under Rule 16b-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

The purpose of the Compensation Committee is to discharge the Board’s responsibilities relating to compensation, employee benefits and incentive programs of the Company. The Compensation Committee has the overall responsibility of approving and evaluating executive officer compensation, retirement plans, policies and programs of the Company, and the compensation of directors. The Compensation Committee’s function includes reviewing officer performance and recommending to the Board compensation amounts for executive officers and directors. The Compensation Committee also oversees the administration of the Company’s 401(k) Plan. For

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additional information regarding the Compensation Committee, please see the Compensation Committee Charter and the “Compensation Discussion and Analysis” section of this proxy statement.

The Compensation Committee met nine times during fiscal 2022. The Compensation Committee Charter, as amended in May 2022, is available at the Company’s website: www.phxmin.com under the “Governance Library” section of the “Corporate Governance” tab.

Governance and Sustainability Committee

The Corporate Governance and Nominating Committee was renamed the Governance and Sustainability Committee by the Board in December 2021. The Governance and Sustainability Committee is currently comprised of Lee M. Canaan, Peter B. Delaney, and John H. Pinkerton (chair). Ms. Canaan and Messrs. Delaney and Pinkerton served on the Governance and Sustainability Committee during the entire fiscal 2022. The Board determined that each member of the Governance and Sustainability Committee during fiscal 2022 met the applicable independence requirements.

The purpose of the Governance and Sustainability Committee is to assist the Board with the management of its corporate governance, nominating and sustainability duties and responsibilities. Functions of the Governance and Sustainability Committee include: searching for, identifying and screening individuals qualified to become members of the Board; recommending to the Board when new members should be added to the Board; recommending to the Board individuals to fill vacant Board positions; recommending to the Board nominees for election as directors at each annual meeting; and recommending the committee structure of the Board and the directors who will serve as members and chairs of each committee. If a vacancy on the Board exists that will not be filled by an incumbent director, the Governance and Sustainability Committee identifies prospective nominees from several sources, including through the Board’s and management’s business and industry contacts and through stockholder recommendations. Currently, the Company does not pay a fee to any third party to identify or evaluate, or assist in identifying or evaluating, potential nominees.

The Governance and Sustainability Committee is also responsible for overseeing and evaluating compliance by the Board and management with the Company’s corporate governance principles and its Code of Ethics and Business Practices. The Governance and Sustainability Committee reviews periodically the corporate governance policies and principles of the Company and oversees the creation and implementation of policies and procedures appropriate for the Company related to the environment, sustainable development, and corporate responsibility.

Diversity

Although the Governance and Sustainability Committee does not have a formal policy with respect to diversity when considering potential nominees for Board membership, the Governance and Sustainability Committee seeks individuals with backgrounds and qualities that, when combined with those of the Company’s existing directors, provide a blend of skills and experience that will further enhance the Board’s effectiveness at the time the consideration is made. When considering potential nominees for Board membership, the Governance and Sustainability Committee considers, among other things, the candidate’s character, wisdom, judgment, acumen, diversity, skills, financial literacy, experience and understanding of and involvement in the oil and gas industry. The committee also considers a potential nominee’s availability to devote the time and effort necessary to fulfill his or her responsibilities in the context of the needs of the Company and the Board. Our Bylaws generally provide that a person may not stand for election or re-election as a director after attaining the age of 75.

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Stockholder Nominees

The Governance and Sustainability Committee will consider nominees proposed by stockholders of the Company if the requirements set forth in the Company’s Bylaws are satisfied. Nominations from our stockholders must include sufficient biographical information for the Governance and Sustainability Committee to appropriately assess the proposed nominee’s background and qualifications. To propose a prospective nominee for consideration by the Governance and Sustainability Committee, stockholders must submit the proposal in writing to PHX Minerals Inc., Attention: Secretary, 1320 S. University Dr., Suite 720, Fort Worth, Texas 76107. Any such submission must be accompanied by the proposed nominee’s written consent to being named as a nominee and to serve as a director, if elected. Whether recommended by a stockholder or through the activities of the Governance and Sustainability Committee, the Governance and Sustainability Committee seeks to select candidates who have distinguished records and who will make significant contributions to the Board and the Company. There are no differences in the manner in which the Governance and Sustainability Committee evaluates nominees for director based on whether a nominee was recommended by the incumbent directors or by a stockholder. For additional information, please see our Bylaws and the “Stockholder Proposals” section of this proxy statement.

The Governance and Sustainability Committee met four times during fiscal 2022. The Governance and Sustainability Committee Charter, as adopted in December 2021, and the Code of Ethics and Business Practices are available at the Company’s website: www.phxmin.com under the “Governance Library” section of the “Corporate Governance” tab.

Board Role in Risk Oversight

Management is responsible for day-to-day risk assessment and mitigation activities. The Board is responsible for risk oversight, focusing on the Company’s overall risk management strategy, its degree of tolerance for risk, and oversight of the steps management is taking to manage the Company’s risk. This process is designed to provide to the Board timely visibility needed for the identification, assessment and management of critical risks. The Audit Committee assists the Board by annually reviewing and discussing with management this process and its functionality. The areas of critical risk for the Company include information technology, strategic, operational, compliance, environmental and financial risks. The Board, or the Audit Committee, receives information regarding areas of risk and potential risk exposure through updates from the appropriate members of management to enable the Board to understand and monitor the Company’s risk management process. Information brought to the attention of the Audit Committee is appropriately shared with the Board.

Compensation of Directors

The compensation of our non-employee directors is reviewed by the Compensation Committee and is approved by the Board. We use a combination of cash and equity-based incentive compensation to attract and retain qualified candidates to serve on our Board. We consider the responsibilities of our non-employee directors and the amount of time such directors spend fulfilling their responsibilities and duties as a director in determining Board and Board committee compensation.

The following summary includes information regarding the compensation earned by our non-employee directors during fiscal 2022 for service on our Board and Board committees.

Cash Annual Retainers

For fiscal 2022, each of our non-employee directors received an annual retainer of $45,000, which has been pro-rated for the directors that served a partial year. We also reimburse our non-employee directors for out-of-pocket travel expenses incurred in connection with attending Board and committee meetings. The Non-Executive Chairman of the Board received an additional annual retainer of $25,000, and the chairs of the Audit Committee, the Compensation Committee, and the Governance and Sustainability Committee received additional annual retainers of $13,000, $10,500, and $9,000, respectively. The annual retainers were paid in equal installments on December 31, 2021, and March 31, June 30, and September 30, 2022. The first retainer installment subsequent to fiscal year 2022 was paid on the same basis on December 31, 2022. We recently changed our fiscal year such that fiscal year 2023 and future fiscal years will end on December 31 rather than September 30.

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The Company’s retainer and fee structure for non-employee directors was guided by a study conducted by Meridian Compensation Partners (“Meridian”), an independent compensation consultant.

Equity Incentive Plans for Non-Employee Directors

The Company’s Deferred Compensation Plan for Non-Employee Directors (the “Directors’ Deferred Compensation Plan”) and the PHX Minerals Inc. 2021 Long-Term Incentive Plan (the “LTIP”) serve as the equity incentive plans for the Company’s non-employee directors.

Deferred Compensation Plan for Non-Employee Directors

Annually, non-employee directors may elect to be included in the Directors’ Deferred Compensation Plan. The Directors’ Deferred Compensation Plan provides that each non-employee director may individually elect to be credited with future unissued shares of Common Stock rather than cash for all or a portion of the director’s annual retainers, and may elect to receive shares, if and when issued, over annual time periods up to ten years. These unissued shares of Common Stock are recorded to each director’s deferred compensation account at the closing market price of the shares on the payment dates of the annual retainers. Dividends are credited to each deferred account on the record date of each declared dividend. Upon a director’s retirement, resignation, termination, death or a change-in-control of the Company, the unissued shares of Common Stock recorded for such director under the Directors’ Deferred Compensation Plan will be issued to the director. In the case of a change-in-control of the Company, all shares in the deferred accounts will be issued in a single lump sum to the appropriate directors at the closing of the event triggering such change-in-control. The promise to issue such shares in the future is an unsecured obligation of the Company. The following directors participated in the Directors’ Deferred Compensation Plan during all or a portion of fiscal 2022: Mark T. Behrman, Glen A. Brown, Peter B. Delaney, Steven L. Packebush, and John H. Pinkerton.

Long-Term Incentive Plan

The Company’s independent directors are eligible to participate in the Company’s LTIP.

On March 2, 2022, the Board approved issuing restricted stock awards to each Director in the amount of $60,000 divided by the Company’s closing share price as of the last trading day on or prior to December 31, 2021. The shares were granted in March 2022 under the Company’s LTIP and vested on December 20, 2022. For additional information regarding the grants of restricted stock to our non-employee directors, please see the “Non-Employee Directors Compensation” table below.

Director Compensation for Fiscal 2022

The table below sets forth the total non-employee director compensation earned during fiscal 2022 for each person who served in such capacity at any time during fiscal 2022. The fiscal 2022 compensation of Chad L. Stephens, who served as a director and Chief Executive Officer, is disclosed under the caption “Executive Compensation – Summary Compensation Table” of this proxy statement.

Non-Employee Directors Compensation for Fiscal 2022

 

Name

 

Fees Paid in Cash or Deferred(1)(2)

 

All Other Compensation(3)(4)

 

Total

Mark T. Behrman

 

$73,625

 

$82,251

 

$155,876

Glen A. Brown

 

$45,000

 

$78,453

 

$123,453

Lee M. Canaan

 

$55,000

 

$77,882

 

$132,882

Peter B. Delaney

 

$54,875

 

$80,737

 

$135,612

Christopher T. Fraser(5)

 

$19,000

 

$353

 

$19,353

Steven L. Packebush(6)

 

$22,500

 

$62,078

 

$84,578

John H. Pinkerton

 

$47,250

 

$78,318

 

$125,568

(1)
The following non-employee directors deferred 100% of their retainers under the Directors’ Deferred Compensation Plan: Mark T. Behrman, Glen A. Brown, and Steven L. Packebush. Messrs. Peter B. Delaney, Christopher T. Fraser and John H. Pinkerton deferred one quarter of their retainers and received their remaining fees in cash. Lee M. Canaan did not elect to participate in the Directors’ Deferred Compensation Plan and received cash payments for her retainers and fees in fiscal 2022.

