DEF 14A of Amplify Energy Corp.
Filed Apr 5, 2024 · FY20230001104659-24-044250
DIRECTORS AND DIRECTOR NOMINEES
DIRECTORS AND DIRECTOR NOMINEES
Directors
Directors The Board currently is composed of eight members: Deborah G. Adams, James E. Craddock, Patrice Douglas, Christopher W. Hamm (Chairman), Randal T. Klein, Vidisha Prasad, Todd R. Snyder and Martyn Willsher. As previously announced, Mr. Klein informed the Company of his intention not to seek reelection at the Annual Meeting and that his departure from the Board would be effective immediately following the Annual Meeting. Mr. Klein has served as a member of the Board since November 2018, and his decision not to stand for reelection was not due to any disagreements with the Company on any matter relating to the Company’s operations, policies, or practices. The Nominating and Governance Committee has recommended, and our Board has nominated, Mses. Adams, Douglas and Prasad and Messrs. Craddock, Hamm, Snyder and Willsher for election as directors at the Annual Meeting.
Director Nominees
Director Nominees After the Annual Meeting, assuming the stockholders elect the nominees of the Board as set forth in “Proposal 1 — Election of Directors” above, the members of the Board will be:
Director Nominees
| Name | Age (as of April 5, 2024) | Position with the Company | | Deborah G. Adams | 63 | Director | | James E. Craddock | 65 | Director | | Patrice Douglas | 61 | Director | | Christopher W. Hamm | 57 | Director (Chairman) | | Vidisha Prasad | 43 | Director | | Todd R. Snyder | 61 | Director | | Martyn Willsher | 46 | President & CEO and Director |
Director Nominees
The Board currently consists of eight members. Although Mr. Klein has decided not to seek reelection as a director at the Annual Meeting, he will continue to serve for the remainder of his term as a director until the Annual Meeting. The Company’s directors serve for a one-year term. Directors may be removed from office either for or without cause upon the affirmative vote of the holders of a majority of the outstanding shares of stock of the Company entitled to vote generally for the election of directors. Set forth below is biographical information for the nominees. The following includes certain information regarding our directors’ individual experience, qualifications, attributes and skills that led the Board to conclude that they should serve as directors. Deborah G. Adams has served as a member of Amplify Energy’s Board since April 2022. Ms. Adams has over 35 years of energy industry experience, as a leader with particular focus on health, safety, and sustainability, project management, procurement, and transportation. Prior to retirement, Ms. Adams served as Senior Vice President of Health, Safety, and Environmental, Projects and Procurement at Phillips 66 from June 2014 to October 2016. In this role, Ms. Adams oversaw all regulatory affairs and processes, reported directly to the Company’s CEO, and regularly presented to the Phillips 66 Board of Directors. She was responsible for improved safety performance across the entire company along with overseeing a number of new facilities projects worth over a billion dollars, all completed on budget and on time. Prior to this role, Ms. Adams held roles of increasing responsibility, including President of Transportation and Chief Procurement Officer, at Phillips 66 and predecessor companies since 1983. Ms. Adams currently serves on the board of directors of EnLink Midstream (NYSE: ENLC), a midstream energy services company, since March 2020 and MRC Global (NYSE: MRC), a leading distributor of pipes, valves, and fittings for the transportation of oil & gas, since October 2017, and previously served on the board of directors of Gulfport Energy (NYSE: GPOR), an oil and gas exploration and production company, from March 2018 to May 2021. She also currently serves on the board of directors of Austin Industries, a privately held, employee-owned construction company. Ms. Adams previously served her alma mater, Oklahoma State University, as a member of the foundation board of trustees. Ms. Adams also serves as a member of the Advisory Board for the TriCities Chapter of the National Association of Corporate Directors. Ms. Adams holds a Bachelor of Science in Chemical Engineering from Oklahoma State University. The Board believes Ms. Adams’ extensive leadership experience in the midstream and downstream businesses, procurement and information systems in the oil and natural gas industry and her HSE expertise brings significant value to the Board. James E. Craddock has served as a member of Amplify Energy’s Board since February 2023. Mr. Craddock is a seasoned upstream executive and director who possesses broad-based technical and operational knowledge with over 30 years of experience. Previously, Mr. Craddock served as the Chairman and Chief Executive Officer of Rosetta Resources Inc., from 2013 to 2015 until its merger with Noble Energy Inc., following which Mr. Craddock served on Noble Energy Inc.’s board of directors from 2015 until the company was acquired by Chevron in 2020. Prior to that, Mr. Craddock was the Chief Operating Officer for BPI Industries Inc. and held several positions of increasing responsibility over a 20-year career at Burlington Resources Inc. He currently serves on the board of directors of Callon Petroleum Company since April 2023 and Crescent Point Energy Corp. since June 2019 and previously served on the boards of Templar Energy LLC, Noble Energy Inc. and