If you have any questions or require any assistance with voting your shares, please contact our proxy solicitor at the contact listed below:
470 West Avenue
Stamford, Connecticut 06902
(203)658-9400 (Call Collect)
or
Call Toll-Free (800)662-5200
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
(Rule 14a-101) INFORMATION REQUIRED IN PROXY STATEMENT SCHEDULE 14A INFORMATIONProxy Statement Pursuant to Section 14(a) of
ThetheSecurities Exchange Act of 1934
(Amendment No. ________)Filed by the Registrant
[ X ] [ ] Confidential, for Use☒ Filed by apartyParty other than theRegistrant [ ] of the Commission OnlyRegistrant: ☐Check the appropriate box:
(as permitted by Rule [ X ] Preliminary Proxy Statement 14a-6(e)(2)) [ ] Definitive Proxy Statement [ ] Definitive Additional Materials [ ] Soliciting Material Pursuant to Sec. 240.14a-11(c) or Sec. 240.14a-12
| ☒ | Preliminary Proxy Statement | |
| ☐ | Confidential, for Use of the Commission only (as permitted by Rule14a-6(e)(2)) | |
| ☐ | Definitive Proxy Statement | |
| ☐ | Definitive Additional Materials | |
| ☐ | Soliciting Material Pursuant to§ 240.14a-12 | |
ABRAXAS PETROLEUM CORPORATION
- --------------------------------------------------------------------------------
(Name
(Name of Registrant as Specified in Itsits Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of filing feeFiling Fee (Check the appropriate box):
[ X ] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(l) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(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):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ]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, or
the Form or Schedule and the date of its filing.
(1) Amount previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
| ☒ | No fee required. | |||
| ☐ | Fee computed on table below per Exchange Act Rules14a-6(i)(1) and0-11. | |||
1. | Title of each class of securities to which transaction applies: | |||
2. | Aggregate number of securities to which transaction applies: | |||
3. | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule0-11: | |||
4. | Proposed maximum aggregate value of transaction: | |||
5. | Total fee paid: | |||
| ☐ | Fee paid previously with preliminary materials. | |||
| ☐ | Check box if any part of the fee is offset as provided by Exchange Act Rule0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. | |||
1. | Amount Previously Paid: | |||
2. | Form, Schedule or Registration Statement No.: | |||
3. | Filing Party: | |||
4. | Date Filed: | |||
ABRAXAS PETROLEUM CORPORATION
18803 Meisner Drive
San Antonio, Texas 78258
(210)490-4788
April 27, 2000
●, 2017
Dear Stockholders:
You are cordially invited to attend the 20002017 Annual Meeting of Stockholders of Abraxas Petroleum Corporation to be held on Friday, May 26,
2000,●, 2017, at 9:00 a.m., local time, at the Petroleum Club of San Antonioour corporate office located at 8620 North
New Braunfels,18803 Meisner Drive, San Antonio, Texas 78217.78258. We hope that you will be able to attend the meeting. Matters on which action will be taken at the meeting are explained in detail in the Noticenotice and Proxy Statementproxy statement following this letter.
Whether or not
The annual report, notice of Annual Meeting, proxy statement and proxy card are enclosed. Proxy cards are being solicited on behalf of our Board of Directors.
Regardless of whether you expectplan to be presentattend the Annual Meeting, we hope you will read the attached proxy statement carefully and regardless of the number ofvote your shares you own, please mark, signby promptly submitting a proxy by signing, dating and mailreturning the enclosed proxy card in the postage-paid envelope provided.
provided or by submitting your proxy by telephone or the Internet as soon as possible. Instructions regarding telephone and Internet voting are included on the proxy card or voting instruction form (or, if applicable, your electronic delivery notice). Choosing one of these voting options ensures your representation at the Annual Meeting regardless of whether you attend in person.
If you have any questions or need assistance in voting your shares, please contact our proxy solicitor, Morrow Sodali LLC toll free at (800)662-5200.
Thank you for your continued support of Abraxas Petroleum Corporation.
Robert L. G.L.G. Watson
Chairman of the Board, President,
and Chief Executive Officer
3
ABRAXAS PETROLEUM CORPORATION
500 NORTH LOOP 1604 EAST, SUITE 100
SAN ANTONIO, TEXAS 78232
18803 Meisner Drive
San Antonio, Texas 78258
(210)490-4788
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD MAY 26, 2000
●, 2017
To the Stockholders of Abraxas Petroleum Corporation:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Stockholders of Abraxas Petroleum Corporation ("Abraxas"(“Abraxas” or the “Company”) will be held at the Petroleum Club of
San Antonioour corporate office located at 8620 North New Braunfels,18803 Meisner Drive, San Antonio, Texas 78217,78258, on Friday, May 26, 2000,●, 2017, at 9:00 A.M.a.m., local time, for the following purposes:
(1) To elect one director;
(2)
| (1) | To elect as directors to the Abraxas Board of Directors the three nominees named below for a term of three years: |
| (2) | To ratify the appointment of BDO USA, LLP as Abraxas’ independent registered public accounting firm for the year ending December 31, 2017; |
| (3) | To approve amendments to the Amended and Restated Abraxas Petroleum Corporation 2005 Employee Long-Term Equity Incentive Plan to increase the total number of shares of common stock authorized for issuance under the plan from 10,600,000 to 12,600,000 and to change the acceleration of the vesting of awards under the plan upon a change of control of the Company; |
| (4) | To approve an amendment to the Amended and Restated Abraxas Petroleum Corporation 2005Non-Employee Directors Long-Term Equity Incentive Plan to increase the total number of shares of common stock authorized for issuance under the plan from 1,900,000 to 2,900,000; |
| (5) | To approve an amendment to the Company’s Articles of Incorporation to increase the Company’s authorized shares of common stock from 200,000,000 shares to 400,000,000 shares; |
| (6) | To approve, on an advisory basis, the compensation of the Company’s named executive officers; |
| (7) | To approve, on an advisory basis, the frequency of future advisory votes on executive compensation; |
| (8) | To postpone or adjourn, if necessary or appropriate, the Annual Meeting to a later time to solicit additional proxies in favor of Proposals 2 through 6 and for one year for Proposal 7; and |
| (9) | To transact any other business that has been properly brought before the meeting in accordance with the provisions of the Company’s Amended and Restated Bylaws. |
Your Board recommends that you vote FOR the nominees named in Proposal 1, FOR Proposals 2, 3, 4, 5, 6 and 8 and FOR One Year for Proposal 7.
We invite you to Abraxas' Articlesattend the Annual Meeting in person. Whether or not you expect to attend the Annual Meeting, we urge you to mark, sign, date, and return the enclosed proxy card in the envelope provided or vote by telephone or over the Internet as soon as possible. If you are a beneficial holder, you may also vote your shares by telephone or the Internet using the instructions on each proxy card. You may revoke your proxy at any time prior to the Annual Meeting, and, if you attend the Annual Meeting, you may vote your shares of Incorporation
providing that the authorized amount ofAbraxas common stock of
Abraxas be increased to 200,000,000 shares;
(3) To approve the appointment of auditors for the 2000 fiscal
year; and
(4) To transact such other business as may properly come before
the meeting or any adjournment thereof.
In accordance with the Bylaws of Abraxas and a resolution of thein person.
The Board of Directors has fixed the close of business on March 15, 2017 as the record date for the meeting has been fixeddetermination of the stockholders entitled to notice of and to vote at April 17, 2000.the Annual Meeting and any adjournment thereof. Only stockholders of record at the close of business on that dateMarch 15, 2017 will be entitled to vote at the meetingAnnual Meeting
and any adjournments or any adjournmentpostponements thereof. Stockholders who do not expectA list of stockholders entitled to vote at the Annual Meeting will be available for inspection at our offices, 18803 Meisner Drive, San Antonio, Texas 78258 for 10 days prior to the Annual Meeting. If you would like to review the stockholder list, please call our Investor Relations department at (210)490-4788 to schedule an appointment.
All stockholders are cordially invited to attend the meetingAnnual Meeting. If you have any questions about the attached proxy or require assistance in person are
urged to signvoting your shares on the enclosed proxy and return it promptly to Abraxas. A return
envelope is enclosed for that purpose.
card or voting instruction form, or need additional copies of the Company’s proxy materials, please contact the firm assisting us in the solicitation of proxies, Morrow Sodali LLC, toll free at (800)662-5200.
By Order of the Board of Directors,
Stephen T. Wendel
Secretary
Dated:
SECRETARY
San Antonio, Texas
April 27, 2000
4
Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting of Stockholders to be held May●, 2017
This proxy statement and our 2016 Annual Report on Form10-K are
available at www.proxydocs.com/AXAS, which does not have “cookies” that identify visitors to the site.
If you have any questions or require any assistance with voting your shares, please contact our proxy solicitor at the contact listed below:
470 West Avenue
Stamford, Connecticut 06902
(203)658-9400 (Call Collect)
or
Call Toll-Free (800)662-5200
i
ii
ABRAXAS PETROLEUM CORPORATION
500 North Loop 1604 East, Suite 100
18803 Meisner Drive
San Antonio, Texas 78232
78258
(210)490-4788
PROXY STATEMENT
-----------------------
The accompanying Proxy is solicited by the Board of Directors of Abraxas Petroleum Corporation a Nevada corporation ("Abraxas"(“Abraxas” or the “Company”), is soliciting proxies to be votedvote shares of common stock at the 20002017 Annual Meeting of Stockholders to be held at 9:00 a.m., local time, on May 26, 2000,●, 2017, at Abraxas Petroleum Corporation located at 18803 Meisner Drive, San Antonio, Texas 78258, and at any adjournments thereof, at the Petroleum Club of San Antonio located at 8620 North
New Braunfels, San Antonio, Texas 78217.adjournment thereof. This Proxy Statementproxy statement and the accompanying Proxyproxy are first being mailed to stockholders on or about April 27, 2000.
VOTING AND PROXIES
Only holders●, 2017. For ten days prior to the Annual Meeting, a complete list of recordstockholders entitled to vote at the Annual Meeting will be available for examination by any stockholder for any purpose relevant to the Annual Meeting during regular business hours at Abraxas’ executive offices, located at the address set forth above. If you would like to review the stockholder list, please call our Investor Relations department at (210)490-4788 to schedule an appointment.
Record Date; Shares Entitled To Vote; Quorum
The Board of common stock, par value $.01 per share
("Common Stock"), of Abraxas atDirectors has fixed the close of business on April 17, 2000, shall
beMarch 15, 2017 as the record date for Abraxas stockholders entitled to notice of and to vote at the Annual Meeting. Only holders of common stock as of the record date are entitled to vote at the meeting. ThereAnnual Meeting. As of the record date, there were 22,595,016163,844,255 shares of Common Stock
issued andAbraxas common stock outstanding, on the record date.which were held by approximately 990 holders of record. Stockholders are entitled to one vote for each share of Common StockAbraxas common stock held as of the record date. Any stockholder
giving
The holders of a proxy hasmajority of the poweroutstanding shares of Abraxas common stock issued and entitled to revokevote at the same at any time prior to its use by
giving notice in person or in writing to the Secretary of Abraxas.
The presence,Annual Meeting must be present in person or by proxy to establish a quorum for business to be conducted at the Annual Meeting. Abstentions and “brokernon-votes” are treated as shares that are present and entitled to vote for purposes of determining the presence of a quorum.
A “brokernon-vote” occurs when you fail to provide your broker with voting instructions and the broker does not have the discretionary authority to vote your shares on a particular proposal because the proposal is not a routine matter under New York Stock Exchange rules. A brokernon-vote may also occur if your broker fails to vote your shares for any reason. Brokers cannot vote on their customers’ behalf on“non-routine” proposals such as Proposals One, Three, Four, Six and Seven. Because brokers require their customers’ direction to vote on suchnon-routine matters, it is critical that stockholders provide their brokers with voting instructions. Proposal Two, ratification of the appointment of our independent registered public accounting firm, Proposal Five, the amendment of our articles of incorporation to increase the number of authorized shares of Common Stock, and Proposal Eight, the postponement or adjournment of the Annual Meeting, will be “routine” matters for which your broker does not need your voting instruction in order to vote your shares.
The votes required for each proposal is as follows:
Election of Directors. Each share of our Common Stock is entitled to one vote with respect to the election of directors. The nominees for director who receive the most votes will be elected. Therefore, if you do not vote for a particular nominee or you indicate “withhold authority to vote” for a particular nominee on your proxy card, your vote will have no effect on the election of directors. To be elected, each director must receive a plurality of the votes cast at the meeting. Brokernon-votes are not considered votes cast “for” or “against” this proposal and will have no effect on the approval to elect directors.
If you sign and submit your proxy card or voting instruction form without specifying how you would like your shares voted, your shares will be voted FOR the Board’s recommendations specified below under ProposalOne-Election of Directors, and in accordance with the discretion of the proxy holders with respect to any other matters that
may be voted upon at the Annual Meeting. Should the Company lawfully identify or nominate substitute or additional nominees before the Annual Meeting, we will file supplemental proxy material that identifies such nominee(s), discloses whether such nominee(s) has (have) consented to being named in the proxy material and to serve if elected and includes the relevant required disclosures with respect to such nominee(s).
The Board of Directors recommends a vote “FOR” each of its nominees on the proxy card.
Appointment of Independent Registered Public Accounting Firm. Each share of our Common Stock is entitled to one vote with respect to the ratification of the appointment of BDO USA, LLP as our independent registered public accounting firm. The affirmative vote of holders of a majority of the shares of Common Stock present at the Annual Meeting in person or represented by proxy and entitled to vote on the matter will be considered to determine the outcome of this proposal. Abstentions from voting will have the same effect as a vote against this proposal. This proposal is a “routine” matter for which your broker does not need your voting instruction in order to vote your shares. The outcome of this proposal is advisory in nature and isnon-binding.
The Board of Directors recommends a vote “FOR” the ratification of the selection of BDO USA, LLP, as Abraxas’ independent registered public accounting firm for the fiscal year ending December 31, 2017.
Approval of amendments to the Amended and Restated Abraxas Petroleum Corporation 2005 Employee Long-Term Equity Incentive Plan.Each share of our Common Stock is entitled to one vote with respect to the approval of the amendments to the Amended and Restated Abraxas Petroleum Corporation 2005 Employee Long-Term Equity Incentive Plan, which we refer to as the LTIP. The affirmative vote of a majority of the votes cast, in person or by proxy, will be considered to determine the outcome of this proposal. Abstentions from voting and brokernon-votes will have no effect on the outcome of this proposal. Brokers, as nominees for the beneficial owner, may not exercise discretion in voting on this matter and may only vote on this proposal as instructed by the beneficial owner of the shares.
The Board of Directors recommends a vote “FOR” the approval of the amendments to the LTIP.
Approval of an amendment to the Amended and Restated Abraxas Petroleum Corporation 2005Non-Employee Directors Long-Term Equity Incentive Plan.Each share of our Common Stock is entitled to one vote with respect to the approval of the amendment to the Amended and Restated Abraxas Petroleum Corporation 2005Non-Employee Directors Long-Term Equity Incentive Plan, which we refer to as the Directors Plan. The affirmative vote of a majority of the votes cast, in person or by proxy, will be considered to determine the outcome of this proposal. Abstentions from voting and brokernon-votes will have no effect on the outcome of this proposal. Brokers, as nominees for the beneficial owner, may not exercise discretion in voting on this matter and may only vote on this proposal as instructed by the beneficial owner of the shares.
The Board of Directors recommends a vote “FOR” the approval of the amendment to the Directors Plan.
Increase in Authorized Shares. Each share of our Common Stock is entitled to one vote with respect to the approval of an amendment to our Articles of Incorporation to increase the number of shares of common stock we are authorized to issue from 200,000,000 shares to 400,000,000 shares. The affirmative vote of holders of a majority of the outstanding shares of Common Stock is necessary to constituteapprove this item. Abstentions from voting will have the same effect as a quorumvote against this proposal. This proposal is a “routine” matter for which your broker does not need your voting instruction in order to vote your shares.
The Board of Directors recommends a vote “FOR” the approval of an amendment to our Articles of Incorporation to increase the number of shares of common stock we are authorized to issue.
Advisory Vote on Executive Compensation. Each share of our Common Stock is entitled to one vote with respect to the approval, in anon-binding, advisory vote, of the compensation of our named executive officers. The affirmative vote of holders of a majority of the shares of Common Stock present at the 2000 Annual Meeting in person or represented by proxy and entitled to vote on the matter will be considered to determine the outcome of Stockholdersthis proposal. Abstentions from voting will have the same effect as a vote against this proposal, and anybrokernon-votes will have no effect on the outcome of this proposal. Brokers, as nominees for the beneficial owner, may not exercise discretion in voting on this matter and may only vote on this proposal as instructed by the beneficial owner of the shares. The outcome of this proposal is advisory in nature and isnon-binding.
The Board of Directors recommends a vote “FOR” the approval of the compensation of our named executive officers.
Advisory Vote on Frequency of Future Advisory Votes on Named Executive Officer Compensation. Each share of our Common Stock is entitled to one vote with respect to the approval, in anon-binding, advisory vote, of the frequency of future advisory votes on named executive officer compensation. The option (one year, two years or three years) that receives the highest number of votes cast will be deemed the preferred option of our stockholders. Abstentions and brokernon-votes will have no effect on the outcome of the vote. Brokers, as nominees for the beneficial owner, may not exercise discretion in voting on this matter and may only vote on this proposal as instructed by the beneficial owner of the shares. The outcome of this proposal is advisory in nature and isnon-binding.
The Board of Directors recommends a vote “FOR” the approval of ONE YEAR on the proposal determining the frequency of future advisory votes on named executive officer compensation.
Postponement or Adjournment of the Annual Meeting.Each share of our Common Stock is entitled to one vote with respect to the approval of the postponement or adjournment, thereof.if necessary or appropriate, of the Annual Meeting. Assuming the presence of a quorum, the affirmative vote of the holders of a majority of the outstanding shares of Common Stock present at the meeting,Annual Meeting in person or by proxy voting together as a single class,and entitled to vote on the matter is necessary forto approve the approvaladjournment or postponement of the election of directors, the amendment to the Articles of Incorporation and
ratification of Abraxas' independent auditors. Under Nevada law and Abraxas'
Bylaws, abstentions and broker non-votes are tabulated in determining the number
of shares present at the meeting. Consequently, an abstention or a broker
non-vote hasAnnual Meeting. Abstentions from voting will have the same effect as a vote against this proposal. This proposal is a “routine” matter for which your broker does not need your voting instruction in order to vote your shares.
The Board of Directors recommends a vote “FOR” the proposal to postpone or adjourn the Annual Meeting.
If you are a directorstockholder whose shares are registered in your name, you may vote your shares by one of the following three methods:
The deadline for voting electronically through the Internet or by telephone is 11:59 p.m., Eastern Time, on May ●, 2017.
If your shares are held in “street name” (through a broker, bank or other nominee), you may receive a separate voting instruction form with this proxy statement, or you may need to contact your broker, bank or other nominee as each abstentionto determine whether you will be able to vote electronically using the Internet or broker non-vote would betelephone.
PLEASE NOTE THAT IF YOUR SHARES ARE HELD OF RECORD BY A BROKER, BANK OR OTHER NOMINEE AND YOU WISH TO VOTE AT THE MEETING, YOU WILL NOT BE PERMITTED TO VOTE IN PERSON AT THE MEETING UNLESS YOU FIRST OBTAIN A LEGAL PROXY ISSUED IN YOUR NAME FROM THE RECORD HOLDER.
The proxies identified on the proxy card will vote the shares of which you are stockholder of record in accordance with your instructions. If you sign and return your proxy card without giving specific voting instructions, the proxies will vote your shares “FOR” the nominated slate of directors, “FOR” proposals two, three, four, five and six and “FOR” one lessyear in proposal seven. The giving of a proxy will not affect your right to vote in favorperson if you decide to attend the meeting.
Stockholder of Record. If your shares are registered directly in your name or with our transfer agent, American Stock Transfer & Trust Company, LLC, you are considered the stockholder of record with respect to those shares and these proxy materials are being sent directly to you by us. As a stockholder of record, you have the right to grant your voting proxy directly to us or to vote in person at the Annual Meeting. We have enclosed a proxy card for your use.
Beneficial Holder. If your shares are held in a brokerage account or by a bank or other nominee, you are considered the beneficial owner of the shares held in street name, and these proxy materials are being forwarded to you by your broker, bank or other nominee who is considered the stockholder of record with respect to those shares. As the beneficial owner, you have the right to direct your broker on how to vote and are also invited to attend the meeting. However, since you are not the stockholder of record, in order to vote these shares in person at the meeting you must obtain a legal proxy from your broker, bank or other nominee. Your broker, bank or other nominee has enclosed a proxy card for your use.
How to Vote By Proxy; Revocability of Proxies
To vote by proxy, you must mark, sign, date, and return the proxy card in the enclosed envelope. If you are a beneficial holder, you may also vote your shares by telephone or the Internet using the instructions on each proxy card. Any Abraxas stockholder who delivers a properly executed proxy may revoke the proxy at any time before it is voted.
Whether you vote by telephone, internet or by mail, you can change or revoke your proxy before it is voted at the meeting by:
Attendance at the Annual Meeting will not, in and of itself, constitute revocation of a proposalproxy. An Abraxas stockholder whose shares are held in the name of a broker, bank or other nominee must bring a legal proxy from his, her or its broker, bank or other nominee to the meeting in order to vote in person.
In order to be counted, votes cast by proxy must be received prior to the Annual Meeting.
The cost of soliciting proxies in the accompanying form will be borne by Abraxas. Proxies are being solicited by mail, telephone, fax, email, town hall meetings, press releases, press interviews and the Company’s Investor Relations website. In addition to solicitations by mail, a director nominee.
5
Our website address is included several times in this proxy statement as a textual reference only and the information in the website is not incorporated by reference into this proxy statement.
Important Information Regarding Delivery of Proxy Material
The Securities and Exchange Commission has adopted rules regarding how companies must provide proxy materials to their stockholders. These rules are often referred to as “notice and access,” under which a company may select either of the following options for making proxy materials available to its stockholders:
A company may use a single method for all of its stockholders, or use full set delivery for some while adopting the notice only option for others.
Full Set Delivery Option
Under the full set delivery option, a company delivers all proxy material to its stockholders by mail as it would have done prior to the change in the rules. In addition to delivery of proxy materials to stockholders, the company must post all proxy materials on a publicly-accessible website and provide information to stockholders about how to access the website.
In connection with its 2017 Annual Meeting of Stockholders, Abraxas has elected to use the full set delivery option. Accordingly, you should have received Abraxas’ proxy materials by mail. These proxy materials include the Notice of Annual Meeting of Stockholders, proxy statement, proxy card and Annual Report on Form10-K. Additionally, Abraxas has posted these materials atwww.proxydocs.com/AXAS.
Notice Only Option
Under the notice only option, which we have electedNOT to use for the 2017 Annual Meeting, a company must post all proxy materials on a publicly-accessible website. Instead of delivering proxy materials to its stockholders, the Company instead delivers a “Notice of Internet Availability of Proxy Material.” The notice includes, among other matters:
If a stockholder requests paper copies of the proxy materials, these materials must be sent to the stockholder within three business days and by first class mail.
Abraxas May Use the Notice Only Option in the Future
Although Abraxas elected to use the full set delivery option in connection with the 2017 Annual Meeting of Stockholders, it may choose to use the notice only option in the future. By reducing the amount of materials that a company needs to print and mail, the notice only option provides an opportunity for cost savings as well as conservation of paper products. Many companies that have used the notice only option have also experienced a lower participation rate resulting in fewer stockholders voting at the Annual Meeting. Abraxas plans to evaluate the future possible cost savings as well as the possible impact on stockholder participation as it considers future use of the notice only option.
The Securities and Exchange Commission has adopted rules that permit companies and intermediaries (e.g. brokers) to satisfy the delivery requirements for proxy materials with respect to two or more stockholders sharing the same address by delivering a single set of proxy materials. This process, which is commonly referred to as “householding,” potentially results in extra convenience for stockholders, cost savings for companies and conservation of paper products.
If, at any time, you no longer wish to participate in “householding” and would prefer to receive a separate set of proxy materials, you may:
Abraxas’ Articles of Incorporation of Abraxas divide the Board of Directors into three classes of directors serving staggered three-year terms, with one class to be elected at each Annual Meeting.annual meeting. At this year'syear’s meeting, one director
isthree Class II directors are to be elected for a term of three years to hold office until the expiration of histheir term in 20032020, or until a successor shall havehas been elected and shall haveduly qualified. The terms of the remaining directors will continue as indicated
below.
In December 1999, Abraxas and one of its wholly-owned subsidiaries,
Canadian Abraxas Petroleum Limited, completed an exchange offer whereby they
exchanged their 11 1/2% Senior Secured Notes due 2004, Series A, Common Stock of
Abraxas and Contingent Value Rights of Abraxasnominees for approximately 98.43% of their
outstanding 11 1/2% Senior Secured Notes due 2004, Series D (the "Exchange
Offer"). In connection with the Exchange Offer, seven of Abraxas' directors
resigned and four new directors filled these vacancies. The following former
directors resigned their positions in December 1999:Class II director are Robert W. Carington, Jr.,
Harold D. Carter, Robert D. Gershen, Richard M. Kleberg, III, Paul A. Powell,
Jr., Richard M. Riggs and Chris E. Williford. The following directors filled
four of the vacancies left by these resignations, with the other three vacancies
left unfilled: Craig S. Bartlett, Jr.,L.G. Watson, Ralph F. Cox Frederick M. Pevow, Jr. and Joseph A. Wagda. The sizeDennis E. Logue. Messrs. Watson, Cox and Logue are currently directors. Each of the Board was subsequently reduced from ten
directorsdirector nominees named in this proxy statement has agreed to seven directors. In addition to the foregoing, Franklin A. Burke
resigned his positionserve as a director with a term expiringif elected, and we have no reason to believe that any nominee will be unable to serve. In the event that before the annual meeting one or more nominees named in 2002 and filled a
vacancy with a term expiring atthis proxy statement should become unable or unwilling to serve, the 2000 Annual Meeting.
Thepersons named in the enclosed proxy will vote the shares represented by proxies returned duly executedany proxy received by our Board of Directors for such other person or persons as may thereafter be nominated for director by the Nominating and Corporate Governance Committee and our Board of Directors.
Assuming the presence of a quorum, the nominees for director who receive the most votes will be elected. The enclosed proxy card provides a means for stockholders to vote for or to withhold authority to vote for the nominees for director. If a stockholder executes and returns a proxy, but does not specify how the shares represented by such stockholder’s proxy are to be voted, such shares will be voted unless otherwise specified, in favorFOR the election of the nomineenominees for director. In determining whether this item has received the required number of affirmative votes, abstentions will have no effect.Non-votes are not considered votes cast “for” or “withhold” with respect to this proposal at the Annual Meeting and will have no effect on the election of directors.
The Board of Directors recommends a vote “FOR” the election of the nominees to the Board of Directors.
Board of Directors
named below.
The nominee is now serving as a director.
Information Regardingfollowing table sets forth the Nomineenames, ages, and positions of the directors of Abraxas. The term of the Class I directors expires in 2018, the term of the Class II directors expires in 2017 and the term of the Class III directors expires in 2019.
Name and Municipality of Residence | Age | Office | Class | |||||
Robert L.G. Watson San Antonio, Texas | 66 | Chairman of the Board, President and Chief Executive Officer | II | |||||
Harold D. Carter Dallas, Texas | 78 | Director | III | |||||
Ralph F. Cox Fort Worth, Texas | 84 | Director | II | |||||
W. Dean Karrash North Wales, Pennsylvania | 55 | Director | I | |||||
Jerry J. Langdon Houston, Texas | 65 | Director | III | |||||
Dennis E. Logue Enfield, New Hampshire | 73 | Director | II | |||||
Name and Municipality of Residence | Age | Office | Class | |||||
Brian L. Melton Oklahoma City, Oklahoma | 47 | Director | III | |||||
Paul A. Powell, Jr. Roanoke, Virginia | 71 | Director | I | |||||
Edward P. Russell Stilwell, Kansas | 53 | Director | I | |||||
The Board unanimously recommends using the enclosed proxy card to vote FOR each of the Board’s three nominees for Election as a Director
Franklin A. Burke, age 66, a director of Abraxas since June 1992, has
served as President and Treasurer of Venture Securities Corporation since 1971,
where he is in charge of research and portfolio management. He has also been a
general partner and director of Burke, Lawton, Brewer & Burke, a securities
brokerage firm, since 1964, where he is responsible for research and portfolio
management. Mr. Burke also serves as a director of Suburban Community Bank, a
commercial bank, JER Ventures, a retail furniture company, Omega Institute, a
job training entity, and Starkey Chemical Process Co., a chemical processing
company. Mr. Burke received a Bachelor of Science degree in Finance from Kansas
State University in 1955, a Master's degree in Finance from University of
Colorado in 1960 and studied at the graduate level at the London School of
Economics from 1962 to 1963.
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Terms Expiring in 2001
Director.
Robert L. G.L.G. Watson age 49, ,has served as Chairman of the Board, President, Chief Executive Officer and a director of Abraxas since 1977. Since
May 1996, Mr. Watson has also served as Chairman of the Board and a director of
Grey Wolf. In November 1996, Mr. Watson was elected Chairman of the Board,
President and as a director of Canadian Abraxas. Prior to joiningforming Abraxas, Mr. Watson was employed in variousheld petroleum engineering positions with Tesoro Petroleum Corporation a crude oil and natural gas exploration and production
company, from 1972 through 1977, and DeGolyer & McNaughton, an independent
petroleum engineering firm, from 1970 to 1972.and MacNaughton. Mr. Watson received a Bachelor of Science degree in Mechanical Engineering from Southern Methodist University in 1972 and a Master of Business Administration degree from the University of Texas at San Antonio in 1974.
James C. Phelps, age 77, a director of Abraxas since December 1983,
Mr. Watson has been a consultant to crudeinvolved in the oil and natural gas explorationindustry for his entire business career and production
companies such as Panhandle Producing Companyis the founder of Abraxas. He has developed a wide network of personal and Tesoro Petroleum Corporation
since April 1981. Mr. Phelps has served as a directorbusiness relationships within the oil and gas industry. His strong engineering and financial background combined with his many years of Grey Wolf since January
1996. From April 1995operational experience throughout changing conditions in the market and industry provide him with the ability to May 1996, Mr. Phelps served as Chairman ofsuccessfully lead the Board
and Chief Executive Officer of Grey Wolf, and from January 1996 to May 1996, he
served as President of Grey Wolf. From March 1983 to September 1984, he served
as President of Osborn Heirs Company, a privately owned crude oil exploration
and production company based in San Antonio. Mr. Phelps was President and Chief
Operating Officer of Tesoro Petroleum Corporation from 1971 to 1981 and prior to
that was Senior Vice President and Assistant to the President of Continental Oil
Company. He received a Bachelor of Science degree in Industrial Engineering and
a Master of Science degree in Industrial Engineering from Oklahoma State
University.
Terms Expiring in 2002
Craig S. Bartlett, Jr.
Ralph F. Cox, age 66, a director of Abraxas since December 1999, has over forty years of commercial banking experience, the most recent
being with National Westminster Bank USA, rising to the position of Executive
Vice President, Senior Lending Officer and Chairman of the Credit Policy
Committee. Mr. Bartlett continues to serve on numerous boards and is active in
independent consulting roles. Mr. Bartlett is a graduate of Princeton University
with an advanced Management Degree from Pennsylvania State University.
Ralph F. Cox, age 67, a director of Abraxas since December 1999, has
over 4550 years of oil and gas industry experience, over thirty30 of which waswere with Arco.Atlantic Richfield Company (ARCO). Mr. Cox retired from ArcoARCO in 1985 after having becomeserving as Vice Chairman. Mr. Cox then joined what is now Union Pacific Resources, retiring in 1989 as President and Chief Operating Officer. Mr. Cox then joined Greenhill Petroleum Corporation as President until leaving in 1994 to pursue hisa consulting business. Mr. Cox has in the past and continues to serve on many boards
including Arco,currently serves as a trustee for Fidelity Investments, and the Kansas City Federal Reserve Board.Mutual Funds. Mr. Cox earnedalso serves as a director of Validus International, a company specializing in oil field drilling tools, and as a director ofE-T Energy Ltd., a Canadian oil sands extraction company. Mr. Cox previously served as a director of Abraxas General Partner, LLC, the general partner of Abraxas Energy Partners, L.P., as a director of CH2M Hill Companies, an engineering and construction firm, as a director of World GTL Inc., agas-to-liquids production facility, and as an advisory director of Impact Petroleum, an oil and gas exploration and production company. Mr. Cox received Bachelor of Science degrees in Petroleum Engineering and Mechanical Engineering degrees from Texas A&M University within 1954 and completed advanced studies at Emory University.
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Frederick M. Pevow, Jr.
Mr. Cox has many years of prior experience with major oil and gas companies. Mr. Cox continues his involvement in the industry through his other directorship positions. His executive-level perspective and decision making abilities continue to prove beneficial to the Company.