(17)


 

(2)
At the end of fiscal 2022, the following future share amounts had been recorded to each non-employee director’s account under the Directors’ Deferred Compensation Plan: Behrman– 88,558 shares; Brown– 24,380 shares; Canaan– 7,211 shares; Delaney– 52,650 shares; Fraser– 3,384 shares; Packebush- 7,195 shares; and Pinkerton– 14,809 shares.
(3)
Includes dividends accrued under the Directors’ Deferred Compensation Plan. Under the Director’s Deferred Compensation Plan, dividends paid on the Common Stock are recorded to each non-employee director’s account on the record date of the dividend in the form of unissued shares of Common Stock. The amount recorded is based on the number of future unissued shares in each non-employee director’s account and the closing market price of the Common Stock on each dividend payment date. These future share amounts have no voting authority and the non-employee directors have no investment authority with respect thereto.
(4)
Includes restricted stock granted in March 2022 for each non-employee director of $60,000 divided by the closing price of the shares on December 31, 2021. Mr. Packebush’s award was pro-rated for his April 1 start date. The shares were valued in accordance with applicable accounting standards, which includes the grant date fair value of the awards.
(5)
Christopher T. Fraser’s term as a director ended at the 2022 annual meeting when he did not stand for reelection.
(6)
Steven L. Packebush was appointed as a director on April 1, 2022.

Share Ownership Guidelines for Directors

The Bylaws of the Company require non-employee directors to own shares of Common Stock in order to be a Board member. To align the interests of the directors with the Company’s stockholders, the Board has adopted a “Company Share Ownership” policy in the Corporate Governance Guidelines. The policy indicates that each director is expected to own a number of shares at the end of his or her fifth year of Board service equal to, on a cost basis, the aggregate amount of his or her first three years’ annual retainers for the regularly scheduled Board meetings held each year, plus the number of shares of restricted stock granted to such director under the Company’s LTIP, which are granted and vest during such three-year period. Future unissued shares that have been credited to the directors’ accounts under the Directors’ Deferred Compensation Plan may be used to satisfy this share ownership requirement.

We review all transactions and relationships in which the Company and any of our directors, nominees for director, executive officers or any of their immediate family members may be participants to determine whether any of these individuals have a direct or indirect material interest in any such transaction. We have developed and implemented processes and controls to obtain information from the directors and executive officers about related-person transactions, and for determining, based on the facts and circumstances, whether a related person has a direct or indirect material interest in any such transaction. Transactions that are determined to be directly or indirectly material to a related person are disclosed in our proxy statement as required by SEC rules.

Pursuant to the Company’s processes, all directors and executive officers annually complete, sign and submit questionnaires that are designed to identify actual and potential conflicts of interest, related persons and any related-person transactions. Additionally, we make appropriate inquiries as to the nature and extent of business that the Company may conduct with other companies for whom any of our directors or executive officers also serve as directors or executive officers. Under the Company’s Code of Ethics and Business Practices, if an actual or potential conflict of interest affects an executive officer or a director, he or she is required to immediately disclose all the relevant facts and circumstances to the Company’s President or the Governance and Sustainability Committee, as appropriate. If the Governance and Sustainability Committee determines that there is a conflict, it will refer the matter to the Board, which will review the matter to make a final determination as to whether a conflict exists, and, if so, how the conflict should be resolved. In addition, the Audit Committee reviews all reports and disclosures of actual and potential related-person transactions.

None of the current non-employee directors has ever been an officer or employee of the Company. Mr. Stephens serves as the Chief Executive Officer of the Company and is not considered independent. He is the only director who is also an officer or employee of the Company. Mr. Stephens does not currently serve on any Board committee.

None of the organizations where the Company’s directors, nominees for election to the Board and officers hold positions are parents, subsidiaries or affiliates of the Company, or conduct business with the Company. For fiscal 2022, we are not aware of any related-party transactions that require disclosure.

(18)


 

Compensation Committee Interlocks and Insider Participation

The functions and members of the Compensation Committee are set forth under “Board Committees” above. All Compensation Committee members are independent under the enhanced independence standards of the NYSE for compensation committee members of NYSE-listed companies.

None of the members of our Compensation Committee is or has been an officer or employee of the Company. In addition, during fiscal 2022, none of our executive officers served as a member of the board or the compensation committee (or other board committee performing similar functions or, in the absence of any such committee, the entire board) of any entity in which a member of the Company’s Board or Compensation Committee is an executive officer.

Code of Ethics

The Board has adopted a Code of Ethics and Business Practices applicable to all directors, officers and employees of the Company. Each director, officer and employee annually submits a signed statement that he or she is in compliance with the Company’s Code of Ethics and Business Practices. In addition, the Board has adopted a Code of Ethics for Senior Financial Officers. The Company’s Chief Executive Officer and Chief Financial Officer are held to the standards outlined in the Code of Ethics for Senior Financial Officers and are required to annually acknowledge compliance with this code. Copies of both the Code of Ethics and Business Practices and Code of Ethics for Senior Financial Officers are available at the Company’s website: www.phxmin.com under the “Governance Library” section of the “Corporate Governance” tab.

Communications with the Board of Directors

The Company provides a process for stockholders and other interested parties to send communications to its Board. Stockholders or other interested parties who wish to contact the Non-Executive Chairman of the Board, the non-employee directors as a group, or any of the Company’s individual Board members may do so by writing: Board of Directors, PHX Minerals Inc., Attention: Mark Behrman, 1320 South University Drive, Suite 720, Fort Worth, TX 76107. Correspondence directed to any individual Board member is referred, unopened, to that member. Correspondence not directed to a particular Board member is referred, unopened, to the Non-Executive Chairman of the Board.

(19)


 

Proposal No. 2

Advisory Vote on Executive Compensation

In accordance with Section 14A of the Exchange Act, we are providing our stockholders with the opportunity to cast a non-binding, advisory vote on the compensation of our named executive officers, which is described in the Executive Compensation and Compensation Discussion and Analysis (CD&A) sections of this proxy statement (commonly referred to as “Say-On-Pay” vote). Our executive compensation program is designed to reward the Company’s leadership team for operating and financial results for the year and for adding to and building per share value for our stockholders, measured on both annual and long-term horizons.

We encourage our stockholders to review the discussion on executive compensation contained in this proxy statement, including the CD&A and the Executive Compensation sections of this proxy statement. Our executive compensation programs reflect the philosophy of the use of performance-based incentives to ensure executives focus on certain performance metrics that we believe align with stockholder value creation. We believe our compensation program strikes the appropriate balance between utilizing fair and responsible pay practices and effectively incentivizing our executive officers to dedicate themselves to value creation for our stockholders.

The Board strongly endorses our executive compensation program and recommends that the Company’s stockholders vote to approve the following resolution:

RESOLVED, that the stockholders approve, on an advisory basis, the compensation of the Company’s named executive officers, as described in the Company’s proxy statement for the 2023 Annual Meeting of Stockholders under “Compensation Discussion and Analysis” and “Executive Compensation” and the other related tabular and narrative disclosures contained in the proxy statement for the 2023 Annual Meeting of Stockholders.

Because the Say-On-Pay vote is advisory, it will not be binding upon the Board or the Compensation Committee, and neither the Board nor the Compensation Committee will be required to take any action as a result of the outcome of the vote on this Proposal.

To approve the foregoing proposal, a majority of shares of Common Stock represented by proxy or holders of Common Stock present at the Annual Meeting must vote “FOR” approval of Proposal No. 2.

BOARD RECOMMENDATION ON PROPOSAL

The Board of Directors Recommends a Vote “FOR” the Approval of the Compensation of the Company’s Named Executive Officers, as Described in the CD&A and Executive Compensation Sections of this Proxy Statement.

Executive Officers

The executive officers of the Company for fiscal 2022 are listed below. Based on an examination of the roles and functions of each of the Company’s officers, including any policy-making functions, the Board determined that only Chad L. Stephens, the Company’s President and Chief Executive Officer, and Ralph D’Amico, the Company’s Senior Vice President, Chief Financial Officer and Corporate Secretary, qualified as executive officers, as defined in Rule 3b-7 under the Exchange Act, during fiscal 2022. All officers hold office at the discretion of the Board and may be removed from office, with or without cause, at any time by the Board. Except as noted below, each executive officer has been elected by the Board to serve until the next annual meeting of the Board or until their earlier resignation or removal.

 

 

 

 

Positions and Offices

 

Officer

Name

 

Age

 

Presently Held With the Company

 

Since

Chad L. Stephens (1)

 

67

 

President and Chief Executive Officer effective January, 16, 2020

 

2019

Ralph D’Amico

 

47

 

Senior Vice President, Chief Financial Officer and Corporate Secretary, effective March 9, 2020

 

2019

(1)
Biographical information for Mr. Stephens is set forth above in “Proposal No. 1 – Election of Two Directors for Three-Year Terms Ending at the Annual Meeting in 2025.”

(20)


 

Ralph D’Amico has served as the Company’s Senior Vice President, Chief Financial Officer, and Corporate Secretary since March 9, 2020. Mr. D’Amico joined the Company on January 2, 2019 and served as Vice President of Business Development and Investor Relations from that date through March 9, 2020. Mr. D’Amico previously served as Managing Director in the energy investment banking group at Seaport Global Securities. Prior to that, Mr. D’Amico held positions within the investment banking practices of Jefferies, Friedman Billings Ramsey, and Salomon Smith Barney. Mr. D’Amico holds a bachelor’s degree in finance from the University of Maryland and an MBA from The George Washington University.

Compensation Discussion and Analysis

This Compensation Discussion and Analysis (CD&A) describes the Company’s compensation objectives and philosophy, the material elements of its executive compensation program for its named executive officers, recent compensation decisions and the factors the Compensation Committee considered in making such decisions.

This CD&A focuses on compensation earned during fiscal 2022 by our Chief Executive Officer and Chief Financial Officer, the other executive officer listed as a named executive officer (collectively, “NEOs”), in our Summary Compensation Table. As disclosed in this proxy statement, the Board determined that only two of the Company’s officers qualified as executive officers during fiscal 2022. Therefore, we had only two NEOs during fiscal 2022. The NEOs who served in fiscal 2022 were as follows:

 

NEO

Position

Chad L. Stephens

President and Chief Executive Officer

Ralph D’Amico

Senior Vice President, Chief Financial Officer, and Corporate Secretary

 

Executive Compensation Overview

Our executive compensation program includes a mix of compensation components in furtherance of our pay-for-performance philosophy, while also providing a competitive level of overall compensation to our executive officers. The program is designed to reward the Company’s leadership team for operating and financial results for the year and over the long term, building per share value for our stockholders.

During fiscal 2020, the Company made the decision to focus on perpetual oil and natural gas mineral ownership and growth through mineral acquisitions and the development of its mineral acreage inventory in its core areas of focus. In accordance with this strategy, beginning in January 2020 the Company ceased taking any working interest positions on its mineral and leasehold acreage. The Company believes that its strategy to focus on mineral ownership is the best path forward to providing our stockholders the highest risk-weighted returns on their investments. The Compensation Committee has aligned short-term incentive metrics to align with the Company’s business strategy in fiscal 2022.