Bonanza Creek Energy, Inc. and on the Texas Railroad Commission’s Eagle Ford Shale Task Force. Mr. Craddock holds a B.S. in Mechanical Engineering from Texas A&M University. The Board believes Mr. Craddock’s extensive experience in both the technical and operational aspects of the oil and natural gas industry, including his service as Chief Executive Officer and a board member of a large oil and natural gas producer, brings significant value to the Board. Patrice Douglas has served as a member of Amplify Energy’s Board since February 2021. Ms. Douglas is an attorney, who represents financial institutions, energy companies, municipalities, and utilities on legal, regulatory and compliance matters. Previously, Ms. Douglas served as Senior Vice President and then President of SpiritBank from 2004 to 2007 and Executive Vice President of First Fidelity Bank from 2007 to 2011. Ms. Douglas was first elected as mayor of Edmond, Oklahoma in 2009 and was elected to a second term in 2011. As a member of the U.S. Conference of Mayors, she served on the committee for tourism. Ms. Douglas was appointed by Oklahoma’s Governor to the Oklahoma Corporation Commission where she served from 2011 to 2015, having been re-elected unopposed in 2012. She was elected to be chairman of the Commission in 2012. While serving on the Commission, Ms. Douglas was a member of the National Association of Regulatory Utility Commissioners, and served on its Water Committee. Ms. Douglas has served on the board of directors of Diamond Offshore Drilling, Inc. since May 2023. Her prior experiences also include service as a member of the board of directors and chair of the nominating and governance and audit committees for Midstates Petroleum Company, Inc. from September 2016 to August 2019; a member of the board of directors for Bank SNB from August 2016 to May 2018, serving on both the audit committee and the director’s credit committee; and a member of the board of directors for Southwest BanCorp. from 2016 to 2019. Ms. Douglas received a B.S. in Computer Information Systems from Oklahoma Christian University and J.D. from the University of Oklahoma. The Board believes Ms. Douglas’ considerable financial experience, as well as her extensive prior experience as a director and/or audit committee member of other exploration and production companies and financial institutions, brings valuable strategic and analytical skills to the Board. Christopher W. Hamm has served as Amplify Energy’s Chairman of the Board since January 2021. He previously served as the Lead Director of the Board from April 2020 until his appointment as Chairman, and has served as a member of Amplify Energy’s Board since August 2019. Mr. Hamm previously served as a member of the board of directors of Amplify Energy from its inception in May 2017 until the closing of the merger with Midstates Petroleum Company, Inc. in August 2019. Mr. Hamm has spent the last 26 years of his 33-year career as a founder, CEO, professional investor, advisor and director of both public and private organizations. He is currently Chairman & CEO of Axys Capital, a boutique investment bank, advisor and manager he founded in 2009, and CEO of Axys Data, a fintech company he founded in 2001. Mr. Hamm founded, and was Chairman, CEO and CIO of Memorial Investment Advisors, a registered investment advisor, and Memorial Funds, an institutional multi-fund registered investment company, where he served as President/CEO and Chairman. Prior to founding his own firms, Mr. Hamm served as Executive Director — Institutional Services at CIBC Oppenheimer, Senior Vice President — Capital Markets at PaineWebber, and Vice President — Taxable Fixed Income at Howard Weil Labouisse & Friederichs. The Board believes Mr. Hamm’s extensive investment experience and intimate familiarity with the Company brings significant value to the Board.
Director Nominees
Vidisha Prasad has served as a member of Amplify Energy’s Board since October 2023. Ms. Prasad brings more than two decades of experience in energy investments, strategic and board advisory, corporate mergers, asset acquisitions and divestitures, capital markets and restructuring. Ms. Prasad is currently the Managing Partner of Adya Partners, a multi-strategy investment firm focused on private secondary investments and early-stage venture capital in the energy, energy transition and technology sectors. Prior to founding Adya Partners, Ms. Prasad was a founding member of Guggenheim Securities’ Energy Investment Banking practice and prior to that, Ms. Prasad held roles of increasing responsibility within Citi’s Global Energy Investment Banking Groups in Houston, London and New York. Ms. Prasad previously served on the Board of Centennial Resources (now Permian Resources) where she served on the Audit, Nominating, Governance and ESG Committees. She also serves on the Board of the Grammy award winning Houston Chamber Choir, where she chairs the Development Committee. Ms. Prasad received a B.A. in Economics from the University of Rochester. The Board believes Ms. Prasad’s experience in the energy industry, particularly in the areas of capital markets, finance and M&A, as well as her knowledge and understanding of strategic planning and risk management brings significant value to the Board. Todd R. Snyder has served as a member of Amplify Energy’s Board since October 2016. Mr. Snyder is a managing director and global head of the Piper Sandler restructuring group, TRS Advisors since 2017. Prior to joining