AEMETIS, INC
10-Ks and 10-Qs
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934
Filed
by the Registrant ( X )
Filed
by a Party other than the Registrant ( )
Check
the appropriate box:
(
)
Preliminary Proxy
Statement
( )
Confidential, for
Use of the Commission Only (as permitted
byRule 14a-6(e)(2))
(X)
Definitive Proxy
Statement
(
)
Definitive
Additional Materials
( )
Soliciting Material Pursuant to
Section 240.14a-11(c) or
Section 240.14a-12
AEMETIS, INC.
-----------------------------------------------
(Name
of Registrant as Specified In Its Charter)
------------------------------------------------
(Name
of Person(s) Filing Proxy Statement if other than the
Registrant)
Payment
of Filing Fee (Check the appropriate box):
(X)
No fee
required.
(
)
Fee computed on
table below per Exchange Act Rules 14a-6(i) and
O-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 O-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 O-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 State No.:
3)
Filing
Party:
4)
Date
Filed:
ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON APRIL 20, 2017
March 17,
2017
Dear
Stockholder:
You are
invited to attend the Annual Meeting of Stockholders of Aemetis,
Inc. (the “Company,” “we” or
“our”), which will be held at the offices of Shearman
& Sterling LLP, 1460 El Camino Real, Menlo Park,
California 94025, on Thursday, April 20 , 2017, at
1:00 p.m. (Pacific Time).
We
discuss the matters to be acted upon at the meeting in more detail
in the attached Notice of Annual Meeting and Proxy Statement. There
are two specific items for which you are being asked to
vote:
●
To elect
two (2) members of the Board of Directors to hold office
for three-year terms, until their successors are duly elected and
qualified: and,
●
To ratify the
appointment of RSM US LLP as our independent registered public
accounting firm for the fiscal year ending December 31,
2017.
Our
Board of Directors recommends that you vote:
●
“FOR”
the two (2) individuals nominated for election to the Board of
Directors;
●
“FOR”
ratification of RSM US LLP as our independent registered public
accounting firm for fiscal year 2017.
We are
pleased to take advantage of the U.S. Securities and Exchange
Commission (the “SEC”) rules that allow companies to
furnish their proxy materials over the Internet. As a result, we
are mailing to our stockholders a Notice of Internet Availability
of Proxy Materials (the “Internet Availability Notice”)
instead of a paper copy of this proxy statement and our
Annual Report on Form 10-K for
the fiscal year ended December 31, 2016. We encourage you
to read the Company’s Annual Report on Form 10-K filed
with the SEC on
March 17 2017
,
which may be found on the Company web site at
www.aemetis.com
and at the SEC’s website at
www.sec.gov. It includes our audited financial statements and
information about our operations, markets and
products.
You can
vote by following the instructions included in the proxy statement
or by following the instructions detailed in the Internet
Availability Notice, as applicable.
Please read these instructions
carefully.
We hope
that you can attend the Annual Meeting. You may be requested to
present photo identification to gain admission to the Annual
Meeting. Whether or not you plan to attend, you can be sure that
your shares are represented at the meeting by promptly voting
by one of the methods provided. Any record stockholder
attending the Annual Meeting may vote in person, even if that
stockholder has returned a proxy or voted by telephone or the
Internet. Your vote is important, whether you own a few shares
or many.
If you
have questions concerning the Annual Meeting or your stock
ownership, please call our Corporate Secretary, Todd Waltz, at
(408) 213-0940. Thank you for your continued support of
Aemetis, Inc.
Very
truly yours,
/s/ Eric A. McAfee
Eric A.
McAfee
Chief
Executive Officer
This
document is dated March 17, 2017 and is being first
mailed to stockholders of Aemetis, Inc. on or about March 17,
2017.
20400 Stevens
Creek Blvd., Suite 700, Cupertino, CA 95014
Tel.:
(408) 213-0940 Fax: Fax:
(408) 252-8044
www.aemetis.com
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON APRIL 20, 2017
March 17,
2017
To the
Stockholders of
AEMETIS,
INC.:
NOTICE
IS HEREBY given that the 2017 Annual Meeting of Stockholders
(the “Annual Meeting”) of Aemetis, Inc. (the
“Company” or “Aemetis”) will be held at the
offices of Shearman & Sterling LLP, 1460 El Camino Real,
Menlo Park, California 94025 on Thursday, April 20,
2017 at 1:00 p.m. (Pacific Time) for the following
purposes:
1)
To elect two
(2) members of the Board of Directors to hold office for
three-year terms, until their successors are duly elected and
qualified;
2)
To ratify the
appointment of RSM US LLP as our independent registered public
accounting firm for the fiscal year ending December 31,
2017; and
3)
To transact such
other business as may properly come before the meeting and any
adjournment or postponement thereof.
The
Board of Directors has fixed the close of business on February 21,
2017 as the record date for determining the stockholders
entitled to receive notice of, and to vote at, the Annual Meeting
and any adjournments thereof. A complete list of such stockholders
will be available at the Company’s executive offices at
20400 Stevens Creek Blvd., Suite 700, Cupertino, CA 95014, for
ten days before the Annual Meeting.
Our
Board of Directors recommends that you vote:
●
“FOR”
the two (2) individuals nominated for election to the Board of
Directors; and,
●
“FOR”
ratification of RSM US LLP as our independent registered public
accounting firm for fiscal year 2017.
We are
pleased to take advantage of the U.S. Securities and Exchange
Commission rules that allow companies to furnish their proxy
materials over the Internet. As a result, we are mailing to our
stockholders a Notice of Internet Availability of Proxy Materials
(the “Internet Availability Notice”) instead of a paper
copy of this proxy statement and our Annual Report on
Form 10-K for the fiscal year ended December 31,
2016 (the “2016 Annual Report”). The Internet
Availability Notice contains instructions on how to access those
documents over the Internet. The Internet Availability Notice also
contains instructions on how to request a paper copy of our proxy
materials, including this proxy statement, our 2016 Annual
Report and a form of proxy card or voting instruction card, as
applicable. We believe that this process will reduce the costs of
printing and distributing our proxy materials and also provides
other benefits.
You are
encouraged to vote by following the instructions included in this
proxy statement or by following the instructions detailed in the
Internet Availability Notice, as applicable. If you are able to
attend the Annual Meeting and wish to vote in person, you may do so
whether or not you have returned your proxy or voted by
telephone or the Internet.
BY
ORDER OF THE BOARD OF DIRECTORS
/s/ Todd Waltz
Todd
Waltz
Corporate
Secretary
YOUR VOTE IS IMPORTANT, WHETHER YOU OWN A FEW SHARES OR
MANY.
20400 Stevens
Creek Blvd., Suite 700, Cupertino, CA 95014
Tel.:
(408) 213-0940 Fax: Fax:
(408) 252-8044
www.aemetis.com
AEMETIS, INC.
PROXY STATEMENT FOR ANNUAL MEETING OF STOCKHOLDERS
To be
held April 20, 2017
TABLE OF CONTENTS
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Page
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Information
Concerning Solicitation of Proxies and Voting
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1
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Board
of Directors Meetings and Committees
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7
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Proposal
1: Election of Directors
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7
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Proposal
2: Ratification of Auditors
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16
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Executive
Compensation
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17
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Employment
Contracts And Termination Of Employment And Change-In-Control
Arrangements
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19
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Equity
Compensation Plan Information
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22
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Security
Ownership by Certain Beneficial Owners and Management
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23
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Section 16(A) Beneficial
Ownership Reporting Compliance
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24
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Certain
Relationships And Related Transactions
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24
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Other
Matters
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26
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Householding
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26
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ii
PROXY STATEMENT FOR ANNUAL MEETING OF STOCKHOLDERS
To be held April 20, 2017
INFORMATION CONCERNING SOLICITATION OF PROXIES AND
VOTING
General
This
Proxy Statement is furnished in connection with the solicitation of
proxies by the Board of Directors of the Company (the
“Board”) for use at the Annual Meeting of Stockholders
of the Company (the “Annual Meeting”) to be held
on Thursday, April 20, 2017, or at any adjournment of the Annual
Meeting, for the purposes set forth herein and in the foregoing
Notice of Annual Meeting of Stockholders. The Annual Meeting will
be held at the offices of Shearman & Sterling LLP, 1460 El
Camino Real, Menlo Park, California 94025 on Thursday, April
20, 2017, at 1:00 p.m. (Pacific Time). The 2016 Annual
Report is also available from the Company, without charge, upon
request made in writing to the Company’s Corporate Secretary
at our executive offices at 20400 Stevens Creek Blvd., Suite
700, Cupertino, CA 95014, or online at
www.aemetis.com
. Your attention
is directed to the financial statements and Management’s
Discussion and Analysis in such 2016 Annual Report, which
provide additional important information concerning the Company.
This Proxy Statement, the related proxy card and the
2016 Annual Report are being first made available or otherwise
distributed to stockholders of Aemetis, Inc. on or about
March 17, 2017.
In
accordance with the rules and regulations adopted by the U.S.
Securities and Exchange Commission (the “SEC”), we have
elected to provide our stockholders access to our proxy materials
by providing access to such documents on the Internet. Accordingly,
a Notice of Internet Availability of Proxy Materials (the
“Internet Availability Notice”) has been mailed to our
stockholders. Stockholders that received the Internet Availability
Notice have the ability to access the proxy materials, including
this proxy statement, our 2016 Annual Report and a form of
proxy card or voting instruction card, as applicable, on a website
referred to in the Internet Availability Notice or to request that
a printed set of the proxy materials be sent to them, by following
the instructions in the Internet Availability Notice.
The
Internet Availability Notice also provides instructions on how to
inform us to send future proxy materials to you by mail. Your
election to receive proxy materials by mail will remain in effect
until you terminate it.
Important Notice Regarding the Availability of Proxy Materials for
the Stockholders’ Meeting to Be Held on April 20,
2017
The
Notice of Annual Meeting of Stockholders, proxy statement and
2016 Annual Report are available at www.iproxydirect.com/AMTX
free of charge.
QUESTIONS AND ANSWERS ABOUT THE PROXY MATERIALS AND OUR ANNUAL
MEETING
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Q:
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What is the purpose of the Annual Meeting?
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A:
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To vote on the following proposals:
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●
To elect two
(2) members of the Board of Directors to hold office for a
three-year term.
●
To ratify the
appointment of RSM US LLP as our independent registered public
accounting firm for the fiscal year ending December 31,
2017; and
●
To transact such
other business as may properly come before the meeting and any
adjournment or postponement thereof.
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Q:
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What are the Board of Director’s
recommendations?
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1
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A:
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The Board recommends a vote:
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●
“FOR”
the two (2) individuals nominated for election to the Board of
Directors;
●
“FOR”
ratification of RSM US LLP as our independent registered public
accounting firm for fiscal year 2017; and
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●
“FOR”
or “AGAINST” other matters that properly come before
the Annual Meeting, as the proxy holders deem
advisable.
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Q:
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Why did I receive an Internet Availability Notice instead of a full
set of the proxy materials?
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A:
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We are pleased to take advantage of the SEC rules that allow
companies to furnish their proxy materials over the Internet.
Accordingly, we sent to our stockholders the Internet Availability
Notice regarding Internet availability of the proxy materials for
this year’s Annual Meeting. Instructions on how to
access the proxy materials over the Internet or to request a paper
copy can be found in the Internet Availability Notice. In addition,
stockholders may request to receive proxy materials in printed form
by mail on an ongoing basis by submitting a request to our
Corporate Secretary at (408) 213-0940, by email at
twaltz@aemetis.com, or by writing to: Aemetis, Inc.,
20400 Stevens Creek Blvd., Suite 700, Cupertino, CA 95014,
attn.: Corporate Secretary. A stockholder’s election to
receive proxy materials by mail will remain in effect until the
stockholder terminates it.