Dennis E. Logue, age 36, a director of Abraxas since December
1999,April 2003, has almost fifteenserved as Chairman of the Board of Directors of Ledyard Financial Group, the holding company for Ledyard National Bank, since 2005. Mr. Logue served as Dean and Fred E. Brown Chair at the Michael F. Price College of Business at the University of Oklahoma from 2001 through 2005. Prior to joining Price College, Mr. Logue was the Steven Roth Professor at the Amos Tuck School at Dartmouth College where he had been since 1974. Mr. Logue has served as a director of Waddell & Reed Financial, Inc., a publicly-traded, national financial services organization, since 2002. Mr. Logue holds degrees from Fordham College, Rutgers, and Cornell University.
Mr. Logue has significant business, financial and administrative experience and his broad based experiences across a number of industries are particularly beneficial in his service on our Nominating and Compensation Committees.
Directors with Terms Expiring in 2018 and 2019
Harold D. Carter,a director of Abraxas since October 2003, has over 40 years of investment bankingoil and gas industry experience and has been an independent consultant since 1990. Prior to consulting, Mr. Carter served as Executive Vice President of Pacific Enterprises Oil Company (USA). Before that, Mr. Carter was associated for 20 years with firms suchSabine Corporation, ultimately serving as Smith Barney, Dillon Read, Salomon Smith Barney,President and most recently CIBC World
Markets where he was Managing DirectorChief Operating Officer from 1986 to 1989. Mr. Carter has served as a director of Longview Energy Company, a privately-owned oil and headedgas exploration and production company, since 1999. Mr. Carter also serves as Vice Chairman of the worldwide Investment
Banking practice coveringBoard of Trustees for the oilfield servicesTexas Scottish Rite Hospital for Children. Mr. Carter previously served as a director of Abraxas from 1996 to 1999 and equipment industries.as an advisory director from 1999 to 2003. Mr. Pevow currently pursues capital market transactions through Pevow & Associates,Carter also previously served as a boutique investmentdirector of Brigham Exploration Company, a publicly-traded oil and merchant banking firm.gas company, from 1998 to 2011, and as a director of Energy Partners Ltd., a publicly-traded oil and gas exploration and production company, from 2000 to 2009. Mr. Pevow holds an
undergraduateCarter received a Bachelor of Business Administration degree in Petroleum Land Management from the University of Texas and completed the Program for Management Development at the Harvard University Business School.
Mr. Carter brings invaluable perspective and industry-specific business acumen and managerial experience to the Board as the former President and COO of Sabine Corporation and as an industry veteran with further studiesdecades of exploration and production experience. In particular, we believe that Mr. Carter’s tenure as a director of Brigham Exploration is particularly valuable to us because Brigham’s principal area of activity was the Williston Basin, where it targeted the Bakken, Three Forks and Red River formations. Brigham was acquired in 2011 by Statoil ASA for approximately $4.4 billion. The knowledge and experience Mr. Carter has attained through his service on other public company boards also enables Mr. Carter to provide a keen understanding of various corporate governance matters.
W. Dean Karrash, was an advisory director of Abraxas from November 2011 to May 2012 at Ricewhich time he was elected to the Board of Directors. Mr. Karrash is the President and Chief Financial Officer of Burke, Lawton, Brewer & Burke, LLC, a securities brokerage firm. Mr. Karrash joined the firm in 2004 and also serves as a Portfolio Manager with BLB&B Advisors, LLC. Mr. Karrash has over thirty years of experience in the financial services industry and previously served as President and Chief Executive Officer of Rutherford, Brown & Catherwood, LLC and Chief Financial Officer of Walnut Asset Management, LLC. Early in Mr. Karrash’s career, he served as Vice President of Finance for Lincoln Investment Planning Inc. and as a Senior Manager with Pricewaterhouse Coopers (formerly Coopers & Lybrand). Mr. Karrash is currently a member of FINRA’s Financial and Operations Committee and a past member of the Small Firm Advisory Board and District 9 Business Conduct Committee. Mr. Karrash is a Certified Public Accountant, Certified Financial Planner and is registered with FINRA and holds Series 7, 24, 27, 53 and 65 licenses. Mr. Karrash received a Bachelor of Science degree in Accounting from Pennsylvania State University and a Master of Business Administration degree from Temple University’s Executive MBA program.
Through his role as President of Burke, Lawton, Brewer & Burke, Mr. Karrash provides our Board with investment and financial experience from the standpoint of an investor and as a stockholder. In addition, Mr. Karrash is a Certified Public Accountant and is an audit committee financial expert as defined by SEC rules.
Jerry J. Langdon has served on the Board of Directors of Abraxas since May 2013 and currently works as a private investor. Previously, Mr. Langdon was Chief Administrative and Compliance Officer of Energy Transfer Partners, or ETP, a multi-billion dollar company specializing in the gathering, processing, transportation and storage of natural gas and natural gas liquids in the U.S. Prior to ETP, Mr. Langdon was Chief Administrative and Compliance Officer for Reliant Energy. Mr. Langdon has also held senior executive positions with El Paso Energy Partners and has served as a Director of several public and private boards. In October 1988, Mr. Langdon was appointed to the Federal Energy Regulatory Commission by President Ronald Reagan and served in that capacity until 1993. For a period of 38 days in 2012 (from May 21, 2012 until June 28, 2012), Mr. Langdon served as Chairman of the Board and Chief Executive Officer of Latitude Solutions, Inc., a company engaged in the development and deployment of water remediation technologies. On November 9, 2012, Latitude Solutions, Inc. filed for bankruptcy protection under the provisions of Chapter 7 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Northern District of Texas. Mr. Langdon has authored numerous articles on the natural gas and electric industries, which have been published in various industry trade magazines. Mr. Langdon holds a Bachelor of Science in Communications from the University of Texas.
We believe Mr. Langdon’s extensive experience in the energy industry make him a valuable member of our Board.
Brian L. Melton has served on the Board of Directors Abraxas since October of 2009. Hehas served as Vice President of Pipeline Marketing & Business Development for Blueknight Energy Partners (Nasdaq: BKEP), a publicly traded master limited partnership that specializes in providing crude oil and asphalt terminaling, pipeline and transportation services across the U.S., since December 2013. Prior to joining Blueknight, Mr. Melton served as Vice-President of Business Development / Corporate Strategy for Crestwood Equity Partners, L.P. (NYSE: CEQP), Crestwood Midstream Energy Partners, L.P. (NYSE: CMLP), and Inergy, L.P. (NYSE:NRGY) from September 2008 until December 2013. Crestwood and Inergy are publicly-traded MLPs that specialize in providing midstream crude oil, natural gas and natural gas liquids services to producers and midstream providers in many of the major U.S. shale plays including the Bakken, Eagle Ford, Marcellus / Utica, Barnett, Fayetteville, Haynesville and Niobrara U.S. shale regions. Prior to joining Inergy in 2008, Mr. Melton was a Director in the Energy Corporate Investment Banking groups of Wachovia Securities and A.G. Edwards, prior to its merger with Wachovia Securities in October of 2007. Mr. Melton joined A.G. Edwards in July 2000 and was a senior member of the energy corporate finance team. From November 1995 until July 2000, Mr. Melton served as Director of Finance & Corporate Planning with TransMontaigne Inc., a downstream refined products supply, transportation and logistics company. Mr. Melton received a Bachelor of Science degree in Management and a Master of Business Administration degree from Arkansas State University.
Joseph
We believe that Mr. Melton’s operational and business experience (particularly in the U.S. shale plays in which the Company operates), as well as Mr. Melton’s prior oil and gas investment banking experience help him bring unique insight to our Board and that his financial experience is beneficial to our audit committee.
Paul A. Wagda, age 56,Powell, Jr., a director of Abraxas since DecemberAugust 2005, has served as Vice President and director of Mechanical Development Co., Inc., a maker of precision production machine parts, since 1984. Mr. Powell is a Managing Partner of Claytor Equity Partners, Cortland Partners, JWM Partners, Emory Partners and Burnett Partners. Mr. Powell is also manager of Westpoint (2002) LLC, Westpoint (2002) General Limited Partnership and WMP Properties LLC. Mr. Powell currently serves on the board of trustees of Emory & Henry College and as trustee for numerous charitable trusts. Mr. Powell previously served as a director of Abraxas from 1987 to 1999 and as an advisory director from 1999 to August 2005, in addition to previously serving on the board of the Blue Ridge Mountain Council of the Boy Scouts of America. Mr. Powell attended Emory & Henry College and graduated from National Business College with a degree in Accounting.
Through his roles at various investment and operating companies, Mr. Powell provides our Board with investment and financial experience. Mr. Powell has hadextensive historical knowledge about our Company through his investment in a varied twenty-five year career involvingnumber of drilling partnerships which became a part of Abraxas in 1991.
Edward P. Russell,a director of Abraxas since October 2009, has served as a Managing Director of Tortoise Capital Advisors, one of the largest energy investors in the U.S., with over $10 billion in assets under management since April 2007. From 2007 to 2012, Mr. Russell served as President of Tortoise Capital. Prior to joining Tortoise Capital Advisors, Mr. Russell was a Managing Director at Stifel, Nicolaus & Company, Inc. where he headed the energy and power group. Mr. Russell currently serves on the board of Arc Logistics GP LLC, which is the general partner of Arc Logistics Partners LP. Mr. Russell previously served as a director of Abraxas General Partner, LLC, the general partner of Abraxas Energy Partners, L.P.
We believe Mr. Russell’s experience as an oil and gas investor and as an energy investment banker brings an important skill set to the Board.
Franklin A. Burke, a director emeritus of Abraxas since 2012 and a director of Abraxas from 1992-2012, has previously served as President and Chief Executive Officer of Burke, Lawton, Brewer & Burke, a securities brokerage firm, from 1964 through 2014, as President of Venture Securities Corporation, since 1971, and as President, Director of Research and Portfolio Management of BLB&B Advisors, LLC, from 2006 through 2014. Mr. Burke also previously served as Trustee and Treasurer of The Williamson Free School of Mechanical Trades. Mr. Burke currently serves as a director of Starkey Chemical Process Company and was a director and President of Omega Institute, an allied health post-secondary school. Mr. Burke received a Bachelor of Science degree in Business Administration from Kansas State University in 1955, a Master’s degree in Finance from University of Colorado in 1960 and studied at the graduate level at the London School of Economics from 1962 to 1963. The Board voted to appoint Mr. Burke as a Director Emeritus following his retirement in 2012.
Mr. Burke serves at the pleasure of the Board and may be terminated as Director Emeritus at any time upon consent of a majority of the Board of Directors. Mr. Burke has the right to receive timely notice and information regarding, and to attend and participate in all, meetings of the Board, but does not have the right to vote at the meetings. The Board may, in its discretion without Mr. Burke’s consent, at any meetings at which he is in attendance, hold an executive session, at which Mr. Burke may not be present. Except for purposes of indemnification, Mr. Burke is not deemed to be a “director” of Abraxas.
Composition of the Board of Directors
The Company believes that its Board as a whole should encompass a diverse range of talent, skill, experience and expertise enabling it to provide sound guidance with respect to the Company’s operations and business goals. In addition to considering a candidate’s background and accomplishments, candidates are reviewed in the context of the current composition of the Board and the evolving needs of the Company. The Company’s policy is to have at least a majority of its directors qualify as “independent” as determined in accordance with the listing standards of The NASDAQ Stock Market and Rule10A-3 of the Exchange Act. The Nominating and Corporate Governance Committee identifies candidates for election to the Board of Directors and reviews their skills, characteristics and experience, and recommends nominees for director to the Board for approval.
The Nominating and Corporate Governance Committee believes that the Board of Directors should be composed of directors with experience in areas relevant to the strategy and operations of the Company, particularly in the oil and gas industry and complex business and financial dealings. Each of the nominees for election as a director at the Annual Meeting and each of the Company’s current directors holds or has held senior executive positions in either the oil and gas industry or in the financial / banking community. In these positions, we believe that each nominee and legal aspectscurrent director has gained experience in core management skills, such as strategic and financial planning, public company financial reporting, corporate governance, risk management, and leadership development. Many of our directors also have experience serving on boards and board committees of other public companies, as well as charitable organizations and private companies. The Nominating and corporate business transactions. CurrentlyCorporate Governance Committee also believes that each nominee and current director has other key attributes that are important to an effective board: integrity and demonstrated high ethical standards; sound judgment; analytical skills; the ability to engage management and each other in a practicing attorneyconstructive and presidentcollaborative fashion; diversity of Altamont Capital Management, Inc., Mr. Wagda's business
emphasizes special situation consultingbackground, experience and investing, including involvement in
distressed investmentsthought; and venture capital opportunities. Previously, Mr. Wagda
was a senior managingthe commitment to devote significant time and energy to service on the Board and its Committees. With respect to each of our current directors and director and cofounder of the Price Waterhouse corporate
finance practice. He also served with the finance staff of Chevron Corporation
andnominees, their biographies on pages 7 through 9 detail their individual experience in the general counsel's office at Ford Motor Company. Mr. Wagda received an
undergraduate degree from Fordham College, a Masters of Business Administration,oil and gas industry and/or in the financial/banking community together with distinction, from the Johnson Graduate School of Management, Cornell
University,their past and a JD, with honors, from Rutgers University.
INFORMATION CONCERNING DIRECTORS
current board positions.
During the fiscal year ended December 31, 1999,2016, the Board of Directors held seven meetings. All directors attended each of thesefour meetings, with the following exceptions: Messrs. Burke and Kleberg each missed twoAudit Committee held four meetings and Messers. Carter, Gershen, Powell and Riggs each missedthe Compensation Committee held one meeting. The Nominating and Corporate Governance Committee did not meet during 2016. During 1999,
Abraxas' directors2016, each director attended at least 75% of all Board and applicable Committee meetings and, other than Messrs.Mr. Watson, Willifordour Chairman of the Board, President and CaringtonChief Executive Officer, each director received compensation for his service to Abraxas for his role as a director under Abraxas' Restricted
Share Plan For Directors (the "Director Share Plan") and under Abraxas' Director
Stock Option Plan (the "Director Option Plan").director. See "Executive Compensation --
“Executive Compensation—Compensation of Directors." Directors also received reimbursement of travel
expenses” Abraxas encourages, but does not require, directors to attend the annual meeting of stockholders; however, such attendance allows for direct interaction between stockholders and members of the Board of Directors. At Abraxas’ 2016 Annual Meeting, eight of the nine members of the Board were present.
Committees of the Board of Directors
Abraxas has standing Audit, Compensation and Nominating and Corporate Governance Committees.
The Audit Committee is a separately-designated standing audit committee established in accordance with Section 3(a)(58)(A) of the Exchange Act. During 2016, the Audit Committee consisted of Messrs. Melton (Chairman), Karrash, Langdon and Powell. The Board of Directors has determined that each of Messrs. Melton and Karrash is an audit committee financial expert as defined by SEC rules. The Audit Committee Report, which appears on page 39, more fully describes the activities and responsibilities of the Audit Committee. Mr. King, Mr. Krog and representatives from BDO USA, LLP, the Company’s independent registered public accounting firm, along with all four members of the Company’s Audit Committee attended each meeting of the Audit Committee. In addition, the representatives from BDO USA, LLP and the Audit Committee meet in executive session at each meeting.
The Compensation Committee consists of Messrs. Cox (Chairman), Carter and Logue. The Compensation Committee’s role is to establish and oversee Abraxas’ compensation and benefit plans and policies, to administer its stock option plans, and to annually review and approve all compensation decisions relating to Abraxas’ executive officers. The Compensation Discussion & Analysis, which begins on page 17, more fully describes the activities and responsibilities of the Compensation Committee. The Compensation Committee submits its decisions regarding executive compensation to the independent members of the Board for approval. The agenda for meetings of the Compensation Committee is determined by its Chairman and the meetings are regularly attended by Mr. Watson. At each meeting, the Compensation Committee also meets in executive session. Mr. Cox reports the committee’s recommendations on executive compensation to the Board. The Company’s personnel support the Compensation Committee in its duties and, along with Mr. Watson, may be delegated authority to fulfill certain administrative duties regarding the Company’s compensation programs. The Compensation Committee has authority under its charter to retain, approve fees for and terminate advisors, consultants and agents as it deems necessary to assist in the fulfillment of its responsibilities. For more information on the Compensation Committee’s processes and procedures, please see “Executive Compensation – Compensation Discussion & Analysis – Our Compensation Committee” and – “Elements of Executive Compensation.”
The Nominating and Corporate Governance Committee consists of Messrs. Logue (Chairman), Cox and Powell. The primary function of the Nominating and Corporate Governance Committee is to develop and maintain the corporate governance policies of Abraxas and to assist the Board in identifying, screening and recruiting qualified individuals to become Board members and determining the composition of the Board and its committees, including recommending nominees for the election at the annual meeting of stockholders or to fill vacancies on the Board.
Each of the Board’s committees has a written charter and copies of the charters are available for review on the Company’s website atwww.abraxaspetroleum.com.
The Board of Directors has determined that each of the following members of the Board of Directors is independent as determined in accordance with the listing standards of The NASDAQ Stock Market andRule 10A-3 of the Exchange Act: Harold D. Carter, Ralph F. Cox, W. Dean Karrash, Jerry J. Langdon, Brian L. Melton, Dennis E. Logue, Paul A. Powell, Jr. and Edward P. Russell. All of the members of the Audit, Compensation and Nominating and Corporate Governance Committees are independent as determined in accordance with the listing standards of The NASDAQ Stock Market and Rule10A-3 of the Exchange Act. The Board of Directors periodically conducts a self-evaluation on key Board and committee-related issues, which has proven to be a beneficial tool in the process of continuous improvement in the Board’s functioning and communication.
The Board of Directors believes that the Chief Executive Officer is best situated to serve as Chairman because he is the director most familiar with Abraxas’ business and industry, and most capable of effectively identifying strategic priorities and leading the discussion and execution of strategy. The Board believes this provides Abraxas with an efficient and effective leadership model. The Board believes that combining the Chairman and Chief Executive Officer roles fosters clear accountability, effective decision-making and alignment on corporate strategy. To assure effective independent oversight, the Board has adopted a number of governance practices, including:
In addition, in 2006, the Board appointed Mr. Cox as lead independent director to provide the Board with additional independent oversight. Mr. Cox leads the regularly held executive sessions. The Board believes that the combined role of Chairman and Chief Executive Officer is in the best interest of Abraxas stockholders because it provides the appropriate balance between strategic development and independent oversight of management.
The Board of Directors has an active role, as a whole and also at the committee level, in overseeing management of the Company’s risks. The Board reviews quarterly information regarding the Company’s credit, liquidity and operations, as well as the risks associated with each. The Company’s Compensation Committee is responsible for overseeing the management of risks relating to the Company’s executive compensation plans and arrangements to ensure that the compensation programs do not encourage excessive risk-taking. The Audit Committee oversees management of financial risks, as well as other identified risks, including information technology. The Nominating and Corporate Governance Committee manages the risks associated with the independence of the Board of Directors and potential conflicts of interest. While each committee is responsible for evaluating specific risks and overseeing the management of such risks, the entire Board of Directors is regularly informed through committee reports about such risks.
The Board of Directors, together with the Compensation Committee, the Audit Committee, and the Nominating and Corporate Governance Committee, coordinate with each other to provide company-wide oversight of our management and handling of risk. These committees report regularly to the entire Board of Directors on risk-related matters and provide the Board of Directors with integrated insight about the Company’s management of strategic, credit, interest rate, financial reporting, liquidity, compliance and operational risks. While the Company has not developed a company-wide risk statement, the Board of Directors believes a well-balanced operational risk profile with heavier weighting towards exploitation projects as opposed to exploratory projects, together with a relatively conservative approach to managing liquidity, debt levels, and commodity price and interest rate risk contribute to an effective oversight of the Company’s risks.
At meetings of the Board of Directors.
NeitherDirectors and its committees, directors receive regular updates from management regarding risk management. Outside of formal meetings, the nominee for director nor anyBoard, its committees and individual Board members have regular access to the executive officers of Abraxas.
Compensation Committee Interlocks and Insider Participation
Messrs. Cox, Carter and Logue served on the Compensation Committee during 2016. No member of the continuing directorsCompensation Committee was at any time during 2016, or at any other time an officer or employee of Abraxas, and no member had any relationship with Abraxas requiring disclosure as a related-party transaction in the section “Certain Relationships and Related Transactions” of this proxy statement. No executive officer of Abraxas has a family relationship with anyserved on the Board of the other executive officersDirectors or other nominees for director. Except for Craig S. Bartlett, Jr., who is a
director of NVR, Inc., Janus Hotels & Resorts, Inc., and Allstate Financial
Corp., and Ralph F. Cox, who is a director of Waste Management, Inc., CH2M Hill
Companies and a trustee of the Fidelity Funds, neither the nominee nor any of
the continuing directors is a directorCompensation Committee of any other company whichentity that has a class of
securities registered under, or is required to file reports under, the
Securities Exchange Act of 1934has had one or of any company registered under the
Investment Company Act of 1940.
Abraxas believes, based solely on its review of the copies of Section
16(a) forms furnished to it and written representations frommore executive officers and directors, that all Section 16(a) filing requirements have been fulfilled.
8
In making this disclosure, Abraxas has relied solely on written representations
of its directors and executive officers (and its ten percent stockholders) and
copies of the reports that they have filed with the Securities and Exchange
Commission.
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COMMITTEES OF THE BOARD OF DIRECTORS
The Audit Committeewho served as a member of the Board of Directors which consisted of
Messrs. Kleberg, Phelps and Riggs prior toor the Exchange Offer, and now consists
of Messrs. Phelps, Bartlett and Wagda, met twice during 1999. The functions of
the Audit Committee are to recommend the appointment of Abraxas' independent
auditors, to review the arrangements for and the scope of the annual audit and
to review internal accounting controls.
The Compensation Committee during 2016.
In April 2004, the Board of Directors which consistedunanimously approved Abraxas’ Code of Messrs. Kleberg, PhelpsEthics. This Code is a statement of Abraxas’ high standards for ethical behavior, legal compliance and Riggs priorfinancial disclosure, and is applicable to the Exchange Offer,all directors, officers, and now
consists of Messrs. Phelps, Cox and Pevow, met once during 1999. The functionsemployees. A copy of the Compensation Committee areCode of Ethics can be found in its entirety on Abraxas’ website atwww.abraxaspetroleum.com. Additionally, should there be any changes to, review and make recommendations concerningor waivers from, Abraxas’ Code of Ethics, those changes or waivers will be posted immediately on our website at the compensationaddress noted above.
Stockholder Communications with the Board
The Board of Abraxas' executive and non-executive officers. The
Compensation Committee also administers Abraxas' 1984 Incentive Stock Option
Plan, 1984 Nonqualified Stock Option Plan, 1993 Key Contributor Stock Option
Plan and 1994 Long Term Incentive Plan.
The Nominating CommitteeDirectors has implemented a process by which stockholders may communicate with the Board of Directors. Any stockholder desiring to communicate with the Board of Directors did not meet during
1999. Priormay do so in writing by sending a letter addressed to the Exchange Offer, the Nominating Committee consisted of Messrs.
Phelps, Powell and Riggs. Since that time, the Board of Directors, c/o Corporate Secretary. The Corporate Secretary has not
appointed membersbeen instructed by the Board to promptly forward any communications received to the Nominating Committee. The functionmembers of the Board.
The Nominating and Corporate Governance Committee is to seek out, evaluate and recommend toresponsible for determining the Board qualifiedslate of director nominees for election by stockholders, which the committee recommends for consideration by the Board. All director nominees are approved by the Board prior to annual proxy material preparation and are required to stand for election by stockholders at the next annual meeting. For positions on the Board created by a director’s leaving the Board prior to
the expiration of his current term, whether due to death, resignation, or other inability to serve, Article III of the Company’s Amended and Restated Bylaws provides that a director elected by the Board to fill a vacancy shall be elected for the unexpired term of his predecessor in office.
The Nominating and Corporate Governance Committee does not currently utilize the services of any third-party search firm to assist in the identification or evaluation of Board member candidates. The Nominating and Corporate Governance Committee may engage a third party to provide such services in the future, as directorsit deems necessary or appropriate at the time in question.
The Nominating and Corporate Governance Committee determines the required selection criteria and qualifications of director nominees based upon the needs of the Company at the time nominees are considered. A candidate must possess the ability to apply good business judgment and be in a position to properly exercise his or her duties of loyalty and care. Candidates should also exhibit proven leadership capabilities, high integrity and experience with a high level of responsibility within his or her chosen fields, and have the ability to quickly understand complex principles of, but not limited to, business, finance and the oil and gas business. Candidates with potential conflicts of interest or who do not meet independence criteria will be identified and disqualified. The Nominating and Corporate Governance Committee will consider these criteria for nominees identified by the Committee, by stockholders, or through some other source. When current Board members are considered for nomination forre-election, the Nominating and Corporate Governance Committee also takes into consideration their prior Board contributions, performance and meeting attendance records.
The Nominating and Corporate Governance Committee does not have a formal policy with regard to the consideration of diversity in identifying director nominees, but the Committee strives to nominate directors with a variety of complementary skills so that, as a group, the Board will possess the appropriate talent, skills, experience and expertise to oversee the Company’s business. As part of this process, the Committee evaluates how a particular candidate would strengthen and increase the diversity of the Board in terms of how that candidate may contribute to the Board’s overall balance of perspectives, backgrounds, knowledge, experience, skill sets and expertise in substantive matters pertaining to the sizeCompany’s business.
The Nominating and compositionCorporate Governance Committee will consider qualified candidates for possible nomination that are recommended by stockholders. Stockholders wishing to make such a recommendation may do so by sending the required information to the Nominating and Corporate Governance Committee, c/o Corporate Secretary at the address listed above. Any such nomination must comply with the advance notice provisions of, and provide all of the Board. information required by, Abraxas’ Amended and Restated Bylaws. These provisions and required information are summarized under “Stockholder Proposals for 2018 Abraxas Annual Meeting” beginning on page 54 of this proxy statement.
The Nominating and Corporate Governance Committee will give appropriate considerationconducts a process of making a preliminary assessment of each proposed nominee based upon the resume and biographical information, an indication of the individual’s willingness to qualified persons recommended by
stockholders for nominationserve and other background information. This information is evaluated against the criteria set forth above as directorswell as the specific needs of the Company providedat that such
recommendations are accompanied by information sufficient to enable the
Nominating Committee to evaluate the qualificationstime. Based upon a preliminary assessment of the nominee.
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SECURITIES HOLDINGS OF PRINCIPAL STOCKHOLDERS,
DIRECTORS, NOMINEES AND OFFICERS
Based upon information received from the persons concerned, each person known to Abraxas to be the beneficial owner of more than five percent of the outstanding shares of Common Stockcommon stock of Abraxas, each director and nominee for director, each of the named executive officers and all directors and officers of Abraxas as a group, owned beneficially as of March 31, 2000,15, 2017, the number and percentage of outstanding shares of Common Stockcommon stock of Abraxas indicated in the following table:
table. Abraxas’ Board has adopted stock ownership guidelines. Except as otherwise noted below, the address for each of the beneficial owners is c/o Abraxas Petroleum Corporation, 18803 Meisner Drive, San Antonio, Texas 78258. Please read “Executive Compensation – Stock Ownership Guidelines.” None of the shares listed below have been pledged as security.
Name of Beneficial Owner | Number of Shares (1) | Percentage (%) | ||||
Robert L.G. Watson | 2,323,523 | (2) | 1.4% | |||
Geoffrey R. King | 599,161 | (3) | * | |||
Peter A. Bommer | 608,283 | (4) | * | |||
G. William Krog, Jr. | 323,531 | (5) | * | |||
William H. Wallace | 725,397 | (6) | * | |||
Stephen T. Wendel | 811,599 | (7) | * | |||
Franklin A. Burke | 6,183,995 | (8) | 3.8% | |||
Harold D. Carter | 353,614 | (9) | * | |||
Ralph F. Cox | 623,985 | (10) | * | |||
W. Dean Karrash | 118,998 | (11) | * | |||
Jerry J. Langdon | 82,648 | (12) | * | |||
Dennis E. Logue | 295,313 | (13) | * | |||
Brian L. Melton | 215,781 | (14) | * | |||
Paul A. Powell, Jr. | 423,547 | (15) | * | |||
Edward P. Russell | 201,800 | (16) | * | |||
BlackRock Inc. | 8,549,550 | (17) | 5.2% | |||
All Officers and Directors as a Group (16 persons) | 13,891,175 | 8.5% | ||||
| * | Less than 1% |
| (1) | Unless otherwise indicated, all shares are held directly with sole voting and |
| (2) | Includes 924,124 shares issuable upon exercise of |
| (3) | Includes 401,625 shares issuable upon exercise of |
| (4) | Includes 304,150 shares issuable upon exercise of vested options granted pursuant to the LTIP, 201,137 restricted shares subject to vesting and 33,671 shares in a retirement account. |
| (5) | Includes 189,304 shares issuable upon exercise of vested options granted pursuant to the LTIP, 70,805 restricted shares subject to vesting and 24,983 shares in a retirement account. |
| (6) | Includes 437,365 shares issuable upon exercise of vested options granted pursuant to the LTIP, 96,681 restricted shares subject to vesting and 31,222 shares in a retirement account. |
| (7) | Includes 386,642 shares issuable upon exercise of vested options granted pursuant to the LTIP, 96,540 restricted shares subject to vesting and 118,535 shares in a retirement account. |
| (8) | Includes 82,500 shares issuable upon exercise of vested options granted pursuant to the Directors Plan, 302,395 shares in a retirement account, 3,340,788 shares owned by Venture Securities Corporation Profit Sharing Trust Plan (voluntary), Venture Securities Corporation Profit Sharing Plan Trust (designated) and Venture Securities Corporation Pension Plan Trust over which Mr. Burke has shared discretion to dispose of, direct the disposition of, vote, and direct the voting of such shares for the benefit of the beneficiary of the trust, 53,512 shares in various trust and guardianship accounts, of which Mr. Burke is a trustee or guardian, 56,722 shares in the Pleasantville Church Foundation, of which Mr. Burke is a director, and 1,638,771 shares managed by BLB&B Advisors, LLC, of which Mr. Burke is a partial owner. Mr. Burke does not have any voting rights with regard to the shares managed by BLB&B Advisors, LLC. |
| (9) | Includes 146,500 shares issuable upon exercise of vested options granted pursuant to the Directors Plan, 7,577 shares in a family trust and 42,598 shares in a retirement account. |
| (10) | Includes 206,500 shares issuable upon exercise of vested options granted pursuant to the Directors Plan. |
| (11) | Includes 86,000 shares issuable upon exercise of vested options granted pursuant to the Directors Plan. |
| (12) | Includes 74,000 shares issuable upon exercise of vested options granted pursuant to the Directors Plan. |
| (13) | Includes 206,500 shares issuable upon exercise of vested options granted pursuant to the Directors Plan. |
| (14) | Includes 181,500 shares issuable upon exercise of vested options granted pursuant to the Directors Plan. |
| (15) | Includes 156,500 shares issuable upon exercise of vested options granted pursuant to the Directors Plan and 27,277 shares in various entities managed by Mr. Powell. |
| (16) | Includes 181,500 shares issuable upon exercise of vested options granted pursuant to the Directors Plan. |
| (17) | According to information in its Schedule 13G/A dated January 19, 2017, BlackRock Inc. is the parent corporation of the following subsidiaries which own shares of our common stock: BlackRock Advisors, LLC, BlackRock Asset Management Canada Limited, BlackRock Financial Management, Inc., BlackRock Fund Advisors, BlackRock Institutional Trust Company, |
Equity Compensation Plan Information
The following table gives aggregate information regarding grants under all shares are held directly with sole
votingof Abraxas’ equity compensation plans through December 31, 2016.
Plan Category | Number of Securities to be Issued upon Exercise of Outstanding Options, Warrants and Rights | Weighted-Average Exercise Price of Outstanding Options, Warrants and Rights | Number of Securities Remaining Available for Future Issuance under Equity Compensation Plans | |||
Equity compensation plans approved by security holders | 8,063,775 | $2.40 | 812,627 | |||
Equity compensation plans not approved by security holders | 90,000 | $2.06 | — |
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires Abraxas’ directors and investment power.
(2) 2,957,549 shares of common stock beneficially owned by various Halcyon
limited partnerships are managed by Halcyon/Alan B. Slifka Management
Company LLC, over which the manager disclaims beneficial ownership, as
reported on Schedule 13G filed with the SEC on January 6, 2000. An
additional 509,260 shares of common stock are owned by a Halcyon
limited partnership managed by an affiliate of Halcyon/Alan B. Slifka
Management Company LLC, over which such affiliate disclaims beneficial
ownership.
(3) Owned by one orexecutive officers and persons who own more open or closed-end investment companies or other
managed accounts which are advised by direct and indirect investment
advisory subsidiaries (the "Adviser Subsidiaries") of Franklin
Resources, Inc. ("FRI"). Such advisory contracts grant to such Adviser
Subsidiaries all investment and/or voting power over the securities
owned by such advisory clients.
The voting and investment powers held by Franklin Mutual Advisers, LLC
("FMA"), formerly Franklin Mutual Advisers, Inc., an indirect wholly
owned investment advisory subsidiary of FRI, are exercised
independently from FRI and from all other investment advisor
subsidiaries of FRI (FRI, its affiliates and investment advisor
subsidiaries other than FMA are collectively referred to herein as "FRI
affiliates"). Furthermore, FMA and FRI internal policies and procedures
establish informational barriers that prevent the flow between FMA and
the FRI affiliates of information that relates to the voting and
investment powers over the securities owned by their respective
advisory clients.