Piper Sandler, Mr. Snyder was Chief Executive Officer at TRS Advisors. Before that he was executive vice chairman of Rothschild & Co. and co-head of the North American restructuring advisory business. Previously, he was a managing director in the restructuring and reorganization group at Peter J. Solomon Company. Prior to joining Peter J. Solomon Company, Mr. Snyder was a managing director at KPMG Peat Marwick in the corporate recovery group where he was also national director of the corporate recovery practice for government enterprises (regulated and privatizing industries). Prior to his move to investment banking, he practiced law in the business reorganization department of Weil, Gotshal & Manges LLP. Mr. Snyder was a commissioner of the New York State Gaming Commission and a member of New York State’s financial restructuring board for local governments. He previously served as a director of GenCorp Inc., AMC Financial, Inc. and Eco-Stim Energy Solutions. Mr. Snyder currently serves as a trustee for non-profit organizations BRC (Bowery Residents Committee) and Shining Hope for Communities. Mr. Snyder received a B.A. from Wesleyan University and a J.D. from the University of Pennsylvania Law School. The Board believes that Mr. Snyder’s extensive financial expertise and experience in representing public and private companies in complex financial transactions brings important experience and skill to the Board. Martyn Willsher has served as Chief Executive Officer of the Amplify Energy Board since January 2021, after having served as interim Chief Executive Officer since April 2020. Mr. Willsher also previously served as Senior Vice President and Chief Financial Officer of Amplify Energy from April 2018 to January 2021. From May 2017 to April 2018, Mr. Willsher served as Amplify Energy’s Vice President and Treasurer. He also served as Treasurer of Memorial Production Partners GP, LLC, Amplify Energy’s predecessor, from July 2014 to May 2017, and as Director of Strategic Planning for Memorial Resource Development LLC, an affiliate of the predecessor of Amplify Energy, from March 2012 to June 2014. Prior to that, he served as Manager, Financial Analysis of AGL Resources from September 2009 to March 2012, and as Director — Upstream Oil & Gas A&D of Constellation Energy from August 2006 to March 2009. Prior to that, he served in various business development and financial analysis roles at JM Huber Corp., FTI Consulting and PricewaterhouseCoopers LLP. Mr. Willsher received his Master of Business Administration from The University of Texas at Austin and his Bachelor of Business Administration in Finance from Texas A&M University. The Board believes Mr. Willsher’s extensive experience in the oil and natural gas industry and intimate familiarity with the Company brings significant value to the Board.
EXECUTIVE AND DIRECTOR COMPENSATION
EXECUTIVE AND DIRECTOR COMPENSATION
Summary Compensation Table
Summary Compensation Table The following table includes the compensation earned by our NEOs for the fiscal years ended December 31, 2023 and 2022.
Summary Compensation Table
| Name and Principal Position | Year | Salary ($)(1) | Bonus ($)(2) | Stock Awards ($)(3) | Non-equity Incentive Plan Compensation(4) | All Other Compensation ($)(5) | Total ($) | | Martyn Willsher President and Chief Executive Officer | 2023 | 517,692 | 127,920 | 1,344,002 | 392,080 | 19,800 | 2,401,494 | | | 2022 | 471,154 | 313,500 | 591,345 | 186,500 | 18,300 | 1,580,799 | | James Frew Senior Vice President & Chief Financial Officer | 2023 | 252,000 | 62,681 | 985,940 | 192,119 | 15,120 | 1,507,860 | | Daniel Furbee Senior Vice President & Chief Operating Officer | 2023 | 280,000 | 62,681 | 985,940 | 192,119 | 15,960 | 1,536,700 |
Summary Compensation Table
(1) Mr. Frew and Mr. Furbee joined the Company on April 17, 2023 and March 17, 2023, respectively. Accordingly, the amount reported reflects the annual base salary earned for the portion of the year employed. (2) For each NEO, the amount reflects the discretionary component of the annual incentive bonuses paid in cash to each NEO pursuant to our annual incentive bonus program (for more information, see “Annual Incentive Bonuses” below). The amounts represent the grant date fair value of restricted stock units with performance and service-based vesting conditions (“PSUs”) and restricted stock units with only service-based vesting conditions (“RSUs”) granted pursuant to the Amplify Energy Corp. Equity Incentive Plan (the “EIP”). The amounts are calculated in accordance with ASC Topic 718, but exclude any impact of estimated forfeiture rates. The probable outcome for the PSUs awarded in 2023 was estimated at the target payout level, or 100%. The grant date fair value of PSUs awarded in 2023 assuming maximum levels of performance are achieved is as follows:
Summary Compensation Table
| Name | Grant Date Fair Value Assuming Maximum Performance ($) | | Mr. Willsher | 1,687,999 | | Mr. Frew | 1,243,870 | | Mr. Furbee | 1,243,870 |
Summary Compensation Table
(4) For each NEO, the amount reflects the annual incentive bonuses paid in cash to each NEO pursuant to our annual incentive bonus program based on the achievement of the applicable performance conditions (other than the discretionary component of such annual incentive bonuses reported in the “Bonus” column. For more information, see “Annual Incentive Bonuses” below). (5) All Other Compensation paid in fiscal 2023 reflects Company contributions to the Company’s 401(k) plan.