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Q:
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Can I vote my shares by filling out and returning the Internet
Availability Notice?
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A:
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No. The Internet Availability Notice does, however, provide
instructions on how to vote your shares.
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Q:
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Who is entitled to vote at the meeting?
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A:
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Stockholders Entitled to Vote.
Stockholders who our records show
owned shares of Aemetis, Inc. as of the close of business on
February 21, 2017 (the “Record Date”) may vote at
the Annual Meeting. On the Record Date, we had a total of
19,696,447 shares of common stock issued and outstanding,
which were held of record by 277 stockholders. The stock transfer
books will not be closed between the Record Date and the date of
the Annual Meeting. As of the Record Date, we had
1,328,394 shares of Series B Preferred Stock, or preferred
stock, outstanding, which were held of record by 44 stockholders.
Each share of Aemetis, Inc. common stock is entitled to
one vote, and each holder of preferred stock is entitled to
the number of votes equal to the number of shares of common
stock into which the shares of preferred stock held by such
holder could be converted as of the Record Date. As of the Record
Date, holders of preferred stock are entitled to an aggregate of
132,844 votes (shares of preferred stock outstanding divided by 10
to reflect the reverse stock split) at the Annual Meeting, or one
vote for every ten shares of preferred
stock.
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Q:
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What is the difference between record stockholders and street name
stockholders?
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Registered Stockholders.
If
your shares are registered directly in your name with
Aemetis’s transfer agent, you are considered, with respect to
those shares, the stockholder of record, and the Internet
Availability Notice is being sent to you by Aemetis, Inc. As the
stockholder of record, you have the right to grant your voting
proxy directly to the individuals listed on the proxy card or to
vote by telephone or the Internet as instructed in the
Internet Availability Notice or in person at the Annual
Meeting.
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Street Name Stockholders.
If your shares are held in a
stock brokerage account or by a bank or other nominee, you are
considered, with respect to those shares, the beneficial owner
of shares held in street name. The Internet Availability
Notice is being forwarded to you by your broker or nominee, who is
considered, with respect to those shares, the record holder.
As the beneficial owner, you have the right to direct your broker
or nominee how to vote, and you are also invited to attend the
Annual Meeting. However, since you are not the record holder, you
may not vote these shares in person at the Annual Meeting
unless you follow your broker’s procedures for obtaining a
legal proxy. Your broker or nominee will provide a voting
instruction card for you to use.
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2
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Q:
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Can I attend the meeting in person?
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A:
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You are invited to attend the Annual Meeting if you are a
registered stockholder or a street name stockholder as of February
21, 2017. Y
ou may be requested to present photo
identification,
such as a
driver’s license or passport,
to gain admission to the
Annual Meeting
.
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Q:
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How can I vote my shares?
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A:
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Registered Stockholders:
Registered stockholders may vote in
person at the Annual Meeting or by one of the following
methods:
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By
Mail.
Complete, sign
and date the proxy card and return it in the prepaid envelope
provided.
●
By Fax.
Complete, sign and date the proxy card
and fax to 202-521-3464.
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By
Internet.
Go to
https://www.iproxydirect.com/AMTX and follow the
instructions.
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By
Telephone.
Call
1-866-752-VOTE (8683) and follow the
instructions.
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Please note that voting facilities for registered stockholders will
close at 11:59 pm (eastern time) on
April
19
,
2017.
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Street Name Stockholders:
If your shares are held by a
broker, bank or other nominee, you must follow the instructions on
the form you receive from your broker, bank or other nominee in
order for your shares to be voted. Please follow their
instructions carefully. Also, please note that if the holder of
record of your shares is a broker, bank or other nominee and
you wish to vote in person at the Annual Meeting, you must request
a legal proxy from the bank, broker or other nominee that holds
your shares and present that proxy and proof of identification
at the Annual Meeting to vote your shares.
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Based on the instructions provided by the broker, bank or other
holder of record of their shares, street name stockholders may
generally vote by one of the following methods:
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By Mail.
You may vote by signing, dating and
returning your voting instruction card in the enclosed
pre-addressed envelope;
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By Methods Listed on the
Voting Instruction Card.
Please refer to your voting
instruction card or other information forwarded by your bank,
broker or other holder of record to determine whether you may vote
by the Internet, telephone, mail or fax, and follow the
instructions on the voting instruction card or other information
provided by the record holder; or
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●
In Person with a Legal Proxy
from the Record Holder.
A street name stockholder who wishes
to vote at the Annual Meeting will need to obtain a legal proxy
from his or her bank or brokerage firm. Please consult the voting
instruction card sent to you by your bank or broker to determine
how to obtain a legal proxy in order to vote in person at the
Annual Meeting.
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Q:
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If I sign a proxy, how will it be voted?
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A:
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When proxies are properly delivered, the shares represented by
such proxies will be voted at the Annual Meeting in accordance with
the instructions of the stockholder. However, if no specific
instructions are given, the shares will be voted in accordance
with the above recommendations of our Board of Directors. If any
matters not described in the proxy statement are properly presented
at the Annual Meeting, the proxy holders will use their own
judgment to determine how to vote your shares. If the Annual
Meeting is adjourned, the proxy holders can vote your shares
on the new meeting date as well, unless you have revoked your proxy
instructions, as described below under “Can I change my
vote?”
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3
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Q:
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What should I do if I get more than one set of voting
materials?
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A:
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Stockholders may receive more than one set of voting
materials, including multiple Internet Availability Notices or
voting instruction cards. For example, stockholders who
hold shares in more than one brokerage account may
receive a separate voting instruction card for each brokerage
account in which shares are held. Stockholders of record
whose shares are registered in more than one name will
receive more than one Internet Availability Notice. You should
vote in accordance with the instructions in each Internet
Availability Notice and voting instruction card you receive
relating to our Annual Meeting to ensure that all of
your shares are voted.
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Q:
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Can I change my vote?
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A:
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Registered Stockholders:
You may change your vote at any time
prior to the vote at the Annual Meeting. To revoke your proxy
instructions and change your vote if you are a holder of record,
you must (i) attend the Annual Meeting and vote
your shares in person, (ii) advise Todd Waltz, the
Company’s Corporate Secretary, at our principal executive
office in writing before the proxy holders vote your shares,
or (iii) deliver later dated proxy instructions in one of
the manners authorized and described in this proxy statement (such
as via the Internet or by telephone).
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Street Name Stockholders:
If
you hold your shares through a broker, bank or other nominee,
please follow the instructions provided by your broker, bank or
other nominee as to how you may change your vote or obtain a
“legal proxy” to vote your shares if you wish to
cast your vote in person at the Annual Meeting.
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Q:
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What happens if I decide to attend the Annual Meeting but I have
already voted or submitted a proxy covering
my shares?
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A:
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You may attend the meeting and vote in person even if you have
already voted or submitted a proxy. Please be aware that attendance
at the Annual Meeting will not, by itself, revoke a proxy. If a
bank, broker or other nominee holds your shares and you wish
to attend the Annual Meeting and vote in person, you must obtain a
“legal proxy” from the record holder of the shares
giving you the right to vote the shares.
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4
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Q:
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What is the voting requirement to approve each of the
proposals?
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A:
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●
Proposal
No. 1: Directors are elected by a plurality vote. The two
(2) nominees for director who receive the most votes cast in
their favor will be elected to serve as directors.
●
Proposal
No. 2: Must be approved by the affirmative vote of a majority
of the shares entitled to vote and present in person or
represented by proxy at the Annual Meeting.
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Q:
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What are “broker non-votes?”
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A broker non-vote occurs when shares held by a broker are not voted
with respect to a particular proposal because the broker does not
have discretionary authority to vote on the matter and has not
received voting instructions from its clients. If your broker holds
your shares in its name and you do not instruct your broker how to
vote, your broker will only have discretion to vote your shares on
"routine" matters. Where a proposal is not "routine," a broker who
has not received instructions from its clients does not have
discretion to vote its clients' uninstructed shares on that
proposal. At our Annual Meeting, the Company believes
that only Proposal No. 2 (ratifying the appointment of our
independent registered public accounting firm) is considered a
routine item. This means that brokers may vote in their discretion
on this matter on behalf of clients who have not furnished voting
instructions. Brokers who have not been furnished voting
instructions from their clients will not be authorized to vote in
their discretion on the “non-routine” matter found in
Proposals No. 1. Accordingly, for beneficial stockholders, if
you do not give your broker specific instructions, your shares
may not be voted on such proposal.
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Q:
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How are abstentions and broker non-votes counted?
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Abstentions and broker non-votes will be counted for purposes of
calculating whether a quorum is present at the Annual Meeting and
will be counted for purposes of determining whether
proposals
requiring approval by the affirmative vote
of a majority of the shares
entitled to vote thereon or the affirmative vote of a majority of
the shares entitled to vote and present in person or
represented by proxy at the Annual Meeting. Thus,
abstentions and broker non-votes will have no effect on Proposal 1
and an abstention will be counted as a vote “AGAINST”
Proposal 2.
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Q:
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What constitutes a quorum?
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A:
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The Annual Meeting will be held if a majority of the outstanding
voting power of the Company, which includes shares of common
stock and preferred stock (with the preferred stock being counted
on an as-converted-to-common stock basis), is represented in person
or by proxy at the meeting. If you have returned valid proxy
instructions or attend the Annual Meeting in person, your stock
will be counted for the purpose of determining whether there is a
quorum, even if you wish to abstain from voting on some or all
matters at the meeting.
All shares of Aemetis common stock and preferred stock (with
the preferred stock being counted on an as converted to common
stock basis) represented at the Annual Meeting, including broker
non-votes and abstentions, will be counted for purposes of
determining the presence of a quorum.
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Q:
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How are votes counted?
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A:
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Aemetis will designate Issuer Direct as the Inspector of Election
who will tabulate the votes. The Inspector of Election will
separately count “FOR” and “AGAINST” votes,
abstentions and broker non-votes.
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Q:
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Who is making this solicitation?
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A:
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This proxy is being solicited on behalf of the Board of Directors
of Aemetis, Inc.
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Q:
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Who pays for the proxy solicitation process?
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A:
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Aemetis, Inc. will pay the cost of preparing, assembling, printing,
mailing, distributing and making available these proxy materials
and soliciting votes. We do not plan to retain a proxy solicitor to
assist with the solicitation. We may, on request, reimburse
brokerage firms and other nominees for their expenses in forwarding
or making available proxy materials to beneficial owners. In
addition to soliciting proxies by mail, we expect that our
directors, officers and employees may solicit proxies in person, by
phone or by other electronic means. None of these
individuals will receive any additional or special compensation for
doing this, although we will reimburse these individuals for their
reasonable out-of-pocket expenses.
|
|
|
|
|
Q:
|
May I propose actions for consideration at
next year’s annual meeting of stockholders or nominate
individuals to serve as directors?
|
|
|
|
|
A:
|
You may present proposals for action at a future meeting only if
you comply with the requirements of the proxy rules established by
the SEC. In order for a stockholder proposal to be included in our
Proxy Statement and form of Proxy relating to the meeting for our
2018 Annual Meeting of Stockholders under Rule 14a-8 adopted
under Section 14(a) of Securities Exchange Act of 1934, as amended
(the “Securities Exchange Act”), the proposal must be
received by us no later than
5:00 p.m. (Pacific
Time) no later than the 90th day, and not earlier than
the 120th day, prior to the first anniversary of the mailing
of the notice for the preceding year’s annual meeting.