Charles B. Johnson and Rupert H. Johnson, Jr. (the "Principal
Shareholders") each own in excess of 10% of the outstanding Common
Stocka registered class of FRI and are the principal shareholders of FRI. FRI and the
Principal Shareholders may be deemedAbraxas equity securities to be, for purposes of Rule 13d-3
underfile with the Securities and Exchange ActCommission and The NASDAQ Stock Market initial reports of 1934, the beneficial ownerownership and reports of securities heldchanges in ownership of Abraxas common stock. Officers, directors and greater than 10% stockholders are required by persons and entities advised by FRI subsidiaries.
FRI, the Principal Shareholders and eachSEC regulation to furnish us with copies of all such forms they file. Based solely on a review of the Adviser Subsidiaries
disclaim any economic interestcopies of beneficial ownership in anysuch reports furnished to us and written representations that no other reports were required, Abraxas believes that during 2016, all of its directors and executive officers complied on a timely basis with all applicable filing requirements under Section 16(a) of the securities covered by this statement.
FRI,Exchange Act.
The following table sets forth the Principal Shareholders,names, ages and eachpositions of the Adviser Subsidiaries
areexecutive officers of Abraxas.
Name | Age | Office | ||
Robert L.G. Watson San Antonio, Texas | 66 | Chairman of the Board, President and Chief Executive Officer | ||
| Geoffrey R. King San Antonio, Texas | 36 | Vice President – Chief Financial Officer | ||
| Peter A. Bommer San Antonio, Texas | 60 | Vice President – Engineering | ||
| William H. Wallace Blanco, Texas | 59 | Vice President – Operations | ||
| Stephen T. Wendel San Antonio, Texas | 67 | Vice President – Land & Marketing and Secretary | ||
| G. William Krog, Jr. San Antonio, Texas | 63 | Chief Accounting Officer | ||
Robert L.G. Watson has served as Chairman of the view that they are not actingBoard, President, Chief Executive Officer and a director of Abraxas since 1977. See page 7 for more information.
Geoffrey R. King has served as Vice President - Chief Financial Officer since 2012. Prior to joining Abraxas, Mr. King worked at Van Eck Associates from 2007-2012 as a "group"Senior Energy Analyst with a focus on natural resource equities and commodities. Prior to that he served as an investment banker in the Global Power and Energy group at Merrill Lynch and served various roles at Petrie Parkman. Mr. King is a CFA Charterholder and holds a Bachelor of Arts in Economics and History from Davidson College.
Peter A. Bommerhas served as Vice President – Engineering since 2012 and as Manager of Special Projects since 2007. Prior to joining Abraxas, Mr. Bommer owned and ran theday-to-day operations of Bommer Engineering, a privately held engineering firm, for purposesover 25 years. Mr. Bommer received a Bachelor of Section 13(d) underScience in Petroleum Engineering degree from the 1934 ActUniversity of Texas in 1978 and that they are not otherwise
requireda Master of Theology degree from Dallas Theological Seminary in 1999. Mr. Bommer also holds the Professional Engineer designation.
William H. Wallace has served as Vice President – Operations since 2000. Mr. Wallace served as Abraxas’ Superintendent/Senior Operations Engineer from 1995 to attribute2000. Prior to each otherjoining Abraxas, Mr. Wallace worked for Dorchester Gas Producing Company and Parker and Parsley. Mr. Wallace received a Bachelor of Science degree in Petroleum Engineering from Texas Tech University in 1981.
Stephen T. Wendel has served as Vice President - Land and Marketing since 1990 and as Corporate Secretary since 1988. Mr. Wendel served as Abraxas’ Manager of Joint Interests and Natural Gas Contracts from 1982 to 1990. Prior to joining Abraxas, Mr. Wendel held accounting, auditing and marketing positions with Tenneco Oil Company and Tesoro Petroleum Corporation. Mr. Wendel also serves as a director of the "beneficial ownership" of
securities held by any of them or by any persons or entities advised by
FRI subsidiaries.
(4) Includes 20,316 shares owned by Wind River Resources Corporation a
corporation owned by Mr. Watson, as to which Mr. Watson has sole voting
and investment power, 30,459 shares issuable upon exercise of options
granted pursuant to Abraxas Petroleum Corporation 1993 Key Contributor
Stock Option Plan and 269,541 shares issuable upon exercise of options
granted pursuant to the Abraxas Petroleum Corporation 1994 Long Term
Incentive Plan. Does not include a total of 75,880 shares owned by the
Robert L. G. Watson, Jr. TrustBoard and the Carey B. Watson Trust,Development Board of Texas Lutheran University. Mr. Wendel received a Bachelor of Business Administration degree in Accounting from Texas Lutheran University in 1971.
G. William Krog, Jr. has served as Chief Accounting Officer since 2011. Mr. Krog joined Abraxas in 1995 and most recently served as Information Systems / Financial Reporting Director. Prior to joining Abraxas, Mr. Krog was an independent accountant in private practice. Mr. Krog received a Bachelor of Business Administration degree from the trusteesUniversity of Texas at Austin in 1976 and is a Certified Public Accountant.
Compensation Discussion & Analysis
We compensate our executive officers through a combination of base salary, annual incentive bonuses and long-term equity based awards. The compensation is designed to be competitive with those of a peer group, which are Mr. Watson's brothersin 2016 was a group of exploration and production companies originally identified in 2014 by Longenecker & Associates, or L&A, and subsequently updated by management due to bankruptcies and other events.
This section discusses the principles underlying our executive compensation policies and decisions, and the beneficiariesmost important factors relevant to an analysis of these policies and decisions. It provides qualitative information regarding the manner and context in which are Mr. Watson's children. Mr. Watson disclaims beneficial
ownership ofcompensation is awarded to and earned by our executive officers and places in perspective the shares owned by these trusts.
(5) Includes 8,900 shares issuable upon exercise of options granted
pursuant todata presented in the Abraxas Petroleum Corporation 1984 Non-Qualified Stock
Option Plantables and 8,250 shares issuable upon exercise of options granted
pursuant to the Amended and Restated Director Stock Option Plan (the
"Director Option Plan").
(6) Includes 150,000 shares owned by Marie Phelps, Mr. Phelps' wife, and
9,250 shares issuable upon exercise of options granted pursuant to the
Director Option Plan.
(7) Includes 1,786 shares issuable upon exercise of options granted
pursuant to the Abraxas Petroleum Corporation 1984 Incentive Stock
Option Plan, 18,214 shares issuable upon exercise of options granted
pursuant to the Abraxas Petroleum Corporation 1993 Key Contributor
Stock Option Plan and 87,500 shares issuable upon exercise of options
granted pursuant to the Abraxas Petroleum Corporation 1994 Long Term
Incentive Plan.
(8) Includes 10,000 shares issuable upon exercise of options granted
pursuant to the Abraxas Petroleum Corporation 1993 Key Contributor
Stock Option Plan and 66,660 shares issuable upon exercise of options
granted pursuant to the Abraxas Petroleum Corporation 1994 Long Term
Incentive Plan.
(9) Includes 14,500 shares issuable upon exercise of options granted
pursuant to the Abraxas Petroleum Corporation 1994 Long Term Incentive
Plan and 1,000 shares in a retirement account.
12
(10) Includes 80,000 shares issuable upon exercise of options granted
pursuant to the Abraxas Petroleum Corporation 1994 Long Term Incentive
Plan.
(11) Does not include 75,000 shares issuable upon exercise of certain
options (none of which will vest within sixty (60) days of the filing
of this proxy statement).
EXECUTIVE COMPENSATIONnarrative that follow.
Our Compensation Committee
Our Compensation Committee Report onapproves, implements and monitors all compensation and awards to executive officers including the Chief Executive Officer, Chief Financial Officer and the other executive officers named in the Summary Compensation Table below, whom we refer to as the named executive officers or NEOs. The Compensation Committee ofCommittee’s membership is determined by the Board of Directors (the "Committee")and is composed entirely of directors who are not employees of Abraxas.three independent directors. The Committee, is responsible for establishingin its sole discretion, has the authority to delegate any of its responsibilities to subcommittees as it deems appropriate.
The Committee periodically approves and administering the compensation
levels for Abraxas' executive and non-executive officers. The members of the
Committee believe that the ability to attract and retain qualified executive and
non-executive officers and provide appropriate incentives to Abraxas' executive
and non-executive officers is essentialadopts, or makes recommendations to the long-term success of Abraxas.
In determiningBoard regarding Abraxas’ executive compensation the Committee reviews the
compensation programs, pay levels and business results of Abraxas as compared to
those crude oil and natural gas exploration and production companies included in
the KPMG Peat Marwick LLP 1998 Energy Compensation Survey (the "KPMG Survey").
Compensation Philosophy and Objectives. The philosophy underlying the
development and administration of Abraxas' annual and long-term compensation
plans is to align the interests of management with those of Abraxas'
stockholders. Key elements of this philosophy are:
*Establishing compensation plans that deliver base salaries which are
competitive with the companies included in the KPMG Survey, within
Abraxas' budgetary constraints and commensurate with Abraxas'
performance as measured by operating, financial and strategic
objectives.
*Providing equity-based incentives for executive and non-executive
officers to ensure that they are motivated over the long-term to
respond to Abraxas' business challenges and opportunities as owners
rather than just as employees.
*Rewarding executive and non-executive officers for outstanding
performance particularly where such performance is reflected by an
increase in the value of Abraxas' Common Stock.
The compensation currently paid to Abraxas' executive and non-executive
officers consists of base salary, various employee benefits (including medical
and life insurance and 401(k) plan benefits generally available to all employees
of Abraxas), annual cash bonuses and grants of stock options and awards under
Abraxas' 1994 Long Term Incentive Plan (the "LTIP").
13
Elements of the Executive Compensation Program.
Base Salaries. The Committee believes that Abraxas' base salary levels
for executive officers are consistent with the practices of the companies
included in the KPMG Survey. Increases in base salary levels from time to time
are designed to reflect competitive practices in the industry, Abraxas'
financial performance and individual performance of the officer.decisions. In the first quarter of each year, Mr. Watson, the Chief Executive Officer, submits to the Compensation Committee his recommendations for salary adjustments and long-term equity incentive awards based upon his subjective evaluation of individual performance and his subjective judgment regarding setting each executive officer’s salary and non-executive officer'sequity incentives, for each executive officer except himself. For more information on our Compensation Committee, please refer to the discussion under “Proposal One—Election of Directors—Committees of the Board of Directors.”
The Committee reviews all components of compensation for our executive officers, including base salary, annual incentive bonuses, long-term equity based awards, the dollar value to the executive and cost to Abraxas of all benefits and all severance and Change in Control arrangements. Based on this review, the Compensation Committee has determined that the compensation paid to our executive officers reflects our compensation philosophy and objectives.
Compensation Philosophy and Objectives
Our underlying philosophy in the development and administration of Abraxas’ annual and long-term compensation plans is to align the interests of our executive officers with those of Abraxas’ stockholders. Key elements of this philosophy are:
The compensation currently paid to Abraxas’ executive officers consists of three core elements: base salary, annual bonuses under the Abraxas Petroleum Corporation Bonus Plan, as amended, which is referred to as the Bonus Plan, and long-term equity based awards granted pursuant to the LTIP, plus other employee benefits generally available to all employees of Abraxas.
We believe these elements support our underlying philosophy of aligning the interests of our executive officers with those of Abraxas’ stockholders by providing the executive officers a competitive salary, an opportunity for annual bonuses, and equity-based incentives to ensure motivation over the long-term. We view the three core elements of compensation as related but distinct. Although we review total compensation, we do not believe that significant compensation derived from one component of compensation should increase or reduce compensation from another component. We determine the appropriate level for each component of compensation separately. We have not adopted any formal or informal policies or guidelines for allocating compensation among long-term incentives and annual base salary and bonuses, between cash andnon-cash compensation, or among different forms ofnon-cash compensation. Abraxas’ Board has adopted stock ownership guidelines. Please read “Stock Ownership Guidelines” for more information.
Abraxas does not have any other deferred compensation programs or supplemental executive retirement plans and no benefits are provided to Abraxas’ executive officers that are not otherwise available to all employees of Abraxas, and no benefits are valued in excess of $10,000 per employee per year.
Elements of Executive Compensation
Executive compensation consists of the following elements:
Base Salary. In determining base salaries for the executive officers of Abraxas, we aim to set base salaries at a level we believe enables us to hire and retain individuals in a competitive environment and to reward individual performance and contribution to our overall business goals. In addition, we take into consideration the responsibilities of each executive officer and determine compensation appropriate for the positions held and expectations of services rendered during the year. During 2015, 2016 and 2017 we utilized a list of peer companies originally provided by L&A in 2014 and updated by management due to bankruptcies and other corporate events to analyze our salary structure. L&A originally identified potential peer candidates based on 1) companies of similar size, 2) other similar companies in the oil and gas exploration industry, and 3) similar operations in comparable geographic areas. L&A then analyzed each company based on:
Using these criteria, in 2016 the following were the comparable companies utilized by the Committee: Approach Resources, Inc. (AREX), Callon Petroleum Company (CPE), Comstock Resources, Inc. (CRK), Contango Oil & Gas Company (MCF), Earthstone Energy, Inc. (ESTE) Evolution Petroleum Corp. (EPM), Gastar Exploration Inc. (GST), Northern Oil and Gas, Inc. (NOG) and Ring Energy, Inc. (REI). The following companies were eliminated from the list of comparable companies during 2016 as a result of bankruptcies or other corporate events: Clayton Williams Energy, Inc. (CWEI), Emerald Oil, Inc. (EOX), Magnum Hunter Resources Corporation (MHR), Penn Virginia Corporation (PVA), Swift Energy Co. (SFY), Triangle Petroleum Corporation (TPLM) and Warren Resources Inc. (WRES). Earthstone Energy and Ring Energy were added to the list in 2016 based upon the criteria originally utilized by L&A.
Abraxas’ salary range is set by reference to the salaries paid by the comparable companies included inconsidering the KPMG Surveyresponsibilities and expectations of each executive officer while remaining within Abraxas'Abraxas’ budgetary constraints. TheWe utilize salary information from the comparable companies included in the KPMG Survey are used to compare Abraxas'Abraxas’ salary structure to that ofwith those other companies that compete with Abraxas for executives but without targeting salaries to be higher, lower or approximately the same as those in our industry. We believe that the base salary levels for our executive officers are consistent with the practices of the comparable companies, and increases in base salary levels from time to time are designed to reflect competitive practices in the industry, individual performance and the officer’s contribution to our overall business goals. Individual performance and contribution to the overall business goals of Abraxas are subjective measures and evaluated by Mr. Watson and the Compensation Committee and, with respect to Mr. Watson only, the Compensation Committee.
The base salaries paid to our named executive officers in 2016 are set forth below in the Summary Compensation Table. For 2016, base salaries, paid as cash compensation, were $1,196,917 with Mr. Watson receiving $368,000. The amounts paid in 2016 reflect a voluntary 20% reduction which went into effect on February 1, 2016 and was terminated on February 1, 2017. We believe that the base salaries paid achieved our objectives.
Annual Bonuses. Abraxas’ Bonus Plan was initially adopted by our Board of Directors in 2003. The purpose of the Bonus Plan is to create financial incentives for our executive officers that are tied directly to increases in Net Asset Value, or NAV, per share of Abraxas common stock. We initially chose, and continue to utilize, NAV as the foundation of the Bonus Plan because we believe that NAV equates to the value of Abraxas’ oil and gas reserve base, giving risked credit fornon-proven reserves, and adjustments for other assets and liabilities. We believe that NAV is a better indicator of the health of Abraxas than its stock price, as the success of finding oil and gas is directly reflected in our NAV, while our stock price can be influenced by a number of factors outside the control of the executive officers of Abraxas. In addition, many exploration and production equity analysts use NAV per share comparisons to establish price targets for the companies they follow. Under the terms of the Bonus Plan in effect for 2016, NAV was calculated atyear-end after receipt of the reserve report from our independent petroleum engineering firm and the audited financials, subject to certain adjustments, as follows:
Net Asset Value Calculation | ||
+ + + + + + ± – | PV-10 Proved Developed Producing Reserves PV-20 Proved DevelopedNon-Producing Reserves PV-20 Proved Undeveloped Reserves PV-30 Probable Reserves Property & Equipment Other Assets Net Working Capital Debt | |
| = | Net Asset Value (“NAV”) | |
| ÷ | Shares Outstanding | |
| = | NAV per share | |
For the year ended December 31, 2016, the independent petroleum engineering firm of DeGolyer and MacNaughton estimated reserves for approximately 98% of our proved oil and gas reserves. Proved reserves for the remaining 2% of our properties were estimated by Abraxas personnel because we determined that it was not practical for DeGolyer and MacNaughton to prepare reserve estimates for those properties as they are located in a widely dispersed geographic area and have relatively low value. DeGolyer and MacNaughton also estimates our probable reserves. All other items in the NAV calculation are derived from ouryear-end audited financial statements.
PV-10 is the estimated present value of the future net revenues from our proved oil and gas reserves before income taxes discounted using a 10% discount rate.PV-10 is considered anon-GAAP financial measure under SEC regulations because it does not include the effects of future income taxes, as is required in computing the standardized measure of discounted future net cash flows. We believe thatPV-10 is an important measure that can be used to evaluate the relative significance of our oil and gas properties and thatPV-10 is widely used by securities analysts and investors when evaluating oil and gas companies. Because many factors that are unique to each individual company impact the amount of future income taxes to be paid, the use of apre-tax measure provides greater comparability of assets when evaluating companies. We believe that most other companies in the oil and gas industry calculatePV-10 on the same basis.PV-10 is computed on the same basis as the standardized measure of discounted future net cash flows but without deducting income taxes.
The following table provides a reconciliation of the standardized measure of discounted future net cash flows toPV-10 at December 31, 2015 and 2016 (in thousands):
| December 31, | ||||||||
(in thousands) | 2015 | 2016 | ||||||
Standardized measure of discounted future net cash flows | $ | 197,251 | $ | 160,600 | ||||
Present value of future income taxes discounted at 10% | — | — | ||||||
|
|
|
| |||||
PV-10 | $ | 197,251 | $ | 160,600 | ||||
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The annual bonuses for 2016 were calculated by the percentage increase in the 2016year-end NAV per share over the 2015year-end NAV per share up to the first 10%; after 10% has been achieved, all excess percentage increases are doubled, with a maximum award for anyone-year of 70% of the executive officer’s base annual salary. For example, if the percentage increase in NAV for a given year was 15%, the calculated bonus would be equal to 20% of the executive officer’s annual base salary. In order to compare NAV year-over-year, the currentyear-endPV-10 for proved and probable reserves are calculated with commodity prices used in the previousyear-endPV-10 calculations, in addition to other adjustments for other factors out of an employee’s control. To account for risk, Proved Developed Producing Reserves are discounted 10%; Proved DevelopedNon-Producing Reserves are discounted 20%; Proved Undeveloped Reserves are discounted 20%; and Probable Undeveloped Reserves are discounted 30%. Then, for the ensuing year, thePV-10 for proved and probable reserves are calculated with current commodity prices to establish the NAV per share at the beginning of a given year, thus the difference between the calculated NAV per share at the end of a given year and the calculated NAV per share at the beginning of the following year.
In the first quarter of each year, the NAV per share for the prioryear-end is calculated after reserves are estimated by our independent petroleum engineering firm and audited financial statements are available. Mr. Watson then submits the annual bonus calculation to the Compensation Committee for review, discussion and approval.
At the beginning of 2016, the calculated NAV per share was $0.19 (utilizing commodity prices as of December 31, 2015 and the development costs included in our reserve report prepared by DeGolyer and MacNaughton) and the KPMG Survey.calculated NAV per share at the end of 2016 (utilizing commodity prices as of December 31, 2016 and the development costs included in our reserve report prepared by DeGolyer and MacNaughton) was $0.73, a 287.8% increase equating to a 70.0% bonus.
The Compensation Committee has the discretion to defer all or any part of any bonus to future years, to pay all or any portion of any bonus, or deferred bonus, in shares of Abraxas common stock (which would be issued under the LTIP) and has the discretion to pay bonuses even if no bonus would be payable under the Bonus Plan, and further has the discretion not to pay bonuses even if a bonus was earned under the Bonus Plan. In the past, the Committee has elected to pay a portion of the annual bonus in shares of Common Stock and may continue to do so in the future. The Committee does not considerreviews the performance of anycash position of the companies included
inCompany and the KPMG Survey in setting Abraxas' salary structure.
Annual Cash Bonuses. amount of the annual bonus when making such determinations. The Compensation Committee also has the discretion to pay bonuses outside of this plan.
The following table summarizes the bonuses paid to our named executive officers for 2016:
Name | Base Salary (1) | Bonus Award Achieved (Percentage of Salary) (2) | Maximum Award (Percentage of Salary) | Annual Bonus Earned Under the Annual Bonus Plan | Annual Bonus Paid Under the Annual Bonus Plan | |||||||||||||||
Robert L.G. Watson | $ | 460,000 | 70 | % | 70 | % | $ | 322,000 | $ | 322,000 | ||||||||||
Geoffrey R. King | 275,000 | 70 | % | 70 | % | 192,500 | 192,500 | |||||||||||||
Peter A. Bommer | 250,000 | 70 | % | 70 | % | 175,000 | 175,000 | |||||||||||||
William H. Wallace | 250,000 | 70 | % | 70 | % | 175,000 | 175,000 | |||||||||||||
Stephen T. Wendel | 240,000 | 70 | % | 70 | % | 168,000 | 168,000 | |||||||||||||
| (1) | Base annual salaries in effect at the end of the year, excluding 20% voluntary salary reduction in effect at December 31, 2016. |
| (2) | 1% for the first 10%, then 2% for each percent increase over the first 10%. |
Long-Term Equity Incentives. Our executive officers are eligible to receive long-term equity incentives under the LTIP.
In 1994,determining whether to grant long-term incentive awards, such awards will be substantially contingent upon the conclusion of Mr. Watson and the Board of Directors adopted an annual
cash bonus plan which established certain criteria for the payment of annual
cash bonuses to all officers of Abraxas at or above the Vice President level.
The plan was amended in 1997. Under the plan as amended, each participant is
given an annual bonus opportunity based on the achievement of certain goals. For
Messrs. Watson, Williford and Carington, the base bonus could be as high as 35%
of base salary if all goals are attained. For Mr. Wendel and Dr. Billingsley,
the bonus could be as high as 25% of base salary if all goals are attained. The
amount of the bonuses to be paid to Messrs. Watson, Williford, Carington and
Wendel and Dr. Billingsley, if any, will be based upon attaining goals set by(and only the Board of Directors, after assessing the recommendations of management for
earnings per share, cash flow per share, share price and general and
administrative expenses per barrel of oil equivalent produced ("G & A"), with
each factor being weighted equally in the calculation. With respect to officers
responsible for Abraxas' operations, earnings per share, cash flow per share,
shareawards made to Mr. Watson) as to whether individual and management’s collective efforts have produced attractive long-term returns to Abraxas stockholders by increasing the market price and G & A will account for 50% of the calculation and performance
factors uniqueour common stock over time. In determining whether to Abraxas' operations will account for the remaining 50% of the
calculation. With respect to officers responsible for Abraxas' exploration and
geological activities, including Dr. Billingsley, all of the goals described
above are included and account for 50% of the calculation and a goal for
incremental proved (booked) reserves from certain properties accounts for the
remaining 50%. If all performance goals are met or exceeded, additional bonuses
of up to 25% of base salary can be earned by each participant. The Board has the
prerogative to adjust the bonus earned by any participant, including Messrs.
Watson, Williford, Carington and Wendel and Dr. Billingsley, to take into
account extraordinary factors not contemplated by the bonus plan when the impact
of such contributions or factors cannot be adequately reflected by the bonus
determined under the methodology described above. In 1999, the goals for cash
flow per share and G & A per barrel of oil equivalent produced were met as
related to Messers. Watson, Williford, Carington and Wendel resulting in bonuses
of $43,750, $26,250, $35,000 and $13,750, respectively, and the goals for cash
flow per share, G & A per barrel of oil equivalent produced and incremental
proved (booked) reserves were met relating to Dr. Billingsley resulting in a
bonus of $22,500.
14
Long-Term Incentives. In 1994, the Board adopted the LTIP in order to
compensate executive and non-executive officers and employees who contribute
significantly to the operation of Abraxas. In 1998, the Board amended the LTIP
in order to increase the number of shares of Common Stock which may be issued
thereunder to an aggregate of 1,550,000 shares. The LTIP makes available to the
Committee a number of incentive devices such as incentive stock options and
non-qualified stock options, stock appreciation rights, restricted stock,
performance units, performance shares and dividend units. The Committee adopts
administrative guidelines from time to time which define specific eligibility
criteria, the types of awards to be employed and the value of such awards.
Specific terms of each award, including minimum performance criteria which must
be met to receive payment, are provided in individual award agreements granted
to each award recipient. Award agreements also contain change in control
provisions. Option holdings and previous awards are not taken into account.
The Board believes that the LTIP has given Abraxas the flexibility to
structure awards to meet Abraxas' business needs. In makinggrant long-term incentive awards, underwe anticipate that neither Mr. Watson nor the LTIP,Board of Directors will have specific numerical targets, but rather will make a subjective determination based upon the state of the oil and gas exploration and production industry and other general economic factors at the time of their evaluation.
In the first quarter of each year, Mr. Watson submits his recommendations for long-term equity incentive awards to the Compensation Committee seeksbased upon his subjective evaluation of the individual performance of each executive officer, except himself. Mr. Watson also factors in the quantity and value of the long-term incentives that each executive officer has been previously awarded. The Compensation Committee reviews and discusses Mr. Watson’s recommendations and makes final determinations, subject to final Board approval, as to such awards. For awards made to Mr. Watson, the Compensation Committee subjectively evaluates Mr. Watson’s performance and, in their sole authority, subject to final Board approval, determines, how many, if any, long-term equity incentive awards to grant to Mr. Watson. The Compensation Committee also considers the quantity and value of the long-term equity incentive awards previously granted to Mr. Watson when considering making awards to him. In determining whether to grant long-term equity incentive awards, we seek to ensure that the total compensation package, including cash compensation, is competitive withcomparable to the compensation paid
by theother companies included in the KPMG Survey,our industry, yet such awards are substantially contingent upon the successconclusion of Mr. Watson and the Compensation Committee as to whether individual and corporatemanagement’s collective efforts to producehave produced attractive long-term returns to Abraxas stockholders. CEO Compensation.We also consider past grants to each executive officer and the level to which such past grants are (or are not)“in-the-money.”
Abraxas has historically granted long-term equity incentives after Mr. Watson'sWatson presents his recommendations to the Compensation Committee in the first quarter; however, we have not granted long-term equity incentives every year and we have awarded long-term equity incentive awards at other times during the year, principally in the event of a new hire, substantial promotion or significant event, such as the completion of a financing transaction or an accretive acquisition. We believe that such events warrant the granting of awards outside the normal course of business as these events are significant to the future success of Abraxas. We do not time award grants in coordination with the release of materialnon-public information.
LTIP. The LTIP, which was approved by our stockholders at the 2006 annual meeting and subsequently amended by our stockholders, authorizes us to grant incentive stock options,non-qualified stock options and shares of restricted stock to our executive officers, as well as to all employees of Abraxas. We use equity incentives as a form of long-term compensation because it provides our executive officers an opportunity to acquire an equity interest in Abraxas and further aligns their interest with those of our stockholders. Options grants generally have a term of 10 years and vest in equal increments over four years. Restricted stock grants vest in accordance with each individual grant agreement. Vesting is accelerated in certain events described under “Employment Agreements and Potential Payments Upon Termination or Change in Control.”
The purposes of this plan are to employ and retain qualified and competent personnel and to promote the growth and success of Abraxas, which can be accomplished by aligning the long-term interests of the executive officers with those of the stockholders by providing the executive officers an opportunity to acquire an equity interest in Abraxas. All grants are made with an exercise price of no less than 100% of the fair market value on the date of such grant.
As of December 31, 2016, a total of 8,966,402 shares of Abraxas common stock are reserved under the LTIP, subject to adjustment following certain events, such as stock splits. The maximum annual award for any one employee is 500,000 shares of Abraxas common stock. If options, as opposed to restricted stock, are awarded, the exercise price shall be no less than 100% of the fair market value on the date of the award, unless the employee is awarded incentive stock options and, at the time of the award, owns more than 10% of the voting power of all classes of stock of Abraxas. Under this circumstance, the exercise price shall be no less than 110% of the fair market value on the date of the award. Option terms and vesting schedules are at the discretion of the Compensation Committee.
Employment Contracts, Change in Control Arrangements and Certain Other Matters. We provide the opportunity for our executive officers to be protected under the severance and change in control provisions contained in their employment agreements. We believe that these provisions help us to attract and retain an appropriate caliber of talent for these positions. Our severance and change in control provisions for the executive officers are summarized in “Employment Agreements and Potential Payments Upon Termination or Change in Control” below. We believe that our severance and change in control provisions are consistent with the programs and levels of severance and post-employment compensation of other companies in our industry and believe that these arrangements are reasonable.
Other Employee Benefits. Abraxas’ executive officers are eligible to participate in all of our employee benefit plans, such as medical, dental, group life and long-term disability insurance, in each case on the same basis as other employees. Abraxas’ executive officers are also eligible to participate in our 401(k) plan on the same basis as other employees. In 2008, Abraxas adopted the safe harbor provision for its 401(k) plan which requires Abraxas to contribute a fixed match to each participating employee’s contributions to the plan. The fixed match is set at the rate of dollar for dollar for the first 1% of eligible pay contributed, then 50 cents on the dollar for each additional percentage point of eligible pay contributed, up to 5%. The fixed match is contributed in the form of Abraxas common stock. An employee’s eligible pay with respect to calculating the fixed match is limited by IRS regulations. In addition, the Board of Directors, at its sole discretion, may authorize Abraxas to make additional contributions to each participating employee’s plan. The employee contribution limit for 2016 was $18,000 for employees under the age of 50 and $24,000 for employees 50 years of age or older. The Board of Directors has also suggested a cap on the amount (or percentage) of Abraxas common stock that each employee should own in their individual 401(k) account to encourage diversification. The maximum suggested percentage has been set at 20% and each employee is encouraged to reduce their ownership of Abraxas common stock in their 401(k) account in the event such employee is over the suggested limit.
2017 Compensation Decisions
Base Salaries. A voluntary 20% salary reduction of base salaries that was in 1999effect for our named executive officers during 2016 was terminated as of February 1, 2017. No named executive officer has received a salary increase for 2017.
Assessment of Compensation Policies and Practices
The Company and the Compensation Committee have conducted anin-depth risk assessment of the Company’s compensation policies and practices in response to public and regulatory concerns about the link between incentive compensation and excessive risk taking by companies. The Company and the Committee concluded that our compensation program does not motivate imprudent risk taking. In this regard, the Committee believes that:
The Company’s compensation policies and practices were evaluated to ensure that they do not foster risk taking above the KPMG Surveylevel of risk associated with the Company’s business and the salary structureCompany concluded that it has a balanced pay and performance program and that the risks arising from its compensation policies and practices are not reasonably likely to have a material adverse effect on the Company.
Impact of Abraxas.
Policy on Regulatory Requirements
Deductibility of Compensation.Executive Compensation. In 1993, the federal tax laws were amended to limit the deduction a publicly-held company is allowed for compensation paid to the chief executive officer and to the four most highly compensated executive officers other than the chief executive officer. Generally, amounts paid in excess of $1$1.0 million to a covered executive, other thanperformance-based compensation, cannot be deducted. In order to constituteperformance-based compensation for purposes of the tax law, stockholders must approve the performance measures must be approved by the stockholders. Since Abraxas does not anticipate
that the compensation for any executive officer will exceed the $1 million
threshold in the near term, stockholder approval necessary to maintain the tax
deductibility of compensation at or above that level is not being requested. The
Committee will reconsider this matter if compensation levels approach this
threshold, in light of the tax laws then in effect. The Committeemeasures. We will consider ways to maximize the deductibility of executive compensation, while retaining the discretion the Committee deems necessary to compensate executive officers in a manner commensurate with performance and the competitive environment for executive talent. Our Bonus Plan was approved by our stockholders on May 6, 2014.
Non-Qualified Deferred Compensation. On October 22, 2004, the American Jobs Creation Act of 2004 was signed into law, changing the tax rules applicable tonon-qualified deferred compensation arrangements. We believe we are in compliance with the statutory provisions which were effective January 1, 2005 and the regulations which became effective on January 1, 2009.
Accounting for Stock-Based Compensation. On October 1, 2005 we began accounting for stock-based compensation in accordance with the requirements of Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 718 for all of our stock-based compensation plans. See the notes to our consolidated financial statements included in our Annual Report on Form10-K for the year ended December 31, 2016 filed with the Securities and Exchange Commission for a discussion of all assumptions made in the calculation of this amount.
Policy on Recovery of Compensation. Our Chief Executive Officer and Chief Financial Officer are required to repay certain bonuses and stock-based compensation they receive if we are required to restate our financial statements as a result of misconduct as required by Section 304 of the Sarbanes-Oxley Act of 2002.