(21)


 

The short-term incentive plan objective performance metrics are focused on financial performance of the Company utilizing operating cash flow and expense management metrics and growth in royalty production volumes and royalty reserves. This structure is aligned with the Company’s stated strategy of divesting working interests and growing royalty minerals rights. The Company’s compensation philosophy is (i) to be stockholder aligned by heavily weighting equity performance-based compensation tied to goals that builds long-term value for stockholders; (ii) to be competitive with the market allowing the Company to attract and retain talent; (iii) to motivate and reward for individual performance; and (iv) to be transparent utilizing measurable metrics and clearly articulated objectives. Furthermore, the Company believes in policies that promote stock ownership among the Company’s executives and directors.

Summary of Current Compensation Program

The Company’s current executive compensation structure is comprised of a mix of compensation elements intended to support the Company’s operating, financial and strategic goals and objectives in both the short-term and long-term. Each component of our compensation program is summarized below:

Component

Form of Payout

Objectives

How Values are Determined

Base Salary

Cash

Compensate our executive officers for their experience and expertise
Compete for talent with comparable companies in the oil and gas industry

Base salaries are evaluated and determined annually based on Company and individual results, overall responsibilities of each officer, expertise required in execution of the position and comparable peer company ranges.

Annual Bonuses

Cash

Motivate our executive officers to achieve the Company’s short-term business goals and objectives
Reward achievement of the Company’s operational performance metrics aligned with long-term business objectives
Reward our officers for individual executive performance that demonstrates the application of targeted competencies

Cash bonus payments are a variable component of our compensation that is at-risk. The performance metrics associated with cash bonus payments are aligned with our annual performance goals and objectives.

The Compensation Committee annually evaluates and determines the annual operational performance metrics that align with long-term value creation. Subjective job responsibility performance goals of each officer are reviewed to ensure achievement of targeted competencies is rewarded.

Overall bonus levels are based on a comparable peer group.

(22)


 

Long-Term Incentive (LTI) Awards

Restricted Stock Awards

Motivate achievement of long-term goals of the Company
Retain and attract key officers who perform over the longer time period
Encourage our executive officers to create long-term value for our stockholders
Promote pay-for-performance by aligning our executive officers with stockholders through meaningful ownership interests in the Company

LTI restricted equity-based compensation includes performance shares based on the market price performance of our Common Stock.

LTI performance metrics are evaluated annually to determine alignment with business strategy and stockholder value creation.

LTI ultimate realization is based on employment metrics and performance metrics over the vesting period of the restricted stock grants. The CEO’s LTI is 100% performance-based.

Targeted LTI awards are based on an industry peer group.

Compensation Philosophy and Objectives

The Compensation Committee strives to maintain a compensation program that will attract, retain and motivate key executive officers by providing incentives to reward the officers for performance efforts that support the Company’s short-term and long-term strategic objectives and is competitive with industry practice. The key objectives of the Company’s compensation program are to:

Align the interests of our executives with those of our stockholders through long-term share ownership – The Company uses restricted stock awards under the LTIP to align the financial interests of our executives with those of our stockholders and to provide a longer-term incentive form of compensation, with vesting provisions relating to continuous length of service to the Company and market price performance of our Common Stock.
Attract, retain and incentivize key executives, who are necessary to continue execution of our business strategies principally involving growth in value through divestiture of our low-margin working interests, acquisition of higher-margin mineral interests and active management of our extensive mineral acreage position – Reward executives who contribute to our success and motivate the officers to develop and execute short-, medium-, and long-term business strategies as well as meet annual goals approved by the Board.
Provide transparency regarding our compensation program for the benefit of executives and stockholders – Use measurable metrics such as the financial and operating performance of the Company and the market price performance of our Common Stock as key factors in determining compensation.
Motivate and reward individual performance that contributes meaningfully to Company performance – Evaluation of the individual performance of each executive officer affects most aspects of the executive’s compensation. Market data, individual performance and level of responsibility are considered in determining an executive’s annual salary and are important factors in deciding discretionary cash bonuses.

(23)


 

Role of the Compensation Committee and the Board

The Compensation Committee is responsible for establishing, implementing and monitoring all facets of the compensation of the Company’s executive officers. In particular, the Compensation Committee’s role is to recommend to the Board for final approval, the compensation, benefit plans and policies, and, in addition, to review, approve and recommend to the Board annually all compensation decisions relating to the Chief Executive Officer and the other executive officers of the Company. The Compensation Committee reviews the executive compensation program and recommends compensation levels, performance metrics, executive bonus distributions and restricted stock awards.

For fiscal 2022, the Compensation Committee and the Board, with advice from its compensation consultant, Meridian Compensation Partners (“Meridian”) made all compensation decisions for the executive officers as described in more detail below in “Role of the Compensation Consultant”. The Compensation Committee and the Board reviewed the performance of Mr. Stephens, who serves as our Chief Executive Officer, and set his compensation. Mr. Stephens was not present during these discussions. Mr. Stephens made compensation recommendations to the Compensation Committee with respect to Mr. D’Amico. Mr. D’Amico was not present during these discussions. The Board made the final decisions and approved the compensation of the Company’s executive officers.

Role of the Compensation Consultant

In an effort to align our executives’ compensation competitively with the market, the Compensation Committee engaged an outside, independent compensation consultant, Meridian, to review levels and incentive components of the NEO’s compensation for fiscal 2022, including base salaries, the design of the Company’s incentive programs and executive compensation levels.

The Compensation Committee, with the assistance of Meridian, selected a group of “peer companies” for comparison purposes in determining compensation for fiscal 2022, and the selected peer group is provided below.

The Compensation Committee uses the peer group to estimate the market compensation for talent. The Compensation Committee selects reference companies preferably in the minerals business with similar market capitalizations and operating models. The Compensation Committee supplements this very limited list with smaller energy companies under the belief that the management teams of small energy companies possess similar experience, training and knowledge. The Compensation Committee recognizes the Company’s small market capitalization versus the reference peer group and therefore targets total compensation below the 50th percentile of such group. For fiscal 2022, the Compensation used the following companies as the Company’s peer group, and the Compensation Committee will update such peer group from time to time to eliminate companies that are no longer publicly traded or if the Compensation Committee determines a more comparable company is available.

 

Amplify Energy Corp.

PrimeEnergy Resource Corporation

Battalion Oil Corporation

Ring Energy, Inc.

Dorchester Minerals, L.P.

SandRidge Energy, Inc.

Empire Petroleum Corporation

SilverBow Resources, Inc.

Epsilon Energy Ltd.

Sitio Royalties Corp.

Evolution Petroleum Corporation

U.S. Energy Corp

Kimbell Royalty Partners, LP

 

 

 

The Compensation Committee has sole authority to retain and terminate independent compensation consultants and to determine the terms of their retention. In fiscal 2022, Meridian received appropriate information from the Compensation Committee, reported directly to the Compensation Committee and did not provide any other services to the Company. Management does not direct or oversee the retention or activities of Meridian with respect to the Company’s executive compensation program.

(24)


 

Role of Stockholder Say-On-Pay Vote

The Company has historically received very strong support for its executive compensation practices. At the 2022 annual meeting, 97% of the shares cast were voted in support of the Company’s compensation program. In consideration of these results, the Compensation Committee has acknowledged the support received from our stockholders and views these results as an affirmation of our existing executive compensation policies and continued efforts to enhance our pay-for-performance practices. The Say-On-Pay vote serves as an additional tool to guide the Board and the Compensation Committee in ensuring alignment of our executive compensation program with the interests of our stockholders. The Compensation Committee will carefully consider the outcome of the Say-On-Pay vote when considering future executive compensation arrangements. We currently intend to hold this vote annually.

Elements of 2022 Compensation Program

The principal elements of the Company’s executive compensation program are (i) an annual base salary, (ii) an annual cash bonus, (iii) restricted stock awards, and (iv) matching cash contributions to the Company’s 401(k) Plan. Awards of restricted stock pursuant to the PHX Minerals Inc. 2010 Restricted Stock Plan (as amended, the “Restricted Stock Plan”) and LTIP are an integral part of the Company’s compensation program as a retention and long-term incentive form of compensation. Since the approval of the LTIP by stockholders in March 2021, the Company has not granted, and does not intend to grant in the future, any restricted stock awards under the Restricted Stock Plan.

Base Salaries

The base salaries of our executive officers are reviewed annually by the Compensation Committee, and the Compensation Committee recommends future salary adjustments, if any, to the Board for final approval. The Compensation Committee and the Board consider various factors, including:

overall responsibilities of the executive officers;
scope, level of experience and expertise required to successfully execute the executive officer’s position with the Company;
demonstrated individual performance of the executive officer;
recommendation of the Chief Executive Officer with respect to other executive officers; and
the current level of base salaries for executive officers compared to similar positions in the Company’s industry.

Base salaries are based on the individual’s responsibilities and experience, taking into account, among other factors, the individual’s initiative, contribution to the Company’s overall performance, handling of projects during the year, and yearly financial and operating results of the Company. In December 2022, the Board approved a change in the Company’s fiscal year from the twelve months beginning October 1st and ending September 30th to the calendar year beginning January 1st and ending December 31st, beginning in 2023. The Board is in the process of determining executive compensation methodology for the period from October 1 through December 31, 2022 and the remainder of the 2023 calendar year and addressing any changes to base salary and the performance metrics and period for performance-based awards for the five-quarter period ended December 31, 2023.

(25)


 

Salaries for the named executive officers in fiscal 2022 are set forth in the “Summary Compensation Table” below and were reviewed by the Compensation Committee and approved by the Board based on the considerations described above. Based on the above factors and considerations, the Board increased base salaries for calendar year 2023 for the executive officers, effective January 1, 2023.

 

 

 

Calendar Year

Officer

 

2021

 

2022

 

2023

 

 

2022-23 Increase

Chad L. Stephens

 

$345,000

 

$375,000

 

$400,000

 

7%

Ralph D’Amico

 

$250,000

 

$275,000

 

$300,000

 

9%

Annual Cash Bonuses

Annual cash bonuses are largely determined by the preceding fiscal year’s (fiscal year-end being September 30 prior to 2023 when the fiscal year-end has changed to December 31) operational and financial performance. Annual cash bonuses are targeted as a percentage of each executive officer’s base salary, determined by the weighting of objective performance metrics and subjective performance goals applicable to each executive officer. During the annual goal-setting process, the Compensation Committee and the Board approve objective performance metrics and subjective performance goals that focus on the manner in which the Company’s business is managed.

The Compensation Committee believes that the cash bonuses for executive officers should principally reflect how well the officers achieved both objective and subjective or discretionary performance metrics determined by the Compensation Committee and outlined below.