Accordingly, stockholder proposals intended to be presented in our
proxy materials for the 2018 Annual Meeting must be received
by Todd Waltz, Corporate Secretary, on or after November 17, 2017,
and prior to 5:00 p.m. (Pacific Time) on December 17,
2017 and must satisfy the requirements of the proxy rules
promulgated by the Securities and Exchange Commission.
You can also access our SEC filings, including our
2016 Annual Report, on our website at www.aemetis.com. The
information on our website is not a part of this Proxy
Statement.
|
|
|
|
|
Q:
|
How do I obtain a separate set of proxy materials or request a
single set for my household?
|
|
|
|
|
A:
|
If you share an address with another stockholder, have the same
last name, and do not participate in electronic delivery of proxy
materials, you will receive only one set of proxy materials
(including our Annual Report on Form 10-K and proxy
statement). If you wish to receive a separate proxy statement at
this time, please request the additional copy by contacting our
transfer agent, Corporate Stock Transfer, by telephone at
(303) 282-4800, or by facsimile at
(303) 282-5800
.
You may also request to receive a separate Annual Report and a
separate proxy statement by contacting our Corporate Secretary at
(408) 213-0940, by email at twaltz@aemetis.com, or by writing
to: Aemetis, Inc., 20400 Stevens Creek Blvd., Suite 700,
Cupertino, CA 95014, attn.: Corporate Secretary.
|
|
|
|
|
Q:
|
What if I have questions about lost stock certificates or need to
change my mailing address?
|
|
|
|
|
A:
|
You may contact our transfer agent, Corporate
Stock
Transfer
, by telephone
at
(303) 282-4800
or by
facsimile at
(303) 282-5800
if you have lost your stock certificate or need to
change your mailing address.
|
6
PROPOSAL ONE:
ELECTION OF DIRECTORS
The
Board of Directors currently consists of six (6) directors
classified into three separate classes, consisting of two (2)
directors each, with one class being elected each year to
serve a staggered three-year term. Under the current
Articles of Incorporation and Bylaws of the Company, directors
are elected annually at each annual meeting of stockholders and
until their respective successors are duly qualified and elected or
such earlier date of resignation or removal. Following the Annual
Meeting, the terms of office of the Class I, Class II and Class III
directors will expire in 2019, 2018 and 2020,
respectively.
BOARD OF DIRECTORS MEETINGS AND COMMITTEES
The
Board of Directors is presently composed of
six (6) members: Eric A. McAfee, Francis Barton, John
Block, Steven Hutcheson, Harold Sorgenti and Lydia I. Beebe.
Mr. McAfee serves as Chairman of the Board of Directors. There
are no family relationships between any director and executive
officer.
The
Board of Directors held 12 meetings during fiscal year
2016. Each director attended at least 75% of the aggregate number
of meetings of our Board of Directors and the committees on which
each director served during fiscal year 2016 and was eligible
to attend.
BOARD INDEPENDENCE
The
Board of Directors has determined that all directors standing for
reelection and all of its current directors except Eric A. McAfee,
who currently serves as Aemetis’ Chief Executive Officer, are
independent directors within the meaning set forth in the
Rules of The NASDAQ Stock Market LLC, as currently in
effect.
BOARD LEADERSHIP STRUCTURE AND BOARD’S ROLE IN RISK
OVERSIGHT
Our
Board retains flexibility to select its Chairman of the Board and
our Chief Executive Officer in the manner that it believes is in
the best interests of our stockholders. Accordingly, the Chairman
of the Board and the Chief Executive Officer may be filled by
one individual or two. The Board currently believes that
having Mr. Eric A. McAfee serve as both Chief Executive
Officer and Chairman of the Board is in the best interests of the
stockholders given Mr. McAfee’s extensive knowledge
of, years of service to and experience with, the Company. The
Board does not currently have a lead independent
director.
Both
the full Board and its committees oversee the various risks faced
by the Company. Management is responsible for the day-to-day
management of the Company’s risks and provides periodic
reports to the Board and its committees relating to those risks and
risk-mitigation efforts.
Board
oversight of risk is conducted primarily through the standing
committees of the Board, the members of which are independent
directors, with the Audit Committee taking a lead role on oversight
of financial risks and in interfacing with management on
significant risks or exposures and assessing the steps management
has taken to minimize such risks. The Audit Committee also is
charged with, among other tasks, oversight of management on the
Company’s guidelines and policies with respect to risk
monitoring, assessment and management. Members of the
Company’s management periodically report to the Audit
Committee regarding risks overseen by the Audit Committee,
including quarterly with respect to the Company’s internal
controls over financial reporting.
7
Set forth below is information regarding our directors as of
March 17, 2017, the class under which each director serves
and, assuming the reelection of the director nominees at the Annual
Meeting, the expiration of the term of such director:
|
Name
|
Age
|
Position
|
Director
Since
|
Classification
(Term Expiration)
|
|
Eric
A. McAfee
|
54
|
Chief
Executive Officer and Chairman of the Board
|
2006
|
Class
I (2019)
|
|
Francis
P. Barton
|
70
|
Director
|
2012
|
Class
I (2019)
|
|
John
R. Block
|
82
|
Director
|
2008
|
Class
III (2020)
|
|
Dr.
Steven W. Hutcheson
|
63
|
Director
|
2011
|
Class
II (2018)
|
|
Harold
Sorgenti
|
82
|
Director
|
2007
|
Class
II (2018)
|
|
Lydia
I. Beebe
|
64
|
Director
|
2016
|
Class
III (2020)
|
Eric A. McAfee
co-founded Aemetis, Inc. in
2005 and has served as its Chairman of the Board since
February 2006. Mr. McAfee was appointed Chief Executive
Officer of the Company in February 2007. Mr. McAfee
has been an entrepreneur, merchant banker, venture capitalist and
farmer/dairyman for more than 20 years. Since 1995,
Mr. McAfee has been the Chairman of McAfee Capital and since
1998 has been a principal of Berg McAfee Companies, an
investment company. Since 2000, Mr. McAfee has been a
principal of Cagan McAfee Capital Partners through which
Mr. McAfee has founded or acquired twelve energy and
technology companies. In 2003, Mr. McAfee co-founded Pacific
Ethanol, Inc. (NASDAQ: PEIX), a West Coast ethanol producer and
marketer. Mr. McAfee received a B.S. in Management from Fresno
State University in 1986 and served as Entrepreneur in
Residence of The Wharton Business School MBA Program in 2007.
Mr. McAfee is a graduate of the Harvard Business School
Private Equity and Venture Capital Program, and is a
1993 graduate of the Stanford Graduate School of Business
Executive Program. Mr. McAfee’s industry experience and
leadership skills qualify him for the position.
Francis Barton
was appointed to the Company’s
Board in August 2012. From 2008 to present,
Mr. Barton served as Chief Executive Officer in the consulting
firm Barton Business Consulting LLC. Prior to this, Mr. Barton
served as the Executive Vice President and Chief Financial Officer
of UTStarcom, Inc. from 2005 through 2008 and as a
director from 2006 through 2008. From 2003 to 2005,
Mr. Barton was Executive Vice President and Chief Financial
Officer of Atmel Corporation. From 2001 to 2003,
Mr. Barton was Executive Vice President and Chief Financial
Officer of Broadvision Inc. From 1998 to 2001, Mr. Barton
was Senior Vice President and Chief Financial Officer of Advanced
Micro Devices, Inc. From 1996 to 1998, Mr. Barton was
Vice President and Chief Financial Officer of Amdahl Corporation.
From 1974 to 1996, Mr. Barton worked at Digital Equipment
Corporation, beginning his career as a financial analyst and moving
his way up through various financial roles to Vice President and
Chief Financial Officer of Digital Equipment Corporation’s
Personal Computer Division. Mr. Barton holds a B.S. in
Interdisciplinary Studies with a concentration in Chemical
Engineering from Worcester Polytechnic Institute and an M.B.A. with
a focus in finance from Northeastern University. Mr. Barton
served on the board of directors of ON Semiconductor from
2008 to 2011. Mr. Barton has served on the Board of
Directors of SoSo Cards since January 2013. He is also serving
on the board of directors of Inventergy since January 2014,
and is the Chairman of its Audit Committee, a member of its
Compensation, Governance and Nominating Committee and lead
independent director. Mr. Barton also served on the board of
directors of Etubics, Inc from 2014 to 2016, where he chaired the
Audit Committee.
Mr. Barton
serves as the Chairman of the Audit Committee and as a member of
the Governance, Compensation and Nominating Committee of the
Company. His experience as Executive Vice President and Chief
Financial Officer as well as his extensive financial background
qualify him for the position.
8
Lydia I. Beebe
was appointed to the Company’s
Board of Directors in November 2016.
Ms. Beebe is currently
Senior of Counsel for Wilson Sonsini Goodrich & Rosati PC, a
legal services firm. Prior to this, Ms. Beebe served as Chief
Governance Officer and
Corporate
Secretary of one of the
world’s leading energy companies, Chevron Corporation from
2007 – 2015. Ms. Beebe began her career as a staff attorney
for Chevron Corporation in 1977. From 1981 – 1985, Ms. Beebe
became a Washington D.C. Representative representing Chevron with
the Executive Branch and the House of Representatives. Returning to
California, Ms. Beebe worked her way up through the Office of Chief
Tax Counsel from 1985 – 1995, becoming the Senior Managing
Attorney - State and Excise Tax. In 1995, Ms. Beebe was promoted to
Corporate Secretary and an Officer of the company, the first female
corporate officer in Chevron’s 127-year history. Ms. Beebe
remained Corporate Secretary until 2007 when she also became the
Chief Governance Officer until she retired in 2015. Ms. Beebe holds
a B. S. in journalism from University of Kansas, a J.D. from the
University of Kansas, as well as a M.B.A. from Golden Gate
University. Ms. Beebe served on the board of directors of HCC
Insurance Holdings, Inc. (NYSE:HCC) in 2015, and currently serves
on the Boards of Stanford University’s Rock Center for
Corporate Governance, and University of Delaware’s Weinberg
Center for Corporate Governance. She previously served on the
boards of the Council of Institutional Investors, Presidio Trust,
and California Fair Employment & Housing Commission. Ms. Beebe
serves on the Company’s Audit and Governance Compensation and
Nominating Committees. Her extensive experience in the energy
business and her expertise in corporate governance qualify her for
the position.
John R. Block
has served as a member of the
Company’s Board of Directors since October 2008.
From 1981 to 1986, Mr. Block served as United
States Secretary of Agriculture under President Ronald Reagan. He
is currently an Illinois farmer and a Senior Policy Advisor to
Olsson Frank Weeda Terman Bode Matz PC, an organization that
represents the food industry, a position Mr. Block has held
since January 2005. From January 2002 until
January 2005, he served as Executive Vice President at the
Food Marketing Institute, an organization representing food
retailers and wholesalers. From February 1986 until
January 2002, Mr. Block served as President of Food
Distributors International. Mr. Block is currently a member of
the board of directors of Digital Angel Corporation and
Metamorphix, Inc. Mr. Block previously served on the board of
directors of each of Deere and Co., Hormel Foods Corporation and
Blast Energy Services, Inc. Mr. Block received his Bachelor of
Arts degree from the United States Military Academy. Mr. Block also
serves as a member of the Company’s Audit Committee. His
experience with agricultural commodities and his understanding of
political affairs qualify him for the position.
