Exhibit 10.4
CHANGE-IN-CONTROL EXECUTIVE SEVERANCE AGREEMENT
This Change-in-Control Executive Severance Agreement (this “Agreement”), dated August ___, 2023 to be effective as of August 1, 2023 (the “Effective Date”), is made by and between PHX Minerals Inc., a Delaware corporation (the “Company”), and ______________ (the “Executive”).
Statement of Purpose
The Company desires, for its continued success, to have the benefit of services of experienced management personnel like the Executive. The Board of Directors of the Company therefore believes that it is in the best interest of the Company that, in the event of any prospective change-in-control of the Company, the Executive be reasonably secure in his employment and position with the Company, so that the Executive can exercise independent judgment as to the best interest of the Company and its stockholders, without distraction by any personal uncertainties or risks regarding the Executive’s continued employment with the Company created by the possibility of a change-in-control of the Company. The Board believes that this Agreement will create an environment that is best suited to maximizing stockholder value and retaining executive loyalty and focus when they are needed most and will further align the interests of the Executive with the interests of the Company’s stockholders.
Agreement
In consideration of the statements made in the Statement of Purpose, the continued service of the Executive and the mutual agreements set forth below, the Company and the Executive agree as follows:
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For purposes of this Section 2.2, no act or failure to act, on the part of the Executive, will be considered “willful” unless done, or omitted to be done, by the Executive not in good faith and without reasonable belief that the Executive’s action or omission was in the best interests of the Company. Any act, or failure to act, based on authority given pursuant to a resolution duly adopted by the Board, direction by the CEO, or based on the advice of counsel for the Company, will be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company.
the following:
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Provided, any Change-in-Control described in Sections 2.3.1 through 2.3.4 must also constitute a change in the ownership or effective control of a corporation, or a change in the ownership of a substantial portion of the assets of a corporation as defined under Treasury Regulation section 1.409A-3(i)(5). Any determination of whether an event constitutes a change in control of a corporation or effective control of a corporation, or a change in ownership of a substantial portion of the assets of a corporation must be objectively determinable and the certification of such an event by any party must be merely ministerial and objectively determinable under the standards in such Treasury Regulations.
Should any of the above conditions constituting “Good Reason” termination reasons exist, the Executive must notify the Company within ninety (90) days of the initial existence of such condition and permit the Company thirty (30) days from the date of such notice to cure the existence of the such “Good Reason” prior to exercising the Executive’s right to terminate employment for “Good Reason” resulting in the benefit payments under this Agreement.
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Notices provided in accordance with this Section 16.4 shall be deemed to have been delivered: (i) if personally delivered, upon delivery; (ii) if sent by facsimile transmission, upon electronic confirmation by the sender when received; (iii) if sent by overnight courier service, twenty four (24) hours after deposit with that service; or (iv) if sent by certified or registered mail, return receipt requested, forty eight (48) hours after deposit in the mail.
To Company: PHX Minerals Inc.
1320 S. University Dr., Ste. 720
Fort Worth, Texas 76107
Attention: Chief Executive Officer
Facsimile: 405.948.2038
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To the Executive: At the Executive’s current home address on file.
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[SIGNATURE PAGE FOLLOWS]
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In Witness Whereof, the parties have executed and delivered this Agreement as of the Effective Date.
“COMPANY” |
| PHX Minerals Inc. |
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| By: |
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| Name: Chad L. Stephens |
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| Title: President and Chief Executive Officer |
“EXECUTIVE” |
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| [NAME] |
ACKNOWLEDGED ON BEHALF OF THE BOARD BY:
By: |
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| Mark T. Behrman |
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| Non-Executive Chairman of the Board |
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[Signature Page to Change-in-Control Executive Severance Agreement]