Mr. Stephens’ target cash bonus was 100% of base salary, weighted 70% for meeting his objective performance metrics and 30% for meeting his subjective performance goals. Mr. D’Amico’s target cash bonus was 75% of base salary, weighted 70% on meeting Company objective performance metrics and 30% on meeting subjective performance goals.

 

 

 

 

Title

% of Salary(1)

Objective Performance Metrics

Subjective

Discretionary

Metrics

Chief Executive Officer

100%

70%

30%

Chief Financial Officer

75%

70%

30%

(1) These percentages represent the target payout, based upon percentage of annual salary. However, executive officers can earn up to 150% of the objective performance metrics and subjective discretionary metrics as further described below.

Objective Performance Metrics

For fiscal 2022, the Compensation Committee and the Board approved the use of the following categories of objective performance metrics in determining annual cash bonus amounts:

Operating cash flows as compared to a budgeted amount;
2022 proved and probable royalty reserve growth compared to 2021 actual;
2022 royalty production growth compared to 2021 actual; and
Cash general and administrative expense (“G&A”) as compared to a budgeted amount.

For fiscal 2022, the Compensation Committee approved Threshold (Minimum), Target and Maximum levels for the objective performance metrics (as set forth in the table below). In any objective performance metric category, if the Threshold is achieved, 50% of weighting is earned. If the Target is achieved, 100% of weighting is earned. If the Maximum is achieved, 150% of weighting is earned. Achievement between the Threshold and the

(26)


 

Target results in earning between 50% and 100% of weighting. Achievement between the Target and the Maximum results in earning between 100% and 150% of weighting. If the Threshold is not achieved in an objective performance metric category, no credit is earned.

In setting the performance metrics for fiscal 2022, the Compensation Committee determined that the operating cash flow, cash G&A expense and discretionary metrics had the effect of discouraging excessive risk taking and controlling general and administrative costs. When setting the cash G&A target metric above the 2021 target, the Compensation Committee considered management’s continued efforts to expand and improve the Company’s capabilities as well as an anticipated increase in transaction activity consistent with the sale of working interests and mineral royalty reserve acquisitions. The operating cash flow target for the fiscal year is heavily influenced by natural gas and oil strip prices at the time the target metrics are set. The Compensation Committee does not believe that these performance metrics reward executives for taking risks beyond those risks inherent in the oil and gas business.

The Compensation Committee has the discretion to modify the effect of any of the objective performance metrics if unforeseen or uncontrollable conditions result in any of the performance metrics not being relevant to the Company’s results for the fiscal year. No adjustments were made to the metrics for fiscal 2022.

Subjective Performance Goals

The Compensation Committee and the Board approved discretionary subjective performance goals that focus heavily on the manner in which the Company’s business is managed by the executive officers. The five subjective metrics are strategy execution, operations expense management, performance of acquisitions, investor relations, and valuation. An evaluation of the Chief Executive Officer is performed annually by the Compensation Committee. The Chief Executive Officer performs the evaluation of each of the other executive officers. In these evaluations, performances are evaluated on each of the detailed areas of responsibility.

The following table sets forth the Company performance metrics established by the Compensation Committee.

 

 

 

Fiscal 2022

Metric Category

 

Threshold

 

Target

 

Maximum

 

Weighting

Operating cash flow (1)

 

$14,420,000

 

$15,589,000

 

$18,707,000

 

30%

Proved and probable royalty reserve growth (mmcfe)(2)

 

109,250

 

118,884

 

129,749

 

15%

Royalty production growth (mcfe)(3)

 

3,927,000

 

4,219,000

 

4,930,000

 

15%

Cash G&A (4)

 

$7,982,000

 

$7,450,000

 

$7,032,000

 

10%

Discretionary

 

n/a

 

n/a

 

n/a

 

30%

 

 

 

 

 

 

 

 

 

 

1) Operating cash flow is defined as: (a) oil and gas sales plus (b) lease bonus and rental revenues plus (c) realized cash portion of hedges minus (d) lease operating expense (“LOE”) minus (e) transportation, gathering and marketing minus (f) production tax minus (g) cash G&A (as defined below) and adjusted for the approved sale of working interest properties. For purposes of determining performance, the budget was adjusted to remove the remaining budgeted cash flow associated with working interest divestitures for the remainder of fiscal 2022 from the effective date of the sale.

(2) The abbreviation “mmcfe” refers to natural gas stated on a million cubic feet basis and crude oil and natural gas liquids converted to a million cubic feet of natural gas equivalent by using the ratio of one thousand barrels of crude oil or natural gas liquids to six million cubic feet of natural gas. Proved and probable royalty reserve growth represents proved and probable reserves by volume as defined by third party reserve engineers, and the Threshold, Target and Maximum represent growth rates of 10%, 19.7%, and 30.6%, respectively, applied to the fiscal 2021 proved and probable reserves. Fiscal 2022 proved and probable reserves were adjusted using the same natural gas, oil, and natural gas liquids (“NGL”) prices used in the fiscal 2021 reserve report.

(3) Royalty production growth includes natural gas, oil and NGL royalty volumes recorded through the accounting process, and the Threshold, Target and Maximum represent growth rates of -6%, 1%, and 18%, respectively, applied to fiscal 2021 production volumes.

(4) Cash G&A is defined as the cash portion of G&A during the fiscal year including the payout of short-term incentive (“STI”) for the current fiscal year, and excludes STI cash payments from prior fiscal year made in December 2021, consulting and legal fees incurred by the Board, and expenses associated with the Company’s At-The-Market stock offering program.

(27)


 

Determination of Annual Cash Bonus Awards

The Compensation Committee reviewed the performance of the Company’s named executive officers in meeting their objective performance metrics and subjective performance goals for fiscal 2022. The following table sets forth the actual results of the Company for each objective performance metric level and the performance level reached to determine the objective portion of the cash bonuses for fiscal 2022.

 

Objective Metric Category Results

 

Actual Results

 

Level Obtained

Payout % Earned

Operating cash flow

 

$25,433,000

 

Maximum

150%

Proved and probable royalty reserve growth (mmcfe)

 

131,496

 

Maximum

150%

Royalty production growth (mcfe)

 

6,209,652

 

Maximum

150%

Cash G&A

 

$8,524,000

 

Threshold not met

0%

The following table sets for the actual results for the same objective performance metrics for fiscal 2021.

 

Objective Metric Category Results

 

Actual Results

Operating cash flow

 

$15,705,681

Proved and probable royalty reserve (mmcfe)

 

99,318

Royalty production (mcfe)

 

4,177,559

Cash G&A

 

$7,101,249

 

Based upon our combined objective and subjective performance metrics, the maximum targeted annual cash bonus that Mr. Stephens, our Chief Executive Officer, could have achieved for fiscal 2022 was 150% of his $375,000 base salary. For fiscal 2022, the maximum was achieved for the operating cash flow, proved and probable royalty reserve growth and royalty production growth metrics, resulting in a maximum payout of 90% of the award for the objective performance metrics. The largest contributor to operating cash flow growth was the increase in commodity prices, and the largest contributor to the Company’s proved and probable royalty reserve growth and royalty production growth was the execution of the Company’s royalty acquisition strategy. The Threshold level for the cash G&A metric was not met, and no payout was awarded. The Compensation Committee determined that management’s performance in the five subjective areas that govern the discretionary portion of the annual bonus warranted an award of 35% of base salary. The total annual bonus percentage earned for fiscal 2022 was 125%. See “Executive Compensation – Summary Compensation Table” for the dollar amount of cash bonuses for fiscal years 2022 and 2021.

Cash bonuses are paid in the first fiscal quarter of the following fiscal year based on the preceding fiscal year’s metric results. Thus, bonuses paid in the first fiscal quarter of 2023 were based on the fiscal 2022 objective performance metric results. The cash bonus payments made to our named executive officers are set forth below in the “Summary Compensation Table” under “Executive Compensation.”

Long-Term Equity-Based Restricted Stock Compensation

Our executive officers are eligible to receive stock-based awards under the Restricted Stock Plan and LTIP. The objectives of the Restricted Stock Plan and LTIP are to attract and retain key employees, align their interests with those of the Company’s stockholders, motivate our executive officers to achieve long-term goals, and reward individual performance. Because executives’ compensation from stock-based awards is tied to the Company’s stock price performance, the Compensation Committee believes stock-based awards create a strong incentive to improve long-term financial performance and increase stockholder value.

We enter into stock restriction agreements with our officers and directors when restricted stock awards are granted. These agreements include the terms and conditions of the restricted stock awards. Vesting provisions contained in the stock restriction agreements are used by the Compensation Committee as a method to tie executive compensation both to continuing service by the executive to the Company and to growth in stockholder value, as measured by the market price of the Company’s shares and return on capital employed. Under various circumstances, the restricted stock awards may vest completely, partially or not at all. The Compensation Committee believes a three-year vesting schedule for restricted stock awards enhances the retention value of these awards and positions the Company competitively from a market perspective.

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A portion of the restricted stock awards vest if the executive officers remain employees of the Company for the entire vesting period (known as “non-performance shares”). These time-vested stock awards are forfeited if the officer does not remain continuously employed for the vesting period (typically three years). The remaining portion of the restricted stock awards vest based on the market price performance of the Common Stock and performance criteria linked to return on capital employed at the completion of three years of service (known as “performance shares”). A portion of the performance shares granted in December 2019 and January and March 2020 vested in December 2022 due to the return on capital employed criteria being met. All performance shares granted in fiscal 2022 vest based on the market price performance of the Common Stock.

Meridian reviewed the total direct compensation packages of our executives, including our stock-based award program and recommended that the Compensation Committee continue the use of restricted stock awards as the equity component of the compensation of our NEOs. The Compensation Committee relied upon market data, Company performance, and individual performance to determine the stock-based awards for our executive officers. For fiscal 2022, the Compensation Committee approved the grant of the following restricted stock awards, all of which have a vesting date of December 20, 2024. For additional information regarding the stock-based awards granted to our executive officers under the Restricted Stock Plan and Long-Term Incentive Plan, see the table entitled “Outstanding Restricted Stock Awards.”

 

Officer

Non-performance Shares

Performance Shares

Chad L. Stephens

                                             -

                                     286,342

Ralph D’Amico

                                      29,914

                                      89,743

 

Vesting of the performance shares of restricted stock awards granted as part of 2022 executive compensation is based on the market price performance of the Common Stock or total stock return “(TSR”) at the completion of the time-vesting period. The percentage of performance shares of restricted stock awards that vest is dependent on Common Stock appreciation as compared to a peer group, as set forth in each stock restriction agreement. If the Company’s stock appreciation as compared to the peer group is between the prescribed threshold and maximum percentages, the restricted stock will partially vest on a pro rata basis. Furthermore, with respect to restricted stock awards granted in fiscal 2022, the vested shares outlined below shall be multiplied by 75% if the Company TSR is below 0%, 100% if the Company TSR is between 0% and 10%, and 125% if the Company TSR is 10% or greater.