Dr. Steven W. Hutcheson
was appointed to the Company’s
Board of Directors in July 2011. From 1984 to present,
Dr. Hutcheson served as a Professor for the University of Maryland
in the Department of Molecular and Cell Biology. He also served as
Founder, Chief Executive Officer from 2006 to 2008 and
Chief Technical Officer of Zymetis, Inc. until its acquisition by
Aemetis on July 1, 2011. Dr. Hutcheson received his A.B.
in Biology from the University of California at Santa Cruz and his
Ph.D. in Plant Physiology from the University of California at
Berkeley. Dr. Hutcheson also serves as a member of the
Governance, Compensation and Nominating Committee. His deep
technical understanding of the impact of molecular and cell biology
and his ability to assess the technical aspects of commercializing
these microbes qualify him for the position.
Harold Sorgenti
was appointed to the Company’s
Board of Directors in November 2007. Since 1998, Mr. Sorgenti has
been the principal of Sorgenti Investment Partners, a company
engaged in pursuing chemical investment opportunities. Sorgenti
Investment Partners acquired the French ethanol producer
Societè d’Ethanol de Synthëse (SODES) in
partnership with Donaldson, Lufkin & Jenrette in 1998. Prior to
forming Sorgenti Investment Partners, Mr. Sorgenti served as
president of ARCO Chemical Company, including leadership of the
1987 initial public offering of the company. Mr. Sorgenti
is also the founder of Freedom Chemical Company. Mr. Sorgenti is a
former member of the board of directors of Provident Mutual Life
Insurance Co. and Crown Cork & Seal. Mr. Sorgenti received
his B.S. in Chemical Engineering from City College of New York in
1956 and his M.S. from Ohio State University in 1959.
Mr. Sorgenti is the recipient of honorary degrees from
Villanova, St. Joseph’s, Ohio State, and Drexel Universities.
Mr. Sorgenti also serves as the Chairman of the Governance,
Compensation and Nominating Committee and a member of the Audit
Committee of the Company. His prior experiences leading a public
chemical company, his knowledge of the chemical markets, and his
prior service as a board member qualify him for the
position.
9
NOMINEES
The Board of Directors approved John Block and
Lydia I. Beebe as nominees for election to the Board as Class III
directors at the Annual Meeting. If elected, John Block and Lydia
I. Beebe will serve as Class III directors
for three-year
terms expiring in 2020
. Each of the
nominees is currently a director of the Company. Please see above
for information concerning our incumbent directors standing for
re-election.
Unless
otherwise instructed, the proxy holders will vote the proxies
received by them FOR the nominees set forth above. If a nominee is
unable or declines to serve as a director at the time of the Annual
Meeting, the proxies will be voted for another nominee designated
by the Board of Directors. We are not aware of any reason that a
nominee would be unable or unwilling to serve as a
director.
COMMITTEES OF THE BOARD OF DIRECTORS
The
Board has the following standing committees: (1) Audit and
(2) Governance, Compensation and Nominating. The Board has
adopted a written charter for each of these committees, copies
of which can be found in the Investor Relations section of our
website at www.aemetis.com. The Board of Directors has determined
that all members of both committees of the Board are independent
under the applicable rules and regulations of NASDAQ and the
SEC, as currently in effect.
The
following chart details the current membership of each
committee:
|
Name of Director
|
|
Audit
|
|
Governance, Compensation and
Nominating
|
|
Harold Sorgenti
|
|
M
|
|
C
|
|
Francis Barton
|
|
C
|
|
M
|
|
John R. Block
|
|
M
|
|
|
|
Dr. Hutcheson
|
|
|
|
M
|
|
Lydia I. Beebe
|
|
M
|
|
M
|
|
M = Member
|
|
|
|
|
|
C = Chair
|
|
|
|
|
Audit Committee.
The
Audit Committee (i) oversees our accounting, financial
reporting and audit processes; (ii) appoints, determines the
compensation of, and oversees the independent auditors;
(iii) pre-approves audit and non-audit services provided by
the independent auditors; (iv) reviews the results and scope
of audit and other services provided by the independent auditors;
(v) reviews the accounting principles and practices and
procedures used in preparing our financial statements;
(vi) reviews our internal controls and (vi) oversees,
considers and approves related party transactions.
The
Audit Committee works closely with management and our independent
auditors. The Audit Committee also meets with our independent
auditors without members of management present, on a quarterly
basis, following completion of our auditors’ quarterly
reviews and annual audit and prior to our earnings announcements,
to review the results of their work. The Audit Committee also meets
with our independent auditors to approve the annual scope and fees
for the audit services to be performed.
10
Francis
Barton, John R. Block and Harold Sorgenti served as members of the
Audit Committee throughout 2016 with Mr. Barton serving as
Chairman. Lydia I. Beebe joined the Audit Committee in December
2016. Each of the Audit Committee members is an independent
director within the meaning set forth in the rules of the SEC and
NASDAQ, as currently in effect. Our Board has determined that all
current Audit Committee members meet the heightened independence
criteria of Rule 10A-3 of the Securities Exchange Act of
1934 applicable to Audit Committee members. In addition, the
Board of Directors has determined that Mr. Barton is an
“audit committee financial expert” as defined by SEC
and NASDAQ rules, as currently in effect.
A
copy of the Audit Committee’s written charter is
available in the Investor Relations section of our website at
www.aemetis.com. The Audit Committee held
six (6) meetings during fiscal year 2016. Each
director (with the exception of Lydia I. Beebe) who is a member of
the Audit Committee attended at least 75% of the aggregate number
of meetings of the Audit Committee during fiscal year
2016.
AUDIT COMMITTEE REPORT
The
following is the report of the Audit Committee of the Board of
Directors.
Notwithstanding anything to the contrary set forth in any of the
Company’s previous or future filings under the Securities Act
of 1933, as amended, or the Securities Exchange Act of 1934, as
amended, that might incorporate filings made by the Company,
including this proxy statement, in whole or in part, the following
Audit Committee Report shall not be deemed to be “soliciting
material” or to be incorporated by reference into any prior
or future filings made by the Company.
The
Audit Committee has reviewed and discussed with management the
Company’s audited financial statements for the
fiscal year ended December 31, 2016. In addition, the
Audit Committee has discussed with our independent auditors the
matters required to be discussed by Statement on Auditing Standards
No. 61, as amended (Communications with Audit Committee). The
Audit Committee also has received the written disclosures and
the letter as required by the Public Company Accounting
Oversight Board
Rule 3526 “Communications with Audit Committees
Concerning Independence” and the Audit Committee has
discussed with the independent auditors the independence of that
firm.
Based
on the Audit Committee’s review of the matters noted above
and its discussions with the Company’s independent auditors
and management, the Audit Committee recommended to the Board of
Directors that the financial statements be included in the
Company’s 2016 Annual Report.
Respectfully submitted by:
Francis Barton (Chair)
Lydia I. Beebe
John R. Block
Harold Sorgenti
Governance, Compensation and Nominating Committee
The
Governance, Compensation and Nominating Committee (i) reviews
and approves corporate goals and objectives relevant to the chief
executive officer’s compensation, evaluates the chief
executive officer’s performance relative to goals and
objectives, and sets the chief executive officer’s
compensation annually; (ii) makes recommendations annually to
the Board with respect to non-chief executive officer compensation;
(iii) considers and periodically reports on matters relating
to the identification, selection and qualification of directors and
candidates nominated to the Board and its committees;
(iv) develops and recommends governance principles applicable
to the Company; and (v) oversees the evaluation of the Board
and management from a corporate governance
perspective.
11
Francis
Barton, Dr. Hutcheson and Harold Sorgenti served as members of
the Governance, Compensation and Nominating Committee throughout
2016 with Mr. Sorgenti serving as Chairman. Lydia I. Beebe
joined the Governance, Compensation and Nominating Committee in
December 2016. Each current member of the Governance, Compensation
and Nominating Committee is an independent director within the
meaning set forth in the rules of the SEC and NASDAQ, as currently
in effect, including after giving consideration to the factors
specified in the NASDAQ listing rules for compensation committee
independence.
The
Governance, Compensation and Nominating Committee considers
properly submitted stockholder recommendations for candidates for
membership on the Board as described below under
“Identification and Evaluation of Nominees for
Directors.” In evaluating such recommendations, the
Governance, Compensation and Nominating Committee seeks to achieve
a balance of knowledge, experience and capability on the Board and
to address the membership criteria set forth under “Director
Qualifications” below. Any stockholder recommendations
proposed for consideration by the Governance, Compensation and
Nominating Committee should include the candidate’s name and
qualifications for membership on the Board and should be addressed
to the attention of our Corporate Secretary — Re: Stockholder
Director Recommendation, at 20400 Stevens Creek Blvd., Suite 700,
Cupertino, CA 95014.
Director
Qualifications
. The
Governance, Compensation and Nominating Committee does not have any
specific, minimum qualifications that must be met by a Governance,
Compensation and Nominating Committee-recommended nominee, but uses
a variety of criteria to evaluate the qualifications and skills
necessary for members of our Board, including capability,
availability to serve, diversity, independence and other factors.
Under these criteria, members of the Board should have the highest
professional and personal ethics and values. A director should have
broad experience at the policy-making level in business,
government, education, technology or public interest. A director
should be committed to enhancing stockholder value and should have
sufficient time to carry out his or her duties, and to provide
insight and practical wisdom based on his or her past experience. A
director’s service on other boards of public companies should
be limited to a number that permits him or her, given their
individual circumstances, to perform their director duties
responsibly. Each director must represent the interests of Aemetis
stockholders.
Identification and
Evaluation of Nominees for Directors
. The Governance, Compensation and
Nominating Committee utilizes a variety of methods for identifying
and evaluating nominees for director. The Governance, Compensation
and Nominating Committee regularly assesses the appropriate size of
the Board and whether any vacancies on the Board are expected due
to retirement or otherwise. In the event that vacancies are
anticipated or otherwise arise, the Governance, Compensation and
Nominating Committee considers various potential candidates for
director. Candidates may come to the attention of the Governance,
Compensation and Nominating Committee through current members of
the Board, professional search firms, stockholders or other
persons. These candidates are evaluated at regular or special
meetings of the Governance, Compensation and Nominating Committee,
and may be considered at any point during the year. The
Governance, Compensation and Nominating Committee considers
properly submitted stockholder recommendations for candidates for
the Board. In evaluating such recommendations, the Governance,
Compensation and Nominating Committee uses the qualifications
standards discussed above and seeks to achieve a balance of
knowledge, experience and capability on the Board. Lydia I Beebe
came to the attention of the Committee through a professional
search firm.
A
copy of the Committee’s written charter is available in
the Investor / Governance section of our website at
www.aemetis.com. In 2016, the Governance, Compensation and
Nominating Committee held four (4) meetings. Each
director (with the exception of Lydia I. Beebe, who attended all
meetings of the Governance, Compensation and Nominating Committee
held after her appointment to the Board) who is a member of the
Governance, Compensation and Nominating Committee attended at least
75% of the aggregate number of meetings of the Committee during
fiscal year 2016.