Outstanding Equity Awards at 2023 Fiscal Year-End
Outstanding Equity Awards at 2023 Fiscal Year-End The following table sets forth certain information with respect to outstanding equity awards at December 31, 2023.
Outstanding Equity Awards at 2023 Fiscal Year-End
| Name | Grant Date | Number of Shares or Units of Stock That Have Not Vested (#) | Market Value of Shares or Units of Stock That Have Not Vested ($)(1) | Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights That Have Not Vested (#) | Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested ($)(1) | | Martyn Willsher | 2/1/2023(2) | — | — | 56,117 | 332,774 | | | 2/1/2023(3) | 56,117 | 332,774 | — | — | | | 2/1/2022(2) | — | — | 120,192 | 712,739 | | | 2/1/2022(3) | 40,064 | 237,580 | — | — | | | 4/1/2021(4) | — | — | 62,146 | 368,526 | | | 4/1/2021(5) | 20,715 | 122,840 | — | — | | James Frew | 4/17/2023(2) | — | — | 55,829 | 331,066 | | | 4/17/2023(3) | 55,829 | 331,066 | — | — | | Daniel Furbee | 4/17/2023(2) | — | — | 55,829 | 331,066 | | | 4/17/2023(3) | 55,829 | 331,066 | — | — |
Outstanding Equity Awards at 2023 Fiscal Year-End
Amounts reported are based on the fair market value of our common stock on the last day of the fiscal year ended December 31, 2023 ($5.93 per share). (2) Reflects PSUs that were granted under the EIP and cliff vest pursuant to the Company’s achievement of certain performance goals over a three-year performance period, subject to the holder’s continued employment by the Company through the settlement date. As of December 31, 2023, the Company’s achievement of the performance goals was at maximum levels of performance for awards granted in 2022 and at 67% of target for awards granted in 2023. Accordingly, the number of PSUs reported in the table reflect amounts based on maximum performance (200% of target) for the 2022 awards and target performance (100% of target) for the 2023 awards. (3) Reflects RSUs that were granted under the EIP. These RSUs vest in substantially equal installments on each of the first three anniversaries of the grant date, so long as the holder remains employed by the Company through the applicable vesting date. (4) Reflects PSUs that were granted under the MIP and vest pursuant to the Company’s achievement of certain performance goals over three one-year periods, subject to the holder’s continued employment by the Company through the applicable vesting date. As of December 31, 2023, the Company’s achievement of the performance goals was at 167% of target. Accordingly, the number of PSUs reported in the table reflect amounts based on maximum performance (200% of target) for the 2021 awards. Pursuant to the applicable award agreement, 50% of the PSUs were eligible to vest on December 31, 2023, subject to the Compensation Committee’s certification of performance within 60 days following such vesting date. The amounts reported include such one-half of the PSUs that were eligible to vest on December 31, 2023, subject to the Compensation Committee’s certification of performance. (5) Reflects RSUs that were granted under the MIP. These RSUs vest in equal installments on each of the first three anniversaries of the grant date, so long as the holder remains an officer of the Company through the applicable vesting date.
Potential Payments upon Termination or Change of Control
Potential Payments upon Termination or Change of Control The following table sets forth information concerning the change of control and severance payments to be made to each of our NEOs in connection with a change of control or termination of employment, presuming a termination or change of control date of December 31, 2023 and the fair market value of a share of common stock on December 31, 2023 ($5.93 per share). The below table only includes information for employment termination or change of control events that trigger vesting or severance-related payments and assumes that each executive will take all action necessary or appropriate for such person to receive the maximum available benefit, such as execution of a release of claims. The precise amount that each of our NEOs would receive cannot be determined with any certainty until a change of control has occurred.