Level

Percentile Rank as to Company TSR Versus Relative TSR

Percentage of Shares Vesting

Maximum

Above 75th Percentile

150%

Target

50th Percentile

100%

Threshold

25th Percentile

50%

Below Threshold

Below the 25th Percentile

0%

The performance shares vest based on how the Company’s TSR ranks against the following peer group.

Abraxas Petroleum Corporation

Evolution Petroleum Corporation

Amplify Energy Corp.

Kimbell Royalty Partners, LP

Battalion Oil Corporation

Northern Oil and Gas, Inc.

Blackstone Minerals, L.P.

PrimeEnergy Resources Corporation

Brigham Minerals, Inc.

Ring Energy Inc.

Diversified Energy Company PLC

SandRidge Energy, Inc.

Dorchester Minerals, L.P.

SilverBow Resources, Inc.

Earthstone Energy, Inc.

Viper Energy Partners LP

 

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Vesting of Performance Based Awards Based on TSR

On December 11, 2021, 2,386 shares of restricted stock granted to Mr. D’Amico on December 11, 2018 vested. Since only a portion of the restricted shares vested that were granted on December 11, 2018, 7,156 unvested shares were forfeited and repurchased by the Company. Additional stock vesting information is set forth below in under “Stock Vested in 2022”.

Clawback Policy

The Company has adopted an incentive compensation clawback policy to ensure that incentive compensation is paid based on accurate financial and operating data and the correct calculation of the Company’s performance against incentive targets as well as to mitigate the impact on the Company from the malfeasance of officers. If there is a restatement of the financial and/or operating results of the Company (other than a restatement caused by a change in applicable accounting rules or interpretations) and such restatement resulted in or contributed to any incentive compensation being granted, earned or vested to or by an officer that the officer would not otherwise have been granted, earned or vested if the correct financial and/or operating data had been used, the Company shall seek to recover such amount, and if the Board determines, in its sole discretion exercised in good faith, that an officer of the Company engaged in fraud or misconduct or violated Company policies or engaged in conduct materially detrimental to the Company’s reputation, the officer shall repay or forgo all or any portion of incentive compensation as determined by the Board to be in the best interests of the Company. Incentive compensation shall mean any performance bonuses or incentive awards (including, without limitation, annual incentive bonuses (in cash or otherwise), stock options, stock appreciation rights, restricted stock, restricted stock units, performance shares or other security-based or equity-based awards) that are granted, earned or vested under any Company plan, arrangement or agreement based wholly or in part upon the attainment of a financial reporting measure. If the Company is required to restate its previously issued financial statements to correct a material error, the Compensation Committee shall seek the recovery of an overpayment that an officer received during the three completed fiscal years of the Company immediately preceding the date that the Company is required to make such restatement.

Other Compensation and Benefits

Qualified Defined Contribution Plan

The Company has a 401(k) Plan that allows for a Company match. The 401(k) Plan is a tax-qualified, defined contribution plan and serves as the Company’s only retirement plan for its employees. Contributions are made at the discretion of the Board and, to date, all contributions have been made in cash. A matching contribution up to 5% of an employee’s salary is made every pay period up to certain regulatory limits.

Participation in Employee Benefit Plans

We offer health and welfare benefits to all eligible employees. Our executive officers and management are eligible to participate on the same basis as other employees in all such benefit plans, which include medical, dental, vision, group life, long-term disability and accidental death and dismemberment insurance.

Perquisites

The Company provides no other perquisites or personal benefits to its executive officers.

Risk Considerations Relating to Compensation

Our compensation program is designed to focus on meeting the Company’s objectives and goals while discouraging management from undue risk-taking. When establishing and reviewing our executive compensation program, the Compensation Committee has considered whether the program encourages unnecessary or excessive risk taking and has concluded that it does not. While behavior that may result in inappropriate risk taking cannot necessarily be prevented by the structure of compensation practices, we believe that our compensation policies and practices do not create risks that are reasonably likely to have a material adverse effect on the Company.

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Our compensation program is comprised of both fixed and variable incentive-based elements. The fixed component of our compensation program is base salary. A fixed base salary provides reliable, foreseeable income that mitigates the focus of our employees on our immediate financial performance or our stock price, encouraging employees to make decisions in the Company’s best long-term interests. The variable incentive components are designed to be sensitive to our goals and objectives, performance and stock price. In combination, we believe that our compensation structure does not encourage our officers and employees to take unnecessary or excessive risks in performing their duties.

Moreover, with limited exceptions, our Compensation Committee retains discretion to impose additional conditions and adjust compensation pursuant to our clawback policy as well as for quality of performance and adherence to the Company’s values. The restricted stock that the Company has granted to its executive officers generally has a three-year vesting period starting at the beginning of the calendar year in which the shares were awarded, which further mitigates compensation risk because an executive officer who resigns (other than as a result of retirement) or is terminated prior to the end of the vesting period will forfeit his or her unvested restricted stock.

Change in Control Executive Severance Agreements

Messrs. Stephens and D’Amico are each a party to a Change-in-Control Executive Severance Agreement (collectively, the “Change in Control Agreements”). The Board believes that, in the event of a change-in-control of the Company, the executives’ performance may become hampered by distraction, uncertainty or other activities, which might adversely affect stockholder value. To reduce these potential adverse effects and to encourage fair treatment of its executive officers in connection with any change-in-control event, the Company enters into Change-In-Control Agreements with its executive officers to provide for change-in-control protection. For additional information, see “Potential Payments Upon Termination or Change in Control” below.

Other than the Change in Control Agreements, the Company maintains no employment agreements with its executive officers.

Indemnification Agreements

The Company has entered into an indemnification agreement with each of its directors and executive officers. These agreements provide that the Company will indemnify such persons against certain liabilities that may arise by reason of their status or service as directors or officers, to advance their expenses incurred as a result of a proceeding as to which they may be indemnified and to cover such persons under any directors’ and officers’ liability insurance policy the Company chooses, in its discretion, to maintain. These indemnification agreements are intended to provide indemnification rights to the fullest extent permitted under Delaware law and are in addition to any other rights the indemnitee may have under the Company’s Certificate of Incorporation and Bylaws and under applicable law. We believe these indemnification agreements enhance the Company’s ability to attract and retain knowledgeable and experienced officers and directors.

Other Compensation Matters

In December 2019, the Compensation Committee adopted stock ownership requirements for management, and the Company has implemented such requirements. The Company’s Code of Ethics and Business Practices provides that directors, officers and employees should not engage in speculative transactions involving the Company’s securities, such as exchange-traded options, short-sales or derivative instruments.

Section 162(m) of the Internal Revenue Code generally limits the deductibility of compensation in excess of $1,000,000 annually paid to any of our executive officers. The Tax Cuts and Jobs Act, which was signed into law on December 22, 2017, made significant revisions to Section 162(m), including repeal of the performance-based exception, revising the definition of covered employees to include any individual who served as the chief executive officer or chief financial officer at any time during the taxable year, and providing that once an individual is considered a covered employee, he or she will be considered a covered employee for all future years, including following any termination of employment. As a result, compensation paid to covered employees in excess of $1,000,000 generally will not be deductible, regardless of whether it is salary or performance-based.

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Our compensation levels for fiscal 2022 were determined to be less than the limitation amount set forth pursuant to Section 162(m).

Report of the Compensation Committee

The Compensation Committee has reviewed and discussed with management the preceding Compensation Discussion and Analysis for the fiscal year ended September 30, 2022. Based on such review and discussions, the Compensation Committee recommended to the Board of Directors that the Compensation Discussion and Analysis be included in the Proxy Statement for the 2023 Annual Meeting of Stockholders.

 

Respectfully submitted,

Compensation Committee

Peter B. Delaney – Chair

Mark T. Behrman

Glen A. Brown

John H. Pinkerton

Executive Compensation

The table below sets forth information for the two most recently completed fiscal years concerning compensation paid to our named executive officers in those fiscal years for services in all capacities.

Summary Compensation Table

 

Name and Principal

Position

 

Fiscal

Year

 

Base

Salary (1)

 

Cash

Bonus (1)

 

Stock

Awards (2)

 

All Other

Compensation (3)

 

Total

 

 

 

 

 

 

 

 

 

 

 

 

 

Chad L. Stephens, President

 

2022

 

$367,500

 

$459,375

 

$1,196,224

 

$43,157 (4)

 

$2,066,256

and Chief Executive Officer

 

2021

 

$345,000

 

$353,625

 

$611,905

 

$25,792 (4)

 

$1,336,322

 

 

 

 

 

 

 

 

 

 

 

 

 

Ralph D’Amico, Senior Vice

 

2022

 

$268,750

 

$251,953

 

$458,670

 

$21,382 (5)

 

$1,000,755

President and Chief Financial

 

2021

 

$250,000

 

$192,188

 

$214,552

 

$13,971 (5)

 

$670,711

Officer

 

 

 

 

 

 

 

 

 

 

 

 

(1)
Base salaries are set on a calendar year basis and are reported on a fiscal year basis ending on September 30 of each year. This means that the salary shown above for each fiscal year reported represents three months’ salary of the previous calendar year and the first nine months of the current calendar year through September 30 fiscal year-end. Cash bonuses are paid in the first quarter of the following fiscal year based on the preceding fiscal year’s performance. Bonuses shown for fiscal 2022 were paid in December 2022 and were based on fiscal 2022 financial and operating performance. The same timing of payments and Company performance holds true for fiscal 2021. This is subject to change in fiscal 2023 due to the fiscal year change from ending on September 30 to ending on December 31.
(2)
In accordance with applicable accounting standards, these amounts represent the aggregate grant date fair value of the awards on the award date. The ultimate value realized by the executive officers on vesting of the awards may or may not equal the fair market value at the award date based on failure to achieve the specified vesting requirements. Under certain circumstances, the awards may wholly, partially or never vest. See footnotes to table entitled “Outstanding Restricted Stock Awards.” Performance restricted stock is valued assuming a target number of shares would be issued. Assuming that the highest level of performance conditions will be achieved would result in a performance award grant equal to 150% of the target award plus application of a 125% multiplier for 2022 and 150% of the target award for 2021, and therefore the grant date fair value of stock awards for 2022 and 2021, respectively, would have been as follows: Mr. Stephens $2,244,204 and $917,573; and Mr. D’Amico $787,120 and $321,730.
(3)
Includes immaterial amounts for group life insurance premiums for fiscal years 2022 and 2021.
(4)
Includes dividends received from restricted stock awards of $20,953 and $10,645 for fiscal years 2022 and 2021, respectively, and $19,995 and $12,938 in 401(k) matching contribution by the Company in fiscal years 2022 and 2021, respectively.
(5)
Includes dividends received from restricted stock awards of $7,495 and $4,146 for fiscal years 2022 and 2021, respectively, and $13,438 and $9,375 in 401(k) matching contributions by the Company in fiscal years 2022 and 2021.