12
Code of Business Conduct and Ethics
The
Board of Directors has adopted a Code of Business Conduct and
Ethics, which applies to our directors and all of our employees,
including our Chief Executive Officer, Chief Financial Officer and
any other principal financial officer, Controller and any other
principal accounting officer, and any other person performing
similar functions. The Code of Business Conduct and Ethics is
posted on our website at www.aemetis.com in the Governance
section of our investor relations webpage. The code of ethics
addresses, among other things, honesty and ethical conduct,
conflicts of interest, compliance with laws, regulations and
policies, including disclosure requirements under the federal
securities laws, confidentiality, trading on inside information,
and reporting of violations of the code. Aemetis will disclose any
amendment to the Code of Ethics or waiver of a provision of the
Code of Ethics that applies to the Company’s Chief Executive
Officer, Chief Financial Officer and any other principal financial
officer, Controller and any other principal accounting officer, and
any other person performing similar functions and relates to
certain elements of the Code of Business Conduct and Ethics,
including the name of the officer to whom the waiver was granted,
on our website at www.aemetis.com, on our investor relations
webpage.
Compensation Committee Interlocks and Insider
Participation
During fiscal year 2016, no member of the
Governance, Compensation and Nominating Committee was an officer or
employee of the Company or had any relationship requiring
disclosure under
“
Certain Relationships and Related
Transaction” below. In addition, no member of the Governance,
Compensation and Nominating Committee or executive officer of the
Company served as a member of the board of directors or
compensation committee of any entity that has an executive officer
serving as a member of our Board or Governance, Compensation and
Nominating Committee.
Relationship of Compensation Practices to Risk
Management
The
Company has reviewed and considered all of its compensation
plans and practices and does not believe that its compensation
policies and practices create risks that are reasonably likely to
have a material adverse effect on the Company.
Legal Proceedings
None
Annual Meeting Attendance
We
do not have a formal policy regarding attendance by members of the
Board at our annual meetings of stockholders although directors are
encouraged to attend annual meetings of Aemetis’
stockholders. Other than Mr. McAfee, we did not have any directors
at the annual meeting of stockholders in 2016.
Communications with the Board of Directors
Although
we do not have a formal policy regarding communications with the
Board, stockholders may communicate with the Board by submitting an
email to investors@aemetis.com or by writing to us at Aemetis,
Inc., Attention: Investor Relations, 20400 Stevens Creek
Blvd., Suite 700, Cupertino, CA 95014. Stockholders who would like
their submission directed to a member of the Board may so specify.
The Corporate Secretary will review all communications. All
appropriate business-related communications as reasonably
determined by the Corporate Secretary will be forwarded to the
Board or, if applicable, to the individual director.
13
DIRECTOR COMPENSATION (2016)
The
following table provides information regarding all compensation
awarded to, earned by or paid to each person who served as a
non-employee director of Aemetis, Inc. for some portion or all of
2016. Other than as set forth in the table and described more fully
below, Aemetis, Inc. did not pay any fees, make any equity or
non-equity awards, or pay any other compensation, to its
non-employee directors. All compensation paid to its employee
directors is set forth in the tables summarizing executive officer
compensation below.
|
Name
|
Fees Earned
or Paid in
Cash ($)
|
Stock
Awards
(1)(2)
($)
|
Total ($)
|
|
|
|
|
|
|
Harold
Sorgenti
|
91,750
|
92,468
|
184,218
|
|
John
R. Block
|
80,250
|
65,271
|
145,521
|
|
Dr.
Steven Hutcheson
|
80,000
|
65,271
|
145,521
|
|
Francis
Barton
|
107,000
|
92,468
|
199,468
|
|
Lydia
I. Beebe
|
13,250
|
12,203
|
25,495
|
———————
(1)
The amounts in this
column represent the aggregate grant date fair value under ASC
Topic 718. The assumptions made when calculating the amounts in
this table are found in Note 11 (Stock Based Compensation) of
the Notes to Consolidated Financial Statements in our
2016 Annual Report filed with the SEC on March 16,
2017.
(2)
For information regarding the aggregate number of
shares subject to all outstanding stock awards and option/warrant
awards held by each named individual at the end of fiscal year
2016, please see the table below titled “
Directors’ Outstanding
Equity Awards at Fiscal Year End (2016)”
on page [●].
In
2007, the Board adopted a director compensation policy pursuant to
which each non-employee director is paid an annual cash retainer of
$75,000 and a cash payment of $250 per Board or committee
meeting attended telephonically and a cash payment of $500 per
Board or committee meeting attended in person. In addition, each
non-employee director is initially granted an option exercisable
for 10,000 shares of the Company’s common stock, which
vests quarterly over two years subject to continuing services
to the Company. In addition, an annual cash retainer of
$10,000 is paid to the chairman of the Governance,
Compensation and Nominating Committee and an annual cash retainer
of $20,000 is paid to the chairman of the Audit
Committee.
14
DIRECTORS’ OUTSTANDING EQUITY AWARDS AT FISCAL YEAR END
(2016)
The
following table shows all outstanding equity awards held by each
person serving as a director of Aemetis, Inc. at the end of
2016.
|
|
|
Option/Warrant Awards
|
|||
|
Name
|
Award
Date
|
No. of
Securities
underlying unexercised
options/ warrants (#) exercisable
|
No. of
securities underlying unexercised
options/ warrants (#) unexercisable
|
Option/
warrant
exercise
price ($)
|
Option/
warrant
expiration
date
|
|
Francis
Barton
|
01/19/17
|
50,000
(2)
|
|
1.72
|
01/19/27
|
|
05/19/16
|
51,000
(2)
|
-
|
2.54
|
5/21/26
|
|
|
12/10/15
|
15,000
(1)
|
-
|
2.59
|
12/10/25
|
|
|
12/15/14
|
5,333
(2)
|
2,667
(2)
|
4.66
|
12/15/19
|
|
|
03/13/14
|
7,293
(2)
|
5,207
(2)
|
4.20
|
3/12/19
|
|
|
08/02/13
|
25,000
(1)
|
-
|
4.00
|
8/3/18
|
|
|
03/14/13
|
9,250
(2)
|
750
(2)
|
6.50
|
3/13/18
|
|
|
11/05/12
|
30,000
(3)
|
-
|
5.50
|
11/05/17
|
|
|
|
|
|
|
|
|
|
Lydia
I. Beebe
|
01/19/17
|
15,000
(2)
|
|
1.72
|
01/19/27
|
|
11/17/16
|
10,000
(5)
|
-
|
2.54
|
5/21/26
|
|
|
|
|
|
|
|
|
|
John
R. Block
|
01/19/17
|
35,000
(2)
|
|
1.72
|
01/19/27
|
|
05/19/16
|
36,000
(2)
|
-
|
2.54
|
5/21/26
|
|
|
12/10/15
|
10,000
(1)
|
-
|
2.59
|
12/10/25
|
|
|
12/15/14
|
3,333
(2)
|
1,667
(2)
|
4.66
|
12/15/19
|
|
|
03/13/14
|
5,834
(2)
|
4,166
(2)
|
4.20
|
3/12/19
|
|
|
08/02/13
|
20,000
(1)
|
-
|
4.00
|
8/3/18
|
|
|
03/14/13
|
9,250
(2)
|
750
(2)
|
6.50
|
3/13/18
|
|
|
11/05/12
|
20,000
(3)
|
-
|
5.50
|
11/05/17
|
|
|
|
|
|
|
|
|
|
Dr.
Steven Hutcheson
|
01/19/17
|
31,250
(2)
|
|
1.72
|
01/19/27
|
|
05/19/16
|
36,000
(2)
|
-
|
2.54
|
5/21/26
|
|
|
12/10/15
|
10,000
(1)
|
-
|
2.59
|
12/10/25
|
|
|
12/15/14
|
3,333
(2)
|
1,667
(2)
|
4.66
|
12/15/19
|
|
|
03/13/14
|
5,834
(2)
|
4,166
(2)
|
4.20
|
3/12/19
|
|
|
08/02/13
|
20,000
(1)
|
-
|
4.00
|
8/3/18
|
|
|
03/14/13
|
9,250
(2)
|
750
(2)
|
6.50
|
3/13/18
|
|
|
11/05/12
|
20,000
(4)
|
-
|
5.50
|
11/05/17
|
|
|
|
|
|
|
|
|
|
Harold
Sorgenti
|
01/19/17
|
40,000
(2)
|
|
1.72
|
01/19/27
|
|
05/19/16
|
51,000
(2)
|
|
2.54
|
5/21/26
|
|
|
12/10/15
|
15,000
(1)
|
-
|
2.59
|
12/10/25
|
|
|
12/15/14
|
5,333
(2)
|
2,667
(2)
|
4.66
|
12/15/19
|
|
|
03/13/14
|
7,293
(2)
|
5,207
(2)
|
4.20
|
3/12/19
|
|
|
08/02/13
|
25,000
(1)
|
-
|
4.00
|
8/3/18
|
|
|
03/14/13
|
9,250
(2)
|
750
(2)
|
6.50
|
3/13/18
|
|
|
11/05/12
|
20,000
(3)
|
-
|
5.50
|
11/05/17
|
|
———————
1.
Warrants fully
vested on the date of grant
.
2.
One-twelfth
(1/12) of the shares subject to the option vest every
three months following the date of grant.
3.
10,000 shares shall
vest on date of the grant, one-eighth (1/8) of the remaining shares
subject to the option shall vest every three months from the date
of grant.
4.
6,250 shares shall
vest on date of the grant, one-eighth (1/8) of the remaining shares
subject to the option shall vest every three months from the date
of grant.
5.
One-eighth (1/8) of
the shares subject to the option vest every three months
following the date of grant.
VOTE REQUIRED
If
a quorum is present, the nominees receiving the highest number of
votes will be elected to the Board. Abstentions and broker
non-votes will have no effect on the election of directors. Proxies
may not be voted for a greater number of persons than the number of
nominees named.
BOARD RECOMMENDATION
THE
BOARD RECOMMENDS A VOTE “FOR” THE ELECTION OF THE TWO
(2) NOMINEES.
15
PROPOSAL TWO:
RATIFICATION OF AUDITORS
The
Board has selected RSM US LLP as the Company’s independent
auditors to audit the financial statements of the Company and its
subsidiaries for the year ending December 31, 2017. The Board
recommends that stockholders vote for ratification of such
appointment. Although ratification by stockholders is not required
by law nor binding on the Board, the Board has determined that it
is desirable to request ratification of this selection by the
stockholders. Notwithstanding the selection, the Board, in its
discretion, may direct the appointment of new independent auditors
at any time during the year. If the Board feels that such a change
would be in the best interest of the Company and it stockholders.
In the event of a negative vote on ratification, the Board will
reconsider its selection. The aggregate fees billed for services
rendered by RSM US LLP during the years ended December 31, 2016 and
2015 are described below under the caption “Principal
Accountant Fees and Services.” Representatives of RSM US LLP
will be present at the annual Meeting and will be given the
opportunity to make a statement if they so desire and to respond to
appropriate questions.
Principal Accountant Fees and Services
Auditor Fee and Services in Fiscal Years 2016 and 2015
RSM US
LLP was appointed as our registered independent public accountant
on May 21, 2012. The fees billed by RSM LLP for the audits of the
2016 and 2015 financial statements are as follows:
|
|
2016
|
2015
|
|
Audit
Fees
|
$
270,000
|
$
270,000
|
|
Audit-Related
Fees
|
40,500
|
--
|
|
Total Audit and
Audit-Related Fees
|
310,500
|
270,000
|
Audit
Fees consist of fee billed for professional services rendered for
the audit of the company’s consolidated annual financial
statements and review of the interim consolidated financial
statements included in quarterly reports and services that are
normally provided by RSM US LLP in connection with statutory and
regulatory filings or engagements.