The Compensation Committee of Abraxas has reviewed and discussed the Compensation Discussion and Analysis required by Item 402(b) of RegulationS-K with management and, based on such review and discussions, the Compensation Committee recommended to the Board that the Compensation Discussion and Analysis be included in this proxy statement.
This report is submitted by the members of the Committee:
James C. Phelps
Compensation Committee.
Ralph F. Cox, Frederick M. Pevow, Jr.
15
Compensation Summary
Chairman
Harold D. Carter
Dennis E. Logue
The following table sets forth a summary of compensation paid to each of our named executive officers for the last three fiscal yearsyears.
Name and Principal Position | Year | Salary ($) (1) | Bonus ($) (2) | Stock Awards ($) (3) | Option Awards ($) (4) | Non-Equity Incentive Plan Compensation ($) (5) | All Other Compensation ($) (6) | Total ($) (7) | ||||||||||||||||||||||
Robert L.G. Watson President, Chief Executive Officer and Chairman of the Board | 2016 | 368,000 | 17,692 | — | 269,912 | 322,000 | 9,275 | 986,879 | ||||||||||||||||||||||
| 2015 | 429,330 | — | — | 690,000 | — | 9,275 | 1,128,605 | |||||||||||||||||||||||
| 2014 | 450,000 | 17,692 | 63,000 | 102,884 | 322,000 | 9,100 | 964,676 | |||||||||||||||||||||||
Geoffrey R. King Vice President – Chief Financial Officer | 2016 | 224,583 | 10,577 | — | 183,866 | 192,500 | 8,231 | 619,757 | ||||||||||||||||||||||
| 2015 | 275,000 | — | — | 575,000 | — | 9,275 | 859,275 | |||||||||||||||||||||||
| 2014 | 266,250 | 10,577 | 410,750 | 61,507 | 192,500 | 9,100 | 950,684 | |||||||||||||||||||||||
Peter A. Bommer Vice President - Engineering | 2016 | 204,167 | 9,615 | — | 96,258 | 175,000 | 7,482 | 492,522 | ||||||||||||||||||||||
| 2015 | 250,000 | — | — | 460,000 | — | 9,275 | 719,275 | |||||||||||||||||||||||
| 2014 | 246,250 | 9,615 | 630,000 | 55,915 | 175,000 | 9,100 | 1,125,880 | |||||||||||||||||||||||
William H. Wallace Vice President — Operations | 2016 | 204,167 | 9,615 | — | 128,127 | 175,000 | 19,482 | 536,391 | ||||||||||||||||||||||
| 2015 | 250,000 | — | — | 460,000 | — | 21,275 | 731,275 | |||||||||||||||||||||||
| 2014 | 246,250 | 9,615 | 350,250 | 55,915 | 175,000 | 21,100 | 858,130 | |||||||||||||||||||||||
Stephen T. Wendel Vice President — Land & Marketing | 2016 | 196,000 | 9,231 | — | 115,119 | 168,000 | 7,183 | 495,533 | ||||||||||||||||||||||
| 2015 | 240,000 | — | — | 345,000 | — | 9,275 | 594,275 | |||||||||||||||||||||||
| 2014 | 235,750 | 9,231 | 350,250 | 53,679 | 156,100 | 9,100 | 814,109 | |||||||||||||||||||||||
| (1) | The amounts in this column include any 401(k) plan account contributions made by the named executive officer. |
| (2) | The amounts in this column reflect a discretionary holiday bonus of $17,692, $10,577, $9,615, $9,615 and $9,231 awarded to Mr. Watson, Mr. King, Mr. Bommer, Mr. Wallace and Mr. Wendel, respectively, in 2016. The amounts in this column reflect a discretionary holiday bonus of $17,692, $10,577, $9,615, $9,615 and $9,231 awarded to Mr. Watson, Mr. King, Mr. Bommer, Mr. Wallace and Mr. Wendel, respectively, in 2014. No holiday bonuses were paid in 2015. |
| (3) | The amounts in this column reflect the aggregate grant date fair value of stock awards granted during a given year to the named executive officer calculated in accordance with FASB ASC Topic 718. See the notes to our consolidated financial statements included in our Annual Report on Form10-K for the year ended December 31, 2016 filed with the Securities and Exchange Commission for a discussion of all assumptions made in the calculation of this amount. |
| (4) | The amounts in this column reflect the aggregate grant date fair value of options granted during a given year to the named executive officer calculated in accordance with FASB ASC Topic 718. See the notes to our consolidated financial statements included in our Annual Report on Form10-K for the year ended December 31, 2016 filed with the Securities and Exchange Commission for a discussion of all assumptions made in the calculation of this amount. |
| (5) | The amounts included in this column for 2014 and 2016 include cash bonuses earned and paid under the annual bonus plan. |
| (6) | The amounts in this column represent contributions by Abraxas to the named executive officer’s 401(k) plan account for 2014, 2015 and 2016 as well as a $12,000 vehicle allowance for Mr. Wallace in 2014, 2015 and 2016. |
| (7) | The dollar value in this column for each named executive officer represents the sum of all compensation reflected in the previous columns. |
The following table provides information with regard to grants ofnon-equity incentive compensation and all other stock and option awards to our named executive officers in 2016.
Name | Grant Date | Estimated Future Payouts Under Non- Equity Incentive Plan Awards (1) | All Other Stock Awards: Number of Shares of Stock (#) | All Other Option Awards: Number of Securities Underlying Options (#) | Exercise or Base Price of Option Awards ($/share) | Grant Date Fair Value of Stock and Option Awards ($) (2) | ||||||||||
| Threshold ($) | Target ($) | Maximum ($) | ||||||||||||||
| Robert L.G. Watson | 12/31/2016 | 322,000 | 322,000 | |||||||||||||
| 03/15/2016 | 415,000 | 0.97 | 269,912 | |||||||||||||
| Geoffrey R. King | 12/31/2016 | 192,500 | 192,500 | |||||||||||||
| 03/15/2016 | 152,000 | 0.97 | 98,859 | |||||||||||||
| 08/09/2016 | 100,000 | 1.31 | 85,007 | |||||||||||||
| Peter A. Bommer | 12/31/2016 | 175,000 | 175,000 | |||||||||||||
| 03/15/2016 | 148,000 | 0.97 | 96,258 | |||||||||||||
| William H. Wallace | 12/31/2016 | 175,000 | 175,000 | |||||||||||||
| 03/15/2016 | 197,000 | 0.97 | 128,127 | |||||||||||||
| Stephen T. Wendel | 12/31/2016 | 168,000 | 168,000 | |||||||||||||
| 03/15/2016 | 177,000 | 0.97 | 115,119 | |||||||||||||
| (1) | Reflects awards payable under our annual bonus plan. The annual bonus plan does not provide for a threshold level as the bonuses under the plan can range from 0 to the maximum, which equals 70% of the named executive officer’s base salary. Please see the discussion under “Compensation Discussion & Analysis – Elements of Executive Compensation – Annual Bonuses” for more information. Please also refer to column 5 of the Summary Compensation Table. |
| (2) | The amounts in this column reflect the aggregate grant date fair value of stock awards and options granted in 2016 to the named executive officer calculated in accordance with FASB ASC Topic 718. See the notes to our consolidated financial statements included in our Annual Report on Form10-K for the year ended December 31, 2016 filed with the Securities and Exchange Commission for a discussion of all assumptions made in the calculation of this amount. |
OUTSTANDING EQUITY AWARDS AT FISCAL YEAR END
The following table provides information concerning outstanding equity awards at December 31, 1997, 1998 and 1999 paid by Abraxas to Robert L.G.
Watson, Abraxas' Chairman of the Board, President and Chief Executive Officer,
Chris E. Williford, Abraxas' Executive Vice President, Chief Financial Officer
and Treasurer, Robert W. Carington, Jr., Abraxas' Executive Vice President,
Stephen T. Wendel, Abraxas' Vice President-Land and Marketing, , and to Lee T.
Billingsley, Abraxas' Vice President-Exploration2016 for the fiscal year ended
December 31, 1999. Abraxas didour named executive officers. We do not have any executive officers other than
Messrs. Watson, Williford, and Wendel whose total annual salary and bonus
exceeded $100,000 foran equity incentive plan as such term is defined in RegulationS-K, Item 402; therefore, these columns have been omitted from the year ended December 31, 1997, Messrs. Watson,
Williford, Carington and Wendel for the year ended December 31, 1998, and
Messrs. Watson, Williford, Carington and Wendel and Dr. Billingsley for the year
ended December 31, 1999.
following table.
| OPTION AWARDS | STOCK AWARDS | |||||||||||||||||||||||
Name | Number of Securities Underlying Unexercised Options (Exercisable) | Number of Securities Underlying Unexercised Options (Unexercisable) (1) | Option Exercise Price ($) | Option Expiration Date | Number of Shares of Stock That Have Not Vested (2) | Market Value of Shares of Stock That Have Not Vested ($) (3) | ||||||||||||||||||
Robert L.G. Watson | 41,624 | — | 3.60 | 08/28/2017 | ||||||||||||||||||||
| 125,000 | — | 0.99 | 03/17/2019 | |||||||||||||||||||||
| 267,750 | — | 1.75 | 10/05/2019 | |||||||||||||||||||||
| 90,000 | — | 2.09 | 03/16/2020 | |||||||||||||||||||||
| 60,000 | — | 4.72 | 03/15/2021 | |||||||||||||||||||||
| 20,000 | — | 3.74 | 03/08/2022 | |||||||||||||||||||||
| 31,500 | 10,500 | 2.39 | 05/14/2023 | |||||||||||||||||||||
| 23,000 | 23,000 | 3.15 | 03/11/2024 | |||||||||||||||||||||
| 75,000 | 225,000 | 3.16 | 03/03/2025 | |||||||||||||||||||||
| — | 415,000 | 0.97 | 03/15/2026 | |||||||||||||||||||||
| 23,696 | 60,899 | |||||||||||||||||||||||
Geoffrey R. King | 200,000 | — | 1.99 | 09/04/2022 | ||||||||||||||||||||
| 18,000 | 6,000 | 2.39 | 05/14/2023 | |||||||||||||||||||||
| 13,750 | 13,750 | 3.15 | 03/11/2024 | |||||||||||||||||||||
| 62,500 | 187,500 | 3.16 | 03/03/2025 | |||||||||||||||||||||
| — | 152,000 | 0.97 | 03/15/2026 | |||||||||||||||||||||
| — | 100,000 | 1.31 | 08/09/2026 | |||||||||||||||||||||
| 125,685 | 323,010 | |||||||||||||||||||||||
Peter A. Bommer | 5,000 | — | 3.61 | 09/05/2017 | ||||||||||||||||||||
| 7,500 | — | 0.99 | 03/17/2019 | |||||||||||||||||||||
| 31,875 | — | 1.75 | 10/05/2019 | |||||||||||||||||||||
| 35,900 | — | 2.09 | 03/16/2020 | |||||||||||||||||||||
| 15,000 | — | 4.72 | 03/15/2021 | |||||||||||||||||||||
| 25,000 | — | 3.55 | 08/09/2021 | |||||||||||||||||||||
| 10,500 | — | 3.74 | 03/08/2022 | |||||||||||||||||||||
| 17,625 | 5,875 | 2.39 | 05/14/2023 | |||||||||||||||||||||
| 12,500 | 12,500 | 3.15 | 03/11/2024 | |||||||||||||||||||||
| 50,000 | 150,000 | 3.16 | 03/03/2025 | |||||||||||||||||||||
| — | 148,000 | 0.97 | 03/15/2026 | |||||||||||||||||||||
| 201,137 | 516,922 | |||||||||||||||||||||||
William H. Wallace | 18,920 | — | 3.60 | 08/28/2017 | ||||||||||||||||||||
| 50,000 | — | 0.99 | 03/17/2019 | |||||||||||||||||||||
| 66,937 | — | 1.75 | 10/05/2019 | |||||||||||||||||||||
| 60,000 | — | 2.09 | 03/16/2020 | |||||||||||||||||||||
| 30,000 | — | 4.72 | 03/15/2021 | |||||||||||||||||||||
| 11,300 | — | 3.74 | 03/08/2022 | |||||||||||||||||||||
| 17,625 | 5,875 | 2.39 | 05/14/2023 | |||||||||||||||||||||
| 12,500 | 12,500 | 3.15 | 03/11/2024 | |||||||||||||||||||||
| 50,000 | 150,000 | 3.16 | 03/03/2025 | |||||||||||||||||||||
| — | 197,000 | 0.97 | 03/15/2026 | |||||||||||||||||||||
| 96,681 | 248,470 | |||||||||||||||||||||||
Name Stephen T. Wendel OPTION AWARDS STOCK AWARDS Number of
Securities
Underlying
Unexercised
Options
(Exercisable) Number of
Securities
Underlying
Unexercised
Options
(Unexercisable) (1) Option
Exercise Price
($) Option
Expiration Date Number of
Shares of Stock
That Have Not
Vested (2) Market Value
of Shares of
Stock That
Have Not
Vested ($) (3) 15,330 — 3.60 08/28/2017 50,000 — 0.99 03/17/2019 66,937 — 1.75 10/05/2019 60,000 — 2.09 03/16/2020 30,000 — 4.72 03/15/2021 10,400 — 3.74 03/08/2022 16,725 5,575 2.39 05/14/2023 12,000 12,000 3.15 03/11/2024 37,500 112,500 3.16 03/03/2025 — 177,000 0.97 03/15/2026 96,540 248,108
| (1) | Options |
| (2) | In general, stock awards vest in twenty-five percent (25%) increments each year for four (4) years on the anniversary of the grant date. As each increment vests, a new award equal to the most recently vested portion is granted and |
| (3) | The market value was calculated from the closing price of Abraxas’ common stock on December 31, 2016 of $2.57 per share multiplied by the number of shares of stock that had not vested as of December 31, 2016. |
OPTION EXERCISES AND STOCK VESTED
The ISO Plan, the 1993
Plan and the LTIP are administered by the Compensation Committee which, based
upon the recommendation of the Chief Executive Officer, determines the number of
shares subject to each option.
The Compensation Committee did not grant any stock options to Messrs.
Watson, Williford or Carington during 1999. Thefollowing table below contains certain
information concerning stock options granted to Dr. Billingsley and Mr. Wendel
during 1999:
OPTION AWARDS | STOCK AWARDS | |||||||||||||||
Name | Number of Shares Acquired on Exercise | Value Realized on Exercise ($) | Number of Shares Acquired on Vesting | Value Realized on Vesting ($) | ||||||||||||
| Robert L.G. Watson | — | — | 3,696 (1) | 4,842 | ||||||||||||
| Geoffrey R. King | — | — | 12,500 (2) | 18,750 | ||||||||||||
| Peter A. Bommer | — | — | 1,137 (3) | 1,489 | ||||||||||||
| William H. Wallace | — | — | 1,681 (4) | 2,202 | ||||||||||||
| Stephen T. Wendel | — | — | 1,540 (5) | 2,017 | ||||||||||||
| (1) | These 3,696 stock awards vested on August 9, 2016 and the closing price of Abraxas’ common stock on this date was $1.31. |
| (2) | These 12,500 stock awards vested on September 4, 2016 Abraxas’ common stock on the last trading date before these shares vested (September 2, 2016) was $1.50. |
| (3) | These 1,137 stock awards vested on August 9, 2016 and the closing price of Abraxas’ common stock on this date was $1.31. |
| (4) | These 1,681 stock awards vested on August 9, 2016 and the closing price of Abraxas’ common stock on this date was $1.31. |
| (5) | These 1,540 stock awards vested on August 9, 2016 and the closing price of Abraxas’ common stock on this date was $1.31. |
Abraxas does not sponsor any pension benefit plans and Dr. Billingsleynone of the named executive officers contribute to such a plan.
Non-Qualified Deferred Compensation
Abraxas does not sponsor anynon-qualified defined compensation plans or othernon-qualified deferred compensation plans and none of the fiscal year endnamed executive officers contribute to any such plans.
Abraxas’ Board has established stock ownership guidelines to strengthen the alignment of director and executive officer interests with those of our stockholders. As of December 31, 2016, we had eightnon-employee directors and six executive officers subject to the stock ownership guidelines. Under the guidelines below, each director and officer is precluded from selling any shares of Abraxas common stock until the director or officer satisfies the ownership guidelines set forth in the following table. Satisfaction of the ownership guidelines will fluctuate with the market value of unexercised options held by Messrs. Watson, Williford, Carington, WendelAbraxas common stock.
Position | Stock Ownership Guidelines | |
| Chief Executive Officer | 5x annual base salary | |
| All other Executive Officers | 3x annual base salary | |
| Non-employee Directors | 3x all fees received during the prior12-month period, including the value of common shares awarded in lieu of cash payments at the time of issuance |
Abraxas’ Board has discretion to review special situations; however,non-compliance without board approval can result in the loss of future bonuses and Dr. Billingsley.
Employment Agreements and Potential Payments Upon Termination or Change in Control
Abraxas has entered into employment agreements with each of Messrs.
Watson, Williford, Carington and Wendel as well as with Dr. Lee T. Billingsley,
Abraxas' Vice President of Exploration,our named executive officers pursuant to which each of Messrs.
Watson, Williford, Carington, Wendel and Dr. Billingsley will receive compensation as determined from time to time by the Board in its sole discretion. Abraxas has also established the Abraxas Petroleum Corporation Severance Plan, effective December 31, 2008, for all employees that are not subject to an employment agreement. This plan provides severance benefits in the event of a change in control and for certain other changes in conditions of employment. The affected employees would be entitled to receive one month of base salary for each year of service with Abraxas, up to a maximum of 12 months.
The employment agreementsagreement for Messrs.Mr. Watson Williford, and Carington
areis scheduled to terminate on December 21, 2002,2017, and shall beis automatically extended for additionalone-year terms unless Abraxas gives Messrs. Watson,
Williford, and Carington 120 daysdays’ notice prior of the expiration of the original
term or any extension thereof of its intention not to renew the employment agreement. The employment agreements for Mr. King, Mr. Bommer, Mr. Wallace and Mr. Wendel are scheduled to terminate on December 31, 2017, and are automatically extended for an additional year if by December 1 neither Abraxas nor Mr. King, Mr. Bommer, Mr. Wallace or Mr. Wendel, as the case may be, has given notice to the contrary.
The employment agreements contain the following defined terms:
“Cause” means termination upon
(i) the continued failure by the officer to substantially perform his duties with Abraxas (other than any such failure resulting from his incapacity due to physical or mental illness or any such actual or anticipated failure resulting from termination by him for Good Reason) after a written demand for substantial performance is delivered to the officer by the Board, which demand specifically identifies the manner in which the Board believes that he has not substantially performed his duties, or
(ii) the engaging by the officer in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. The officer shall not be deemed to have been terminated for Cause unless and until the officer has been delivered a copy of a resolution duly adopted by the affirmative vote (which cannot be delegated) of not less than a majority of the members of the Board who are not officers of the Company at a meeting of the Board called and held for such purposes (after reasonable notice to the officer and an opportunity for the officer, together with the officer’s counsel, to be heard before the Board), finding that in the good faith opinion of the Board, the officer was guilty of conduct set forth above in clauses (i) or (ii) above and specifying the particulars thereof in detail.
“Change in Control” means the occurrence of
(i) any “person” or “group” (as such terms are used in Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”)) becoming the “beneficial owner” (as defined in Rule13d-3 under the Exchange Act), except that a person shall be deemed to be the “beneficial owner” of all shares that any such person has the right to acquire pursuant to any agreement or arrangement or upon exercise of conversion rights, warrants, options or otherwise, without regard to the sixty day period referred to in such Rule), directly or indirectly, of securities representing 20% or more of the combined voting power of the Company’s then outstanding securities,
(ii) any person or group making a tender offer or an exchange offer for 20% or more of the combined voting power of the Company’s then outstanding securities,
(iii) at any time during any period of two consecutive years, individuals who at the beginning of such period constituted the Board and any new directors, whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at leasttwo-thirds (2/3) of the Company directors then still in office who either were the Company directors at the beginning of the period or whose election or nomination for election was previously so approved (“Current Directors”), ceasing for any reason to constitute a majority thereof,
(iv) the Company consolidating, merging or exchanging securities with any other entity and the stockholders of the Company immediately before the effective time of such transaction not beneficially owning, immediately after the effective time of such transaction, shares entitling such stockholders to a majority of all votes (without consideration of the rights of any class of stock entitled to elect directors by a separate class vote) to which all stockholders of the corporation issuing cash or securities in the consolidation, merger or share exchange would be
entitled for the purpose of electing directors or where the Current Directors immediately after the effective time of the consolidation, merger or share exchange not constituting a majority of the Board of Directors of the corporation issuing cash or securities in the consolidation, merger or share exchange, or
(v) any person or group acquiring 50% or more of the Company’s assets.
“Disability” means the incapacity of the officer due to physical or mental illness which causes the officer to have been absent from the full-time performance of his duties with the Company for six consecutive months, and within 30 days after the Company gives the officer written notice of termination, the officer has not returned to the full-time performance of his duties.
“Good Reason” means, without the officer’s express written consent, any of the following:
(i) a material adverse alteration in the nature or status of his position, duties or responsibilities,
(ii) a reduction in his current annual base salary,
(iii) a change in the principal place of his employment to a location more than twenty-five (25) miles from the Company’s current principal place of employment, excluding required travel on the Company’s business to an extent substantially consistent with the officer’s present business travel obligations,
(iv) the failure by the Company, without his consent, to pay to him any portion of his current compensation, or to pay to him any portion of any deferred compensation, within ten (10) days of the date any such compensation payment is due,
(v) the failure by the Company to continue in effect any compensation plan in which he participates, or any substitute plans or the failure by the Company to continue his participation therein on the same basis, both in terms of the amount of benefits provided and the level of his participation relative to other participants, as existing,
(vi) the failure by the Company to continue to provide him with benefits at least as favorable to those enjoyed by him under any of the Company’s pension, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which he is currently participating, the taking of any action by the Company which would directly or indirectly materially reduce any of such benefits or deprive the officer of any material fringe benefit enjoyed by him, or the failure by the Company to provide him with the number of paid vacation days to which he is entitled on the basis of the Company’s practice with respect to him,
(vii) the failure of the Company to obtain a satisfactory agreement from any successor to assume and agree to perform his employment agreement, or
(viii) any purported termination of his employment which is not effected pursuant to the employment agreement’s termination provisions.
“Retirement” means termination in accordance with the Company’s retirement policy, generally applicable to its salaried employees or in accordance with any retirement arrangement established with the officer’s consent with respect to himself.
If, during the term of Messrs. Watson's, Williford'sthe employment agreement for an officer or Carington's
18
employment agreements, Messrs. Watson's, Williford's or Carington'sany extension thereof, such officer’s employment is terminated other than for causeCause or disability,Disability, by reason of Messrs. Watson's,
Williford's or Carington'sthe officer’s death or retirementRetirement, or by Messrs. Watson, Williford
or Carington, as the case may be, other thansuch officer for good reason,Good Reason, then Messrs.
Watson, Williford or Carington, as the case may be,such officer will be entitled to receive the following:
Watson: a lump sum payment equal to the greater of (a) his annual base salary for the last full year during which he was employed by Abraxas or (b) his annual base salary for the remainder of the term of eachhis employment agreement.
King, Bommer, Wallace and Wendel: no provisions for termination of their respective employment agreements.
If a change of control occursbecause at all times during the term of Messrs. Watson's,
Williford'seach officer’s employment agreement, such officer’s employment is at will and may be terminated by
Abraxas for any reason without notice or Carington'scause. If, during the term of the employment agreements,agreement for each of Mr. King, Mr. Bommer, Mr. Wallace and if subsequentMr. Wendel or any extension thereof, a Change in Control occurs, then such officer will be entitled to such
changean automatic extension of control, Messrs. Watson's, Williford's, or Carington'sthe term of the officer’s employment agreement for a period of 36 months beyond the term in effect immediately before the Change in Control.
If, following a Change in Control, an officer’s employment is terminated other than for causeCause or disability,Disability, by reason of Messrs. Watson's,
Williford's or Carington'sthe officer’s death or retirementRetirement or by Messrs. Watson, Williford
or Carington, as the case may be, other thansuch officer for good reason,Good Reason, then Mr. Watsonsuch terminated officer will be entitled to the following:
(1) if such termination occurs prior to the end of the first year of
the initial term of his employment agreement, a lump sum payment equal to five
(5) times his annual base salary;
(2) if such termination occurs after the end of the first year of the
initial term of his employment agreement but prior to the end of the second year
of the initial term of his employment agreement, a lump sum payment equal to
four (4) times his annual base salary;
(3) if such termination occurs after the end of the second year of the
initial term of his employment agreement but prior to the end of the third year
of the initial term of his employment agreement, a lump sum payment equal to
three (3) times his annual base salary; and
(4) if such termination occurs after the end of the third year of the
initial term of his employment agreement
Watson: a lump sum payment equal to 2.99 times his annual base salary.
Under such circumstances, Messrs. Williford
King, Bommer, Wallace and Carington will be
entitled to the following:
(1) if such termination occurs prior to the end of the first year of
the initial term of his respective employment agreement, a lump sum payment
equal to four (4) times his annual base salary;
(2) if such termination occurs after the end of the first year of the
initial term of his respective employment agreement but prior to the end of the
second year of the initial term of his respective employment agreement, a lump
sum payment equal to three (3) times his annual base salary; and
(3) if such termination occurs after the end of the second year of the
initial term of his respective employment agreement, a lump sum payment equal to
2.99 times his annual base salary.
The employment agreements for Mr. Wendel and Dr. Billingsley,
originally scheduled to terminate on December 31, 1998, have been automatically
extended for four years and will terminate on December 31, 2000, and may be
19
automatically extended for an additional year if by December 1 of the prior year
neither Abraxas nor Mr. Wendel or Dr. Billingsley, as the case may be, has given
notice that he or it, as the case may be, does not wish to extend the term.
Except in the event of a change in control, at all times during the term of the
employment agreements, each of Mr. Wendel's and Dr. Billingsley's employment is
at will and may be terminated by us for any reason without notice or cause. If a
change in control occurs during the term of the employment agreement or any
extension thereof, the expiration date of Mr. Wendel's and Dr. Billingsley's
employment agreement is automatically extended to a date no earlier than three
years following the effective date of such change in control. If, following a
change in control, Mr. Wendel's or Dr. Billingsley's employment is terminated
other than for cause or disability by reason of Mr. Wendel's or Dr.
Billingsley's death or retirement or by Mr. Wendel or Dr. Billingsley, as the
case may be, other than for good reason, then Mr. Wendel and Dr. Billingsley
will each be entitled to receive
If any lump sum payment to Messrs. Watson, Williford, Carington, Wendel
or Dr. Billingsleya named executive officer would individually or together with any other amounts paid or payable constitute an "excess“excess parachute payment"payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended, and applicable regulations thereunder, the amounts to be paid will be increased so that Messrs.
Watson, Williford, Carington, Wendel or Dr. Billingsley,each named executive officer, as the case may be, will be entitled to receive the amount of compensation provided in his contractagreement after payment of the tax imposed by Section 280G.
Report
In addition, unvested options and restricted stock that have been awarded to our named executive officers will vest upon any change in control. As of December 31, 2016, our named executive officers held 2,323,575 unvested options, of which 1,424,825 were“in-the-money”. Additionally, our named executive officers held 447,199 shares of restricted stock, which were unvested.
The following table provides information concerning termination and change in control payments to each of our named executive officers as if the event occurred on RepricingDecember 31, 2016.
Termination and Change in Control Payments Table
Name | Type of Benefit | Before Change in Termination w/o ($) (1) | After Change in Control Termination w/o Cause or for Good Reason ($) (2) | Voluntary Termination ($) | Death / Disability ($) | Change in Control ($) (3) | ||||||||||||
Robert L.G. Watson | Severance pay | 460,000 | 1,375,400 | — | — | 460,000 | ||||||||||||
| Option acceleration | 665,890 | 665,890 | 665,890 | |||||||||||||||
| Restricted stock acceleration | 60,899 | 60,899 | 60,899 | |||||||||||||||
| Total | 460,000 | 2,102,189 | 726,789 | 1,186,789 | ||||||||||||||
Geoffrey R. King | Severance pay | — | 825,000 | — | — | 825,000 | ||||||||||||
| Option acceleration | 486,640 | 486,640 | 486,640 | |||||||||||||||
| Restricted stock acceleration | 323,010 | 323,010 | 323,010 | |||||||||||||||
| Total | 1,634,650 | 809,650 | 1,634,650 | |||||||||||||||
Peter A. Bommer | Severance pay | — | 750,000 | — | — | 750,000 | ||||||||||||
| Option acceleration | 237,858 | 237,858 | 237,858 | |||||||||||||||
| Restricted stock acceleration | 516,922 | 516,922 | 516,922 | |||||||||||||||
| Total | 1,504,780 | 754,780 | 1,504,780 | |||||||||||||||
William H. Wallace | Severance pay | — | 750,000 | — | — | 750,000 | ||||||||||||
| Option acceleration | 316,258 | 316,258 | 316,258 | |||||||||||||||
| Restricted stock acceleration | 248,470 | 248,470 | 248,470 | |||||||||||||||
| Total | 1,314,728 | 564,728 | 1,314,728 | |||||||||||||||
Stephen T. Wendel | Severance pay | — | 720,000 | — | — | 720,000 | ||||||||||||
| Option acceleration | 284,204 | 284,204 | 284,204 | |||||||||||||||
| Restricted stock acceleration | 248,108 | 248,108 | 248,108 | |||||||||||||||
| Total | 1,252,312 | 532,312 | 1,252,312 | |||||||||||||||
| (1) | These amounts reflect a lump sum payment equal to the officer’s annual base salary as of December 31, 2016. |
| (2) | These amounts reflect a lump sum payment equal to 2.99x (Watson) and 3.0x (King, Bommer, Wallace and Wendel) the named executive officer’s annual base salary as of December 31, 2016. The amounts on the option acceleration row reflect 1,424,825“in-the-money” unvested options for the named executive officers at an average potential value of $1.40 per share (the difference between the fair market value on December 31, 2016 and the exercise price of the options). Our named executive officers held 447,199 shares of restricted stock valued at the fair market value as of December 31, 2016. |
| (3) | These amounts on the severance pay row reflect a12-month extension (Watson) and a36-month extension (King, Bommer, Wallace and Wendel) of each officer’s respective employment agreement based on the named executive officer’s annual base salary on December 31, 2016 and would be paid over the extension period. The amounts on the option acceleration row reflect 1,424,825“in-the-money” unvested options for the named executive officers at an average potential value of $1.40 per share (the difference between the fair market value on December 31, 2016 and the exercise price of the options). Our named executive officers held 447,199 shares of restricted stock valued at the fair market value as of December 31, 2016. |
All compensation paid to directors is limited tonon-employee directors. We use a combination of cash and stock-based incentive compensation to attract and retain qualified individuals to serve on the Board.
Compensation. Following a voluntary 20% reduction in fees during 2016, the annual retainer fee paid to each director was $32,000 to be paid in four quarterly cash payments, in addition to reimbursement for travel expenses to attend the quarterly meetings. During 2016, each director elected to take 50% of total fees in cash and 50% in Abraxas stock.
During 2016, each director was paid $1,280 for each board meeting attended and $880 for each committee meeting attended. The chairman of the Audit Committee received an additional annual fee of $8,400, the chairman of the Compensation Committee received an additional annual fee of $4,240 and the chairman of the Nominating and Governance Committee received an additional annual fee of $1,680.
Stock Options. Abraxas has awarded each director stock options, depending on each director’s length of service, with exercise prices equal to the prevailing market prices at the time of issuance, ranging from $0.99 to $5.38 per share. Each year at the first regular board meeting following the annual meeting, Abraxas awards each director 25,000 options, in accordance with the terms of the Directors Plan. The Directors Plan currently reserves 1,900,000 shares of Abraxas common stock, subject to adjustment following certain events, such as stock splits. The maximum annual award for any one director is 100,000 shares. The exercise price of all options awarded is no less than 100% of the fair market value on the date of the award while the option terms and vesting schedules are at the discretion of the Compensation Committee.
Unless otherwise provided in the applicable award agreement, vested awards granted under the Directors Plan shall expire, terminate, or otherwise be forfeited as follows:
The following table sets forth a summary of compensation for the fiscal year ended December 31, 2016 that Abraxas paid to each director. Abraxas does not sponsor a pension benefits plan, anon-qualified deferred compensation plan or anon-equity incentive plan for its directors; therefore, these columns have been omitted from the following table. Except for reimbursement of travel expenses to attend board and committee meetings, no other or additional compensation for services were paid to any of the directors.