Potential Payments upon Termination or Change of Control
| Name | Involuntary Termination (Non-Change in Control) ($)(1)(2) | Termination upon Death or Disability ($)(3) | Involuntary Termination in Connection with a Change in Control ($)(4)(5) | | Martyn Willsher | | | | | Cash Severance | 1,560,000 | 520,000 | 2,600,000 | | Accelerated Equity Compensation(5) | 1,550,394 | — | 2,046,427 | | Health and Welfare Benefits | 29,996 | — | 29,996 | | Total | 3,140,390 | 520,000 | 4,676,423 | | James Frew | | | | | Cash Severance | 982,800 | 254,800 | 1,237,600 | | Accelerated Equity Compensation | 405,007 | — | 662,132 | | Health and Welfare Benefits | 29,996 | — | 29,996 | | Total | 1,417,803 | 254,800 | 1,929,728 |
Potential Payments upon Termination or Change of Control
| Name | Involuntary Termination (Non-Change in Control) ($)(1)(2) | Termination upon Death or Disability ($)(3) | Involuntary Termination in Connection with a Change in Control ($)(4)(5) | | Daniel Furbee | | | | | Cash Severance | 982,800 | 254,800 | 1,237,600 | | Accelerated Equity Compensation | 405,007 | — | 662,132 | | Health and Welfare Benefits | 29,996 | — | 29,996 | | Total | 1,417,803 | 254,800 | 1,929,728 |
Potential Payments upon Termination or Change of Control
If Messrs. Willsher, Frew, and Furbee experience a Good Leaver Termination (as defined below) (not in connection with a change in control) described below, then subject to the NEO’s execution and non-revocation of a general release of claims and continued compliance with the restrictive covenants, the NEO will be entitled to: (i) the Prior Year Bonus (as defined below), if any; (ii) the Pro Rata Bonus Amount (as defined below), if any; (iii) an amount equal to two times the annual base salary as in effect on the day before the termination date, payable in a lump sum within 70 days following the termination date and (iv) up to 12 months of continued health insurance benefits under the Company group health plan (at the employee rate), subject to the NEO’s continued eligibility for COBRA coverage and terminable if the NEO obtains other employment offering group health plan coverage. (2) Accelerated Equity Compensation amounts reflect market value of outstanding RSUs, which would become vested in connection with a Good Leaver Termination. In the event of a Good Leaver Termination, subject to the NEO’s execution and non-revocation of a release of claims and continued compliance with the restrictive covenants, any unvested RSUs will fully vest and a pro-rata portion of any unvested PSUs will vest based on actual performance through the end of the applicable performance period to occur immediately following such Good Leaver Termination (with respect to the 2021 PSUs) or the date of termination (with respect to the 2022 PSUs and 2023 PSUs), as applicable. The values included in the table for the pro-rata portion of unvested PSUs reflect 167% of target for the 2021 PSUs, maximum performance (200% of target) for the 2022 PSUs, and 67% of target for the 2023 PSUs. (3) If an NEO’s employment is terminated by us while the NEO is disabled, or if the NEO’s employment terminates as a result of the NEO’s death, subject to the NEO’s execution and non-revocation of a release of claims and continued compliance with the restrictive covenants, as applicable, each NEO is entitled to (i) Prior Year Bonus and (ii) Pro Rata Bonus Amount. (4) If Messrs. Willsher, Frew and Furbee experience a Good Leaver Termination within the 18-month period following a change of control (as defined in the Employment Agreement), then subject to the NEO’s execution and non-revocation of a release of claims and continued compliance with the restrictive covenants, the NEO will be entitled to: (i) the Prior Year Bonus, if any; (ii) the Pro Rata Bonus Amount, if any; (iii) an amount equal to two times the sum of (x) the annual base salary as in effect on the day before the termination date, and (y) the target annual bonus, payable in a lump sum within 70 days following the termination date and (iv) up to 12 months of continued health insurance benefits under the Company group health plan (at the employee rate), subject to the NEO’s continued eligibility for COBRA coverage and terminable if the NEO obtains other employment offering group health plan coverage. In the event an NEO experiences a Good Leaver Termination during the 18-month period following a change in control (a “Qualifying CIC Termination”), any unvested RSUs fully vest and each incomplete performance period with respect to unvested PSUs will be deemed to have ended as of the third business day prior to the date of the consummation of such change in control (the “Measurement Date”) and a number of unvested PSUs will vest equal to the greater of (A) the number of PSUs that would vest based on actual performance through the Measurement Date and (B) the number of PSUs that would vest based on target performance, as set forth in the applicable award agreement. In the event an NEO experiences a Qualifying CIC Termination following a change in control occurring December 31, 2023, our NEOs will be entitled to the amounts set forth in “Accelerated Equity Compensation” pursuant to accelerated vesting of their RSUs and PSUs under the applicable award agreements, assuming performance at 167% of target for the 2021 PSUs, maximum performance (200% of target) for the 2022 PSUs, and 100% of target for the 2023 PSUs. Severance Benefits under Employment Agreements Under the Employment Agreements (as in effect on December 31, 2023), upon any termination of employment with the Company, Messrs. Willsher, Frew and Furbee will be entitled to (i) accrued but unpaid base salary through the termination date, (ii) any unreimbursed business expenses incurred through the termination date, and (iii) payment of any amounts accrued and vested under any employee benefit plans or programs of the Company, and any payments or benefits required to be made or provided under applicable law (collectively, the “Accrued Amounts”). In the event of a termination of the NEO’s employment with the Company without “cause” (as defined below) or for “good reason” (as defined below) (each, a “Good Leaver Termination”), then in addition to the Accrued Amounts and subject to the NEO’s execution and non-revocation of a release of claims and