Audit-Related Fees
consist of assistance provided with respect to SEC comment letters
and securities offerings.
Audit Committee’s Pre-Approval Policies and
Procedures
Consistent with
policies of the SEC regarding auditor independence and the Audit
Committee Charter, the Audit Committee has the responsibility for
appointing, setting compensation and overseeing the work of the
registered independent public accounting firm (the
“Firm”). The Audit Committee’s policy is to
pre-approve all audit and permissible non-audit services provided
by the Firm. Pre-approval is detailed as to the particular service
to category of services and is generally subject to a specific
budget. The Audit Committee may also pre-approve particular
services on a case-by-case basis. In assessing request for services
by the Firm, the Audit Committee considers whether such services
are consistent with the Firm’s independence, whether the Firm
is likely to provide the most effective and efficient service based
upon their familiarity with the Company, and whether the service
could enhance the Company’s ability to manage or control risk
or improve audit quality.
In
fiscal years 2016 and 2015, all fees identified above under the
captions “Audit Fees,” and “Audit-Related
Fees,” that were billed by RSM US LLP were approved by
the Audit Committee in accordance with SEC
requirements.
VOTE REQUIRED
Approval of
Proposal No. 2 requires the affirmative vote of a
majority of the shares entitled to vote and present in person
or represented by proxy at the Annual Meeting. Abstentions will be
counted as votes “AGAINST” this proposal.
BOARD RECOMMENDATION
THE
BOARD RECOMMENDS THAT YOU VOTE “FOR” THE RATIFICATION
OF RSM US LLP AS THE COMPANY’S INDEPENDENT
AUDITORS.
16
EXECUTIVE COMPENSATION
NAMED EXECUTIVE OFFICERS
The
following table sets forth the name, age (as of March 17,
2017) and position of our named executive officers for
2016.
|
Name
|
|
Age
|
|
Position
|
|
Eric A. McAfee
|
|
54
|
|
Chief Executive Officer and Chairman of the Board
|
|
Todd A. Waltz
|
|
55
|
|
Executive Vice President, Chief Financial Officer and
Secretary
|
|
Andrew B. Foster
|
|
51
|
|
Executive Vice President and Chief Operating Officer
|
The
information provided below is biographical information about each
named executive officer, excluding Mr. McAfee. For information
concerning Mr. McAfee, see “Board Leadership Structure
and Board’s Role in Risk Oversight” above.
Andrew B. Foster
has served as Executive Vice President
of Aemetis, Inc. and President and Chief Operating Officer of
Aemetis Advanced Fuels Keyes, Inc., a wholly-owned subsidiary of
the Company, since June 2008. Mr. Foster joined American
Ethanol in March 2006. Mr. Foster served as Vice
President of Corporate Marketing for Marimba, Inc., an enterprise
software company, which was acquired by BMC Software in
July 2004. From July 2004 until April 2005,
Mr. Foster served as Vice President of Corporate Marketing for
the Marimba product line at BMC. In April 2005,
Mr. Foster was appointed Director of Worldwide Public
Relations for BMC and served in that capacity until
December 2005. From May 2000 until March 2003,
Mr. Foster served as Director of Corporate Marketing for
eSilicon Corporation, a fabless semiconductor company.
Mr. Foster also served as Associate Director of Political
Affairs at the White House from 1989 to 1992, and Deputy Chief
of Staff to Illinois Governor Jim Edgar from 1995 to 1998.
Mr. Foster holds a Bachelor of Arts degree in Political
Science from Marquette University in Milwaukee,
Wisconsin.
Todd A. Waltz
has served as our Executive Vice
President, Chief Financial Officer and Secretary since
March 2010. From 2007 until March 2010,
Mr. Waltz served as the Company’s Corporate Controller.
From 1994 to 2007, Mr. Waltz served in a variety of
senior financial management roles with Apple, Inc. in Cupertino,
CA. Prior to Apple, Mr. Waltz worked with Ernst & Young.
Until November 2013, Mr. Waltz served as Chief Executive
Officer and sole Board member of Vision Global Solutions, Inc.
(OTC: VIGS). Mr. Waltz is a Certified Public Accountant
(inactive) in the state of California. Mr. Waltz holds a
Bachelor of Arts degree from Mount Union College, an MBA from Santa
Clara University and a Master of Science degree in Taxation from
San Jose State University.
Each
executive officer is chosen by the Board and holds office until a
successor has been elected and qualified or until such
officer’s earlier death, resignation or removal.
17
SUMMARY COMPENSATION TABLE (2016)
The
following table sets forth information concerning compensation paid
or accrued for services rendered to the Company in all
capacities for the fiscal years 2015 and 2016 to the
named executive officers, which includes (i) the
Company’s Chief Executive Officer, (ii) the Company’s
other two most highly compensated executive officers who were
serving as executive officers at the end of fiscal year
2016.
|
Name and Principal Position
|
Year
|
|
Salary ($)
|
|
Bonus ($)
|
|
Option/ Warrant
Awards
(1)
($)
|
|
Total
Compensation ($)
|
|
Eric A. McAfee, Chief
(2)
Executive
Officer
|
2016
|
|
250,000
|
|
40,000
|
|
-
|
|
290,000
|
|
|
2015
|
|
250,000
|
|
-
|
|
-
|
|
250,000
|
|
|
|
|
|
|
|
|
|
|
|
|
Todd A. Waltz, Chief Financial Officer
|
2016
|
|
230,000
|
|
44,000
|
|
217,571
|
|
491,571
|
|
|
2015
|
|
230,000
|
|
16,000
|
|
90,085
|
|
336,085
|
|
|
|
|
|
|
|
|
|
|
|
|
Andrew B. Foster, Executive Vice President
|
2016
|
|
210,000
|
|
44,000
|
|
181,309
|
|
435,309
|
|
|
2015
|
|
210,000
|
|
16,000
|
|
90,085
|
|
316,085
|
———————
(1)
These amounts
reflect the value determined by the Company for accounting
purposes for these awards with respect to the current
fiscal year and do not reflect whether the recipient has
actually realized a financial benefit from the awards (such as by
exercising stock options or warrants). This column represents the
aggregate grant date fair value of stock options and warrants
granted during fiscal years 2015 and 2016 to each of
the named executive officers, in accordance with ASC Topic
718
Compensation
.
Pursuant to SEC rules, the amounts shown exclude the impact of
estimated forfeitures related to service-based vesting conditions.
The assumptions made when calculating the amounts in this column
are found in Note 11 (Stock Based Compensation) of the Notes
to Consolidated Financial Statements in Part II,
Item 8 of the 2016 Annual Report filed with the SEC
on March 17, 2017.
(2)
Mr. McAfee’s
compensation is solely for his services as an Executive Officer and
he does not receive any compensation for his services as Chairman
of the Board of Directors.
18
OUTSTANDING EQUITY AWARDS AT FISCAL YEAR END (2016)
The
following table shows all outstanding equity awards held by the
named executive officers at the end of fiscal year
2016.
|
|
|
Option/Warrant Awards
|
|||
|
Name
|
Award
Date
|
No. of
Securities
underlying unexercised
options/ warrants (#) exercisable
|
No. of
securities underlying unexercised
options/ warrants (#) unexercisable
|
Option/
warrant
exercise
price ($)
|
Option/
warrant
expiration
date
|
|
Todd
A. Waltz
|
01/19/17
|
-
|
100,000
(2)
|
1.72
|
01/19/27
|
|
05/19/16
|
20,000
(2)
|
100,000
(2)
|
2.54
|
5/21/26
|
|
|
12/10/15
|
6,667
(2)
|
13,333
(2)
|
2.59
|
12/10/25
|
|
|
5/21/15
|
10,000
(2)
|
10,000
(2)
|
4.35
|
5/21/22
|
|
|
12/15/14
|
6,667
(2)
|
3,333
(2)
|
4.66
|
12/15/19
|
|
|
03/13/14
|
13,750
(2)
|
1,250
(2)
|
4.20
|
3/12/19
|
|
|
08/02/13
|
30,000
(3)
|
-
|
4.00
|
8/3/18
|
|
|
03/14/13
|
30,000
(2)
|
-
|
6.50
|
3/13/18
|
|
|
11/05/12
|
30,000
(2)
|
-
|
5.50
|
11/05/17
|
|
|
|
|
|
|
|
|
|
Andrew
B. Foster
|
01/19/17
|
-
|
100,000
(2)
|
1.72
|
01/19/27
|
|
05/19/16
|
16,667
(2)
|
83,333
(2)
|
2.54
|
5/21/26
|
|
|
12/10/15
|
6,667
(2)
|
13,333
(2)
|
2.59
|
12/10/25
|
|
|
5/21/15
|
10,000
(2)
|
10,000
(2)
|
4.35
|
5/21/22
|
|
|
12/15/14
|
6,667
(2)
|
3,333
(2)
|
4.66
|
12/15/19
|
|
|
03/13/14
|
9,167
(2)
|
833
(2)
|
4.20
|
3/12/19
|
|
|
08/02/13
|
15,000
(3)
|
-
|
4.00
|
8/3/18
|
|
|
03/14/13
|
10,000
(2)
|
-
|
6.50
|
3/13/18
|
|
|
11/05/12
|
30,000
(2)
|
-
|
5.50
|
11/05/17
|
|
|
7/17/07
|
30,000
(1)
|
-
|
30.00
|
7/16/17
|
|
———————
(1)
Option fully vested
on the date of grant
.
(2)
One-twelfth
(1/12) of the shares subject to the option vest every
three months following the date of grant.
(3)
Warrants fully
vested on the date of grant.
OPTION EXERCISES AND STOCK VESTED (2016)
None
EMPLOYMENT CONTRACTS AND TERMINATION OF EMPLOYMENT AND
CHANGE-IN-CONTROL ARRANGEMENTS
We
are party to the following agreements with our named executive
officers:
Eric A. McAfee
Effective
September 1, 2011, the Company entered into an Employment
Agreement with Mr. McAfee in connection with his continuing
responsibilities as Chief Executive Officer. Under
Mr. McAfee’s employment agreement, he receives an annual
salary of $250,000 per year. Effective January 1, 2015,
the Governance, Compensation and Nominating Committee approved an
increase in his annual salary from $180,000 per year to $250,000
per year. Effective January 1, 2017, the Governance, Compensation
and Nominating Committee approved an increase in his annual salary
from $250,000 per year to $310,000 per year. In addition,
Mr. McAfee is entitled to an annual cash bonus in an amount
determined by the Board of Directors based upon attainment of
certain performance milestones as determined by the Board from time
to time. During 2015, Mr. McAfee requested that his portion of the
bonus be paid to members of his management team. The initial term
of Mr. McAfee’s employment agreement was for
three years with automatic one-year renewals thereafter,
unless terminated by either party on sixty days’ notice
prior to the end of the then-current period.
19
If,
prior to a Change in Control (as defined in the agreement),
Mr. McAfee is terminated other than for Cause (as defined in
the agreement) or as a result of his death or Total Disability (as
defined in the agreement) or is Constructively Terminated (as
defined in the agreement), then provided he signs a release of
claims, Mr. McAfee is entitled to receive severance benefits
of (i) cash payments equal to his then-current base salary for
a period of six (6) months payable in accordance with the
Company’s normal payroll practices, and
(ii) company-paid health, dental, and vision insurance
coverage for him and his dependents until the earlier of
six (6) months following the date of termination or until
such time as Mr. McAfee is covered under another
employer’s group policy for such benefits. If, on or
following a Change in Control, Mr. McAfee’s employment
is Constructively Terminated or involuntarily terminated other than
for Cause, death or Total Disability, then provided he signs a
release of claims, in addition to the severance benefits provided
above, all of his then unvested restricted stock or stock options
shall become immediately vested.