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Grants of Plan-Based Awards Table

The table below shows the plan-based awards granted by the Compensation Committee to the Company’s named executive officers in fiscal 2022:

 

 

 

 

 

 

 

Equity Incentive Plan Awards

 

 

 

 

Name

 

Grant Date

 

Board Approval Date

 

Threshold(1)

 

Target(1)

 

Maximum(1)

 

All other stock awards: Number of shares of stock or units(2)

 

Grant Date Fair Value of Stock Awards

Chad L. Stephens

 

3/2/2022

 

3/2/2022

 

107,378

 

286,342

 

536,891

 

-

 

$1,196,224

Ralph D'Amico

 

3/2/2022

 

3/2/2022

 

33,654

 

89,743

 

168,268

 

29,914

 

$458,670

 

(1)
The percentage of performance shares of restricted stock awards that vest is dependent on Common Stock appreciation as compared to a peer group, as set forth in each stock restriction agreement. If the Company’s stock appreciation as compared to the peer group is between the prescribed Threshold and Maximum percentages, the restricted stock will partially vest on a pro rata basis. Furthermore, with respect to restricted stock awards granted in fiscal 2022, the vested shares outlined below shall be multiplied by 75% if the Company TSR is below 0%, 100% if the Company TSR is between 0% and 10%, and 125% if the Company TSR is 10% or greater.
(2)
Represents restricted stock awards that time vest on the completion of 3 years of service ending on December 20, 2024.

 

Outstanding Equity Awards

The following table provides information on the holdings of restricted stock by the Company’s named executive officers at September 30, 2022:

Outstanding Restricted Stock Awards

 

Name

 

Award Date

 

Approval Date

 

Number of Shares of

Restricted Stock That

Have Not Vested

 

Market Value of

Shares of

Restricted Stock That

Have Not Vested

Chad L. Stephens (1)

 

January 16, 2020

 

December 11, 2019

 

43,976(5)

 

$534,750(9)

 

 

January 16, 2020

 

January 16, 2020

 

53,476(8)

 

$500,000(10)

 

 

January 5, 2021

 

January 5, 2021

 

224,895(3)

 

$481,275(12)

 

 

March 2, 2022

 

March 2, 2022

 

286,342(4)

 

$643,125(13)

 

 

 

 

 

 

 

 

 

Ralph D'Amico (2)

 

December 11, 2019

 

December 11, 2019

 

13,569(5)

 

$164,999(9)

 

 

March 9, 2020

 

December 11, 2019

 

5,068(6)

 

$61,627(9)

 

 

March 9, 2020

 

March 9, 2020

 

16,340(7)

 

$72,500(11)

 

 

January 5, 2021

 

January 5, 2021

 

78,855(3)

 

$168,750(12)

 

 

March 2, 2022

 

March 2, 2022

 

119,657(4)

 

$286,750(13)

 

(1)
Mr. Stephens was appointed as Chief Executive Officer effective January 16, 2020. He was not an employee of the Company prior to that time.
(2)
Mr. D’Amico was elected as Chief Financial Officer effective March 9, 2020 and as Vice President – Business Development and Investor Relations effective January 2, 2019. He was not an employee of the Company prior to that time.
(3)
Mr. D’Amico and Mr. Stephens paid $1,314 and $3,747, respectively, to purchase their restricted stock, and it consists of restricted stock awards that vest based on the market price performance of the Company’s Common Stock at the completion of three years of service.
(4)
Mr. D’Amico received 29,914 restricted stock awards, that time vests on the completion of three years of service ending on December 20, 2024. In addition to the time vesting shares, Messrs. Stephens and D’Amico received 286,342 and 89,743 restricted stock awards, respectively, 100% of which vest based on the market price of the Company’s Common Stock at the completion of three years of service ending on December 20, 2024.
(5)
Messrs. D’Amico and Stephens paid $226.06 and $732.64, respectively, to purchase their restricted stock, and it consists of restricted stock awards granted on December 11, 2019, 25% of which vest on the completion of three years of service and 75% of which vest based on the market price of the Company’s Common Stock and Company performance at the completion of three years of service for Mr. D’Amico. Mr. Stephens stock consists of the restricted stock awards approved on December 11, 2019, and granted on January 16, 2020, 100% of which vest based on the market price of the Company’s Common Stock and Company performance at the completion of three years of service.

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(6)
Mr. D’Amico paid $84.43 to purchase his restricted stock, and it consists of the restricted stock awards approved on December 11, 2019, and granted on March 9, 2020, 100% of which vest based on the market price of the Company’s Common Stock and Company performance at the completion of three years of service.
(7)
Mr. D’Amico paid $272.22 to purchase his restricted stock, and it consists of the restricted stock awards approved on March 9, 2020, and granted on March 9, 2020, 100% of which vest on the completion of three years of service beginning December 11, 2019.
(8)
Mr. Stephens paid $890.91 to purchase his restricted stock, and it consists of the restricted stock awards granted on January 16, 2020, 100% of which vest on the completion of three years of service.
(9)
Based on the closing market price of the Company’s Common Stock of $12.16 on December 11, 2019.
(10)
Based on the closing market price of the Company’s Common Stock of $9.35 on January 16, 2020.
(11)
Based on the closing market price of the Company’s Common Stock of $4.44 on March 9, 2020.
(12)
Based on the five day average of the close price of the Company’s Common Stock of $2.14 beginning December 11, 2020.
(13)
Based on the five day average of the close price of the Company’s Common Stock of $2.25 beginning December 14, 2021.

 

Stock Vested in Fiscal 2022

The following table summarizes, for the named executive officers, the restricted stock awards that vested during fiscal 2022. Mr. D’Amico was the only named executive officer that had restricted stock awards that vested in fiscal 2022.

 

 

 

Stock Awards

Name

 

Number of shares acquired on vesting

 

Value realized on vesting

Ralph D’Amico

 

2,386

 

$6,323

Securities Authorized for Issuance under Equity Compensation Plans

The following table sets forth information concerning the securities authorized for issuance under the LTIP as of December 31, 2022:

 

Plan Category

Number of securities remaining available for future issuance under equity compensation plans

Equity Compensation Plans Approved by security holders

1,263,083

Equity compensation plans not approved by security holders

0

Total

1,263,083

Potential Payments Upon Termination or Change in Control

The following table and narratives disclose certain information with respect to compensation that would be payable to the Company’s NEOs upon termination or change in control as of September 30, 2022.

In fiscal 2022, Messrs. Stephens and D’Amico were a party to a Change in Control Agreement. Under such Change in Control Agreements for Mr. Stephens and Mr. D’Amico, if, within two years following a change-in-control event, the Company terminates the employment of any of its executives without cause or any executive resigns for good reason as defined in the Change in Control Agreements, that executive would be entitled to a severance payment, payable in a lump sum, in cash, following his or her termination, in an amount equal to two times the average of the compensation paid to the executive during the two calendar years preceding the change-in-control event (or the annual average of any shorter period). Compensation for this purpose includes the sum of the executive’s base salary, cash bonuses and the Company’s contribution to the 401(k) Plan (restricted stock awards are excluded). Further, if the executive qualifies, and the Company is required to provide coverage under COBRA, the Company shall reimburse the executive the costs of purchasing continuing coverage under COBRA for the executive and his or her dependents as long as he or she qualifies for COBRA coverage. In fiscal 2021, the Change of Control Agreements were amended to reduce the Company’s reimbursement of COBRA coverage costs to a maximum of twelve months. The Company became subject to COBRA on January 1, 2014.

A change-in-control event generally means: (i) the acquisition of beneficial ownership of 50% or more of the Company’s Common Stock; (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board, and any new director, whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously

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so approved, cease for any reason to constitute a majority of the Board; (iii) approval by the Company’s stockholders of a merger or consolidation which results in the ownership of 20% or more of the Company’s Common Stock by persons or entities that were not previously stockholders; or (iv) involuntary dissolution of the Company.

Situations may arise where the potential to merge with or be acquired by another company may be in the best interest of our stockholders. Based on this potential, the Company believes that the “double trigger” requiring both (i) a change-in-control event and (ii) the termination of an executive’s employment without cause or his or her resignation for good reason after the event is appropriate to provide fair treatment of the executive officers, while allowing them to continue to concentrate on enhancing stockholder value during a change-in-control event, as they may take actions which ultimately may lead to termination of their employment after the change-in-control event.

Pursuant to the Change in Control Agreements, assuming that a change-in-control event took place on the last business day of fiscal 2022, and an executive’s employment was terminated without cause, or the executive terminated his or her employment for good reason, within two years following this assumed change-in-control event, the executives named below would receive the following severance payments:

 

Name

 

Salary(1)

 

Bonus(2)

 

Total(3)

Chad L. Stephens

 

$752,933

 

$813,000

 

$1,565,933

Ralph D'Amico

 

$547,813

 

$444,141

 

$991,954

 

(1)
Mr. Stephens and Mr. D’Amico’s salary is calculated based on (i) two times the average of the executive officer’s base salary during calendar years 2022 and 2021 plus (ii) two times the average amount contributed to the 401(k) on behalf of each executive during calendar years 2022 and 2021.
(2)
Mr. Stephens and Mr. D’Amico’s bonus is calculated based on two times the average bonus for each executive for calendar years 2022 and 2021.
(3)
In addition, if the Company is required to provide continuing coverage to its employees under COBRA (as defined in Section 4980B of the Internal Revenue Code of 1986) at the time of a change-in-control, the Company will reimburse each executive for all costs incurred by them in purchasing such continuing coverage for themselves and their dependents for a maximum of twelve months.

Pay Ratio Disclosure

The Pay Ratio Disclosure Rule, codified in Item 402(u) of Regulation S-K and adopted pursuant to Section 953(b) of the Dodd-Frank Act, requires the Company to calculate and disclose the ratio of the annual total compensation of Chad L. Stephens, the Chief Executive Officer, to the median of the annual total compensation of the Company’s employees (other than the Chief Executive Officer).

We determined that, for the year ended September 30, 2022, (i) the annual total compensation granted to our CEO was $2,066,256, as reported in our Summary Compensation Table; (ii) the annual total compensation of our “median employee” was $86,523; and (iii) the ratio of these amounts was 24-to-1. This pay ratio is a reasonable estimate calculated in a manner consistent with SEC rules based on the Company’s payroll records and the methodology described below.