Director Compensation Table
Name | Fees Earned or ($) (1) | Fees Earned ($) (2) | Option Awards ($) (3) | Total ($) (4) | ||||||||||||
| Harold D. Carter | 32,680 | 4,840 | 23,514 | 61,034 | ||||||||||||
| Ralph F. Cox | 36,390 | 5,370 | 23,514 | 65,274 | ||||||||||||
| W. Dean Karrash | 35,280 | 4,800 | 23,514 | 63,594 | ||||||||||||
| Jerry J. Langdon | 35,280 | 4,800 | 23,514 | 63,594 | ||||||||||||
| Dennis E. Logue | 34,110 | 5,010 | 23,514 | 62,634 | ||||||||||||
| Brian L. Melton | 42,630 | 5,850 | 23,514 | 71,994 | ||||||||||||
| Paul A. Powell, Jr. | 35,280 | 4,800 | 23,514 | 63,594 | ||||||||||||
Edward P. Russell | 30,480 | 4,400 | 23,514 | 58,394 | ||||||||||||
| (1) | This column represents the amounts paid in cash to each director. |
| (2) | This column represents the fees paid in equity to each director. |
| (3) | The amounts in this column reflect the aggregate grant date fair value of stock options granted in 2016 to each director calculated in accordance with FASB ASC Topic 718. See the notes to our consolidated financial statements included in our Annual Report on Form10-K for the year ended December 31, 2016 filed with the Securities and Exchange Commission for a discussion of all assumptions made in the calculation of this amount. |
| (3) | The dollar value in this column for each director represents the sum of all compensation reflected in the previous columns. |
The following table provides information concerning outstanding equity awards at December 31, 2016 for our directors:
Outstanding Equity Awards at Fiscal Year End Table
| OPTION AWARDS | ||||||||||||
Name | Number of Securities Underlying Unexercised Options (Exercisable) | Number of Securities Underlying Unexercised Options (Unexercisable) (1) | Option Exercise Price ($) | |||||||||
Harold D. Carter | 10,000 | 2.75 | ||||||||||
| 10,000 | 4.51 | |||||||||||
| 10,000 | 4.32 | |||||||||||
| 10,000 | 4.50 | |||||||||||
| 10,000 | 2.36 | |||||||||||
| 10,500 | 4.13 | |||||||||||
| 12,000 | 2.90 | |||||||||||
| 12,000 | 2.39 | |||||||||||
| 12,000 | 5.38 | |||||||||||
| 25,000 | 3.66 | |||||||||||
| 25,000 | 1.34 | |||||||||||
Ralph F. Cox | 10,000 | 2.75 | ||||||||||
| 10,000 | 4.51 | |||||||||||
| 10,000 | 4.32 | |||||||||||
| 10,000 | 4.50 | |||||||||||
| 50,000 | 0.99 | |||||||||||
| 10,000 | 1.06 | |||||||||||
| 10,000 | 2.36 | |||||||||||
| 10,500 | 4.13 | |||||||||||
| 12,000 | 2.90 | |||||||||||
| 12,000 | 2.39 | |||||||||||
| 12,000 | 5.38 | |||||||||||
| 25,000 | 3.66 | |||||||||||
| 25,000 | 1.34 | |||||||||||
W. Dean Karrash | 12,000 | 2.90 | ||||||||||
| 12,000 | 2.39 | |||||||||||
| 12,000 | 5.38 | |||||||||||
| 25,000 | 3.66 | |||||||||||
| 25,000 | 1.34 | |||||||||||
Jerry J. Langdon | 12,000 | 2.39 | ||||||||||
| 12,000 | 5.38 | |||||||||||
| 25,000 | 3.66 | |||||||||||
| 25,000 | 1.34 | |||||||||||
Dennis E. Logue | 10,000 | 2.75 | ||||||||||
| 10,000 | 4.51 | |||||||||||
| 10,000 | 4.32 | |||||||||||
| 10,000 | 4.50 | |||||||||||
| 50,000 | 0.99 | |||||||||||
| 10,000 | 1.06 | |||||||||||
| 10,000 | 2.36 | |||||||||||
| 10,500 | 4.13 | |||||||||||
| 12,000 | 2.90 | |||||||||||
| 12,000 | 2.39 | |||||||||||
| 12,000 | 5.38 | |||||||||||
| 25,000 | 3.66 | |||||||||||
| 25,000 | 1.34 | |||||||||||
Name Brian L. Melton Paul A. Powell, Jr. Edward P. Russell OPTION AWARDS Number of
Securities
Underlying
Unexercised
Options
(Exercisable) Number of
Securities
Underlying
Unexercised
Options
(Unexercisable) (1) Option
Exercise Price
($) 75,000 1.64 10,000 2.36 10,500 4.13 12,000 2.90 12,000 2.39 12,000 5.38 25,000 3.66 25,000 1.34 10,000 2.75 10,000 4.51 10,000 4.32 10,000 4.50 10,000 1.06 10,000 2.36 10,500 4.13 12,000 2.90 12,000 2.39 12,000 5.38 25,000 3.66 25,000 1.34 75,000 1.64 10,000 2.36 10,500 4.13 12,000 2.90 12,000 2.39 12,000 5.38 25,000 3.66 25,000 1.34
| (1) | The options awarded to eachnon-employee director at the first regular board meeting following the annual meeting vest immediately. Other option awards vest in twenty-five percent (25%) increments each year for four (4) years on the anniversary of the grant date. |
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
On March 25, 1999,February 21, 2007, the Board of Directors approvedadopted a plan pursuant toformal written related person transaction approval policy, which sets out Abraxas’ policies and procedures for the pricereview, approval, or ratification of each outstanding stock option granted to employees and
directors“related person transactions.” For these purposes, a “related person” is a director, nominee for director, executive officer, or holder of Abraxas with an exercise price greatermore than $2.06 per share was
reduced to $2.06 per share. However, all options repriced for Messrs. Watson,
Williford, and Carington are not exercisable until Abraxas'5% of our common stock, closes
daily trading at a price greater than or equal to $4.12 per share for 10 days
outany immediate family member of any 30 day trading period.
On March 25, 1998,of the foregoing. This policy applies to any financial transaction, arrangement or relationship or any series of similar financial transactions, arrangements or relationships in which Abraxas is a participant and in which a related person has a direct or indirect interest, other than the following:
Our Audit Committee is required to approve any related person transaction subject to this policy before commencement of the related person transaction, provided that if the related person transaction is identified after it commences, it shall be brought to the Audit Committee for ratification, amendment or rescission. The chairman of our Audit Committee has the authority to approve or take other actions in respect of any related person transaction that arises, or first becomes known, between meetings of the Audit Committee, provided that any action by the chairman must be reported to our Audit Committee at its next regularly scheduled meeting.
Our Audit Committee will analyze the following factors, in addition to any other factors the members of the Audit Committee deem appropriate, in determining whether to approve a related person transaction:
Related Party Transactions in 2016
There were no related party transactions during 2016.
Our Audit Committee may, in its sole discretion, approve or deny any related person transaction. Approval of a related person transaction may be conditioned upon Abraxas and the related person following certain procedures designated by the Audit Committee.
RATIFICATION OF SELECTION OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Abraxas Board of Directors has selected BDO USA, LLP to serve as its independent registered public accounting firm for the fiscal year ending December 31, 2017. Although stockholder ratification is not required, the Board of Directors approved a plan pursuanthas directed that such appointment be submitted to which the price of each outstanding stock option granted to employees and
directorsstockholders of Abraxas with an exercise price greater than $7.44 per share was
reduced to $7.44 per share.
On March 7, 1996,for ratification at the Annual Meeting. Even if the selection is ratified, the Audit Committee, approvedin its discretion, may select a plan pursuant to whichdifferent independent registered public accounting firm at any time if the exercise price of each outstanding stock option granted to employees of Abraxas
prior to January 1, 1996, including options granted to Messrs. Watson, Williford
and Wendel, were reduced to $6.75 per share.
TheAudit Committee believedbelieves that repricing the existing options wassuch a change would be in the best interests of Abraxasour company and its stockholders. InIf our stockholders do not ratify the viewselection of BDO USA, LLP, the Audit Committee will take that fact into consideration, together with such other factors it deems relevant, in determining its next selection of an independent registered public accounting firm.
BDO USA, LLP provided audit services to Abraxas for the year ended December 31, 2016. A representative of BDO USA, LLP will be present at the Annual Meeting, will have an opportunity to make a statement if he or she desires to do so and will be available to respond to appropriate questions.
Assuming the presence of a quorum, the affirmative vote of the Committee,
the declineholders of a majority of the market priceshares of Common Stock present at the Annual Meeting in person or represented by proxy and entitled to vote on the matter is necessary to ratify the appointment of Abraxas’ independent registered public accounting firm. The enclosed proxy card provides a means for stockholders to vote for the ratification of the Abraxas Common Stock substantially
impairedselection of Abraxas’ independent registered public accounting firm, to vote against it or to abstain from voting with respect to it. If a stockholder executes and returns a proxy, but does not specify how the effectivenessshares represented by such stockholder’s proxy are to be voted, such shares will be voted FOR the ratification of selection of Abraxas’ independent registered public accounting firm.Abstentions will have the same legal effect as a vote against the proposal. This proposal is a “routine” matter for which your broker does not need your voting instruction in order to vote your shares.
The Board of Directors recommends a vote “FOR” the ratification of the existing optionsselection of BDO USA, LLP, as a meansAbraxas’ independent registered public accounting firm for the fiscal year ending December 31, 2017.
The Audit Committee represents and assists the Board in fulfilling its responsibilities for general oversight of attractingthe integrity of Abraxas’ financial statements, Abraxas’ compliance with legal and retaining qualified executiveregulatory requirements, the independent registered public accounting firm’s qualifications and non-executive officersindependence, the performance of Abraxas’ internal audit function, and providing
appropriate incentivesrisk assessment and risk management. The Audit Committee manages Abraxas’ relationship with its independent registered public accounting firm (which report directly to the Audit Committee). The Audit Committee has the authority to obtain advice and assistance from outside legal, accounting or other advisors as the Audit Committee deems necessary to carry out its duties and receives appropriate funding, as determined by the Audit Committee, from Abraxas executivefor such advice and non-executive officers. assistance.
Abraxas’ management is primarily responsible for Abraxas’ internal control and financial reporting process. Abraxas’ independent registered public accounting firm, BDO USA, LLP, is responsible for performing an independent audit of Abraxas’ consolidated financial statements and internal control over financial reporting, and issuing opinions on the conformity of those audited financial statements with United States generally accepted accounting principles. The Audit Committee monitors Abraxas’ financial reporting process and reports to the Board on its findings.
In 20
addition,this context, the Audit Committee believed that a significant portionhereby reports as follows:
1. The Audit Committee has reviewed and discussed the audited financial statements with Abraxas’ management.
2. The Audit Committee has discussed with the independent registered public accounting firm the matters required to be discussed by Public Company Accounting Oversight Board (“PCAOB”) Auditing Standards 1301,Communications with Audit Committees.
3. The Audit Committee has received the written disclosures and the letter from the independent registered public accounting firm required by applicable requirements of the declinePCAOB regarding the independent registered public accounting firms’ communications with the Audit Committee concerning independence, and has discussed with the independent registered public accounting firm their independence.
4. Based on the review and discussions referred to in paragraphs (1) through (3) above, the market price wasAudit Committee recommended to the result of market factorsBoard, and the Board has approved, that affected the stocks of
the companiesaudited financial statements be included in Abraxas’ Annual Report on Form10-K for the KPMG Survey.
The following table sets forth certain information concerning repricing
of stock options held by any current executive officer during the period
commencing on May 7, 1991 (the date on which Abraxas became a reporting company
pursuant toyear ended December 31, 2016, and for filing with the Securities and Exchange Act of 1934, as amended), and ending on
December 31, 1999.
This report is submitted by the members of the Committee:
James C. Phelps
Ralph F. Cox
Frederick M. Pevow, Jr.
Performance Graph
Set forth below is a performance graph comparing yearly cumulative
total stockholder return onAudit Committee.
| Brian L. Melton, Chairman |
| W. Dean Karrash |
| Jerry J. Langdon |
| Paul A. Powell, Jr. |
PRINCIPAL AUDITOR FEES AND SERVICES
Audit Fees. The aggregate fees billed by BDO USA, LLP for professional services rendered for the Abraxas' Common Stock with (a)audit of Abraxas’ annual financial statements for the monthly indexyears ended December 31, 2016 and December 31, 2015, the reviews of stocksthe condensed consolidated financial statements included in Abraxas’ quarterly reports on Form10-Q for the Standardyears ended December 31, 2016 and Poor's 500 IndexDecember 31, 2015 and (b) the CIBC World
Markets Index (the "CIBC Index")preparation and delivery of stocksconsents, comfort letters and other similar documents, were $480,000 and $448,000, respectively.
Audit-Related Fees. The aggregate fees billed by BDO USA, LLP for assurance and related services that were reasonably related to the performance of crude oilthe audit or review of Abraxas’ financial statements which are not reported in “audit fees” above, for the years ended December 31, 2016 and natural gas
explorationDecember 31, 2015, were $0 and production companies$0, respectively.
Tax Fees.The aggregate fees billed by BDO USA, LLP for professional services rendered for tax compliance, tax advice or tax planning for the years ended December 31, 2016 and December 31, 2015, were $125,000 and $179,229, respectively.
All Other Fees. The aggregate fees billed by BDO USA, LLP for other services, exclusive of the fees disclosed above relating to financial statement audit and audit-related services and tax compliance, advice or planning, for the years ended December 31, 2016 and December 31, 2015, were $0 and $0, respectively.
Consideration ofNon-audit Services Provided by the Independent Registered Public Accounting Firm. The Audit Committee has considered whether the services provided fornon-audit services are compatible with maintaining BDO USA, LLP’s independence, and has concluded that the independence of such firm has been maintained.
AUDIT COMMITTEEPRE-APPROVAL POLICY
The Audit Committee’s policy is topre-approve all audit, audit-related andnon-audit services provided by the independent registered public accounting firm. These services may include audit services, audit-related services, tax services and other services. The Audit Committee approved all of the fees described above. The Audit Committee may alsopre-approve particular services on acase-by-case basis. The independent registered public accounting firm is required to periodically report to the Audit Committee regarding the extent of services provided by the independent registered public accounting firm in accordance with suchpre-approval. The Audit Committee may also delegatepre-approval authority to one or more of its members. Such member(s) must report any decisions to the Audit Committee at the next scheduled meeting.
APPROVAL OF AMENDMENTS TO LTIP
On September 13, 2005, subject to stockholder approval, the Board adopted the Abraxas Petroleum Corporation 2005 Employee Long-Term Equity Incentive Plan, or LTIP, which was approved by our stockholders at the 2006 annual meeting and amended by our stockholders at the 2008 annual meeting.
On June 29, 2009, the Board amended the LTIP, subject to stockholder approval, to increase the number of shares of common stock reserved for issuance under the LTIP to 5,200,000 shares, which was approved on October 5, 2009 by our stockholders.
On March 9, 2012, the Board amended the LTIP, subject to stockholder approval, to increase the number of shares of common stock reserved for issuance under the LTIP to 9,200,000 shares, which was approved on May 4, 2012 by our stockholders.
On March 3, 2015, the Board amended and restated the LTIP, subject to stockholder approval, to increase the number of shares of common stock reserved for issuance under the LTIP by 1,400,000 shares, which was approved on May 5, 2015. Due to a market capitalizationclerical mistake in the proxy statement for our annual meeting in 2015, the number of shares reserved for issuance under the LTIP was incorrectly stated as 6,600,000 shares, which was less than $300 million (the "Comparable Companies").the 9,200,000 shares previously approved for issuance by the stockholders in 2012. The Comparable Companies are: Adams
Resources & Energy, Inc.; Basin Exploration, Inc.; Bellwether Exploration
Company; Callon Petroleum Company; Columbus Energy Corporation; Goodrich
Petroleum Corporation; Howell Corporation; Key Production Company, Inc.; Magnum
Hunter Resources, Inc.; Maynard Oil Company; The Meridian Resource Corporation;
PetroCorp Incorporated; Plains Resources, Inc.; Prima Energy Corporation; Unit
Corporation; Venus Exploration, Inc.; and Wiser Oil Company. Prior toBoard had intended that a total of 10,600,000 shares be reserved for issuance under the LTIP when it approved the increase in 2015. Upon discovering this year,
Abraxas had selectedmistake, it was determined that we should seek the Everen Securities monthly index of stocks of crude oil
and natural gas exploration and production companies with a market
capitalization of less than $300 million (the "Everen Index") for industry peer
comparison purposes. However, Everen Securities was acquired in 1999 and its
successor, First Union Corporation, no longer publishes the Everen Index.
Accordingly, Abraxas selected the CIBC Index for industry peer comparison
purposes.
All of these cumulative total returns are computed assuming the valueaffirmative vote of the investmentstockholders to ratify that a total of 10,600,000 shares are reserved for issuance under the LTIP and to correct the LTIP as it appeared in Abraxas' Common Stock and each index as $100.00our proxy statement for the 2015 annual meeting to reflect that a total of 10,600,000 shares are reserved for issuance under the LTIP, which was approved on December
31, 1994, andMay 10, 2016 by our stockholders.
On March 14, 2017, the reinvestment of dividends at the frequency with which
dividends were paid during the applicable years. The years compared are 1995,
1996, 1997, 1998 and 1999.
[GRAPH]
CompensationBoard of Directors Non-Qualified Stock Option Plan. Each former directorapproved, subject to stockholder approval, an amendment to the LTIP to increase the number of Abraxas, other
than Messrs. Watson, Williford, Carington, Cartershares of common stock reserved for issuance under the LTIP to 12,600,000 shares and Gershen, and current
directors Burke and Phelps have previously been granted optionsan amendment to purchase
8,900change the vesting of awards in the event of a Change of Control (as defined in the LTIP). In order to effectuate the increase in the number of authorized shares, Section 4(a) of the LTIP would be amended to read, in its entirety, as follows:
(a)Reservation of Shares. The shares of Common Stock reserved under Abraxas' 1984 Non-Qualified Stock Optionthis Plan (the "Non-Qualified Plan"). There are currently outstanding options to purchase
8,900shall be 12,600,000 shares of Common StockStock. If an Award expires, is forfeited or becomes unexercisable for any reason without having been exercised in full, the undelivered Shares which were subject thereto shall, unless this Plan has been terminated, become available for future Awards under the Non-Qualifiedthis Plan. Mr. Burke holds an
option to purchase 8,900The Shares may be authorized but unissued or reacquired shares of Common StockStock. The Company, during the term of this Plan, will at an exercise priceall times reserve and keep available such number of $2.06
per share.
Restricted Share PlanShares as shall be sufficient to satisfy the requirements of this Plan.
Under the terms of the proposed amendment relating to vesting of Awards upon a change of control, Section 7(a) of the LTIP would be amended to read, in its entirety, as follows:
(a) Change of Control. In the event that (i) a Participant’s employment is terminated by the Company (or a Subsidiary which is his or her employer) for Directors. Pursuant to the Abraxas Petroleum
Corporation Restricted Share Plan for Directors (the "Director Share Plan"),
each director of Abraxas,reasons other than Mr. Watson,Misconduct or if a Participant voluntarily terminates his or her employment for Good Reason within 24 months following a Change of Control, or (ii) the Plan is entitled to receive
compensationterminated by the Company following a Change of Control without provision for attendance at regular and special meetingsthe continuation of the Board of
Directors. Initially each eligible director of Abraxas was issued 400 shares of
Common Stock during 1994 as an initial grant under the Director Share Plan and
thereafter received a number of shares of Common Stock equal to the product of
1,000 times the Capitalization Factoroutstanding Awards hereunder, all Awards which have not otherwise expired shall be Accelerated (as defined in Section 7(b)). If, upon a Change of Control, awards in other shares or securities are substituted for outstanding Awards pursuant to Section 5(a), and immediately following the Director Share Plan)
dividedChange of Control the Participant becomes employed (if the Participant was an employee immediately prior to the Change of Control) by the Average Stock Price (as definedentity into which the Company merged, or the purchaser of all or substantially all of the assets of the Company, or a successor to such entity or purchaser, the Participant shall not be treated as having terminated
employment or service for purposes of this Section 7 until such time as the Participant’s employment or service with the merged entity or purchaser (or successor), as applicable, is terminated. The terms of this Section 7 shall apply to all Awards except to the extent that an Award Agreement provides for different treatment (in which case the terms of the Award Agreement shall govern and this Section 7 shall not be applicable).
As part of the proposed amendments, a definition of “Good Reason” will be added to Section 7(a) of the LTIP and a provision stating that options granted under the LTIP will expire 12 months after the termination of employment if the Participant terminates his or her employment for Good Reason will also be added.
Reasons for the Amendments to the LTIP
The Board believes that the purpose of the LTIP is to employ and retain qualified and competent personnel and promote the growth and success of Abraxas by aligning the long-term interests of Abraxas’ key employees with those of Abraxas’ stockholders by providing an opportunity to acquire an interest in Abraxas and by providing both rewards for exceptional performance and long-term incentives for future contributions to the success of Abraxas. Abraxas believes that this purpose will be furthered through the granting of awards, as authorized under the LTIP, so that such key employees will be encouraged and enabled to acquire a substantial personal interest in the Director Share Plan) ascontinued success of 22
dateadditional shares to be reserved pursuant to the amendment to the LTIP are necessary for Abraxas to continue its policy of a meeting ofemphasizing equity compensation and to remain competitive with industry equity grant practices.
If the Board. In 1997, the Director Share Plan was amended
to provide that one-half of the compensationnew shares are not approved for issuance under the Director Share Plan shallLTIP, Abraxas may be paid in cashrequired to curtail use of long-term incentives and one-half in shares of Abraxas Common Stock. For 1999, each
of the following directors receivedBoard may consider other alternatives to compensate employees.
The proposed amendment relating to the number of shares of Common Stock and
cash compensation set forth opposite his namereserved for issuance under the Director Share Plan:
Name NumberLTIP increases the number of shares of common stock available for issuance under the LTIP to 12,600,000 from 10,600,000 shares, which together with Proposal Four, will contribute to a potential dilution of approximately 7.3%. This potential dilution was calculated by adding (i) the total number of shares available for issuance under the LTIP, (ii) the total number of shares available for issuance under the Directors Plan (including the additional shares requested in Proposal Four), and (iii) all unvested shares and unexercised stock options previously awarded and outstanding under the Company’s prior equity incentive plans; divided by the total number of shares of outstanding common stock of the Company. In considering this proposal, stockholders should also be aware that the average number of shares granted per year under all long-term incentive plans over the last three fiscal years, divided by the number of shares outstanding, is approximately 1.9%, a percentage we believe is in line with the average of our peer group. 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 two years.
The Board also approved, subject to stockholder approval, an amendment to the LTIP which changes the vesting of awards after a Change of Control. Currently, all Awards vest automatically upon a Change of Control. Under the proposed amendment, Awards will vest after a Change of Control if the Participant’s employment is terminated by the Company other than for Cause or if the Participant terminates his or her employment for Good Reason within 24 months following the Change of Control. The Board believes that full acceleration of Awards without an accompanying termination of employment could result in a windfall to a Participant as the Participant would automatically receive the full economic value of awards that were otherwise intended to be earned over a multi-year period.
The following is a summary of certain terms of the LTIP as proposed to be amended. The summary is qualified in its entirety by reference to the full text of the LTIP attached as Annex A to this proxy statement. A stockholder may also request a copy of the LTIP from the Company.
Administration and Eligibility.The LTIP is administered by the Compensation Committee of the Board and authorizes the Board to grantnon-qualified stock options, incentive stock options or issue shares of restricted stock to those persons who are employees of Abraxas. As of March 15, 2017, Abraxas had 109 full-time employees, all of whom are eligible to participate in the LTIP.
Shares CashReserved and Awards.If this proposal is approved, the LTIP will reserve 12,600,000 shares of Common Stock, subject to adjustment following certain events, as discussed below. The maximum annual award for any one employee is 500,000 shares of Common Stock. If options, as opposed to restricted stock, are awarded, the exercise share price shall be no less than 100% of the fair market value on the date of the award, unless the employee is awarded incentive stock options and at the time of the award, owns more than 10% of the voting power of all classes of stock of Abraxas. Under this circumstance, the exercise share price shall be no less than 110% of the fair market value on the date of the award. Option terms and vesting schedules are at the discretion of the Compensation ------------------ -------------------
Franklin M. Burke 1,519 $2,500
Harold D. Carter (1) 1,619 $3,000
Robert D. Gershen (1) 1,619 $3,000
Richard M. Kleberg (1) 1,806 $3,250
James C. Phelps (1) 2,526 $4,250
Paul A. Powell (1) 1,619 $3,000
Richard M. Riggs (1) 2,045 $3,750
Craig S. Bartlett, Jr. -- --
Ralph F. Cox -- --
Frederick M. Pevow, Jr. -- --
Joseph A. Wagda -- --
- -----------
(1) ResignedCommittee.
Option Exercise.An option is exercised when proper notice of exercise has been given to Abraxas, or the brokerage firm or firms approved by Abraxas, if any, to facilitate exercises and sales under the LTIP and full cash payment for the shares with respect to which the option is exercised has been received by Abraxas or the brokerage firm or firms, as applicable.
Stockholder Rights.Except as otherwise provided in the LTIP, until the issuance of the share certificates evidencing the award shares, no right to vote or receive dividends or any other rights as a director on December 21, 1999.
Director Stock Option Plan. Pursuantstockholder shall exist with respect to the award shares.
Transferability of Awards.An award may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in exchange for consideration, except that an award may be transferred by will or by the laws of descent or distribution and may be exercised, during the lifetime of the employee, only by the employee, unless the Compensation Committee permits further transferability, on a general or specific basis, in which case the Compensation Committee may impose conditions and limitations on any permitted transferability.
Termination of Awards.Unless otherwise provided in the applicable award agreement, vested options granted under the LTIP will expire and cease to be exercisable as follows:
Amendments. The Board or the Compensation Committee may amend or terminate the LTIP from time to time in such respects as the Board may deem advisable (including, but not limited to, amendments which the Board deems appropriate to enhance Abraxas’ ability to claim deductions related to stock option exercises); provided, that to the extent an amendment to the LTIP increases the maximum number of shares available under the plan, changes the class of individuals eligible to receive awards under the plan, or requires stockholder approval under the rules of the NASDAQ, such other exchange upon which Common Stock is either quoted or traded, or the SEC, stockholder approval shall be required for any such amendment of the LTIP. Subject to the foregoing, it is specifically intended that the Board or Compensation Committee may amend the LTIP without stockholder approval to comply with legal, regulatory and listing requirements and to avoid unanticipated consequences deemed by the Committee to be inconsistent with the purpose of the LTIP or any award agreement.
Adjustments. If the outstanding shares of Common Stock shall be changed into or exchanged for a different number or kind of shares of stock or other securities or property of Abraxas Petroleum
Corporation Directoror of another corporation, or if the number of such shares of common stock shall be increased by a stock dividend or stock split, there shall be substituted for or added to each share of common stock reserved for the purposes of the LTIP, whether or not such shares are at the time subject to outstanding awards, the number and kind of shares of stock or other securities or property into which each outstanding share of common stock shall be so changed or for which it shall be so exchanged, or to which each such share shall be entitled, as the case may be. Outstanding awards shall also be considered to be appropriately amended as to price and other terms as may be necessary or appropriate to reflect the foregoing events. If there shall be any other change in the number or kind of the outstanding shares of Abraxas’ Common Stock, Option Plan (the "Director Option Plan"or of any stock or other securities or property into which such common stock shall have been changed, or for which it has been exchanged, and if the Compensation Committee shall in its sole discretion determine that such change equitably requires an adjustment in the
number or kind or price of the shares then reserved for the purposes of the LTIP, or in any award previously granted or which may be granted under the LTIP, then such adjustment shall be made by the Compensation Committee and shall be effective and binding for all purposes of the LTIP.
In addition, the Compensation Committee shall have the power, in the event of any merger or consolidation involving Abraxas to amend all outstanding awards to permit the exercise thereof in whole or in part at any time, or from time to time, prior to the effective date of any such merger or consolidation and to terminate each such award as of such effective date.
U.S. Federal Tax Consequences
The following discussion summarizes the material federal income tax consequences of participation in the LTIP. This discussion is general in nature and does not address issues related to the tax circumstances of any particular employee. The discussion is based on federal income tax laws in effect on the date hereof and is, therefore, subject to possible future changes in law. This discussion does not address state, local and foreign tax consequences.
Stock Options.In general, the grant of an option will not be a taxable event to the recipient and it will not result in a deduction to Abraxas. The tax consequences associated with the exercise of an option and the subsequent disposition of shares of common stock acquired on the exercise of such option depend on whether the option is a nonqualified stock option or an incentive stock option.
Upon the exercise of a nonqualified stock option, the participant will recognize ordinary taxable income equal to the excess of the fair market value of the shares of common stock received upon exercise over the exercise price. Abraxas will generally be able to claim a deduction in an equivalent amount. Any gain or loss upon a subsequent sale or exchange of the shares of common stock will be capital gain or loss, long-term or short-term, depending on the holding period for the shares of common stock.
Generally, a participant will not recognize ordinary taxable income at the time of exercise of an incentive stock option and no deduction will be available to Abraxas, provided the option is exercised while the participant is an employee or within three months following termination of employment (longer, in the case of disability or death). If an incentive stock option granted under the LTIP is exercised after these periods, the exercise will be treated for federal income tax purposes as the exercise of a nonqualified stock option. Also, an incentive stock option granted under the LTIP will be treated as a nonqualified stock option to the extent it (together with other incentive stock options granted to the participant by Abraxas) first becomes exercisable in any calendar year for shares of common stock having a fair market value, determined as of the date of grant, in excess of $100,000.
If shares of common stock acquired upon exercise of an incentive stock option are sold or exchanged more than one year after the date of exercise and more than two years after the date of grant of the option, the participant will not recognize ordinary income in connection with such sale or exchange, and any gain or loss will be long-term capital gain or loss. If shares of common stock acquired upon exercise of an incentive stock option are disposed of prior to the expiration of theseone-year ortwo-year holding periods (a “Disqualifying Disposition”), each
non-employee memberthe participant will recognize ordinary income at the time of disposition, and Abraxas will generally be entitled to a deduction, in an amount equal to the excess of the fair market value of the shares of common stock at the date of exercise over the exercise price. Any additional gain following the date of exercise will be treated as capital gain, long-term or short-term, depending on how long the shares of common stock have been held. Where shares of common stock are sold or exchanged in a Disqualifying Disposition (other than certain related party transactions) for an amount less than their fair market value at the date of exercise, any ordinary income recognized in connection with the Disqualifying Disposition will be limited to the amount of gain, if any, recognized in the sale or exchange, and any loss will be a long-term or short-term capital loss, depending on how long the shares of common stock have been held.
If an option is exercised through the use of shares of common stock previously owned by the participant, such exercise generally will not be considered a taxable disposition of the previously owned shares and, thus, no gain or loss will be recognized with respect to such previously owned shares upon such exercise. The amount of anybuilt-in gain on the previously owned shares generally will not be recognized until the new shares acquired on the option exercise are disposed of in a sale or other taxable transaction.
Although the exercise of an incentive stock option as described above would not produce ordinary taxable income to the participant, it would result in an increase in the participant’s alternative minimum taxable income and may result in an alternative minimum tax liability.
Restricted Shares.A participant who receives restricted shares will generally recognize ordinary income at the time that they “vest”,i.e., when they are not subject to a substantial risk of forfeiture. The amount of ordinary income so recognized will generally be the fair market value of the common stock at the time the shares vest, less the amount, if any, paid for the shares. This amount is generally deductible for federal income tax purposes by Abraxas. Dividends paid with respect to common stock that is nonvested will be ordinary compensation income to the participant (and generally deductible by Abraxas). Any gain or loss upon a subsequent sale or exchange of the shares of common stock, measured by the difference between the sale price and the fair market value on the date the shares vest, will be capital gain or loss, long-term or short-term, depending on the holding period for the shares of common stock. The holding period for this purpose will begin on the date following the date the shares vest.
In lieu of the treatment described above, a participant may elect to recognize income under Section 83(b) of the Internal Revenue Code in the year of grant of such restricted shares. In such event, the participant will recognize income in the amount of the fair market value of the restricted shares at the time of grant (determined without regard to any restrictions other than restrictions which by their terms will never lapse), less the amount, if any, paid for the shares and Abraxas will generally be entitled to a corresponding deduction. Dividends paid with respect to shares as to which a proper Section 83(b) election has been made will not be deductible to Abraxas. If a Section 83(b) election is made and the restricted shares are subsequently forfeited, the participant will not be entitled to any offsetting tax deduction, and will recognize a loss equal to the excess (if any) of the amount paid for such shares (if any) and the amount realized upon such forfeiture (if any).
New Plan Benefits
The benefits that will be awarded or paid under the LTIP are not currently determinable. Such awards are within the discretion of the Compensation Committee, and the Compensation Committee has not determined future awards or who might receive them. Information about awards granted in 2016 to our NEOs can be found in the table under the heading “Grants of Plan-Based Awards” on page 25 of this Proxy Statement.
Term and Amendment
The LTIP will terminate on May 5, 2025 unless terminated earlier by the Board of Directors. The Board may amend the LTIP from time to time but no amendments will be effective without stockholder approval if such approval is required under applicable law or the rules of the NASDAQ Stock Market.
Vote Required
Assuming the presence of a quorum, the affirmative vote of a majority of the votes cast, in person or by proxy, is necessary to approve the amendment to the LTIP. The enclosed form of proxy provides a means for stockholders to vote for the approval of the amendment to the LTIP, to vote against it or to abstain from voting with respect to it. If a stockholder executes and returns a proxy, but does not specify how the shares represented by such stockholder’s proxy are to be voted, such shares will be voted FOR the amendment to the LTIP. Under applicable Nevada law, in determining whether this item has received the requisite number of affirmative votes, abstentions and brokernon-votes will not be counted and will have no effect.