Todd A. Waltz
On
March 15, 2010, the Company entered into an Employment
Agreement with Mr. Waltz to serve as the Company’s Chief
Financial Officer. Under Mr. Waltz’ employment
agreement, Mr. Waltz receives an annual salary of $230,000 per
year. Effective January 1, 2015, the Governance, Compensation and
Nominating Committee approved an increase in his annual salary from
$180,000 per year to $230,000 per year. Effective January 1, 2017,
the Governance, Compensation and Nominating Committee approved an
increase in his annual salary from $230,000 per year to $250,000
per year. Mr. Waltz is entitled to an annual bonus of up to
$50,000. The initial term of Mr. Waltz’s employment
agreement was for three years with automatic one-year renewals
unless terminated by either party on sixty days’ notice
prior to the end of the then-current extension period.
If,
prior to a Change in Control (as defined in the agreement),
Mr. Waltz is terminated other than for Cause (as defined in
the agreement) or as a result of his death or Total Disability (as
defined in the agreement) or is Constructively Terminated (as
defined in the agreement), then provided he signs a release of
claims, Mr. Waltz is entitled to severance benefits of
(i) cash payments equal to his monthly base salary for a
period of three (3) months payable in accordance with the
Company’s normal payroll practices, and
(ii) company-paid health, dental, and vision insurance
coverage for him and his dependents until the earlier of
three (3) months following the date of termination or
until such time as Mr. Waltz is covered under another
employer’s group policy for such benefits. If, on or
following a Change of Control, Mr. Waltz’s employment is
Constructively Terminated or involuntarily terminated other than
for Cause, death or Total Disability, then provided he signs a
release of claims, in addition to the severance benefits provided
above, all of his then unvested restricted stock or stock options
shall become immediately vested.
Andrew B. Foster
On
May 22, 2007, the Company entered into an Employment
Agreement with Mr. Foster to serve as the Company’s
Executive Vice President and Chief Operating Officer. Under
Mr. Foster’s employment agreement, Mr. Foster
receives an annual salary of $210,000 per year. Effective January
1, 2015, the Governance, Compensation and Nominating Committee
approved an increase in his annual salary from $180,000 per year to
$210,000 per year. Effective January 1, 2017, the Governance,
Compensation and Nominating Committee approved an increase in his
annual salary from $210,000 per year to $230,000 per year. Mr.
Foster is entitled to a discretionary annual bonus of up to
$50,000. The initial term of Mr. Foster’s employment
agreement was for three years with automatic one-year renewals
unless terminated by either party on sixty days’ notice
prior to the end of the then-current extension period. In addition,
in connection with the execution of his employment agreement, the
Company granted Mr. Foster an option to purchase a total
of 30,000 shares of common stock with an exercise price equal
to the fair market value on the date of grant.
20
If,
prior to a Change in Control (as defined in the agreement),
Mr. Foster is terminated other than for Cause (as defined in
the agreement) or as a result of his death or Total Disability (as
defined in the agreement) or is Constructively Terminated (as
defined in the agreement), then provided he signs a release of
claims, Mr. Foster is entitled to severance benefits of
(i) cash payments equal to his monthly base salary for a
period of three (3) months payable in accordance with the
Company’s normal payroll practices, and
(ii) company-paid health, dental, and vision insurance
coverage for him and his dependents until the earlier of
three (3) months following the date of termination or
until such time as Mr. Foster is covered under another
employer’s group policy for such benefits. If, on or
following a Change of Control, Mr. Foster’s employment
is Constructively Terminated or involuntarily terminated other than
for Cause, death or Total Disability, then provided he signs a
release of claims, in addition to the severance benefits provided
above, all of his then unvested restricted stock or stock options
shall become immediately vested.
POTENTIAL PAYMENTS UPON TERMINATION OR CHANGE-IN-CONTROL
(2016)
The
following table quantifies the estimated payments and benefits that
would be provided to each named executive officer upon the
occurrence of the indicated event, assuming that the event occurred
on December 31, 2016, pursuant to those arrangements described
above in detail under the heading “Employment Contracts and
Termination of Employment and Change-In-Control
Arrangements.” The values related to vesting of stock options
and awards are based upon the fair market value of our common stock
of $1.39 per share as reported on the NASDAQ Global Market on
December 31, 2016, the last trading day of our
fiscal year. Actual payments made at any future date would
vary, including based upon the amount the named executive officer
would have accrued under the applicable benefit or compensation
plan as well as based upon the price of our common
stock.
|
Name
|
|
Category of
Benefit
|
|
Termination
Without Cause or
Constructive
Termination
Not in Connection
with a
Change
in Control ($)
|
|
Termination
Without Cause or
Constructive
Termination
in
Connection with
or after a
Change in
Control ($)
|
|
Eric A.
McAfee
|
|
Salary
|
|
155,000
|
|
155,000
|
|
|
|
COBRA
|
|
-
|
|
|
|
|
|
Equity
Acceleration
|
|
-
|
|
|
|
|
|
Total
|
|
155,000
|
|
155,000
|
|
|
|
|
|
|
|
|
|
Todd A.
Waltz
|
|
Salary
|
|
62,500
|
|
62,500
|
|
|
|
COBRA
|
|
5,952
|
|
5,952
|
|
|
|
Equity
Acceleration
|
|
-
|
|
-
|
|
|
|
Total
|
|
68,452
|
|
68,452
|
|
|
|
|
|
|
|
|
|
Andrew
B. Foster
|
|
Salary
|
|
58,500
|
|
58,500
|
|
|
|
COBRA
|
|
4,821
|
|
4,821
|
|
|
|
Equity
Acceleration
|
|
-
|
|
-
|
|
|
|
Total
|
|
63,321
|
|
63,321
|
———————
21
EQUITY COMPENSATION PLANS
The
Company’s shareholders approved the Company’s Amended
and Restated 2007 Stock Plan (“2007 Stock
Plan”) at the Company’s 2010 Annual Shareholders
Meeting. The Company’s shareholders further approved amending
the plan at the 2015 Annual Shareholders Meeting to extend its term
and increase the number of shares automatically added to the shares
reserved for issuance thereunder each year. On July 1, 2011,
the Company acquired the Zymetis 2006 Stock Plan
(“2006 Stock Plan”) pursuant to the acquisition of
Zymetis, Inc. and gave Zymetis option holders the right to
convert shares into Aemetis common stock at the same terms as
the 2006 Plan. During November 2012, the
Company issued options to directors and consultants outside
the 2006 Stock Plan and 2007 Stock Plan. The options are
exercisable at $5.50 per share and expire November 2017.
During 2015, the company established an Equity Inducement plan
pursuant to which 100,000 shares were made available specifically
to attract human talent. The following table provides information
about 2007 Stock Plan, 2006 Stock Plan and the
compensatory warrants and options as of 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
(2)
|
|
Equity compensation
plans approved by security holders(1)
|
1,505,600
|
4.34
|
34,905
|
|
Equity in the form
of warrants issued to officers, directors and employees not
approved by security holders
|
325,000
|
3.52
|
—
|
|
Equity in the form
of options issued to directors and consultants not approved by
security holders
|
89,250
|
5.50
|
—
|
|
Equity in the form
of options issued to new hire employees not approved by security
holders
|
37,000
|
3.15
|
63,000
|
|
Total
|
1,956,850
|
|
97,905
|
———————
(1)
Shares from the
2006 Stock Plan and the 2007 Stock Plan.
(2)
Amount consists
of shares available for future issuance under the
2006 Plan and 2007 Plan.
Notwithstanding anything to the contrary set forth in any of the
Company’s previous or future filings under the Securities Act
of 1933, as amended, or the Securities Exchange Act of 1934, as
amended, that might incorporate filings made by the Company,
including this proxy statement, in whole or in part, the following
Compensation Committee Report shall not be deemed to be
“soliciting material” or to be incorporated by
reference into any prior or future filings made by the
Company.
COMPENSATION COMMITTEE REPORT
The
Governance, Compensation and Nominating Committee has reviewed and
discussed the foregoing Compensation Discussion and Analysis with
management, and based on that review and discussion, the
Governance, Compensation and Nominating Committee recommended to
the Board that the Compensation Discussion and Analysis be included
in our Annual Report on Form 10-K for the year ended
December 31, 2016 and the Company’s proxy statement
for the 2017 Annual Meeting of Stockholders.
Respectfully submitted,
Governance, Compensation and Nominating Committee
Harold Sorgenti (Chair)
Francis P. Barton
Lydia I. Beebe
Dr. Steven W. Hutcheson
22
SECURITY OWNERSHIP BY CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The
following table sets forth information as of February 21, 2017,
regarding the beneficial ownership of each class of our voting
stock, including (a) each stockholder who is known by the
Company to own beneficially in excess of 5% of each class of
our voting stock; (b) each director; (c) the
Company’s named executive officers; and (d) the
Company’s executive officers and directors as a group. Except
as otherwise indicated, all persons listed below have (i) sole
voting power and investment power with respect to their shares
of stock, except to the extent that authority is shared by spouses
under applicable law, and (ii) record and beneficial ownership
with respect to their shares of stock. The percentage of
beneficial ownership of common stock is based upon
19,696,447 shares of common stock outstanding as of
February 21, 2017. The percentage of beneficial ownership
of Series B preferred stock is based upon 1,328,394 shares of
Series B preferred stock outstanding as of February 21, 2017.
Unless otherwise identified, the address of the directors and
officers of the Company is 20400 Stevens Creek Blvd.,
Suite 700, Cupertino, CA 95014.
|
|
Common Stock
|
Series B Preferred Stock
|
||
|
Name and Address
|
Amount and
Nature of Beneficial
Ownership
|
Percentage
of Class
|
Amount and
Nature of
Beneficial Ownership
|
Percentage
of Class
|
|
Officers & Directors
|
|
|
|
|
|
Eric A. McAfee
(1)
|
3,301,548
|
16.76
%
|
-
|
*
|
|
Francis Barton
(2)
|
205,876
|
1.04
|
-
|
*
|
|
Lydia I. Beebe
(3)
|
16,250
|
*
|
|
*
|
|
John R. Block
(4)
|
166,337
|
*
|
-
|
*
|
|
Dr. Steven Hutcheson
(5)
|
340,132
|
1.72
%
|
-
|
*
|
|
Harold Sorgenti
(6)
|
225,886
|
1.14
|
-
|
*
|
|
Andrew Foster
(7)
|
161,068
|
*
|
-
|
*
|
|
Todd A. Waltz
(8)
|
336,234
|
1.69
%
|
-
|
*
|
|
All officers and directors as a group (8 Persons)
|
4,753,331
|
24.08
%
|
-
|
*
|
|
|
|
|
|
|
|
5% or more Holders
|
|
|
|
|
|
Third Eye Capital
(9)
161 Bay
Street, Suite 3930
Toronto,
Ontario M5J 2S1
|
1,549,946
|
7.86
%
|
-
|
*
|
|
Laird Cagan
(10)
|
1,528,393
|
7.76
%
|
-
|
*
|
|
20400 Stevens
Creek Blvd., Suite 700
|
|
|
|
|
|
Cupertino,
CA 95014
|
|
|
|
|
|
Mahesh
Pawani
Villa
No. 6, Street 29, Community 317, Al Mankhool,
Dubai,
United Arab Emirates
|
53,542
|
*
|
400,000
|
31.11
%
|
|
Frederick
WB Vogel
|
43,844
|
*
|
350,000
|
26.35
%
|
|
1660 N.
La Salle Drive, Apt 2411
|
|
|
|
|
|
Chicago,
Illinois 60614
|
|
|
|
|
———————
(1)
Includes
3,301,548 shares held by McAfee Capital, LLC, a company owned
by Mr. McAfee. McAfee Capital has directly or indirectly
pledged all of these shares as security for Third Eye Capital
debt arrangements.