To identify the median of the annual compensation of all our employees, as well as to determine the annual total compensation for our median employee and our Chief Executive Officer, we took the following steps:

We determined that, as of September 30, 2022, our employee population consisted of 22 individuals, all of whom were located in the United States. This population consisted of only full-time employees, as we do not have part-time, temporary or seasonal workers. We selected the last day of our fiscal year September 30, 2022, as our identification date for determining our median employee because it enables us to make such identification in a reasonably efficient and economic manner.
We used a consistently applied compensation measure to identify our median employee by comparing the amount of the salary or wages, bonuses and restricted stock awards that vested in 2022 as reflected in our payroll records.

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We identified our median employee by consistently applying this compensation measure to all of our employees included in our analysis. Since all of our employees, including our Chief Executive Officer, are located in the United States, we did not make any cost of living adjustments in identifying the median employee.
After we identified our median employee, we combined all of the elements of such employee’s compensation for fiscal 2022, resulting in annual total compensation of $86,523.
With respect to the annual total compensation of our Chief Executive Officer, we used salary, bonus, restricted stock awards granted and all other compensation for fiscal 2022, resulting in annual granted total compensation of $2,066,256.

Because the SEC rules for identifying the median employee allow companies to adopt a variety of methodologies, to apply certain exclusions, and to make reasonable estimates and assumptions that reflect their compensation practices, the pay ratio reported by other companies may not be comparable to the pay ratio reported above, as other companies may have different employment and compensation practices and may utilize different methodologies, exclusions, estimates and assumptions in their pay ratio calculations.

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Proposal No. 3

Approval and Ratification of Selection of

Independent Registered Public Accounting Firm

The Audit Committee has appointed and engaged Ernst & Young LLP (“Ernst & Young” or “independent accountants”) to serve as the independent registered public accounting firm to audit the Company’s financial statements for the fiscal year ending December 31, 2023, and to perform other appropriate audit-related services. Ernst & Young has been serving as the independent registered public accounting firm of the Company since 1989. The Company’s stockholders are hereby asked to ratify the Audit Committee’s appointment of Ernst & Young as the independent registered public accounting firm of the Company for the fiscal year ending December 31, 2023.

The Audit Committee is responsible for selecting the independent auditors of the Company. The Audit Committee has directed the Company to submit the selection of Ernst & Young as the Company’s independent registered public accounting firm for fiscal 2023 for ratification by the stockholders at the Annual Meeting. Although stockholder ratification of Ernst & Young is not required by the Company’s governing documents or law, the Board has determined that it is desirable to submit the selection of Ernst & Young to the stockholders for ratification as a matter of good corporate practice in view of the critical role played by the independent registered public accounting firm in maintaining the integrity of financial controls and reporting. If the stockholders do not vote to approve the ratification of the selection, the Audit Committee will consider whether to engage another independent registered public accounting firm. Even if the selection is ratified, the Audit Committee may, at its discretion, direct the appointment of a different independent registered public accounting firm at any time during fiscal 2023 if it determines that such a change would be in the best interests of the Company and its stockholders.

Report of the Audit Committee

The Audit Committee is comprised of four independent, non-employee directors, Lee M. Canaan (chair), Mark T. Behrman, Glen A. Brown, and Steven L. Packebush. The Board has determined that all committee members are independent and financially literate as defined by NYSE listing standards and SEC regulations and that Mr. Behrman, Mr. Brown, Ms. Canaan and Mr. Packebush are each an “audit committee financial expert” as defined by applicable SEC regulations. For purposes of complying with NYSE rules, the Board has determined that none of the Committee members currently serves on the audit committees of more than three public companies.

The Audit Committee’s responsibilities are set forth in the Audit Committee Charter, as may be amended from time to time by the Board. The Audit Committee’s primary responsibility is to oversee the Company’s financial reporting process on behalf of the Board and report the results of its activities to the Board. Management has the primary responsibility for the financial statements and the reporting process, including internal control over financial reporting.

Management is responsible for the preparation, presentation and integrity of our financial statements in accordance with generally accepted accounting principles, the establishment and maintenance of our disclosure controls and procedures, and the establishment, maintenance and evaluation of the effectiveness of our internal controls over financial reporting. The Company’s independent registered public accounting firm is responsible for performing an independent audit of our financial statements and internal control over financial reporting in accordance with the standards of the Public Company Accounting Oversight Board (“PCAOB”) and issuing reports thereon. The Audit Committee’s responsibilities include monitoring and overseeing these processes.

Discussions with Management. In fulfilling its responsibilities, the Audit Committee has reviewed and discussed with management the Company’s audited financial statements included in the Company’s Annual Report on Form 10-K for fiscal 2022, including a discussion of the quality, not just the acceptability, of the accounting principles, the reasonableness of significant judgments and the clarity of disclosures in the financial statements.

Discussions with Independent Accountants. The Audit Committee reviewed and discussed the Company’s audited financial statements with Ernst & Young, which is the independent registered public accounting firm responsible for expressing an opinion on the conformity of those financial statements with the standards of the PCAOB and its judgment as to the quality, not just the acceptability, of the Company’s accounting principles. The Audit Committee discussed with the independent accountants such matters required under the standards of the PCAOB and the SEC. In addition, the Audit Committee discussed with the independent accountants its

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independence from management and the Company, including matters in the written disclosures and letter received from the independent accountants as required by PCAOB Rule 3526 (Communications with Audit Committee Concerning Independence).

The Audit Committee met with the independent accountants, with and without management present, to discuss the overall scope and plans for their audit, the results of their examinations, their evaluations of the Company’s internal control over financial reporting and the overall quality of the Company’s financial reporting. The Audit Committee also met with the independent accountants and management after the end of each of the first three 2022 fiscal quarters. At these meetings, the independent accountants’ review of quarterly results was presented, and discussions were also held with management concerning these results.

Recommendations that Financial Statements be Included in the Annual Report. In reliance on the reviews and discussions referred to above, the Audit Committee recommended to the Board (and the Board approved) that the audited financial statements be included in our Annual Report on Form 10-K for fiscal 2022 for filing with the SEC (which was filed on December 13, 2022).

 

Audit Committee

Lee M. Canaan – Chair

Mark T. Behrman

         Glen A. Brown

Steven L. Packebush

Independent Accountants’ Fees and Services

The following sets forth fees billed for audit and other services provided by Ernst & Young for the fiscal years ended September 30, 2022, and September 30, 2021:

 

Fee Category

 

Fiscal 2022 Fees

 

Fiscal 2021 Fees

 

Audit Fees (1)

 

$735,000

 

$669,643

 

Audit-Related Fees

 

$-

 

$-

 

Tax Fees

 

$-

 

$-

 

All Other Fees

 

$-

 

$-

 

(1)
Includes fees for audit of financial statements, review of the related quarterly financial statements for those fiscal years, and services related to other SEC filings.

All services rendered by Ernst & Young were permissible under applicable laws and regulations and were pre-approved by the Audit Committee. The Audit Committee’s pre-approval policy is set forth in the Audit Committee Charter which is available at the Company’s website: www.phxmin.com under the “Governance Library” section of the “Corporate Governance” tab.

To ratify the selection of Ernst & Young LLP, a majority of shares of Common Stock represented in person or by proxy at the Annual meeting must vote “FOR” Proposal No. 3.

BOARD RECOMMENDATION ON PROPOSAL

The Board of Directors Recommends Stockholders Vote “FOR” Ratification of Selection of Independent Registered Public Accounting Firm.

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Proposal No. 4

Approval of Amendment to the

PHX Minerals Inc. 2021 Long-Term Incentive Plan

Background Purpose of the Proposal

On January 5, 2021, the Board unanimously approved the PHX Minerals Inc. 2021 Long-Term Incentive Plan, or the LTIP, which was approved by our stockholders at the 2021 annual meeting held on March 2, 2021. At this year’s Annual Meeting, stockholders will be asked to approve an increase in the number of shares available for issuance under the LTIP by 2,400,000 shares (the “LTIP Amendment”). If approved by the Company’s stockholders at the Annual Meeting, the LTIP Amendment will become effective March 6, 2023. The LTIP, as proposed to be amended by the LTIP Amendment, is attached hereto as Appendix A. If the LTIP Amendment becomes effective, the Company will register the additional shares on a Registration Statement on Form S-8 as soon as practicable after March 6, 2023. The material features of the LTIP Amendment and, more generally, the LTIP, are described below.

The LTIP is also being amended to reflect the Company’s reincorporation from Oklahoma to Delaware (the “Reincorporation”). The Reincorporation was approved by the Company’s stockholders at the 2022 annual meeting held on March 2, 2022, and therefore the amendments to reflect the Reincorporation do not require stockholder approval at this Annual Meeting and will be made to the LTIP regardless of whether or not the LTIP Amendment is approved by the Company’s stockholders. The LTIP amendments to reflect the Reincorporation include: (i) referencing the Company as “a Delaware corporation” rather than “an Oklahoma corporation” in Section 3(l); (ii) referencing the “Delaware General Corporation Law” rather than the “Oklahoma General Corporation Act” in Section 15(a); (iii) referencing the laws of the “State of Delaware” rather than the laws of the “State of Oklahoma” in Section 17(b); and (iv) changing references to “shareholders” to “stockholders”, which is the term used under Delaware law. Additionally, as previously disclosed in connection with the Reincorporation, the Company’s Common Stock is no longer classified as Class A Common Stock, and therefore the LTIP will no longer refer to the Company’s Common Stock as “Class A” Common Stock. The amended and restated LTIP attached hereto as Appendix A includes the amendments to reflect the Reincorporation.

Reasons for the LTIP Amendment

The Board believes that the purpose of the LTIP is to assist the Company in employing and retaining qualified and competent personnel and to promote the growth and success of the Company by aligning the long-term interests of the Company’s key employees with those of the Company’s stockholders by providing an opportunity to acquire an interest in the Company and by providing both rewards for exceptional performance and long-term incentives for future contributions to the success of the Company. The Company believes that the grant of restricted shares that vest over several years is an essential long-term component to the Company’s total compensation package for its officers and also encourages officers to remain with the Company. Further, the Company believes that the grant of restricted shares to directors will help retain and attract qualified directors and further align the directors’ interests with those of the Company’s stockholders. The Board believes the additional shares to be reserved pursuant to the LTIP Amendment are necessary to accomplish these purposes.

As of January 15, 2023, an aggregate of 1,236,917 shares of Common Stock (both vested and unvested shares of restricted stock) had been awarded under the LTIP, which leaves 1,263,083 shares of Common Stock available for future issuance under the LTIP. If the LTIP Amendment is not approved by the stockholders, the Company may be forced to cease or limit use of long-term incentives, and the Board may consider other alternatives to compensate employees.