continued compliance with the restrictive covenants, the NEO will be entitled to: (i) any unpaid annual bonus with respect to the calendar year ending on or preceding the termination date, in an amount equal to the annual bonus amount the NEO would have received (if any) had the NEO been employed on the payment date (the “Prior Year Bonus”); (ii) a pro rata portion of the target Annual Bonus for the calendar year in which the termination occurs (the “Pro Rata Bonus Amount”), payable within 70 days following the termination date; (iii) an amount equal to two times the NEO’s annual base salary as in effect on the day before the termination date, payable in a lump sum within 70 days following the termination date and (iv) up to 12 months of continued health insurance benefits under the Company group health plan (at the employee rate), subject to the NEO’s continued eligibility for COBRA coverage and terminable if the NEO obtains other employment offering group health plan coverage. If an NEO’s employment with the Company is terminated due to death or “disability” (as defined in the Employment Agreements), then in addition to the Accrued Amounts and subject to the NEO’s execution and non-revocation of a general release of claims and continued compliance with the restrictive covenants, as applicable, the NEO is entitled to: (i) the Prior Year Bonus, payable at the same time annual bonuses for such year are paid to actively employed senior executives of the Company; and (ii) Pro Rata Bonus Amount. In the event of a termination of the NEO’s employment with the Company without “cause” or for “good reason” within the 18-month period following a change of control (as defined in the Employment Agreement), then in addition to the Accrued Amounts and subject to the NEO’s execution and non-revocation of a general release of claims and continued compliance with the restrictive covenants, the NEO will be entitled to: (i) the Prior Year Bonus, if any; (ii) the Pro Rata Bonus Amount, if any; (iii) an amount equal to two times the sum of (x) the NEO’s annual base salary as in effect on the day before the termination date, and (y) the target annual bonus, payable in a lump sum within 70 days following the termination date and (iv) up to 12 months of continued health insurance benefits under the Company group health plan (at the employee rate), subject to the NEO’s continued eligibility for COBRA coverage and terminable if the NEO obtains other employment offering group health plan coverage.
Potential Payments upon Termination or Change of Control
The Employment Agreements provide for a Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), “best-net” cutback, which would cause an automatic reduction in any payments or benefits the NEOs would receive that constitute parachute payments within the meaning of Section 280G of the Code, in the event such reduction would result in the NEOs receiving greater payments and benefits on an after-tax basis. For purposes of the Employment Agreements, the Company will have “cause” to terminate an NEO’s employment upon the occurrence of the NEO’s: (i) conviction of a felony, or plea of guilty or nolo contendere to, any felony or any crime of moral turpitude; (ii) repeated intoxication by alcohol or drugs during the performance of the NEO’s duties; (iii) embezzlement or other willful and intentional misuse of any of the funds of the Company or its direct or indirect subsidiaries; (iv) commission of a demonstrable act of fraud; (v) willful and material misrepresentation or concealment on any written reports submitted to the Company or its direct or indirect subsidiaries; (vi) material breach of the Employment Agreement or any other agreement with the Company; (vii) failure to follow or comply with the reasonable, material and lawful written directives of the Board or (viii) conduct constituting a material breach of the Company’s then-current code of conduct or other similar written policy that has been provided to the NEO. For purposes of the Employment Agreement, the NEO will have “good reason” to terminate their employment with the Company upon the occurrence of any of the following without their written consent: (i) a relocation of the NEO’s principal work location to a location in excess of 40 miles from its then current location (provided that, a relocation shall not include: (A) the NEO’s travel for business in the course of performing the NEO’s duties for the Company, (B) the NEO working remotely or (C) the Company requiring the NEO to report to the office within the NEO’s principal place of employment (instead of working remotely)); (ii) a reduction in the NEO’s then current base salary or target annual bonus, or both; (iii) a material breach of any provision of the Employment Agreement by the Company or (iv) any material reduction in the NEO’s title, authority, duties, responsibilities or reporting relationship from those in effect as of the effective date of the Employment Agreement, except to the extent such reduction occurs in connection with the NEO’s termination of employment for “cause” or due to the NEO’s death or disability. Accelerated Vesting under Award Agreements Pursuant to the applicable RSU award agreement, in the event of a termination of the participant’s service by the Company without “cause” or by the participant for “good reason”, any unvested RSUs will vest. Pursuant to the applicable PSU agreement, in the event of a termination of the participant’s service by the Company without “cause” or by the participant for “good reason”, a pro-rata portion of all unvested PSUs will vest based on actual performance through (x) the end of the applicable performance period to occur immediately following such termination (with respect to the 2021 PSUs) or (y) the date of termination (with respect to the 2022 PSUs and 2023 PSUs), as applicable. In the event such termination occurs during the 18-month period immediately following a change in control, each incomplete performance period will be deemed to have ended as of the Measurement Date and a number of unvested PSUs will vest equal to the greater of (A) the number of PSUs that would vest based on actual performance through the Measurement Date and (B) the number of PSUs that would vest based on target performance, as set forth in the applicable award agreement.