The Board recommends that you vote “FOR” the amendment to the LTIP.
APPROVAL OF AMENDMENT TO THE DIRECTORS PLAN
The Directors Plan was adopted and approved by our stockholders in 2005. On March 3, 2015, subject to stockholder approval, the Abraxas Board of Directors approved an amendment and restatement of the Directors Plan which was approved by the stockholders on June 1, 1996, was
grantedMay 5, 2015.
On March 14, 2017, the Board of Directors approved, subject to stockholder approval, an optionamendment to purchase 8,000the Directors Plan to increase the number of shares of common stock reserved for issuance under the Directors Plan to 2,900,000 shares. In order to effectuate the amendment, Section 4(a) of the Directors Plan would be amended to read, in its entirety, as follows:
(a)Reservation of Shares. The shares of Common Stock at a price of $6.75
per share, which exercise price was reduced to $2.06 on March 25, 1999. Each
person who becomes a director after that date will alsoreserved under this Plan shall be granted an option to
purchase 8,0002,900,000 shares of Common StockStock. If an Award expires, is forfeited or becomes unexercisable for any reason without having been exercised in full, the undelivered Shares which were subject thereto shall, unless this Plan shall have been terminated, become available for future Awards under this Plan. The Shares may be authorized but unissued, or reacquired shares of Common Stock. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as shall be sufficient to satisfy the then prevailing pricerequirements of this Plan.
Reasons for the Amendment of the Common
Stock as quoted onDirectors Plan
The Board believes that the OTC Bulletin Board. In addition, in March 1998,purpose of the Director OptionDirectors Plan was amendedis to attract and restated to provide that each non-employee
memberretain members of the Board of Directors, asand to promote the growth and success of the dateCompany’s business, by aligning the long-term interests of the Company’s Directors 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 and its Subsidiaries.
Abraxas believes the additional shares to be reserved pursuant to the amendment and restatement of the Directors Plan are necessary for Abraxas to continue its policy of emphasizing equity compensation and to attract and retain qualified directors.
If the new shares are not approved for issuance under the Directors Plan, Abraxas may be required to curtail use of long-term incentives and the Board may consider other alternatives to compensate its directors.
The proposed amendment to the Directors Plan increases the number of shares of common stock available for issuance under the Directors Plan from 1,900,000 to 2,900,000 shares, which together with Proposal Three, will contribute to a potential dilution of approximately 7.3%. This potential dilution was calculated by adding (i) the total number of shares available for issuance under the LTIP (including the additional shares requested in Proposal Three) , (ii) the total number of shares available for issuance under the Directors Plan (including the additional shares requested in this Proposal), and (iii) all unvested shares and unexercised stock options previously awarded and outstanding under the Company’s prior equity incentive plans; divided by the total number of shares of outstanding common stock of the Company. In considering this proposal, stockholders should also be aware that the average number of shares granted per year under all long-term incentive plans over the last three fiscal years ending December 31, 2016, divided by the number of shares outstanding, is approximately 1.9%, a percentage we believe is in line with the average of our peer group. The Company anticipates that the requested number of shares for the Directors Plan, together with the 51,547 shares remaining, will be sufficient to meet the needs of our long-term incentive program for at least two years.
The following is a summary of certain terms of the Directors Plan. The summary is qualified in its entirety by reference to the full text of the Directors Plan attached as Annex B to this proxy statement. A stockholder may also request a copy of the Directors Plan from the Company.
Administration and Eligibility. The Directors Plan will be administered by the Compensation Committee and authorizes the Board to grantnon-qualified stock options or issue restricted stock to those persons who arenon-employee directors of Abraxas, including advisory directors of Abraxas, which currently amounts to a total of nine people.
Shares Reserved and Awards. The Directors Plan reserves 1,900,000 shares of Abraxas common stock, subject to adjustment following certain events, as discussed below. The Directors Plan provides that each year, at the first regular meeting of the Board of Directors immediately following Abraxas’ annual stockholder’s meeting, eachnon-employee director shall be granted or issued awards of 25,000 shares of Abraxas common stock, for participation in each yearBoard and Compensation Committee meetings during the previous calendar year. The maximum annual award for any one person is 25,000 shares of Abraxas common stock. If options, as opposed to shares, are awarded, the exercise share price shall be no less than 100% of the fair market value on the date of the award while the option terms and vesting schedules are at the discretion of the Compensation Committee.
Option Exercise. An option is exercised when proper notice of exercise has been given to Abraxas, or the brokerage firm or firms approved by Abraxas, if any, to facilitate exercises and sales under the Directors Plan and full payment for the shares with respect to which the option is exercised has been received by Abraxas or the brokerage firm or firms, as applicable. The consideration to be paid and the method of payment, shall be determined by the Compensation Committee and may include: (i) a cashless exercise, whereby the exercise price is paid to Abraxas from the proceeds of asame-day sale of a portion of the stock underlying the option; (ii) cash; and (iii) tender of shares of common stock owned by the participant. Option shares used to pay the exercise price shall be valued at their fair market value on the exercise date. Payment of the aggregate exercise price by means of tendering previously-owned shares of common stock shall not be permitted when the same may, in the reasonable opinion of Abraxas, cause Abraxas to record a loss or expense as a result thereof.
Stockholder Rights. Except as otherwise provided in the Directors Plan, until the issuance of the share certificates evidencing the award shares, no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to the award shares.
Transferability of Awards. An award may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in exchange for consideration, except that an award may be transferred by will receive optionsor by the laws of descent or distribution and may be exercised, during the lifetime of the participant, only by the participant, unless the Compensation Committee permits further transferability, on a general or specific basis, in which case the Compensation Committee may impose conditions and limitations on any permitted transferability.
Termination of Awards. Unless otherwise provided in the applicable award agreement or any severance agreement, vested awards granted under the Directors Plan shall expire, terminate, or otherwise be forfeited as follows:
Amendments. The Board or the Compensation Committee may amend or terminate the Directors Plan from time to purchase 2,000time in such respects as the Board may deem advisable (including, but not limited, to amendments which the Board deems appropriate to enhance Abraxas’ ability to claim deductions related to stock option exercises); provided, that to the extent required by the Internal Revenue Code of 1986, as amended, or the rules of the NASDAQ, such other exchange upon which Abraxas common stock is either quoted or traded, or the SEC, stockholder approval shall be required for any material amendment of the Directors Plan. Subject to the foregoing, it is specifically intended that the Board or Compensation Committee be able to amend the Directors Plan without stockholder approval to comply with legal, regulatory and listing requirements and to avoid unanticipated consequences deemed by the Committee to be inconsistent with the purpose of the Directors Plan or any award agreement.
Adjustments. If the outstanding shares of Common Stock shall be changed into or exchanged for a different number or kind of shares of stock or other securities or property of Abraxas or of another corporation, or if the number of such shares of common stock shall be increased by a stock dividend or stock split, there shall be substituted for or added to each share of common stock reserved for the purposes of the Directors Plan, whether or not such shares are at the closingtime subject to outstanding awards, the number and kind of shares of stock or other securities or property into which each outstanding share of common stock shall be so changed or for which it shall be so exchanged, or to which each such share shall be entitled, as the case may be. Outstanding awards shall also be considered to be appropriately amended as to price and other terms as may be necessary or appropriate to reflect the foregoing events. If there shall be any other change in the number or kind of the outstanding shares of Abraxas’ common stock, or of any stock or other securities or property into which such common stock shall have been changed, or for which it shall have been exchanged, and if the Compensation Committee shall in its sole discretion determine that such change equitably requires an adjustment in the number or kind or price of the Common Stock on such date. On each of
March 25, 1998, and March 25, 1999, each non-employee Director received options
to purchase 2,000 shares of Common Stock.
Other Compensation. Exceptthen reserved for the following, the directors of Abraxas
received no other compensation for services as directors, except for
reimbursement of travel expenses to attend Board meetings.
On November 18, 1999, Abraxas granted 15,000 options at an exercise
price of $1.41 per share to each of Messrs. Burke, Carter, Phelps, Powell and
Riggs.
On December 22, 1999, Abraxas granted 75,000 options at an exercise
price of $.97 per share to each of Messrs. Bartlett, Cox, Pevow, and Wagda.
23
CERTAIN TRANSACTIONS
Wind River Resources Corporation ("Wind River"), allpurposes of the capital
stockDirectors Plan, or in any award previously granted or which may be granted under the Directors Plan, then such adjustment shall be made by the Compensation Committee and shall be effective and binding for all purposes of which is owned by Mr. Watson, owns a twin-engine airplane. The airplane
is available for business use by employeesthe Directors Plan.
In addition, the Compensation Committee shall have the power, in the event of any merger or consolidation involving Abraxas to amend all outstanding awards to permit the exercise thereof in whole or in part at any time, or from time to time, prior to the effective date of any such merger or consolidation and to terminate each such award as of such effective date.
Options. Participants will not recognize taxable income at Wind
River's cost. Abraxas paid Wind Riverthe time an option is granted under the Directors Plan unless the option has a totalreadily ascertainable market value at the time of $336,482 for usegrant. The Board understands that options to be granted under the Directors Plan will not have a readily ascertainable market value; therefore, income will not be recognized by participants before the time of exercise of an option. The difference between the fair market value of the plane
during 1999.
Grey Wolf ownsshares at the time an option is exercised and the option price generally will be treated as ordinary income to the optionee, in which case Abraxas will be entitled to a 10% interestdeduction equal to the amount of the optionee’s ordinary income.
Restricted Stock. A participant who receives a grant of restricted stock who does not elect to be taxed at the time of grant will not recognize income upon an award of shares of common stock, and Abraxas will not be entitled to a deduction until the termination of the restrictions. Upon such termination, the participant will recognize ordinary income in certain producing properties ownedan amount equal to the fair market value of the common stock at the time (less any amount paid by Canadian Abraxas Petroleum Limited's wholly-owned subsidiary ("Canadian
Abraxas")the director for such shares), and in Canadian Abraxas' natural gas processing plants and manages
the operations of Canadian Abraxas pursuantwill be entitled to a management agreement between
Canadian Abraxas and Grey Wolf. Underdeduction in the management agreement, Canadian Abraxas
reimburses Grey Wolf for reasonable costs or expenses attributablesame amount after satisfying federal income tax withholding requirements. However, the participant may elect to Canadian
Abraxas and for administrative expenses based uponrecognize ordinary income in the percentage that Canadian
Abraxas' gross revenue bearsyear the restricted stock is granted in an amount equal to the total gross revenuefair market value of Canadian Abraxas and
Grey Wolf. In 1999, Canadian Abraxas paid CDN $2,267,770 to Grey Wolf pursuantthe shares at that time, determined without regard to the management agreement.restrictions. In that event, Abraxas has adopted a policy that transactions, including loans,
between Abraxas and its officers, directors, principal stockholders, or
affiliates of any of them, will be on terms no less favorableentitled to Abraxas than
can be obtained on an arm's length basisa deduction in transactions with third partiessuch year and must be approvedin the same amount. Any gain or loss recognized by the participant upon subsequent disposition of the stock will be capital in nature.
New Plan Benefits
Although the benefits and amounts that will be received by theNon-Executive Director Group are not determinable, the benefits and amounts which would have been received by theNon-Executive Director Group for the last completed fiscal year if the Directors Plan had been in effect are provided in the table below:
New Plan Benefits
Name and Position | Dollar Value ($) (1) | Number of Shares | ||||||
Non-Executive Director Group | $ | 188,112 | 200,000 | |||||
| (1) | Calculated by multiplying the Number of Shares by the grant date fair value of each option using the Black Scholes method as of May 10, 2016, the date of the first Board of Directors meeting immediately following the 2016 Annual Stockholders Meeting. |
Term and Amendment
The Directors Plan will terminate on May 5, 2025 unless earlier terminated by the Board of Directors. The Board may amend the Directors Plan from time to time but no amendment will be effective without stockholder approval if such approval is required under applicable law or the rules of the NASDAQ Stock Market.
Vote Required
Assuming the presence of a quorum, the affirmative vote of at least a majority of the disinterested
directors.
24
The Board of Directors recommends a vote “FOR” the approval of the amendment to the Directors Plan.
APPROVAL OF AMENDMENT TO ABRAXAS
PETROLEUM CORPORATION'S ARTICLES OF INCORPORATION
The Abraxas
On March 14, 2017, the Board of Directors has unanimously approved an amendment to subparagraph (a) of Article Fourth of the Articles of Incorporation of Abraxas, (the "Articles")which we refer to as the Articles which would increase the number of authorized shares of Common Stock that Abraxas is authorized to issue. The proposed amendment, (the "Authorizedwhich we refer to as the Authorized Stock Amendment") is set forthAmendment, would be effectuated by amending subparagraph (a) of Article Fourth to read, in its entirety, in Exhibit "A"as follows:
(a) The total number of shares of all classes of stock which the corporation shall have authority to this Proxy Statement.issue is (i) 400,000,000 shares with par value $.01 per share which are to be of a class designated “Common Stock” and (ii) 1,000,000 shares with par value $.01 per share which are to be of a class designated “Preferred Stock.” The shares of Common Stock shall not be entitled to cumulative voting and shall not have preemptive rights to subscribe for or to purchase any additional shares of the corporation’s capital stock.
The Articles of Incorporation currently authorize the issuance of 50,000,000200,000,000 shares of Common Stock of which 22,595,016163,844,017 shares were issued and outstanding orand 8,966,402 were reserved for issuance under the LTIP and Directors Plan as of May 1, 2000.March 15, 2017. The Authorized Stock Amendment would authorize the issuance of 200,000,000400,000,000 shares of Common Stock.
If approved,
Reasons For the increasedAuthorized Stock Amendment
Our Board believes that an increase in the number of authorized shares of our Common Stock from 200,000,000 to 400,000,000 shares is in the best interests of our stockholders. Increasing the number of authorized shares of Common Stock would be available for issuance from timewill enable us to time for such purposesengage in capital raising transactions and consideration as the Board may approve and no further vote of stockholders of
Abraxas will be required, except as provided by the Articles, under Nevada law
or the rules of any national securities exchange on which shares of Abraxas
Common Stock are at the time listed or quoted.
As part of the Exchange Offer, Abraxas issued Contingent Value Rights
(the "CVRs"). The terms of the CVRs issued in the exchange offer provided that
the holders thereof could be entitled to receive up to a total of 104,621,164
shares of Common Stock. Subsequent toother strategic transactions involving the issuance of the CVRs, the Common Stock
traded at a price per share of $2.01 or higher for 30 days during the 45-day
trading period beginning on February 28, 2000, and ending on April 10, 2000. As
a result, under the terms of the CVRs, the maximum number of shares which
holders of the CVRs could be entitled to receive has been reduced to 22,500,000
shares of Common Stock. In addition, in the event the Common Stock trades at a
price per share higher than $2.01 for 30 days during any future 45-day trading
period, the number of shares of Common Stock issuable pursuant to the CVRs would
decrease correspondingly to a number below 22,500,000. On December 21, 2000, or
at the election of Abraxas, on May 21, 2001, Abraxas may be required to issue
additional shares of common stock to the holders of the CVRs. The actual number
of shares issued will depend on the market price of the Common Stock. The CVRs
will terminate and no Common Stock will be issuable pursuant thereto if the
market price of the Common Stock exceeds certain target prices for a period of
30 trading days during any 45 consecutive trading day period prior to the
expiration date. The target price on any given date will equal $5.03 plus daily
interest from December 21, 1999, at an annual rate of 11.5%. On December 21,
2000, the target price will be $5.68 and on May 21, 2001, the target price will
be $5.97. Although Abraxas is unable to determine whether, or how many, shares
of Common Stock will be issuable pursuant to the CVRs, the Board considers it
advisable that Abraxas be in a position to issue such additional shares in such
circumstances without calling a special meeting of stockholders.
25
In addition,equity securities. Abraxas may from time to time wish to issue shares of Common Stock to afford the Board greater flexibility in meeting possible future financing requirements, to effect future transactions such as acquisitions, stock splits or stock dividends and to meet other corporate needs as they arise. Although Abraxas has no present plans to issue any additional shares of Common Stock for such purposes, the Board considers it advisable that Abraxas be in a position to issue such additional shares in such circumstances without calling a special meeting of stockholders. The failure to approve the proposed Authorized Stock Amendment may prevent us from executing business activities and initiatives proposed by management and approved by our Board of Directors. If this proposal is approved, prior to any issuance of shares of Common Stock, the Board of Directors will consider factors including, among others, management’s proposed business plan, the then current market price of our Common Stock, the proposed offering price of the shares of Common Stock, the potential dilution to our stockholders, our working capital needs and the terms and availability of alternative sources of financing. Except with respect to outstanding stock options, we have no specific plan, commitment, arrangement, understanding or agreement regarding the issuance of shares of our Common Stock subsequent to the proposed increase and we have not allocated any specific portion of the proposed increase in our authorized shares of Common Stock to any particular purpose.
The additional shares of Common Stock for which authorization is sought would be identical to the shares of Common Stock now authorized. Holders of Common Stock do not have preemptive rights to subscribe to additional securities which may be issued by Abraxas.
Dilutive and Anti-Takeover Effects of Increase
The authorization of additional shares of Common Stock will not, by itself, have any effect on the rights of holders of the currently outstanding shares of Common Stock. However, any issuance of additional shares of Common Stock could, depending on the circumstances, affect the existing holders of shares of Common Stock by diluting per share earnings and voting power of the outstanding Common Stock. The
Although the Authorized Stock Amendment is not motivated by anti-takeover concerns, and is not considered by our Board to be an anti-takeover measure, the availability for issuance of additional authorized shares of Common Stock could also discourageenable the Board to issue shares defensively in response to a takeover attempt or to make an attempt to gain control of
our company more difficult effortsor time consuming. For example, shares of Common Stock could be issued to purchasers who might side with management in opposing a takeover bid that the Board determines is not in the best interests of our stockholders, thus diluting the ownership and voting rights of the person seeking to obtain control of Abraxas.
The additional sharesour company. In certain circumstances, the issuance of Common Stock without further action by the stockholders may have the effect of delaying or preventing a Change in Control of the Company, may discourage bids for which authorization is sought
would be identical toour Common Stock at a premium over the prevailing market price and may adversely affect the market price of our Common Stock. As a result, increasing the authorized number of shares of our Common Stock now authorized. Holderscould render more difficult and less likely a hostile takeover of our company by a third-party, or a tender offer or proxy contest, assumption of control by a holder of a large block of our stock, and the possible removal of our incumbent management. We are not aware of any proposed attempt to take over the company or of any present attempt to acquire a large block of our Common Stock do not have preemptive rights to subscribe to additional securities
which may be issued by Abraxas.
UnderStock.
Vote Required
Assuming the Nevada General Corporation Law (the "Nevada GCL"),presence of a quorum, the affirmative vote of the holders of a majority of the outstanding shares of Abraxas Common Stock entitledis necessary to notice of and to vote at the Annual Meeting
voting together as a single class is required to adoptapprove the Authorized Stock Amendment. The Board recommends thatenclosed form of proxy provides a means for stockholders to vote for the approval of the Authorized Stock Amendment, to vote against it or to abstain from voting with respect to it. If a stockholder executes and returns a proxy, but does not specify how the shares represented by such stockholder’s proxy are to be voted, such shares will be voted FOR the Authorized Stock Amendment. 26
PROPOSAL THREE
APPOINTMENT OF AUDITORS
Under applicable Nevada law, in determining whether this item has received the requisite number of affirmative votes, abstentions as to this proposal will not be treated as either a vote for or against the proposal. However, because the proposal requires the affirmative vote of the holders of a majority of the outstanding shares, abstentions will have the same effect as a vote against the proposal. This proposal is a “routine” matter for which your broker does not need your voting instruction in order to vote your shares.
The Board of Directors has appointedrecommends a vote “FOR” the firmapproval of Ernstthe Authorized Stock Amendment.
ADVISORY VOTE ON EXECUTIVE COMPENSATION
Abraxas asks that you indicate your support for our executive compensation policies and practices as described in our Compensation Discussion & Young LLP
("Ernst & Young")Analysis, accompanying tables and related narrative contained in this proxy statement beginning on page 17. Your vote is advisory and will not be binding on the Board of Directors; however, the Board of Directors will review the voting results and take them into consideration when making future decisions regarding executive compensation.
The Compensation Committee is responsible for executive compensation and works to examinestructure a compensation plan that reflects Abraxas’ underlying compensation philosophy of aligning the financial statementsinterests of Abraxasour executive officers with those of our stockholders. Key elements of this philosophy are:
Based on the above, and pursuant to Section 14A of the Exchange Act, we request that stockholders approve the compensation of our named executive officers as disclosed in the Compensation Discussion and Analysis the compensation tables and the related narrative discussion of this proxy statement.
Vote Required
Assuming the presence of a quorum, the affirmative vote of the holders of a majority of the shares of Common Stock present in person or by proxy and entitled to vote on this proposal at the annual meeting is necessary to approve this proposal The enclosed form of proxy provides a means for stockholders to vote for the 2000
fiscal year. Representativesapproval of Ernst & Youngthis proposal. If a stockholder executes and returns a proxy, but does not specify how the shares represented by such stockholder’s proxy are expected to be voted, such shares will be voted FOR this proposal. Under applicable Nevada law, in determining whether this item has received the requisite number of affirmative votes, brokernon-votes will not be counted and will have no effect. Abstentions are treated as present and entitled to vote and will have the same effect as a vote against this item.
As an advisory vote, this proposal is nonbinding. Although the vote is nonbinding, the Board and the Compensation Committee value the opinions of our stockholders and will consider the outcome of the vote when making future compensation decisions for our NEOs. We have held such advisory votes on executive compensation each year since 2011.
The Board of Directors recommends a vote “FOR” the advisory proposal to approve the compensation of our NEOs.
ADVISORY VOTE ON FREQUENCY OF FUTURE ADVISORY VOTES
ON NAMED EXECUTIVE OFFICER COMPENSATION
As described in Proposal Six above, our stockholders are being provided the opportunity to cast an advisory vote on the 2016 compensation of our NEOs (commonly known as a“Say-on-Pay” vote).
Every six years, we are required to conduct a nonbinding stockholder advisory vote on the frequency of futureSay-on-Pay votes. At our 2011 Annual Meeting of Stockholders, our stockholders cast the highest number of votes for annualSay-on-Pay votes. In light of this result and other factors considered by our Board, we have since held suchSay-on-Pay votes on an annual basis. As six years have passed, this Proposal Seven provides our stockholders with a second opportunity at the Annual Meeting to cast a nonbinding advisory vote on how often we should conduct aSay-on-Pay vote at future annual meetings of stockholders. Under this Proposal Seven, stockholders may vote to have theSay-on-Pay vote every year, every two years or every three years.
The Board believes that continuing to conductSay-on-Pay votesevery year(as opposed to every two years or three years) is appropriate for us, and in the best interests of our stockholders, in order to continue providing stockholders with a frequent opportunity to give immediate and direct feedback on our executive compensation programs.
Vote Required
The option of one year, two years or three years that receives the highest number of votes cast by stockholders will be the frequency of future advisory votes on executive compensation that has been selected by our stockholders. Abstentions and brokernon-votes will have no effect on the outcome of the vote.
As an advisory vote, this proposal is nonbinding. Although the vote is nonbinding, the Board and the Compensation Committee value the opinions of our stockholders and will consider the outcome of the vote when setting the frequency of future advisory votes on named executive officer compensation.
The Board unanimously recommends that stockholders select “ONE YEAR” on the proposal determining the frequency of future advisory votes on NEO compensation.
ADJOURNMENT OR POSTPONEMENT OF ANNUAL MEETING
If necessary or appropriate in the circumstances at the Annual Meeting, we may ask our stockholders to authorize the named proxies to approve one or more postponements or adjournments of the Annual Meeting if sufficient votes have not yet been cast to approve Proposals Two through Six or for one year for Proposal Seven at the time of the Annual Meeting, in order to enable us to solicit additional proxies. This proposal relates only to a postponement or adjournment of the Annual Meeting for purposes of soliciting additional proxies to obtain the requisite stockholder approval to approve Proposals Two through Six or for one year for Proposal Seven. The Board of Directors retains full authority to postpone or adjourn the Annual Meeting for any other purpose, including the absence of a quorum, or to postpone the Annual Meeting before it is convened, without the consent of the stockholders.
If the Annual Meeting is postponed or adjourned, we would not be required to give notice of the time and place of the adjourned meeting unless the Board of Directors fixed a new record date for the Annual Meeting.
Assuming the presence of a quorum, the affirmative vote of the holders of a majority of the shares of Common Stock present at the Annual Meeting in person or represented by proxy and entitled to vote on the matter is necessary to approve the adjournment or postponement of Stockholdersthe Annual Meeting. The enclosed proxy card provides a means for stockholders to vote for the adjournment or postponement of the Annual Meeting, to vote against it or to abstain from voting with respect to it. If a stockholder executes and returns a proxy, but does not specify how the opportunity to make a statement if they
desire to do so andshares represented by such stockholder’s proxy are expected to be available to respond to appropriate
questions.
Approvalvoted, such shares will be voted FOR the adjournment or postponement of the appointment of auditors is not a matter which is
required to be submitted toAnnual Meeting. Abstentions will have the same legal effect as a vote of stockholders, butagainst the Board of Directors
considers it appropriateproposal. This proposal is a “routine” matter for the stockholderswhich your broker does not need your voting instruction in order to express or withhold their
approval of the appointment. If stockholder approval should be withheld, thevote your shares.
The Abraxas Petroleum Board of Directors would consider an alternative appointment for the succeeding
fiscal year. The Board of Directors recommends that the stockholders approve the
appointment of Ernst & Young.
27
STOCKHOLDER PROPOSALS FOR 20012018 ABRAXAS ANNUAL MEETING
Proposals
Abraxas intends to hold its next annual meeting during the second quarter of 2018, according to its normal schedule. In order to be included in the proxy material for the 2018 Annual Meeting, Abraxas must receive eligible proposals from stockholders intended to be presented at the 2001annual meeting on or before December 31, 2017, directed to the Abraxas Secretary at the address indicated on the first page of this proxy statement.
According to our Amended and Restated Bylaws, Abraxas must receive timely written notice of any stockholder nominations and proposals to be properly brought before the 2018 Annual MeetingMeeting. To be timely, such notice must be received in writing bydelivered to the Abraxas Secretary at itsthe principal executive offices set forth on the first page of this proxy statement between February 7, 2018and the close of business on March 9, 2018. The written notice must set forth, as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made: (i) the name and address of such stockholder, as they appear on Abraxas’ books, and of such beneficial owner, if any, (ii) (a) the class or series and number of Abraxas shares which are, directly or indirectly, owned beneficially and of record by such stockholder and such beneficial owner, (b) any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of Abraxas shares or with a value derived in whole or in part from the value of any class or series of Abraxas shares, whether or not such instrument or right shall be subject to settlement in the underlying class or series of Abraxas capital stock or otherwise (a “Derivative Instrument”) directly or indirectly owned beneficially by such stockholder and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of Abraxas shares, (c) any proxy, contract, arrangement, understanding, or relationship pursuant to which such stockholder has a right to vote any shares of any Abraxas security, (d) any short interest in any Abraxas security (a person shall be deemed to have a short interest in a security if such person, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security), (e) any rights to dividends on the Abraxas shares owned beneficially by such stockholder that are separated or separable from the underlying Abraxas shares, (f) any proportionate interest in Abraxas shares or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such stockholder is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (g) any performance-related fees (other than an asset-based fee) that such stockholder is entitled to, based on any increase or decrease in the value of Abraxas shares or Derivative Instruments, if any, as of the date of such notice including, without limitation, any such interests held by members of
such stockholder’s immediate family sharing the same household (which information shall be supplemented by such stockholder and beneficial owner, if any, not later than December 31, 2000. Abraxas'10 days after the record date for the meeting to disclose such ownership as of the record date), and (iii) any other information relating to such stockholder and beneficial owner, if any, that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act, and the rules and regulations promulgated thereunder.
If the notice relates to any business other than a nomination of a director or directors that the stockholder proposes to bring before the meeting, the notice must set forth (i) a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest of such stockholder and beneficial owner, if any, in such business and (ii) a description of all agreements, arrangements and understandings between such stockholder and beneficial owner, if any, and any other person or persons (including their names) in connection with the proposal of such business by such stockholder.
As to each person, if any, whom the stockholder proposes to nominate for election or reelection to the Board of Directors, the notice must set forth (i) all information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected) and (ii) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such stockholder and beneficial owner, if any, and their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation all information that would be required to be disclosed pursuant to Rule 404 promulgated under RegulationS-K (or any successor rule) if the stockholder making the nomination and any beneficial owner on whose behalf the nomination is made, if any, or any affiliate or associate thereof or person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, and include a completed, dated and signed questionnaire, representation and agreement.
To be eligible to be a nominee for election or reelection as a director of Abraxas, a person must deliver (in accordance with the time periods prescribed above for delivery of notice) to the Secretary at the principal executive offices are located at 500 North Loop 1604 East, Suite 100, San Antonio, Texas 78232.
PROXY SOLICITATION
The cost of soliciting proxiesAbraxas a written questionnaire with respect to the background and qualification of such person and the background of any other person or entity on whose behalf the nomination is being made (which questionnaire shall be provided by the Secretary upon written request) and a written representation and agreement (in the form provided by the Secretary upon written request) that such person (i) is not and will not become a party to (a) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of Abraxas, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to Abraxas or (b) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of Abraxas, with such person’s fiduciary duties under applicable law, (ii) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than Abraxas with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed therein, and (iii) in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be bornein compliance, if elected as a director of Abraxas, and will comply with all applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of Abraxas. Abraxas may also require any proposed nominee to furnish such other information as may reasonably be required by Abraxas. ProxiesAbraxas to determine the eligibility of such proposed nominee to serve as an independent director of Abraxas or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee.
In the event that the 2018 Annual Meeting is more than 30 days from May ●, 2018 (the anniversary of the 2017 Annual Meeting), the dates for submission of proposals to be included in the proxy materials and for business to be properly brought before the 2018 Annual Meeting will change according to Abraxas’ Amended and Restated Bylaws and Regulation 14A under the Exchange Act. A copy of Abraxas’ Amended and Restated Bylaws setting forth the advance notice provisions and requirements for submission of stockholder nominations and proposals may be solicited throughobtained from the mail and through telephonic or telegraphic communications
to, or meetings with, stockholders or their representatives by directors,
officers and other employeesAbraxas Secretary at the address indicated on the first page of Abraxas who will receive no additional
compensation therefor.
Abraxas requests persons such as brokers, nominees and fiduciaries
holding stock in their names for others, or holding stock for others who have
the right to give voting instructions, to forwardthis proxy materials to their
principals and to request authority for the execution of the proxy, and Abraxas
will reimburse such persons for their reasonable expenses.
statement.
No business other than the matters set forth in this Proxy Statementproxy statement is expected to come before the meeting, but should any other matters requiring a stockholder’s vote of stockholders arise, including a question of adjourning the meeting, the persons named in the accompanying Proxyproxy will vote thereon according to their best judgment in the interests of Abraxas. If any of the nomineesa nominee for office of director should withdraw or otherwise become unavailable for reasons not presently known, the persons named as proxies may vote for another person in his place in what they consider the best interests of Abraxas.
Upon the written request of any person whose proxy is solicited hereunder, Abraxas will furnish without charge to such person a copy of its annual report filed with the Securities and Exchange Commission on Form10-K, including financial statements and schedules thereto, for the fiscal year ended December 31, 1999.2016. Such written request is to be directed to the attention of
Stephen T. Wendel, 500 North Loop 1604 East, Suite 100,Investor Relations, 18803 Meisner Drive, San Antonio, Texas 78232.
78258.
By Order of the Board of Directors |
Stephen T. Wendel |
SECRETARY |
San Antonio, Texas
April ●, 2017
ANNEX A
ABRAXAS PETROLEUM CORPORATION
AMENDED AND RESTATED
2005 EMPLOYEE LONG-TERM EQUITY INCENTIVE PLAN
(As Amended March 11, 2008, June 29, 2009, March 9, 2012, March 3, 2015 and March 14, 2017)
ABRAXAS PETROLEUM CORPORATION
Amended and Restated
2005 Employee Long-Term Equity Incentive Plan
PART I
PURPOSE, ADMINISTRATION AND RESERVATION OF SHARES
SECTION 1. Purpose of this Plan. The purposes of this Plan are to (a) employ and retain qualified and competent personnel and (b) promote the growth and success of the Company’s and its Subsidiaries’ business by (i) 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 (ii) providing rewards for exceptional performance and long-term incentives for future contributions to the success of the Company and its Subsidiaries.
This Plan permits the grant ofNon-Qualified Stock Options, Incentive Stock Options or Restricted Stock, at the discretion of the Committee and as reflected in the terms of the Award Agreement. Each Award will be subject to conditions specified in this Plan.
SECTION 2. Definitions. As used herein, the following definitions shall apply:
(a) “Award” means any award or benefit granted under this Plan, including Options and Restricted Stock.
(b) “Award Agreement” means a written or electronic agreement between the Company and the Participant setting forth the terms of the Award.
(c) “Beneficial Ownership” has the meaning set forth inRule 13d-3 promulgated under the Exchange Act.
(d) “Board” means the Company’s Board of Directors.