The LTIP Amendment would increase the number of shares of Common Stock available for issuance under the LTIP from 2,500,000 shares to 4,900,000 shares. In considering this proposal, stockholders should also be aware that the average number of shares granted per year under the Plans over the last three fiscal years, divided by the number of shares outstanding, is approximately 1.7%. The Company anticipates that the requested number of shares for the LTIP will be sufficient to meet the needs of our long-term incentive program for at least six years.

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Burn Rate and Overhang Disclosure

The Company’s historical share usage under its equity compensation plans (sometimes referred to as “burn rate”), specifically the LTIP and the Restricted Stock Plan, and the potential dilution of the Company’s stockholders that could occur with respect to the Company’s equity plans (sometimes referred to as “overhang”) are summarized below with respect to the prior three fiscal years.

 

Fiscal Year

 

Restricted Stock Grants

 

Weighted Average Shares Outstanding

 

Burn Rate

2022

 

687,085

 

34,184,212

 

2.0%

2021

 

428,750

 

25,742,202

 

1.7%

2020

 

181,312

 

16,856,792

 

1.1%

 

 

 

 

Three-year average:

 

1.7%

As of January 15, 2023, the total overhang with respect to the LTIP (assuming stockholder approval of the LTIP amendment), the Restricted Stock Plan and outstanding awards, expressed as a percentage of Common Stock outstanding, is reflected in the table below. The Company has not issued any stock appreciation rights or other appreciation awards under the LTIP, and no appreciation awards were otherwise outstanding as of January 15, 2023.

 

Shares remaining available under the LTIP

1,263,083

Additional shares requested pursuant to the LTIP Amendment

2,400,000

Shares remaining available under the Restricted Stock Plan

0

Total shares available for issuance

3,663,083

Equity awards outstanding

859,061

Shares of Common Stock outstanding

36,491,333

Overhang

12.4%

The Company believes that granting equity awards, which generally vest over several years, is an effective method for aligning the interests of the Company’s employees and directors with those of stockholders, encouraging ownership in the Company and providing the Company an opportunity to attract and retain the best available personnel for positions of substantial responsibility.

Summary of the LTIP

Below is a summary of the material terms of LTIP, as proposed to be amended. The full text of the LTIP, as proposed to be amended, is attached as Appendix A to this proxy statement. The statements made in this proxy statement with respect to the LTIP should be read in conjunction with, and are qualified in their entirety by reference to, the full text of the LTIP, as proposed to be amended.

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Purpose of the LTIP

The LTIP is designed to promote the interests of the Company and our stockholders by offering selected employees, consultants and non-employee directors of the Company or its affiliates an opportunity to participate in the growth and financial success of the Company, and by providing to such persons performance-related incentives. The LTIP permits discretionary grants of the following award types:

Incentive stock options (“Incentive Stock Options”) as defined in Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”);
Stock options that do not constitute Incentive Stock Options (“Non-Qualified Stock Options” and, together with Incentive Stock Options, “Options”);
Shares of Common Stock for a purchase price, if any, determined by the Compensation Committee that are not subject to forfeiture (“Bonus Stock Awards”);
The right to receive shares of Common Stock or cash payments with a value equal to the amount by which the fair market value of a share of Common Stock on exercise exceeds the fair market value on the grant date (“Stock Appreciation Rights”);
The right to receive a specified number of shares of Common Stock or cash equal to the fair market value of a specified number of shares of Common Stock (“Phantom Stock Awards” or “Restricted Stock Units”);
Shares of Common Stock that are subject to restrictions on disposition and forfeiture to the Company under certain circumstances (“Restricted Stock Awards”);
Cash and/or stock payments that may be earned based on the satisfaction of various performance measures (“Performance Awards”); and
Other stock or performance-based awards (“Other Stock or Performance-Based Awards”).

Shares Subject to the LTIP

Subject to adjustment as described under “Adjustments upon Changes in Capitalization and Corporate Events” below, the aggregate number of shares of Common Stock that may be issued with respect to awards granted under the LTIP may not exceed 4,900,000, including such aggregate number of shares that have been reserved for issuance and are subject to unvested Awards under the Restricted Stock Plan (the “Share Pool Limit”).

Except for shares of Common Stock issued with respect to awards that are assumed or substituted as a result of the Company’s acquisition of another company (including by way of merger, combination or similar transaction), the number of shares reserved for issuance under the LTIP will be reduced by the number of shares of Common Stock issued in connection with the exercise or settlement of an award or used to determine the amount of cash paid in connection with the exercise of Stock Appreciation Rights and the settlement of Phantom Stock Awards. Any shares of Common Stock covered by an award that is forfeited or canceled or that expires, or that are withheld in respect of taxes (except as provided below), will be deemed not to have been issued for purposes of determining the maximum aggregate number of shares of Common Stock which may be issued under the LTIP; provided that the following will count against the Share Pool Limit: (i) shares tendered or withheld to pay the exercise price of, or tax withholding obligations related to, awards, (ii) shares repurchased by the Company from a participant with the proceeds from the exercise of Options and (iii) shares reserved for issuance under a Stock Appreciation Right that exceed the number of shares actually issued upon exercise.

The shares to be delivered under the LTIP will be made available from (a) authorized but unissued shares, (b) shares held in the treasury of the Company or (c) previously issued shares reacquired by the Company, including shares purchased on the open market, in each case as the Compensation Committee may determine from time to time in its sole discretion. Subject to adjustment in accordance with the LTIP, no more than 1,750,000 shares of Common Stock may be issued in the aggregate pursuant to the exercise of Incentive Stock Options.

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Administration

The LTIP is administered by the Compensation Committee of the Board. Additionally, the Board or Compensation Committee may delegate any of its powers under the LTIP to a subcommittee of the Compensation Committee or one of their respective members, or to one or more officers of the Company, subject to applicable laws and exchange requirements.

The Compensation Committee has full authority, subject to the terms of the LTIP, to establish rules that it deems relevant for the proper administration of the LTIP and to set the type and size of awards that are made and the other terms of the awards. Furthermore, the Compensation Committee has full authority, subject to the terms of the LTIP, to select the employees, consultants and non-employee directors to whom awards are granted. When granting awards, the Compensation Committee may consider any factors that it deems relevant.

The LTIP authorizes the Compensation Committee to grant equity-based awards, including Restricted Stock Awards, Restricted Stock Units and Options, to eligible employees and consultants (other than executive officers of the Company or its affiliates and non-employee directors). The Board may determine, or cause the Compensation Committee to determine, (i) the maximum aggregate number of shares of Common Stock subject to Options granted by the Compensation Committee in any one calendar year; (ii) the maximum aggregate number of shares of Common Stock covered by Restricted Stock Awards and Restricted Stock Unit Awards in the aggregate granted by the Compensation Committee in any one calendar year; (iii) the aggregate number of shares of Common Stock that may be awarded to any individual under Options granted by the Compensation Committee; and/or (iv) the aggregate number of shares of Common Stock that may be awarded to any individual under Restricted Stock Awards and Restricted Stock Unit Awards in the aggregate granted by the Compensation Committee.

Eligibility

All employees, consultants and non-employee directors of the Company and our affiliates are eligible to participate in the LTIP. The selection of employees, consultants and non-employee directors, from among those eligible, who will receive Incentive Stock Options, Non-Qualified Stock Options, Bonus Stock Awards, Stock Appreciation Rights, Phantom Stock Awards, Restricted Stock Awards, Restricted Stock Unit Awards, Performance Awards, Other Stock or Performance-Based Awards or any combination thereof, is within the discretion of the Compensation Committee.

However, Incentive Stock Options may be granted only to employees of the Company or its affiliates. As of the Record Date, there were approximately 22 employees and six non-employee directors eligible to participate in the LTIP.

Term of LTIP

The LTIP became effective when it was approved by our stockholders at the 2021 annual meeting held on March 2, 2021. If not sooner terminated, the LTIP will terminate on the earlier of the tenth anniversary of the effective date or the date on which no shares of Common Stock subject to the LTIP remain available to be granted as awards under the LTIP, and no further awards may be granted thereafter. The Board, in its discretion, may terminate the LTIP at any time with respect to any shares of Common Stock for which awards have not theretofore been granted.

Term of Awards

The term of any Incentive Stock Option, Non-Qualified Stock Option, Stock Appreciation Right or Other Stock or Performance-Based Award may not exceed a period of 10 years.

Stock Options

Term of Option; Exercise Price. The term of each Option is as specified by the Compensation Committee at the date of grant but cannot exceed 10 years. The exercise price is determined by the Compensation Committee and can be no less than the fair market value of the shares of Common Stock covered by the Option on the date the Option is granted (other than options assumed, or issued in substitution for option awards, in connection with the acquisition of another entity).

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Special Rules for Certain Stockholders. If an Incentive Stock Option is granted to an employee who then owns stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or its affiliates, the term of the Option cannot exceed five years, and the exercise price must be at least 110% of the fair market value of the shares of Common Stock on the date that the Option is granted.

Status of Stock Options. The status of each Option granted to an employee as either an Incentive Stock Option or a Non-Qualified Stock Option is designated by the Compensation Committee at the time of grant. If, however, the aggregate fair market value (determined as of the date of grant) of shares with respect to which Incentive Stock Options become exercisable for the first time by an employee exceeds $100,000 in any calendar year, the Options with respect to the excess shares are Non-Qualified Stock Options. All Options granted to consultants and non-employee directors are Non-qualified Stock Options.

Transferability. An Incentive Stock Option is not transferable other than by will or the laws of descent and distribution, and may be exercised during the employee’s lifetime only by the employee or his or her guardian or legal representative. A Non-Qualified Stock Option is not transferable other than by will or the laws of descent and distribution, or with the consent of the Compensation Committee, to one or more immediate family members or related family trusts or partnerships or similar entities, subject to securities registration requirements.

Limitations on Exercise. No Incentive Stock Option may be exercised more than: (i) three months after the participant ceases to perform continuous service for the Company for any reason other than death or Disability (as defined in the LTIP) or (ii) one year after the participant ceases to perform continuous service for the Company due to death or disability. No Non-Qualified Stock Option may be exercised more than: (i) six months after the participant ceases to perform continuous service for the Company for any reason other than death or disability or (ii) one year after the participant ceases to perform continuous service for the Company due to death or disability. If a participant’s continuous service with the Company is terminated for cause (as defined in the LTIP), the Option will immediately terminate.

Bonus Stock Awards

The Compensation Committee may grant shares of our Common Stock to employees, consultants and non-employee directors on terms and conditions and for such payment, if any, as established by the Compensation Committee on the date of grant, which grant will constitute a transfer of unrestricted shares of Common Stock to the recipient.

Stock Appreciation Rights