(2)
Includes
30,000 shares held by Mr. Barton and 135,876 shares
issuable pursuant to options exercisable within 60 days of
February 21, 2017 and 40,000 common stock warrants fully
exercisable.
(3)
Includes
16,250 shares held by Ms. Beebe issuable pursuant to options
exercisable within 60 days of February 21, 2017.
(4)
Includes
34,462 shares held by Mr. Block and 101,875 shares issuable
pursuant to options exercisable within 60 days of
February 21, 2017, and 30,000 common stock warrants fully
exercisable.
(5)
Includes
215,757 shares held by Dr. Hutcheson and
94,375 shares issuable pursuant to options exercisable within
60 days of February 21, 2017 and 30,000 common stock
warrants fully exercisable.
(6)
Includes
49,511 shares held by Mr. Sorgenti and 136,375 shares issuable
pursuant to options exercisable within 60 days of February 21,
2017, and 40,000 common stock warrants fully
exercisable.
(7)
Includes
5,235 shares held by Mr. Foster and 140,833 shares issuable
pursuant to options exercisable within 60 days of February 21,
2017, and 15,000 fully exercisable common stock
warrants.
(8)
Includes
165,401 shares held by Mr. Waltz, 140,833 shares
issuable pursuant to options exercisable within 60 days of
February 21, 2017 and 30,000 fully exercisable common
stock warrants.
(9)
Includes
1,270,123 shares held by RBC Dexia Investor Services Trust,
held in Trust for Account 110-455-262 and Sprott Private
Credit Fund, LP, a corporation residing in Canada. Third Eye
Capital funds beneficially own 266,490 shares of common stock,
and 13,333 common stock warrants fully
exercisable.
(10)
Includes
(i) 1,500,114 shares held by Cagan Capital, LLC, a
company owned by Mr. Cagan, and (ii) 22,968 shares
held by Mr. Cagan individually.
23
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING
COMPLIANCE
Section 16(a) of
the Securities Exchange Act of 1934, as amended, requires our
executive officers and directors and persons who own more than 10%
of a registered class of our equity securities to file with the SEC
initial statements of beneficial ownership, reports of changes in
ownership and annual reports concerning their ownership of our
common stock and other equity securities, on Forms 3,
4 and 5 respectively. Executive officers, directors and
greater than 10% shareholders are required by SEC
regulations to furnish the Company with copies of all
Section 16(a) reports they file. Based upon a review of
those forms and representations regarding the need for filing
Forms 5, we believe during the year ended
December 31, 2016 that each of our directors, executive
officers and 10% stockholders complied with all
Section 16(a) filing requirements.
In
making this statement, we have relied upon examination of the
copies of Forms 3, 4 and 5, and amendments thereto,
provided to Aemetis, Inc. during and with respect to
fiscal year 2016 and the written representations of
its directors and executive officers.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The
following are transactions entered into in fiscal years 2016
and 2015 and any currently proposed transaction, (i) in which
the Company was or is to be a participant, (ii) the
amount involved exceeds $120,000, and (iii) in which any
director, executive officer, five percent stockholder or any
member of the immediate family of any of the foregoing persons had
or will have a direct or indirect material interest.
The
Governance, Compensation and Nominating Committee is responsible
for reviewing and approving in advance any proposed related person
transactions. The Governance, Compensation and Nominating Committee
is also responsible for reviewing the Company’s policies with
respect to related person transactions and overseeing compliance
with such policies.
The
Company owes Eric McAfee and McAfee Capital, solely owned by Eric
McAfee, amounts of $0.4 million each period in connection with
employment agreements and expense reimbursements, which are
included in accrued expenses and accounts payable on the balance
sheet as of December 31, 2016 and 2015. For the years ended
December 31, 2016 and 2015, the Company expensed $0.1 million and
$0.2 million, respectively, to reimburse actual expenses incurred
for McAfee Capital and related entities. The Company prepaid $0.2
million to Redwood Capital, a company controlled by Eric McAfee,
for the Company’s use of flight time on a corporate jet. As
of December 31, 2016, $0.1 million remained as a prepaid
expense.
24
As
consideration for the reaffirmation of guaranties by Mr. McAfee and
McAfee Capital required by Amendment No.12, Amendment No. 11 and
Amendment No.8 to the Notes which were entered with Third Eye
Capital on March 21, 2016, August 6, 2015 and November 7, 2014, the
Company also agreed to pay $0.2 million in consideration to Mr.
McAfee and McAfee Capital in exchange for their willingness to
provide the guaranties. As part of these Guarantee fee agreements,
$0.2 million each were paid as of December 31, 2016 and
2015.
The
Company owes various Board members amounts totaling $1.5 million
and $1.6 million as of December 31, 2016 and 2015, respectively, in
connection with board compensation fees, which are included in
accounts payable on the balance sheet. For each of the years ended
December 31, 2016 and 2015, the Company expensed $0.4 million, in
connection with board compensation fees.
On July
6, 2012, Aemetis, Inc. and Aemetis Advanced Fuels Keyes, Inc.,
entered into an Amended and Restated Note Purchase Agreement with
Third Eye Capital. Third Eye Capital extended credit in the form of
(i) senior secured revolving loans in an aggregate principal amount
of $18.0 million (“Revolving Credit Facility”); (ii)
senior secured term loans in the principal amount of $10.0 million
to convert a revenue participation agreement to a note; and (iii)
senior secured term loans in an aggregate principal amount of $15.0
million used to fund the cash portion of the acquisition of Cilion,
Inc. After this financing transaction, Third Eye Capital obtained
sufficient equity ownership in the Company to be considered a
related party. Please refer to Note Payable - Note 5 of the Notes
to Consolidated Financial Statements in Part II, Item 8 of the 2016
Annual Report filed with the SEC on March 16, 2017 for more
information on the transactions with Third Eye
Capital.
The
Company’s senior lender, Third Eye Capital, acting as Agent
for the Purchasers (Third Eye Capital), beneficially own
approximately 8% of Aemetis’s common stock. For
the years ending December 31, 2016 and
2015 Third Eye Capital has received cash principal payments of
$10.5 and $0.4 million, respectively, cash interest payments of
$6.5 and $4.5 million, respectively, and accrued interest
including extension, waiver, PIK, and amendment fees of $9.3
and $12.7 million,
respectively. During 2015 the company repurchased 1.6 million
shares of common stock from Third Eye Capital at a purchase price
of $7.5 million.
On
March 12, 2015, Third Eye Capital received fees in connection with
the Limited Waiver and Amendment No. 9 to the Note Purchase
Agreement by the repurchase of 1,000,000 shares of common stock of
the Company at an average price of $5.52 per share for an aggregate
purchase price of approximately $5.5 million.
On
April 30, 2015, Third Eye Capital received fees in connection with
the Limited Waiver and Amendment No. 10 to the Note Purchase
Agreement by the repurchase of 500,000 shares of common stock of
the Company at a repurchase price of $5.00 per share for an
aggregate purchase price of approximately $2.5
million.
On
August 6, 2015, Third Eye Capital received fees in connection with
the Limited Waiver and Amendment No. 11 to the Note Purchase
Agreement by the repurchase of 100,000 shares of common stock of
the Company at a repurchase price of the greater of $4.00 and the
closing price on the date of the amendment. In connection with this
transaction, the Company also agreed to pay a fee of $0.2 million
to McAfee Capital, LLC for the loss of liquidity resulting from
this arrangement.
On
March 21, 2016, Third Eye Capital received fees in connection with
the Limited Waiver and Amendment No. 12 to the Note Purchase
Agreement of $1.5 million to be added to the outstanding principal
balance of the Revolving Credit Facility. In addition, a Promissory
Note dated February 9, 2016 for $0.3 million was added to the
outstanding principal balance of the Revolving Credit Facility as
part of the Amendment No. 12 to the Note Purchase
Agreement.
On
April 15, 2016, a Promissory Note for $1.2 million (April
Promissory Note) was advanced by Third Eye Capital to Aemetis,
Inc., as a bridge loan with 12% interest per annum. On July 19,
2016 and October 12, 2016, Promissory Notes for $0.6 million and
$1.2 million respectively, were advanced by Third Eye Capital to
Aemetis, Inc., as a bridge loan, with 12% interest per annum. As of
December 31, 2016, the Company had repaid all of the principal and
interest outstanding on April Promissory Note and July and October
Promissory Notes.
On
January 31, 2017, a Promissory Note for $2.1 million was advanced
by Third Eye Capital to Aemetis Inc., as a short-term credit
facility for working capital and other general corporate purposes
with 14% interest per annum. In addition, as part of the January
2017 Note agreement, Aemetis used the $0.5 million of the total
proceeds to buy back 275 thousand common shares that were held by
Third Eye Capital. In consideration of the January 2017 Note, the
$133 thousand of total proceeds were paid to Third Eye Capital as
financing charges.
On
March 1, 2017, Third Eye Capital received a fee in connection with
the Limited Waiver and Amendment No. 13 to the Note Purchase
Agreement of $750 thousand to be added to the outstanding principal
balance of the Revolving Credit Facility.
We
employ Mr. Adam McAfee as Vice President, Finance at the base
salary of $180,000. Mr. Adam McAfee is the brother of
Mr. Eric McAfee, our Chief Executive Officer and Chairman of
the Board. Mr. Adam McAfee received compensation, including
stock option and warrant grants of $54,390 during
fiscal year 2016 and $32,460 during the
fiscal year 2015.
25
OTHER MATTERS
Management does not
know of any matter to be brought before the Annual Meeting, other
than the matters described in the Notice of Annual Meeting
accompanying this Proxy Statement. The persons named in the form of
proxy solicited by the Board will vote all proxies which have been
properly executed, and if any matters not set forth in the Notice
of Annual Meeting are properly brought before the meeting, such
persons will vote thereon in accordance with their best
judgment.
HOUSEHOLDING
We
have adopted a procedure approved by the Securities and Exchange
Commission called “householding.” Under this procedure,
a householding notice will be sent to stockholders who have the
same address and last name and do not participate in electronic
delivery of proxy materials, and they will receive only
one copy of our annual report and proxy statement unless
one or more of these stockholders notifies us that they wish
to continue receiving individual copies. This procedure reduces our
printing costs and postage fees. Each stockholder who participates
in householding will continue to receive a separate proxy
card.
If any
stockholders in your household wish to receive a separate annual
report and a separate proxy statement, they may call our Corporate
Secretary, Todd Waltz, at (408) 213-0940 or write to
Aemetis, Inc. at 20400 Stevens Creek Blvd., Suite 700,
Cupertino, CA 95014. They may also send an email to our Corporate
Secretary at twaltz@aemetis.com. Other stockholders who have
multiple accounts in their names or who share an address with other
stockholders can authorize us to discontinue mailings of multiple
annual reports and proxy statements by calling or writing to
Investor Relations.
BY
ORDER OF THE BOARD OF DIRECTORS
Todd
Waltz
Corporate
Secretary
Aemetis,
Inc.
March 17,
2017
26
TABLE OF CONTENTS