(e) “Change of Control” means the first day that any one or more of the following conditions has been satisfied:
(i) the sale, transfer, or assignment to, or other acquisition by any other entity or entities (other than a Subsidiary), of all or substantially all of the Company’s assets and business in one or a series of related transactions;
(ii) a third person, including a “group” as determined in accordance with Section 13(d) or 14(d) of the Exchange Act, obtains the Beneficial Ownership of Common Stock having thirty percent (30%) or more of the then total number of votes that may be cast for the election of members of the Board; or
(iii) during any12-consecutive month period, the individuals who, at the beginning of such period, constitute the Board (“Incumbent Directors”) cease for any reason other than death to constitute at least a majority of the members of the Board; provided, however, that except as set forth in this Section 2(e)(iii), an individual who becomes a member of the Board subsequent to the beginning of the12-month period, shall be deemed to have satisfied such12-month requirement and shall be deemed an Incumbent Director if such Director was elected by or on the recommendation of, or with the approval of, at leasttwo-thirds of the Directors who then qualified as Incumbent Directors either actually (because they were Directors at the beginning of such period) or by operation of the provisions of this Section; if any such individual initially assumes office as a result of or in connection with either an actual or threatened solicitation with respect to the election of Directors Stephen T. Wendel
Secretary
Dated: April 27, 2000
28
FORM OF PROXY
FRONT
abraxas petroleum corporation
500 North Loop 1604 East, Suite 100
San Antonio, Texas 78232
This Proxy is Solicited(as such terms are used in Rule14a-12(c) of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitations of proxies or consents by or on behalf of a person other than the Board, then such individual shall not be considered an Incumbent Director; or
(iv) a merger, consolidation, reorganization or other business combination (a “Transaction”), as a result of which the stockholders of the Company immediately prior to such Transaction own directly or indirectly immediately following such Transaction less than 50% of the combined voting power of the outstanding voting securities of the entity resulting from such Transaction.
(f) “Change in Control Value” has the meaning set forth in Section 5(b).
(g) “Code” means the Internal Revenue Code of 1986, as amended.
(h) “Committee” means the Compensation Committee appointed by the Board, which shall be comprised of two or more outside Directors The undersigned shareholder(within the meaning of the term “outside directors” as used in section 162(m) of the Code, and applicable interpretive authority under the Code, and within the meaning of“Non-Employee Director” under SEC Rule16b-3 promulgated under the Exchange Act and who meet any other qualifications required by the applicable stock exchange on which the Common Stock is traded).
(i) “Common Stock” means the common stock of the Company, par value $.01 per share.
(j) “Company” means Abraxas Petroleum Corporation, a Nevada corporation (the "Company")and any successor thereto.
(k) “Director” means a member of the Board.
(l) “Effective Date” means the date on which the Company’s stockholders have approved this Plan in accordance with applicable NASDAQ rules, or the rules of such other exchange upon which the Company’s Common Stock is then either quoted or traded.
(m) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(n) “Fair Market Value” means the closing price per share of the Common Stock on the NASDAQ as to the date specified (or the previous trading day if the date specified is a day on which no trading occurred), hereby appoints Robert L. G. Watson, Chris E.
Willifordor if the NASDAQ shall cease to be the principal exchange or quotation system upon which the shares of Common Stock are listed or quoted, then such exchange or quotation system upon which the Company elects to list or quote its shares of Common Stock.
(o) “Good Reason” means:
(i) a reduction in Participant’s annual base salary as in effect immediately prior to the Change of Control or as the same may be increased from time to time;
(ii) a change in the principal place of Participant’s employment, as in effect at the time of a Change of Control, to a location more than fifty (50) miles from such principal place of employment, excluding required travel on the Company’s business; or
(iii) the failure by the Company or any successor, without Participant’s consent, to pay to Participant any portion of Participant’s current compensation, or to pay to Participant any portion of any deferred compensation, within ten (10) days of the date any such compensation payment is due.
(p) “Incentive Stock Option” means any Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code.
(q) “Incumbent Director” has the meaning set forth in Section 2(e)(iii).
(r) “Misconduct” means the termination of employment for “cause” as defined in Participant’s employment agreement or in the absence of such an agreement or such a definition, “Misconduct” will mean a determination by the Committee that Participant (i) has engaged in personal dishonesty, willful violation of any law, rule, or regulation (other than minor traffic violations or similar offenses), or breach of fiduciary duty involving
personal profit, (ii) is unable to satisfactorily perform or has failed to satisfactorily perform Participant’s duties and Robert W. Carington,responsibilities for the Company or any affiliate, (iii) has been convicted of, or plead nolo contendere to, any felony or a crime involving moral turpitude, (iv) has engaged in negligence or willful misconduct in the performance of his duties including, but not limited to, willfully refusing without proper legal reason to perform Participant’s duties and responsibilities, (v) has materially breached any corporate policy or code of conduct established by the Company or any affiliate as such policies or codes may be adopted from time to time, (vi) has violated the terms of any confidentiality, nondisclosure, intellectual property, nonsolicitation, noncompetition, proprietary information and inventions, or any other agreement between Participant and the Company related to Participant’s employment, or (vii) has engaged in conduct that is likely to have a deleterious effect on the Company or any affiliate or their legitimate business interests including, but not limited to, their goodwill and public image.
(s) “NASDAQ” shall mean the NASDAQ Stock Market.
(t) “Non-Qualified Stock Option” means an Option that does not qualify or is not intended to qualify as an Incentive Stock Option.
(u) “Option” means aNon-Qualified Stock Option or an Incentive Stock Option granted pursuant to Section 8 of this Plan.
(v) “Optionee” means a Participant who has been granted an Option.
(w) “Participant” means any employee of the Company or any of its Subsidiaries that has been granted an Award.
(x) “Plan” means this Abraxas Petroleum Corporation 2005 Amended and Restated Employee Long-Term Equity Incentive Plan, including any amendments thereto.
(y) “Reprice” or “Repricing” shall mean the adjustment or amendment of the exercise price of Options previously awarded whether through amendment, cancellation, replacement of grants or any other means.
(z) “Restricted Stock” means a grant of Shares pursuant to Section 9 of this Plan.
(aa) “SEC” means the Securities and Exchange Commission.
(bb) “Share” means one share of Common Stock, as adjusted in accordance with Section 5 of this Plan.
(cc) “Subsidiary” means a “subsidiary corporation,” whether now or hereafter existing, as defined in Section 424(f) of the Code, a limited liability company, partnership or other entity in which the Company controls fifty percent (50%) or more of the voting power or equity interests, or an entity with respect to which the Company possesses the power, directly or indirectly, to direct or cause the direction of the management and policies of that entity, whether through the Company’s ownership of voting securities, by contract or otherwise.
(dd) “Transaction” has the meaning set forth in Section 2(e)(iv).
SECTION 3. Administration of this Plan.
(a) Authority.This Plan shall be administered by the Committee. The Committee has full and exclusive power to administer this Plan on behalf of the Board, subject to such terms and conditions as the Committee may prescribe. Notwithstanding anything herein to the contrary, the Committee’s power to administer this Plan, and actions the Committee takes under this Plan, shall be limited by the provisions set forth in the Committee’s charter, as such charter may be amended from time to time, and the further limitation that certain actions may be subject to review and approval by the full Board and/or stockholders.
(b) Powers of the Committee.Subject to the other provisions of this Plan, the Committee has the authority, in its discretion:
(i) to determine the Participants to whom Awards, if any, will be granted hereunder;
(ii) to grant Awards to Participants and to determine the terms and conditions of such Awards, including the determination of the Fair Market Value of the Shares in accordance with Section 2(n), the number of Shares to be represented by each Award and the vesting schedule, the exercise price, the timing of them, as Proxies,such Awards, and to modify or amend each Award, with the consent of the Participant when required;
(iii) to construe and interpret this Plan and the Awards granted hereunder;
(iv) to prescribe, amend, and rescind rules and regulations relating to this Plan, including the forms of Award Agreements, and manner of acceptance of an Award, such as correcting a defect or supplying any omission, or reconciling any inconsistency so that this Plan or any Award Agreement complies with applicable law, rules, regulations and listing requirements and to avoid unanticipated consequences deemed by the Committee to be inconsistent with the purposes of this Plan or any Award Agreement;
(v) subject to compliance with Section 409A of the Code, to accelerate or defer (with the consent of the Participant) the exercise or vested date of any Award;
(vi) to authorize any person to execute on behalf of the Company any instrument required to effectuate the grant of an Award previously granted by the Committee; and
(vii) to make all other determinations deemed necessary or advisable for the administration of this Plan;
provided, that, no consent of a Participant is necessary under clauses (i) or (v) if a modification, amendment, acceleration, or deferral, in the reasonable judgment of the Committee, confers a benefit on the Participant or is made pursuant to an adjustment in accordance with Section 5.
(c) Effect of Committee’s Decision.All decisions, determinations, and interpretations of the Committee shall be final and binding on all Participants, the Company (including its Subsidiaries), any stockholder and all other persons.
(d) Delegation.To the extent permitted by the Committee’s charter, as such charter may be amended from time to time, the Committee may delegate its authority and duties under this Plan to one or more persons other than its members to carry out its policies and directives, including the authority to grant Awards, subject to the limitations and guidelines set by the Committee, except that (i) the authority to grant or administer Awards with respect to persons who are subject to Section 16 of the Exchange Act, or to persons who are “covered employees” (within the meaning of Treasury Regulation,Section 1.162-27(c)(2)), shall not be delegated by the Committee; and (ii) any such delegation shall satisfy any other applicable requirements of Rule16b-3 of the Exchange Act, or any successor provision. Any action by any such delegate(s) within the scope of such delegation shall be deemed for all purposes to have been taken by the Committee. Any person to whom such authority is granted shall continue to be eligible to receive Awards under this Plan, provided that such Awards are granted directly by the Committee without delegation.
(e) Compliance with Section 409A.The parties intend that this Plan and Awards be, at all relevant times, in compliance with (or exempt from) Code Section 409A and all other applicable laws, and this Plan shall be so interpreted and administered. In addition to the general amendment rights of the Company with respect to the Plan, the Company specifically retains the unilateral right (but not the obligation) to make, prospectively or retroactively, any amendment to this Plan or any related document as it deems necessary or desirable to more fully address issues in connection with compliance with (or exemption from) Code Section 409A of and other laws. In no event, however, shall this section or any other provisions of this Plan be construed to require the Company to provide anygross-up for the tax consequences of any provisions of, or payments under, this Plan. The Company and its affiliates shall have no responsibility for tax or legal consequences to any Participant (or beneficiary) resulting from the terms or operation of this Plan.
SECTION 4. Shares Subject to this Plan.
(a) Reservation of Shares. The shares of Common Stock reserved under this Plan shall be 12,600,000 shares of Common Stock. If an Award expires, is forfeited or becomes unexercisable for any reason without having been exercised in full, the undelivered Shares which were subject thereto shall, unless this Plan has been terminated, become available for future Awards under this Plan. The Shares may be authorized but unissued or reacquired shares of Common Stock. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements of this Plan.
(b) Time of Granting Awards.The date of grant of an Award shall, for all purposes, be the date on which the Company completes the corporate action relating to the grant of such Award and all conditions to the grant have been satisfied, provided that conditions to the exercise of an Award shall not defer the date of grant. Notice of a grant shall be given to each Participant to whom an Award is so granted within a reasonable time after the determination has been made.
(c) Securities Law Compliance. Shares shall not be issued pursuant to the exercise of an Award unless the exercise of such Award and the issuance and delivery of such Shares pursuant thereto shall comply with all relevant provisions of law, including without limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules and regulations promulgated under either of such Acts, and the requirements of any stock exchange or quotation system upon which the Shares may then be listed or quoted, and shall be further subject to the approval of counsel for the Company with respect to such compliance.
(d) Substitutions and Assumptions. The Board or the Committee has the right to substitute or assume Awards in connection with mergers, reorganizations, separations, or other transactions to which Section 424(a) of the Code applies, provided such substitutions and assumptions are permitted by and in compliance with Sections 409A and 424 of the Code and the regulations promulgated thereunder. The number of Shares reserved pursuant to Section 4(a) may be increased by the corresponding number of Awards assumed and, in the case of a substitution, by the net increase in the number of Shares subject to Awards before and after the substitution.
SECTION 5. Adjustments to Shares Subject to this Plan.
(a) Adjustments. If the outstanding shares of Common Stock shall be changed into or exchanged for a different number or kind of shares of stock or other securities or property of the Company or of another corporation (whether by reason of merger, consolidation, recapitalization, reclassification, split up, combination of shares or otherwise), or if the number of such shares of Common Stock shall be increased by a stock dividend or stock split, there shall be substituted for or added to each share of Common Stock theretofore reserved for the purposes of this Plan, whether or not such shares are at the time subject to outstanding Awards, the number and kind of shares of stock or other securities or property into which each outstanding share of Common Stock shall be so changed or for which it shall be so exchanged, or to which each such share shall be entitled, as the case may be. Outstanding Awards shall also be considered to be appropriately amended as to price and other terms as may be necessary or appropriate to reflect the foregoing events. No adjustment pursuant to this Section 5 shall be deemed a Repricing of an Option or any other Award. If there shall be any other change in the number or kind of the outstanding shares of Common Stock, or of any stock or other securities or property into which such Common Stock has been changed, or for which it has been exchanged, and if the Committee shall in its sole discretion determine that such change equitably requires an adjustment in the number or kind or price of the shares then reserved for the purposes of this Plan, or in any Award theretofore granted or which may be granted under this Plan, then such adjustment shall be made by the Committee and shall be effective and binding for all purposes of the Plan. In making any such substitution or adjustment pursuant to this Section 5, fractional shares may be ignored.
(b) Amendments. The Committee has the power, in the event of any Transaction, to appoint(1) amend all outstanding Options to permit the exercise thereof in whole or in part at any time, or from time to time, prior to the effective date of any such merger or consolidation or (2) to terminate each such Option as of such effective date and pay each holder of such Award an amount of cash per share equal to the excess, if any, of the Change in Control Value (as hereinafter defined) of the shares subject to such Option over the exercise price under such Options for such shares. For purposes of this subsection (b), the “Change in Control Value” shall be the per share price paid to stockholders of the Company in the Transaction, provided that in the event that the consideration offered to stockholders of the Company consists of anything other than cash, the Committee will determine, in its sole and absolute discretion, the fair cash equivalent portion of the consideration offered that is other than cash.
(c) No Other Adjustment. Except as expressly provided herein, no issuance by the Company of shares of any class, or securities convertible into shares of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares subject to an Award.
(d) Limitations under Code Section 409A. Notwithstanding as otherwise provided in this Section 5, no adjustment or amendment shall be taken under this Section 5 that:
(i) with respect to any Awards that are not subject to Code Section 409A as of the date of such action, would cause such Award to be subject to the requirements of Code Section 409A without satisfying such requirements; or
(ii) with respect to Awards subject to Code Section 409A, would constitute (a) a change in the time and form of payment under such Award, unless consented to by the Participant and otherwise satisfies the requirements of Treasury Regulation§1.409A-2(b), (b) an acceleration of payment under the Award in prohibition of Code Section 409A(a)(3) and the regulations thereunder, taking into consideration the exceptions provided under Treasury Regulation§1.409A-3(j)(4) for certain accelerations, or (c) a violation of Code Section 409A not otherwise referenced herein that would trigger adverse tax consequences for the Participant.
PART II
TERMS APPLICABLE TO ALL AWARDS
SECTION 6. General Eligibility and Annual Maximum Award; Procedure for Exercise of Awards; Rights as a Stockholder.
(a) General Eligibility. Awards may be granted only to Participants.
(b) Maximum Annual Participant Award. The aggregate number of Shares with respect to which an Award or Awards may be granted to any one Participant in any one taxable year of the Company shall not exceed 500,000 shares of Common Stock (subject to adjustment as set forth in Section 5(a)).
(c) Procedure. An Award shall be exercised when written or electronic notice of exercise has been given to the Company, or the brokerage firm or firms approved by the Company to facilitate exercises and sales under this Plan, in accordance with the terms of the Award by the person entitled to exercise the Award and full payment for the Shares with respect to which the Award is exercised has been received by the Company or the brokerage firm or firms, as applicable. The notification to the brokerage firm shall be made in accordance with procedures of such brokerage firm approved by the Company. The Company shall issue (or cause to be issued) such share certificate promptly upon exercise of and full payment for the Award. No adjustment will be made for a dividend or other right for which the record date is prior to the date the share certificate is issued, except as provided in Section 5 of this Plan.
(d) Method of Payment. The consideration to be paid for any Shares to be issued upon exercise or other required settlement of an Award must be paid by cash, check or wire transfer of immediately available funds.
(e) Stockholder Rights. Except as otherwise provided in this Plan, until the issuance (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company) of the share certificate evidencing such Shares, no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to the Shares subject to the Award, notwithstanding the exercise of the Award.
(f) Non-Transferability of Awards. An Award may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in exchange for consideration, except that an Award may be transferred by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Participant, only by the Participant; unless the Committee permits further transferability, on a general or specific basis, in which case the Committee may impose conditions and limitations on any permitted transferability.
SECTION 7. Effect of Change of Control. Notwithstanding any other provision in this Plan to the contrary, the following provisions shall apply unless otherwise provided in the most recently executed agreement between the Participant and the Company, or specifically prohibited under applicable laws, including, without limitation, Section 409A of the Code, or by the rules and regulations of any applicable governmental agencies or national securities exchanges or quotation systems.
(a) Change of Control. In the event that (i) a Participant’s employment is terminated by the Company (or a Subsidiary which is his or her substitute,employer) for reasons other than Misconduct or if a Participant voluntarily terminates his or her employment for Good Reason within 24 months following a Change of Control, or (ii) the Plan is terminated by the Company following a Change of Control without provision for the continuation of outstanding Awards hereunder, all Awards which have not otherwise expired shall be Accelerated (as defined in Section 7(b)). If, upon a Change of Control, awards in other shares or securities are substituted for outstanding Awards pursuant to Section 5(a), and hereby authorizes themimmediately following the Change of Control the Participant becomes employed (if the Participant was an employee immediately prior to represent
and to vote, as designated below, all the sharesChange of Abraxas common stockControl) by the entity into which the undersigned mayCompany merged, or the purchaser of all or substantially all of the assets of the Company, or a successor to such entity or purchaser, the Participant shall not be entitledtreated as having terminated employment or service for purposes of this Section 7 until such time as the Participant’s employment or service with the merged entity or purchaser (or successor), as applicable, is terminated. The terms of this Section 7 shall apply to voteall Awards except to the extent that an Award Agreement provides for different treatment (in which case the terms of the Award Agreement shall govern and this Section 7 shall not be applicable).
(b) Definition. For purposes of this Section 7, Awards of a Participant being “Accelerated” means, with respect to such Participant:
(i) any and all Options shall become fully vested and immediately exercisable, and shall remain exercisable throughout their entire term; and
(ii) any restriction periods and restrictions imposed on Restricted Stock shall lapse.
PART III
SPECIFIC TERMS APPLICABLE TO OPTIONS AND STOCK AWARDS
SECTION 8. Grant, Terms and Conditions of Options.
(a) Designation. Each Option shall be designated in an Award Agreement as either an Incentive Stock Option or aNon-Qualified Stock Option. However, notwithstanding such designations, to the extent that the aggregate Fair Market Value of the Shares with respect to which Options designated as Incentive Stock Options are exercisable for the first time by any Participant during any calendar year (under all plans of the Company) exceeds $100,000, such excess Options shall be treated asNon-Qualified Stock Options. Options shall be taken into account in the order in which they were granted.
(b) Term of Options. The term of each Option shall be established by the Committee in its sole and absolute discretion at the Annual Meetingdate of Stockholdersgrant. However, the term of each Incentive Stock Option shall be no more than 10 years from the date of grant, and, in the case of an Incentive Stock Option granted to be held on May 26, 2000, and any adjournment thereof, with all powers whicha Participant who, at the undersigned would possess if personally present.
The undersigned acknowledges receipttime the Option is granted, owns Shares representing more than 10% of the Notice of Annual Meeting of
Stockholders and Proxy Statement of Abraxas dated April 27, 2000.
continued and to be signed on reverse side
29
BACK
This proxy when properly executed will be voted in the manner directed
herein by the undersigned stockholder. If no direction is made, this proxy
will be voted "FOR" the election of Directors and "FOR" the Approval of
Proposals 2 and 3.
1. ELECTION OF DIRECTORS
FOR the nominee listed below WITHHOLD AUTHORITY
to vote for the nominee
[ ] listed below [ ]
Franklin A. Burke
2. PROPOSAL TO APPROVE THE AMENDMENT TO THE ABRAXAS ARTICLES OF INCORPORATION
[ ] FOR [ ] AGAINST [ ] ABSTAIN
3. PROPOSAL TO APPROVE THE APPOINTMENT OF ERNST & YOUNG LLP AS AUDITORS OF
ABRAXAS FOR THE FISCAL YEAR ENDING DECEMBER 31, 2000
[ ] FOR [ ] AGAINST [ ] ABSTAIN
4. In their discretion, the Proxies are authorized to vote upon such other
business as may properly come before the meeting.
CHECK HERE FOR ADDRESS CHANGE [ ] NEW ADDRESS:______________________
__________________________________
__________________________________
__________________________________
Please sign exactly as name appears below. When shares are held by
joint tenants, both should sign. When signing as attorney, as executor,
administrator, trustee or guardian, please give full title as such. If
a corporation, please sign in full corporate name by President or other
authorized officer. If a partnership, please sign in partnership name
by authorized person.
DATED: ______________, 2000
Signature
PLEASE MARK, SIGN, DATE AND RETURN
E PROXY CARD PROMPTLY USING THE
ENCLOSED ENVELOPE. Signature if held jointly
EXHIBIT A
proposed amendment to article fourth
of Abraxas' articles of incorporation
FOURTH: (a) The total number of sharesvoting power of all classes of stock of the Company or any Subsidiary, the term of the Option shall be no more than 5 years from the date of grant.
(c) Vesting. Options granted pursuant to this Section 8 shall vest pursuant to the periods, terms and conditions determined by the Committee in its sole discretion. The Committee in its sole and absolute discretion may provide that an Option will be vested or exercisable upon (1) the attainment of one or more performance goals or targets established by the Committee; (2) the Optionee’s continued employment as an Employee with the Company for a specified period of time; (3) the occurrence of any event or the satisfaction of any other condition specified by the Committee in its sole and absolute discretion; or (4) a combination of any of the foregoing. Each Option may, in the sole and absolute discretion of the Committee, have different provisions with respect to vesting and/or exercise of the Option. To the extent Options vest and become exercisable in increments, such Options shall cease vesting as of the termination of such Optionee’s employment for any reason other than death, in which case such Options shall immediately vest in full.
(d) Exercise Prices.
(i) The per Share exercise price under an Incentive Stock Option shall be: (A) if granted to a Participant who, at the time of the grant of such Incentive Stock Option, owns shares representing more than 10% of the voting power of all classes of stock of the Company or any Subsidiary, the per Share exercise price shall be no less than 110% of the Fair market Value per Share of the Common Stock on the date the Option is granted, or (B) if granted to any other Participant, the per Share exercise price shall be no less than 100% of the Fair Market Value per Share of the Common Stock on the date the Option is granted.
(ii) The per Share exercise price under aNon-Qualified Stock Option shall be no less than 100% of the Fair Market Value per Share of the Common Stock on the date the Option is granted.
(iii) In no event shall the Board or the Committee be permitted to Reprice an Option after the date of grant without stockholder approval.
(e) Exercise. Any Option granted hereunder shall be exercisable at such times and under such conditions as determined by the Committee at the time of grant, as provided in the applicable Award Agreement, and as are permissible under the terms of this Plan. An Option may not be exercised for a fraction of a Share.
(f) Expiration of Options upon Termination of Employment. Unless otherwise provided in the applicable Award Agreement as determined by the Committee at the time of grant, in the event Optionee’s employment with the Company is terminated, Options granted under this Plan, shall expire and cease to be exercisable as follows:
(i) three (3) months after the date of the termination of Optionee’s employment, other than in circumstances covered by (ii), (iii), (iv) or (v) below;
(ii) immediately upon termination of Optionee’s employment for Misconduct;
(iii) twelve (12) months after the date of the termination of an Optionee’s employment if such termination was by reason of disability (within the meaning of Section 22(e)(3) of the Code);
(iv) twelve (12) months after the date of the death of a Participant; and
(v) twelve (12) months after Participant terminates his or her employment with the Company, a Subsidiary, the entity into which the corporation shall haveCompany merges, the purchaser of all or substantially all of the assets of the Company or a successor to such entity or purchaser for Good Reason.
Notwithstanding the foregoing in this subsection (f), the Committee has the authority to issue is (i) 200,000,000extend the exercise period of any outstanding Option in circumstances in which it deems such action to be appropriate; provided that in no event shall the termination date be extended beyond the earlier to occur of (x) the expiration date set forth in the Award Agreement and (y) the tenth anniversary of the date that the Award was granted. To the extent that the extension of the expiration date results in an Option no longer qualifying as an Incentive Stock Option, such extension shall not be effective unless Optionee approves the extension and waives any and all claims against the Committee and the Company for any losses resulting from the disqualification of the Incentive Stock Option.
SECTION 9. Grant, Terms and Conditions of Stock Awards.
(a) Designation. Restricted Stock may be granted either alone, in addition to, or in tandem with other Awards granted under this Plan. After the Committee determines that it will offer Restricted Stock, it will advise the Participant in writing or electronically, by means of an Award Agreement, of the terms, conditions and restrictions, including vesting, if any, related to the offer, including the number of Shares that the Participant shall be entitled to receive or purchase, the price to be paid, if any, and, if applicable, the time within which the Participant must accept the offer. The offer shall be accepted by execution of an Award Agreement or as otherwise directed by the Committee. The term of each award of Restricted Stock shall be at the discretion of the Committee.
(b) Vesting. The Committee shall determine the time or times within which an Award of shares with par
value $.01 per shareof Restricted Stock may be subject to forfeiture, the vesting schedule and the rights to acceleration thereof, and all other terms and conditions of the Award. The Committee may provide that vesting of such Award will occur upon (1) the attainment of one or more performance goals or targets established by the Committee, which are based on (i) percentage increases in net asset value, (ii) earnings before or after interest, taxes, depreciation, and/or amortization, (iii) general administrative expenses, and (iv) finding costs; (2) the Optionee’s continued employment or service with the Company for a specified period of time; (3) the occurrence of any event or the satisfaction of any other condition specified by the Committee in its sole and absolute discretion; or (4) a combination of any of the foregoing. Subject to bethe applicable provisions of the Award Agreement and this Section 9, upon termination of a class designated "Common Stock"Participant’s employment for any reason, all Restricted Stock subject to the Award Agreement may vest or be forfeited in accordance with the terms and (ii) 1,000,000 sharesconditions established by the Committee as specified in the Award Agreement. Each Restricted Stock Award may, in the sole and absolute discretion of the Committee, have different forfeiture and vesting provisions.
PART IV
TERM OF PLAN AND STOCKHOLDER APPROVAL
SECTION 10. Term of Plan. This Plan shall become effective as of the Effective Date and shall continue in effect until the tenth anniversary of the Effective Date or until terminated under Section 11 of this Plan or extended by an amendment approved by the stockholders of the Company pursuant to Section 12.
SECTION 11. Amendment and Termination of this Plan.
(a) Amendment and Termination. Subject to compliance with par value $.01 per share which are to beSection 409A of a class
designated "Preferred Stock."
(b) Thethe Code, the Board of Directors is hereby expressly granted authority to
authorizeor the Committee may amend or terminate this Plan from time to time in such respects as the Board may deem advisable (including, but not limited to, amendments which the Board deems appropriate to enhance the Company’s ability to claim deductions related to stock option exercises); provided, that to the extent an amendment to this Plan (1) increases the maximum number of shares available under the Plan, (2) changes the class of individuals eligible to receive Awards under the Plan, or (3) requires stockholder approval under the rules of the NASDAQ, such other exchange upon which the Company’s Common Stock is either quoted or traded, or the SEC, stockholder approval shall be required for any such amendment of this Plan. Subject to the foregoing, it is specifically intended that the Board or Committee may amend this Plan without stockholder approval to comply with legal, regulatory and listing requirements and to avoid unanticipated consequences deemed by the Committee to be inconsistent with the purpose of this Plan or any Award Agreement.
(b) Effect of Amendment or Termination. Any amendment or termination of this Plan shall not impair the rights of Participants under previously-granted Awards and such Awards shall remain in full force and effect as if this Plan had not been so amended or terminated, unless mutually agreed otherwise between the Participant and the Committee, which agreement must be in writing and signed by the Participant and the Company.
SECTION 12. Stockholder Approval. The effectiveness of this Plan is subject to approval by the stockholders of the Company in accordance with law,applicable NASDAQ rules, or the issuerules of onesuch other exchange upon which the Company’s Common Stock is either quoted or more
seriestraded at the time the Plan or any amendment becomes effective.
PART V
MISCELLANEOUS
SECTION 13. Unfunded Plan. The adoption of Preferred Stockthis Plan and any setting aside of amounts by the Company with which to discharge its obligations hereunder shall not be deemed to create a trust. The benefits provided under this Plan shall be a general, unsecured obligation of the Company payable solely from the general assets of the Company, and neither a Participant nor the Participant’s beneficiaries or estate has any interest in any assets of the Company by virtue of this Plan. Nothing in this Section 13 shall be construed to prevent the Company from implementing or setting aside funds in a grantor trust subject to the claims of the Company’s creditors. Legal and equitable title to any funds set aside, other than any grantor trust subject to the claims of the Company’s creditors, shall remain in the Company and any funds so set aside shall remain subject to the general creditors of the Company, present and future. Any liability of the Company to any Participant with respect to any such series, to fixan Award shall be based solely upon contractual obligations created by resolution or resolutions the numbers, powers, designations, preferences and
relative, participating, option or other special rights of such seriesthis Plan and the qualifications, limitations orAward Agreements.
SECTION 14. Representations and Legends.
(a) The Committee may require each person purchasing shares pursuant to an Award under this Plan to represent to and agree with the Company in writing that the purchaser is acquiring the shares without a view to distribution thereof. In addition to any legend required by this Plan, the certificate for such shares may include any legend which the Committee deems appropriate to reflect a restriction on transfer.
(b) All certificates for shares of Common Stock delivered under this Plan shall be subject to such stock transfer orders and other restrictions thereof including, but without
limitingas the generalityCommittee may deem advisable under the rules, regulations and other requirements of the foregoing, the following:
(i) entitling the holders thereof to cumulative, non-cumulative or
partially cumulative dividends, or to no dividends;
(ii) entitling the holders thereof to receive dividends payable on a
parity with, junior to, or in preference to, the dividends payable onSEC, any other
class or series of capital stock of the corporation;
(iii) entitling the holders thereof to rightsexchange upon the voluntary or
involuntary liquidation, dissolution or winding up of, or upon any other
distribution of the assets of, the corporation, on a parity with, junior to or
in preference to, the rights of any other class or series of capital stock of
the corporation;
(iv) providing for the conversion, at the option of the holder or of
the corporation or both, of the shares of Preferred Stock into shares of any
other class or classes of capital stock of the corporation or of any series of
the same or any other class or classes or into property of the corporation or
into the securities or properties of any other corporation or person, including
provision for adjustment of the conversion rate in such events as the Board of
Directors shall so provide, including provisions for the creation of a sinking
fund for the redemption thereof, or providing for no redemption;
(v) providing for the redemption, in whole or in part, of the shares of
Preferred Stock at the option of the corporation or the holder thereof, in cash,
bonds or other property, at such price or prices (which amount may vary under
different conditions and at different redemption dates), within such period or
periods, and under such conditions as the Board of Directors shall so provide,
including provisions for the creation of a sinking fund for the redemption
thereof, or providing for no redemption;
(vi) lacking voting rights or having limited voting rights or enjoying
general, special or multiple voting rights;
(vii) providing for the operation of a retirement or sinking fund with
respect thereto or for no such retirement or sinking fund, and, if so, the
extent to and manner in which any such retirement or sinking fund shall be
applied to the purchase or redemption of the shares of such series for
retirement or other corporate purposes and the terms and provisions relative to
the operation thereof;
(viii) providing the limitations or restrictions, if any, to be
effective while any shares of such series are outstanding upon the payment of
dividends or the making of other distributions on, and upon the purchase,
redemption or other acquisition by the corporation of, the Common Stock is listed, applicable federal or sharesstate securities laws, and any applicable corporate law, and the Committee may cause the legend or legends to be put on any such certificates to make appropriate reference to such restriction.
SECTION 15. Assignment of stockBenefits. No Award or other benefits payable under this Plan shall, except as otherwise provided under this Plan or as specifically provided by law, be subject in any manner to anticipation, alienation, attachment, sale, transfer, assignment, pledge, encumbrance or charge. Any attempt to anticipate, alienate, attach, sell, transfer, assign, pledge, encumber or charge, any such benefit shall be void, and any such benefit shall not in any manner be subject to the debts, contracts, liabilities, engagements or torts of any other classperson who shall be entitled to such benefit, nor shall such benefit be subject to attachment or any other series of the same class;
(ix) providing the conditionslegal process for or restrictions, if any, upon the
creation of indebtedness of the corporation or upon the issuance of any
additional stock, including shares of any other class or series;
(x) specifying the number of shares constitutingagainst that seriesperson.