Pay Versus Performance
Pay Versus Performance As required by Section 953(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, and Item 402(v) of Regulation S-K, we are providing the following information about the relationship between ‘compensation actually paid’ to the Principal Executive Officer of the Company (“PEO”) and to our non-PEO NEOs and certain financial performance of the Company. Compensation actually paid, as determined under SEC requirements, does not reflect the actual amount of compensation earned by or paid to our NEOs during a covered year. For further information concerning the Company’s pay-for-performance philosophy and how the Company aligns executive compensation with the Company’s performance, refer to the section titled “Narrative Disclosure to Summary Compensation Table.”
Pay Versus Performance
| Year | Summary Compensation Table Total for PEO(1) ($) | Compensation Actually Paid to PEO(1)(2) ($) | Average Summary Compensation Table Total for Non-PEO NEOs(3) ($) | Average Compensation Actually Paid to Non-PEO NEOs(3)(2) ($) | Value of Initial Fixed $100 Investment Based On: | Net Income (Loss) (in Thousands)(5) ($) | | | | | | | Total Shareholder Return(4) ($) | | | 2023 | $2,401,494 | $995,765 | $1,522,280 | $1,255,976(6) | $67.46 | $392,750 | | 2022 | $1,580,799 | $2,909,862 | $968,111 | $1,765,553 | $182.64 | $57,875 | | 2021 | $881,868 | $860,111 | $717,643 | $703,957 | $137.40 | $(32,070) |
Pay Versus Performance
(1) The name of the PEO reflected in these columns for each of the applicable fiscal years is Martyn Willsher. In calculating the ‘compensation actually paid’ amounts reflected in these columns, the fair value or change in fair value, as applicable, of the equity award adjustments included in such calculations was computed in accordance with FASB ASC Topic 718. The valuation assumptions used to calculate such fair values did not materially differ from those disclosed at the time of grant. The names of each of the non-PEO NEOs reflected in these columns for the 2023 fiscal year are James Frew and Daniel Furbee. The non-PEO NEOs reflected in the 2022 and 2021 fiscal years are Eric Willis and Richard Smiley. (4) The Company TSR reflected in this column for each applicable fiscal year is calculated based on a fixed investment of $100 at the applicable measurement point on the same cumulative basis as is used in Item 201(e) of Regulation S-K. (5) Represents the amount of net income reflected in the Company’s audited GAAP financial statements for each applicable fiscal year. (6) For fiscal year 2023, the ‘compensation actually paid’ to the PEO and the average ‘compensation actually paid’ to the non-PEO NEOs reflect each of the following adjustments made to the total compensation amounts reported in the Summary Compensation Table for fiscal year 2023, computed in accordance with Item 402(v) of Regulation S-K:
Pay Versus Performance
| | PEO | Average Non-PEO NEOs | | Total Compensation Reported in 2023 Summary Compensation Table | $2,401,494 | $1,522,280 | | Less, Grant Date Fair Value of Stock & Option Awards Reported in the 2023 Summary Compensation Table | $(1,344,002) | $(985,940) | | Plus, Year-End Fair Value of Awards Granted in 2023 that are Outstanding and Unvested | $723,348 | $719,636 | | Plus, Change in Fair Value of Awards Granted in Prior Years that are Outstanding and Unvested (From Prior Year-End to Year-End) | $(881,124) | $— | | Plus, Vesting Date Fair Value of Awards Granted in 2023 that Vested in 2023 | $— | $— | | Plus, Change in Fair Value of Awards Granted in Prior Years that Vested in 2023 (From Prior Year-End to Vesting Date) | $96,049 | $— | | Less, Prior Year-End Fair Value of Awards Granted in Prior Years that Failed to Vest in 2023 | $— | $— | | Plus, Dollar Value of Dividends or other Earnings Paid on Stock & Option Awards in 2023 prior to Vesting (if not reflected in the fair value of such award or included in Total Compensation for 2023) | $— | $— | | Total Adjustments | $(1,405,729) | $(266,304) | | Compensation Actually Paid for Fiscal Year 2023 | $995,765 | $1,255,976 |
Pay Versus Performance
Pay versus Performance Comparative Disclosure As described in more detail in the section titled “Narrative Disclosure to Summary Compensation Table,” the Company’s executive compensation program reflects a variable pay-for-performance philosophy. While the Company utilizes several performance measures to align executive compensation with Company performance, all of those Company measures are not presented in the table above. Further, the Company generally seeks to incentivize long-term performance, and therefore does not specifically align the Company’s performance measures with ‘compensation actually paid’ for a particular year (as computed in accordance with Item 402(v) of Regulation S-K). In accordance with Item 402(v) of Regulation S-K, the Company is providing the following descriptions of the relationships between the information presented in the table above. Compensation Actually Paid and Company TSR As demonstrated by the following graph, the amount of ‘compensation actually paid’ to the PEO and the average amount of ‘compensation actually paid’ to the non-PEO NEOs is generally aligned with the Company’s TSR over the three years presented in the table. This is because a significant portion of the ‘compensation actually paid’ to the PEO and to the non-PEO NEOs is comprised of equity awards. Compensation Actually Paid and Net Income The following graph illustrates the relationship between (x) the amount of ‘compensation actually paid’ to the PEO and the average amount of ‘compensation actually paid’ to the non-PEO NEOs and (y) the Company’s net income over the three years presented in the table. Compensation actually paid is less sensitive to our net income performance as compared to our TSR performance.