SECTION 16. Governing Laws. This Plan and the
distinctive designation of that series;actions taken in connection herewith shall be governed, construed and (xi) providing any other powers, preferences and relative,
participating, optional and other special rights, and any qualifications,
limitations and restrictions thereof, insofar as they are not inconsistent with
the provisions of these Articles of Incorporation, to the full extent permittedenforced in accordance with the laws of the State of Nevada.
31
SECTION 17. Application of Funds. The proceeds received by the Company from the sale of shares of Common Stock pursuant to Awards granted under this Plan will be used for general corporate purposes.
SECTION 18. Right of Discharge. Nothing in this Plan or in any Award or Award Agreement shall confer upon any Participant or any other individual the right to continue in the employment or service of the Company or any of its Subsidiaries, or affect any right the Company or any of its Subsidiaries may have to terminate the employment or service of any such Participant or any other individual at any time for any reason.
ANNEX B
ABRAXAS PETROLEUM CORPORATION
AMENDED AND RESTATED
2005NON-EMPLOYEE DIRECTORS LONG-TERM EQUITY INCENTIVE PLAN
(As Amended March 14, 2017)
ABRAXAS PETROLEUM CORPORATION
Amended and Restated
2005Non-Employee Directors Long-Term Equity Incentive Plan
PART I
PURPOSE, ADMINISTRATION AND RESERVATION OF SHARES
SECTION 1. Purpose of this Plan. The purposes of this Plan are (a) to attract and retain members of the Board of Directors, and (b) to promote the growth and success of the Company’s business, (i) by aligning the long-term interests of the Company’s Directors with those of the Company’s stockholders by providing an opportunity to acquire an interest in the Company and (ii) by providing both rewards for exceptional performance and long term incentives for future contributions to the success of the Company and its Subsidiaries.
This Plan permits the grant of Nonqualified Stock Options or Restricted Stock, at the discretion of the Committee and as reflected in the terms of the Award Agreement. Each Award will be subject to conditions specified in this Plan.
SECTION 2. Definitions.As used herein, the following definitions shall apply:
(a) “Active Status” shall mean that the Director has not been removed from the Board for cause by the Company’s stockholders as provided in the Company’s Articles of Incorporation, as amended, and Bylaws, as amended.
(b) “Award” shall mean any award or benefits granted under this Plan, including Options and Restricted Stock.
(c) “Award Agreement” shall mean a written or electronic agreement between the Company and the Participant setting forth the terms of the Award.
(d) “Beneficial Ownership” shall have the meaning set forth inRule 13d-3 promulgated under the Exchange Act.
(e) “Board” shall mean the Company’s Board of Directors.
(f) “Change of Control” shall mean the first day that any one or more of the following conditions shall have been satisfied:
(i) the sale, transfer, or assignment to, or other acquisition by any other entity or entities (other than a Subsidiary), of all or substantially all of the Company’s assets and business in one or a series of related transactions;
(ii) a third person, including a “group” as determined in accordance with Section 13(d) or 14(d) of the Exchange Act, obtains the Beneficial Ownership of Common Stock having thirty percent (30%) or more of the then total number of votes that may be cast for the election of members of the Board;
(iii) during any12-consecutive month period, the individuals who, at the beginning of such period, constitute the Board (“Incumbent Directors”) cease for any reason other than death to constitute at least a majority of the members of the Board; provided, however, that except as set forth in this Section 2(f)(iii), an individual who becomes a member of the Board subsequent to the beginning of the12-month period, shall be deemed to have satisfied such12-month requirement and shall be deemed an Incumbent Director if such Director was elected by or on the recommendation of, or with the approval of, at leasttwo-thirds of the Directors who then qualified as Incumbent Directors either actually (because they were Directors at the beginning of such period) or by operation of the provisions of this Section; if any such individual initially assumes office as a result of or in connection with either an actual or threatened solicitation with respect to the election of Directors (as such terms are used in Rule14a-12(c) of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitations of proxies or consents by or on behalf of a person other than the Board, then such individual shall not be considered an Incumbent Director; or
(iv) a merger, consolidation, reorganization or other business combination (a “Transaction”), as a result of which the stockholders of the Company immediately prior to such Transaction own directly or indirectly immediately following such Transaction less than 50% of the combined voting power of the outstanding voting securities of the entity resulting from such Transaction.
(g) “Change in Control Value” has the meaning set forth in Section 5(b).
(h) “Code” shall mean the Internal Revenue Code of 1986, as amended.
(i) “Committee” shall mean the Compensation Committee appointed by the Board.
(j) “Common Stock” shall mean the common stock of the Company, par value $0.01 per share.
(k) “Company” shall mean Abraxas Petroleum Corporation, a Nevada corporation, and any successor thereto.
(l) “Director” shall mean a member of the Board and, except with respect to the ability to vote on any issues before the Board or the delegation of authority from the Board, shall also be deemed to include advisory directors.
(m) “Effective Date” shall mean the date on which the Company’s stockholders have approved this Plan in accordance with applicable NASDAQ rules.
(n) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
(o) “Fair Market Value” shall mean the closing price per share of the Common Stock on the NASDAQ as to the date specified (or the previous trading day if the date specified is a day on which no trading occurred), or if NASDAQ shall cease to be the principal exchange or quotation system upon which the shares of Common Stock are listed or quoted, then such exchange or quotation system upon which the Company elects to list or quote its shares of Common Stock.
(p) “FLSA” shall mean the Fair Labor Standards Act of 1938, as amended.
(q) “Incumbent Director” has the meaning set forth in Section 2(f)(iii).
(r) “Independent Director” shall mean a Director who: (i) meets the independence requirements of the NASDAQ, or if the NASDAQ shall cease to be the principal exchange or quotation system upon which the shares of Common Stock are listed or quoted, then such exchange or quotation system upon which the Company elects to list or quote its shares of Common Stock; (ii) qualifies as an “outside director” under Section 162(m) of the Code; (iii) qualifies as a“non-employee director” underRule 16b-3 promulgated under the Exchange Act; and (iv) satisfies independence criteria under any other applicable laws or regulations relating to the issuance of Shares toNon-Employee Directors.
(s) “Maximum Annual Participant Award” shall have the meaning set forth in Section 6(b).
(t) “Misconduct” shall mean the removal from the Board for cause.
(u) “NASDAQ” shall mean the NASDAQ Stock Market.
(v) “Nominating and Corporate Governance Committee” shall mean the Nominating and Corporate Governance Committee appointed by the Board.
(w) “Non-Employee Director” shall mean a Director who is not a common law employee of the Company or any Subsidiary of the Company.
(x) “Option” shall mean a stock option granted pursuant to Section 10 of this Plan.
(y) “Optionee” shall mean a Participant who has been granted an Option.
(z) “Participant” shall mean anyNon-Employee Director granted an Award.
(aa) “Plan” shall mean this Abraxas Petroleum Corporation Amended and Restated 2005Non-Employee Directors Long-Term Equity Incentive Plan, including any amendments thereto.
(bb) “Reprice” shall mean the adjustment or amendment of the exercise price of Options or previously awarded whether through amendment, cancellation, replacement of grants or any other means.
(cc) “Restricted Stock” shall mean a grant of Shares pursuant to Section 11 of this Plan.
(dd) “Retirement” shall mean ceasing to be a Director pursuant to election by the Company’s stockholders or by voluntary resignation with the approval of the Board’s chair after having served continuously on the Board for at least six years.
(ee) “SEC” shall mean the Securities and Exchange Commission.
(ff) “Share” shall mean one share of Common Stock, as adjusted in accordance with Section 5 of this Plan.
(gg) “Subcommittee” shall have the meaning set forth in Section 3(d).
(hh) “Subsidiary” shall mean a “subsidiary corporation,” whether now or hereafter existing, as defined in Section 424(f) of the Code, a limited liability company, partnership or other entity in which the Company controls fifty percent (50%) or more of the voting power or equity interests, or an entity with respect to which the Company possesses the power, directly or indirectly, to direct or cause the direction of the management and policies of that entity, whether through the Company’s ownership of voting securities, by contract or otherwise.
(ii) “Transaction” has the meaning set forth in Section 2(f)(iv).
SECTION 3. Administration of this Plan.
(a) Authority. This Plan shall be administered by the Committee. The Committee shall have full and exclusive power to administer this Plan on behalf of the Board, subject to such terms and conditions as the Committee may prescribe. Notwithstanding anything herein to the contrary, the Committee’s power to administer this Plan, and actions the Committee takes under this Plan, shall be limited by the provisions set forth in the Committee’s charter, as such charter may be amended from time to time, and the further limitation that certain actions may be subject to review and approval by either the full Board or a panel consisting of all of the Independent Directors of the Company.
(b) Powers of the Committee. Subject to the other provisions of this Plan, the Committee shall have the authority, in its discretion:
(i) to determine the Participants, to whom Awards, if any, will be granted hereunder;
(ii) to grant Options and Restricted Stock to Participants and to determine the terms and conditions of such Awards, including the determination of the Fair Market Value of the Shares, the number of Shares to be represented by each Award and the vesting schedule, the exercise price, the timing of such Awards, and to modify or amend each Award, with the consent of the Participant when required;
(iii) to construe and interpret this Plan and the Awards granted hereunder;
(iv) to prescribe, amend, and rescind rules and regulations relating to this Plan, including the form of Award Agreement, and manner of acceptance of an Award, such as correcting a defect or
supplying any omission, or reconciling any inconsistency so that this Plan or any Award Agreement complies with applicable law, regulations and listing requirements and to avoid unanticipated consequences deemed by the Committee to be inconsistent with the purposes of this Plan or any Award Agreement;
(v) subject to compliance with Section 409A of the Code, to accelerate or defer (with the consent of the Participant) the exercise or vested date of any Award;
(vi) to authorize any person to execute on behalf of the Company any instrument required to effectuate the grant of an Award previously granted by the Committee; and
(vii) to make all other determinations deemed necessary or advisable for the administration of this Plan;
provided, that, no consent of a Participant is necessary under clauses (i) or (v) if a modification, amendment, acceleration, or deferral, in the reasonable judgment of the Committee confers a benefit on the Participant or is made pursuant to an adjustment in accordance with Section 5.
(c) Effect of Committee’s Decision. All decisions, determinations, and interpretations of the Committee shall be final and binding on all Participants, the Company (including its Subsidiaries), any stockholder and all other persons.
(d) Delegation. To the extent permitted by the Committee’s charter, as such charter may be amended from time to time, the Committee may delegate its authority and duties under this Plan to one or more persons other than its members to carry out its policies and directives, including the authority to grant Awards, subject to the limitations and guidelines set by the Committee, except that (i) the authority to grant or administer Awards with respect to persons who are subject to Section 16 of the Exchange Act, or to persons who are “covered employees” (within the meaning of Treasury Regulation, Section1.162-27(c)(2)), shall not be delegated by the Committee; and (ii) any such delegation shall satisfy any other applicable requirements of Rule16b-3 of the Exchange Act, or any successor provision. Any action by any such delegate(s) within the scope of such delegation shall be deemed for all purposes to have been taken by the Committee. Any person to whom such authority is granted shall continue to be eligible to receive Awards under this Plan, provided that such Awards are granted directly by the Committee without delegation.
(e) Compliance with Section 409A. The parties intend that this Plan and Awards be, at all relevant times, in compliance with (or exempt from) Code Section 409A and all other applicable laws, and this Plan shall be so interpreted and administered. In addition to the general amendment rights of the Company with respect to the Plan, the Company specifically retains the unilateral right (but not the obligation) to make, prospectively or retroactively, any amendment to this Plan or any related document as it deems necessary or desirable to more fully address issues in connection with compliance with (or exemption from) Code Section 409A of and other laws. In no event, however, shall this section or any other provisions of this Plan be construed to require the Company to provide anygross-up for the tax consequences of any provisions of, or payments under, this Plan. The Company and its affiliates shall have no responsibility for tax or legal consequences to any Participant (or beneficiary) resulting from the terms or operation of this Plan.
SECTION 4. Shares Subject to this Plan.
(a) Reservation of Shares. The shares of Common Stock reserved under this Plan shall be 2,900,000 shares of Common Stock. If an Award expires, is forfeited or becomes unexercisable for any reason without having been exercised in full, the undelivered Shares which were subject thereto shall, unless this Plan shall have been terminated, become available for future Awards under this Plan. The Shares may be authorized but unissued, or reacquired shares of Common Stock. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements of this Plan.
(b) Time of Granting Awards. The date of grant of an Award shall, for all purposes, be the date on which the Company completes the corporate action relating to the grant of such Award and all conditions to the grant have been satisfied, provided that conditions to the exercise of an Award shall not defer the date of grant. Notice of a grant shall be given to each Participant to whom an Award is so granted within a reasonable time after the determination has been made.
(c) Securities Law Compliance. Shares shall not be issued pursuant to the exercise of an Award unless the exercise of such Award and the issuance and delivery of such Shares pursuant thereto shall comply with all relevant provisions of law, including, without limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules and regulations promulgated under either such Acts, and the requirements of any stock exchange or quotation system upon which the Shares may then be listed or quoted, and shall be further subject to the approval of counsel for the Company with respect to such compliance.
SECTION 5. Adjustments to Shares Subject to this Plan.
(a) Adjustments. If the outstanding shares of Common Stock shall be changed into or exchanged for a different number or kind of shares of stock or other securities or property of the Company or of another corporation (whether by reason of merger, consolidation, recapitalization, reclassification, split up, combination of shares or otherwise), or if the number of such shares of Common Stock shall be increased by a stock dividend or stock split, there shall be substituted for or added to each share of Common Stock theretofore reserved for the purposes of this Plan, whether or not such shares are at the time subject to outstanding Awards, the number and kind of shares of stock or other securities or property into which each outstanding share of Common Stock shall be so changed or for which it shall be so exchanged, or to which each such share shall be entitled, as the case may be. Outstanding Awards shall also be considered to be appropriately amended as to price and other terms as may be necessary or appropriate to reflect the foregoing events. If there shall be any other change in the number or kind of the outstanding shares of Common Stock, or of any stock or other securities or property into which such Common Stock shall have been changed, or for which it shall have been exchanged, and if the Committee shall in its sole discretion determine that such change equitably requires an adjustment in the number or kind or price of the shares then reserved for the purposes of this Plan, or in any Award theretofore granted or which may be granted under this Plan, then such adjustment shall be made by the Committee and shall be effective and binding for all purposes of the Plan. In making any such substitution or adjustment pursuant to this Section 5, fractional shares may be ignored.
(b) Amendments. The Committee has the power, in the event of any Transaction, to (1) amend all outstanding Options to permit the exercise thereof in whole or in part at any time, or from time to time, prior to the effective date of any such Transaction or (2) to terminate each such Option as of such effective date and pay each holder of such Award an amount of cash per share equal to the excess, if any, of the Change in Control Value (as hereinafter defined) of the shares subject to such Option over the exercise price under such Options for such shares. For purposes of this subsection (b), the “Change in Control Value” shall be the per share price paid to stockholders of the Company in the Transaction, provided that in the event that the consideration offered to stockholders of the Company consists of anything other than cash, the Committee will determine, in its sole and absolute discretion, the fair cash equivalent portion of the consideration offered that is other than cash.
(c) No Other Adjustment. Except as expressly provided herein, no issuance by the Company of shares of any class, or securities convertible into shares of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares subject to an Award.
(d) Limitations under Code Section 409A. Notwithstanding as otherwise provided in this Section 5, no adjustment or amendment shall be taken under this Section 5 that:
(i) with respect to any Awards that are not subject to Code Section 409A as of the date of such action, would cause such Award to be subject to the requirements of Code Section 409A without satisfying such requirements; or
(ii) with respect to Awards subject to Code Section 409A, would constitute (i) a change in the time and form of payment under such Award, unless consented to by the Participant and otherwise satisfies the requirements of Treasury Regulation§1.409A-2(b), (ii) an acceleration of payment under the Award in prohibition of Code Section 409A(a)(3) and the regulations thereunder, taking into consideration the exceptions provided under Treasury Regulation§1.409A-3(j)(4) for certain accelerations, or (iii) a violation of Code Section 409A not otherwise referenced herein that would trigger adverse tax consequences for the Participant.
PART II
TERMS APPLICABLE TO ALL AWARDS
SECTION 6. General Eligibility; Maximum Annual Participant Award and Formula Awards.
(a) General Eligibility. Awards may be granted only to Participants who areNon-Employee Directors.
(b) Maximum Annual Participant Award. The aggregate number of Shares with respect to which an Award or Awards may be granted to any one Participant in any one taxable year of the Company (the “Maximum Annual Participant Award”) shall not exceed 100,000 shares of Common Stock (subject to adjustment as set forth in Section 5(a)) pursuant to the Awards to be granted pursuant to Section 6(c) and Section 6(d).
(c) Formula Awards. Each year at the first regular meeting of the Board of Directors immediately following the Company’s annual stockholders meeting for that year, eachNon-Employee Director at the time of such Board meeting, shall be granted Awards of 25,000 shares of Common Stock (subject to adjustment as set forth in Section 5(a)), unless the Committee shall decide otherwise prior to or at such Board meeting. The Awards granted pursuant to this Section 6(c) are intended to compensate eachNon-Employee Director for thatNon-Employee Director’s participation in Board and Committee meetings during the Company’s previous calendar year. AnyNon-Employee Director who leaves the Board (including ceasing to be an advisory Director) prior to the date of the first regular meeting of the Board of Directors following the Company’s annual stockholders meeting for that year shall not be entitled to any Awards under this Section 6(c).
(d) Other Director Awards. ForNon-Employee Directors who are appointed to the Board after the Effective Date of the Plan, the Board may grant an Award to theNon-Employee Director and the terms and conditions of that grant shall be determined by the Committee. In addition, at any other time, the Board may grant an Award to aNon-Employee Director and the terms and conditions of that grant shall be determined by the Committee. The Awards granted pursuant to this Section 6(d) are intended to compensate eachNon-Employee Director for thatNon-Employee Director’s commitment to the Board of Directors by aligning the long-term interests of the Company’s Directors with those of the Company’s stockholders.
SECTION 7. Procedure for Exercise of Awards; Rights as a Stockholder.
(a) Procedure. An Award shall be exercised when written, electronic or verbal notice of exercise has been given to the Company, or the brokerage firm or firms approved by the Company to facilitate exercises and sales under this Plan, in accordance with the terms of the Award by the person entitled to exercise the Award and full payment for the Shares with respect to which the Award is exercised has been received by the Company or the brokerage firm or firms, as applicable. The notification to the brokerage firm shall be made in accordance with procedures of such brokerage firm approved by the Company. Full payment may, as authorized by the Committee, consist of any consideration and method of payment allowable under Section 7(b) of this Plan. The Company shall issue (or cause to be issued) such share certificate promptly upon exercise of the Award. No adjustment will be made for a dividend or other right for which the record date is prior to the date the share certificate is issued, except as provided in Section 5 of this Plan.
(b) Method of Payment. The consideration to be paid for any Shares to be issued upon exercise or other required settlement of an Award must be paid by cash, check or wire transfer of immediately available funds.
(c) Withholding Obligations. To the extent required by applicable federal, state, local or foreign law, the Committee may and/or a Participant shall make arrangements satisfactory to the Company for the satisfaction of any withholding tax obligations that arise with respect to any Option or Restricted Stock or any sale of Shares. The Company shall not be required to issue Shares or to recognize the disposition of such Shares until such obligations are satisfied.
(d) Stockholder Rights. Except as otherwise provided in this Plan, until the issuance (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company) of the share certificate evidencing such Shares, no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to the Shares subject to the Award, notwithstanding the exercise of the Award.
(e) Non-Transferability of Awards. An Award may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in exchange for consideration, except that an Award may be transferred by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Participant, only by the Participant; unless the Committee permits further transferability, on a general or specific basis, in which case the Committee may impose conditions and limitations on any permitted transferability.
SECTION 8. Expiration of Awards.
(a) Expiration, Termination or Forfeiture of Awards. Unless otherwise provided in the applicable Award Agreement or any severance agreement, vested Awards granted under this Plan shall expire, terminate, or otherwise be forfeited as follows:
(i) three (3) months after the date the Company delivers a notice of termination of a Participant’s Active Status, other than in circumstances covered by (ii), (iii) or (iv) below;
(ii) immediately upon termination of a Participant’s Active Status for Misconduct;
(iii) twelve (12) months after the date of the death of a Participant whose Active Status terminated as a result of his or her death; and
(iv) thirty-six (36) months after the date on which the Participant ceased performing services as a result of Retirement.
(b) Extension of Term. Notwithstanding subsection (a) above, the Committee shall have the authority to extend the expiration date of any outstanding Option in circumstances in which it deems such action to be appropriate; provided that in no event shall the termination date be extended beyond the earlier to occur of (x) the expiration date set forth in the Award Agreement and (y) the tenth anniversary of the date that the Award was granted.
SECTION 9. Effect of Change of Control. Notwithstanding any other provision in this Plan to the contrary, the following provisions shall apply unless otherwise provided in the most recently executed agreement between the Participant and the Company, or specifically prohibited under applicable laws, or by the rules and regulations of any applicable governmental agencies or national securities exchanges or quotation systems.
(a) Acceleration. Awards of a Participant shall be Accelerated (as defined in Section 9(b)) upon the occurrence of a Change of Control.
(b) Definition. For purposes of this Section 9, Awards of a Participant being “Accelerated” means, with respect to such Participant:
(i) any and all Options shall become fully vested and immediately exercisable, and shall remain exercisable throughout their entire term; and
(ii) any restriction periods and restrictions imposed on Restricted Stock shall lapse.
PART III
SPECIFIC TERMS APPLICABLE TO OPTIONS AND STOCK AWARDS
SECTION 10. Grant, Terms and Conditions of Options.
(a) Term of Options. The term of Options shall be at the discretion of the Committee but in no event shall the term be greater than ten (10) years.
(b) Option Exercise Prices. The per Share exercise price under an Option shall be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant. In no event shall the Board or the Committee be permitted to Reprice an Option after the date of grant without stockholder approval.
(c) Vesting. Options granted pursuant to this section 10 shall vest pursuant to the periods, terms and conditions determined by the Committee in its sole discretion. To the extent Options vest and become exercisable in increments, such Options shall cease vesting as of the termination of such Optionee’s Active Status for reasons other than Retirement or death, in each of which cases such Options shall immediately vest in full.
(d) Exercise. Any Option granted hereunder shall be exercisable at such times and under such conditions as determined by the Committee at the time of grant, and as are permissible under the terms of this Plan. An Option may not be exercised for a fraction of a Share.
SECTION 11. Grant, Terms and Conditions of Stock Awards.
(a) Designation. Restricted Stock may be granted either alone, in addition to, or in tandem with other Awards granted under this Plan. After the Committee determines that it will offer Restricted Stock, it will advise the Participant in writing or electronically, by means of an Award Agreement, of the terms, conditions and restrictions, including vesting, if any, related to the offer, including the number of Shares that the Participant shall be entitled to receive or purchase, the price to be paid, if any, and, if applicable, the time within which the Participant must accept the offer. The offer shall be accepted by execution of an Award Agreement or as otherwise directed by the Committee. The term of each award of Restricted Stock shall be at the discretion of the Committee.
(b) Vesting. The Committee shall determine the time or times within which an Award of shares of Restricted Stock may be subject to forfeiture, the vesting schedule and the rights to acceleration thereof, and all other terms and conditions of the Award. Subject to the applicable provisions of the Award Agreement and this Section 11, upon termination of a Participant’s Active Status for any reason, all Restricted Stock subject to the Award Agreement may vest or be forfeited in accordance with the terms and conditions established by the Committee as specified in the Award Agreement.
PART IV
TERM OF PLAN AND STOCKHOLDER APPROVAL
SECTION 12. Term of Plan.This Plan shall become effective as of the Effective Date. It shall continue in effect until the tenth anniversary of the Effective Date or until terminated under Section 14 of this Plan or extended by an amendment approved by the stockholders of the Company pursuant to Section 14.
SECTION 13. Amendment and Termination of this Plan.
(a) Amendment and Termination. The Board or the Committee may amend or terminate this Plan from time to time in such respects as the Board may deem advisable (including, but not limited, to amendments which the Board deems appropriate to enhance the Company’s ability to claim deductions related to stock option exercises); provided, that to the extent required by the Code or the rules of the NASDAQ, such other exchange upon which the Company’s Common Stock is either quoted or traded, or the SEC, stockholder approval shall be required for any material amendment of this Plan. Subject to the foregoing, it is specifically intended that the Board or Committee may amend this Plan without stockholder approval to comply with legal, regulatory and listing requirements and to avoid unanticipated consequences deemed by the Committee to be inconsistent with the purpose of this Plan or any Award Agreement.
(b) Effect of Amendment or Termination. Any amendment or termination of this Plan shall not affect Awards already granted and such Awards shall remain in full force and effect as if this Plan had not been amended or terminated, unless mutually agreed otherwise between the Participant and the Committee, which agreement must be in writing and signed by the Participant and the Company.
SECTION 14. Stockholder Approval. The effectiveness of this Plan is subject to approval by the stockholders of the Company in accordance with applicable NASDAQ rules, or the rules of such other exchange upon which the Company’s Common Stock is either quoted or traded at the time the Plan or any amendment becomes effective.
PART V
MISCELLANEOUS
SECTION 15. Unfunded Plan. The adoption of this Plan and any setting aside of amounts by the Company with which to discharge its obligations hereunder shall not be deemed to create a trust. The benefits provided under this Plan shall be a general, unsecured obligation of the Company payable solely from the general assets of the Company, and neither a Participant nor the Participant’s beneficiaries or estate shall have any interest in any assets of the Company by virtue of this Plan. Nothing in this Section 15 shall be construed to prevent the Company from implementing or setting aside funds in a grantor trust subject to the claims of the Company’s creditors. Legal and equitable title to any funds set aside, other than any grantor trust subject to the claims of the Company’s creditors, shall remain in the Company and any funds so set aside shall remain subject to the general creditors of the Company, present and future. Any liability of the Company to any Participant with respect to an Award shall be based solely upon contractual obligations created by this Plan and the Award Agreements.
SECTION 16. Representations and Legends.
(a) The Committee may require each person purchasing shares pursuant to an Award under this Plan to represent to and agree with the Company in writing that the purchaser is acquiring the shares without a view to distribution thereof. In addition to any legend required by this Plan, the certificate for such shares may include any legend which the Committee deems appropriate to reflect a restriction on transfer.
(b) All certificates for shares of Common Stock delivered under this Plan shall be subject to such stock transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations and other requirements of the SEC, any stock exchange upon which the Common Stock is listed, applicable federal or state securities laws, and any applicable corporate law, and the Committee may cause the legend or legends to be put on any such certificates to make appropriate reference to such restriction.
SECTION 17. Assignment of Benefits. No Award or other benefits payable under this Plan shall, except as otherwise provided under this Plan or as specifically provided by law, be subject in any manner to anticipation, alienation, attachment, sale, transfer, assignment, pledge, encumbrance or charge. Any attempt to anticipate, alienate, attach, sell, transfer, assign, pledge, encumber or charge, any such benefit shall be void, and any such benefit shall not in any manner be subject to the debts, contracts, liabilities, engagements or torts of any person who shall be entitled to such benefit, nor shall such benefit be subject to attachment or legal process for or against that person.
SECTION 18. Governing Laws. This Plan and actions taken in connection herewith shall be governed, construed and enforced in accordance with the laws of the State of Nevada.
SECTION 19. Application of Funds. The proceeds received by the Company from the sale of shares of Common Stock pursuant to Awards granted under this Plan will be used for general corporate purposes.
SECTION 20. Right of Removal. Nothing in this Plan or in any Award or Award Agreement shall confer upon anyNon-Employee Director or any other individual the right to continue as a Director of the Company, or affect any right the Company or the Company’s stockholders may have to remove theNon-Employee Director as a Director at any time for any reason.
Annual Meeting of Abraxas Petroleum Corporation
to be held on●, May●, 2017
for Holders of Record as of March 15, 2017
This Proxy is Being Solicited on behalf of the Board of Directors
| The undersigned stockholder of Abraxas Petroleum Corporation (the “Company”), hereby appoints Robert L.G. Watson and Geoffrey R. King, and each of them, as proxies andattorneys-in-fact, each with full power of substitution, and hereby authorizes them to represent and to vote, as instructed on the reverse side, all the shares of Abraxas common stock which the undersigned may be entitled to vote at the Annual Meeting of Stockholders to be held on May●, 2017, and any adjournment thereof, with all powers which the undersigned would possess if personally present, conferring authority upon such proxies to vote in their discretion on such other matters or postponement as may properly come before the meeting. This Proxy revokes any proxy heretofore given with respect to the Annual Meeting. The undersigned acknowledges receipt of the Notice of Annual Meeting of Stockholders and Proxy Statement of Abraxas dated April●, 2017. (Continued and to be signed on the reverse side) |
SEE REVERSE SIDE |
p TO VOTE BY MAIL, PLEASE DETACH HEREp
Please mark vote as indicated in this example | ☒ | THE BOARD OF DIRECTORS RECOMMENDS A VOTEFOR PROPOSALS 2, 3, 4, 5, 6 AND 8 AND FOR1 YEAR FOR PROPOSAL 7, ALL OF WHICH HAVE BEEN PROPOSED BY THE BOARD OF DIRECTORS. |
| 1. | To elect as directors to the Abraxas Board of Directors the three nominees below for a term of three years: | |
01 Robert L. G. Watson 02 Ralph F. Cox 03 Dennis E. Logue |
FOR ALL | WITHHOLD ALL | FOR ALL EXCEPT | ||||||
| ☐ | ☐ | ☐ |
| To withhold authority to vote for any individual nominee(s), mark “FOR ALL EXCEPT” and write the names of the nominee(s) on the line below. | ||
| FOR | AGAINST | ABSTAIN | ||||||
| (2) | To ratify the appointment of BDO USA, LLP as Abraxas’ independent registered public accounting firm for the year ending December 31, 2017. | ☐ | ☐ | ☐ | ||||
| (3) | To approve amendments to the Amended and Restated Abraxas Petroleum Corporation 2005 Employee Long-term Equity Incentive Plan to increase the total number of shares of common stock authorized for issuance under the plan from 10,600,000 to 12,600,000 and to change the acceleration of the vesting of awards under the plan upon a change of control of the company. | ☐ | ☐ | ☐ | ||||
| (4) | To approve an amendment to the Amended and Restated Abraxas Petroleum Corporation 2005Non-Employee Directors Long-Term Equity Incentive Plan to increase the total number of shares of common stock authorized for issuance under the plan from 1,900,000 to 2,900,000. | ☐ | ☐ | ☐ | ||||
| (5) | To approve an amendment to the Company’s Articles of Incorporation to increase the Company’s authorized shares of common stock from 200,000,000 shares to 400,000,000 shares. | ☐ | ☐ | ☐ | ||||
| (6) | To approve, by advisory vote, the compensation of the Company’s named executive officers. | ☐ | ☐ | ☐ | ||||
| (7) | To approve, by advisory vote, the frequency of future advisory votes on executive compensation. | |||||||
| 1 YEAR | 2 YEARS | 3 YEARS | ABSTAIN | |||||||
| ☐ | ☐ | ☐ | ☐ |
| (8) | To postpone or adjourn, if necessary or appropriate, the Annual Meeting to a later time to solicit additional proxies in favor of proposals 2 through 6 and for one year for proposal 7. | ☐ | ☐ | ☐ | ||||
| (9) | To transact any other business that has been properly brought before the meeting in accordance with the provisions of the Company’s Amended and Restated Bylaws. | |||||||
Authorized Signatures – This section must be completed of your instructions to be executed. | ||||||
| Date: | 2017 | |||||
| Please sign here | ||||||
| Please sign here | ||||||
| Title | ||||||
Please sign exactly as your name or names appear on this Proxy. When shares are held jointly, each holder should sign. When signing as executor, administrator, attorney, trustee or guardian, please give full title as such. If the signer is a corporation, please sign full corporate name by duly authorized officer, giving full title as such. If signer is a partnership, please sign in partnership name by authorized person. | ||||||
PLEASE COMPLETE, DATE, SIGN AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE
p TO VOTE BY MAIL, PLEASE DETACH HEREp
VOTE BY TELEPHONE OR INTERNET
QUICK * * *EASY * * *IMMEDIATE
Your telephone or internet vote authorizes the named proxies to vote your shares in the same manner as if you marked, signed and returned your proxy card by mail.
| VOTE BY INTERNET: | The web address iswww.proxyvoting.com/axas. You will be asked to enter a CONTROL NUMBER which is located in the lower right hand corner of this form. |
VOTE BY PHONE: You will be asked to enter a CONTROL NUMBER which is located in the lower right hand corner of this form
Call * * Toll Free * * On a Touch-Tone Telephone
1-800-730-7360
There is NO CHARGE to you for this call
| OPTION A: | You are encouraged to review each proposal and select a voting choice before you submit your proxy. Please press 0 in order to vote on each proposal separately. |
| OPTION B: | If you prefer not to select a voting choice with respect to each proposal you may press 1 to submit a proxy. If you select this option, your shares will be voted in accordance with the recommendations made by the Board of Directors. |
THANK YOU FOR VOTING.
CONTROL NUMBER
for Telephone/Internet Voting