DIRECTOR COMPENSATION
DIRECTOR COMPENSATION Our director compensation policy provides for a combination of an annual cash retainer and an equity award. Our non-employee directors’ annual cash retainer was $75,000 ($175,000 with respect to the Chairman of the Board), paid quarterly in advance. Our non-employee directors also received RSUs that vest over a one-year period with a grant date fair value of $125,000 ($175,000 with respect to the Chairman of the Board). In addition, each non-employee director who served as a committee chair received an additional $25,000 cash retainer. Non-employee directors are reimbursed for all out-of-pocket expenses in connection with attending meetings of the board of directors or committees. Each director is fully indemnified by us for actions associated with being a director to the fullest extent permitted under Delaware law. The following table presents information regarding compensation paid to the non-employee directors of the Company for services rendered during the fiscal year ended December 31, 2023. On February 9, 2023 and October 3, 2023, the Board appointed James E. Craddock and Vidisha Prasad, respectively, to serve as a member of the Board.
DIRECTOR COMPENSATION
| Name | Fees Earned or Paid in Cash ($)(1) | Stock Awards ($)(2) | Total ($) | | Deborah G. Adams | $93,750 | $125,000 | $218,750 | | James E. Craddock | $73,125 | $187,500 | $260,625 | | Patrice Douglas | $81,250 | $125,000 | $206,250 | | Christopher W. Hamm | $175,000 | $175,000 | $350,000 | | Randal T. Klein | $18,750 | $125,000 | $143,750 | | Vidisha Prasad | $18,750 | $92,466 | $111,216 | | Todd R. Snyder | $100,000 | $125,000 | $225,000 |
DIRECTOR COMPENSATION
(1) Includes annual cash retainer fee and committee chair fees for each non-employee director during fiscal year 2023. Represents the grant date fair value of RSUs awarded under the EIP, computed in accordance with the requirements of ASC Topic 718, but excluding any impact of estimated forfeiture rates. These RSUs vest on the first anniversary of the grant date, subject to the holder’s continued service on the Board through the vesting date. As of December 31, 2023: (i) Mses. Adams and Douglas and Mr. Snyder each held 19,077 unvested RSUs; (ii) Mr. Craddock held 24,892 unvested RSUs; (iii) Mr. Hamm held 26,708 unvested RSUs; (iv) Mr. Klein held 17,824 unvested RSUs; and (v) Ms. Prasad held 13,185 unvested RSUs.
PROPOSAL 1 — ELECTION OF DIRECTORS
PROPOSAL 1 — ELECTION OF DIRECTORS At each annual meeting, our stockholders will elect our directors. Directors may be removed from office either for or without cause upon the affirmative vote of the holders of a majority of the outstanding shares of stock of the Company entitled to vote generally for the election of directors. As previously announced, Mr. Klein informed the Company of his intention not to seek reelection at the Annual Meeting and that his departure from the Board would be effective immediately following the Annual Meeting. Mr. Klein has served as a member of the Board since November 2018, and his decision not to stand for reelection was not due to any disagreements with the Company on any matter relating to the Company’s operations, policies, or practices. The Board, upon the recommendation of the Nominating and Governance Committee has nominated the following individuals for election as directors of the Company to serve until our 2025 Annual Meeting or until their respective successors are duly elected and qualified: Deborah G. Adams James E. Craddock Patrice Douglas Christopher W. Hamm Vidisha Prasad Todd R. Snyder Martyn Willsher Each of the above nominees is currently serving as a director of the Company. Biographical information for each nominee is contained in the “Directors and Director Nominees” section above. The election of directors in this proposal requires the affirmative vote of the holders of a majority of the shares of common stock present or represented by proxy and entitled to vote at the Annual Meeting. Abstentions have the same effect as a vote against the outcome of voting on director election and broker non-votes will not have any effect on the outcome of voting on director elections. The Board recommends that you vote “FOR” the election of each of the nominees listed above. Unless otherwise instructed, the proxyholders will vote the proxies received by them for the seven nominees named above. The Board has no reason to believe that any of its nominees will be unable or unwilling to serve if elected. If a nominee becomes unable or unwilling to accept nomination or election, either the number of the Company’s directors will be reduced or the proxyholders will vote for the election of a substitute nominee that the Board recommends.