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 a Party
other than the Registrant ☐
Check the
appropriate box:
☐ Preliminary
Proxy Statement
☐
Confidential, For Use of the Commission Only (As Permitted by Rule
14a-6(e)(2))
☒
Definitive Proxy Statement
☐
Definitive Additional Materials
☐
Soliciting Material under Rule 14a-12
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AEMETIS, INC.
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if other than the
Registrant)
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Payment of Filing
Fee (Check the appropriate box):
☒ No
fee required
☐ Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
(1) Title
of each class of securities to which transaction
applies:
(2) Aggregate
number of securities to which transaction applies:
(3) Per
unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule
0-11 (set forth the
amount on which the filing fee is calculated and state how it
was determined):
(4) Proposed
maximum aggregate value of transaction:
(5) Total
fee paid:
☐ Fee
paid previously with preliminary materials.
☐ Check
box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by
registration statement number, or the form or schedule and the date
of its filing.
(1) Amount
Previously Paid:
(2) Form,
Schedule or Registration Statement No.:
(3) Filing
Party:
(4) Date
Filed:
ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON MAY 17, 2018
April
3, 2018
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, Floor 2, Menlo Park,
California 94025, on Thursday, May 17, 2018, 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 one member of
the Board of Directors to hold office for a three-year term, until
his successor is 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,
2018.
We hope
that you can attend the Annual Meeting. You may be requested to
present valid, government-issued 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 stockholder of
record 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 April 3, 2018 and is being first mailed to
stockholders of Aemetis, Inc. on or about April 7,
2018.
20400
Stevens Creek Blvd., Suite 700, Cupertino, CA 95014
Tel.:
(408) 213-0940 Fax: (408) 252-8044
www.aemetis.com
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON MAY 17, 2018
April
3, 2018
To the
Stockholders of
AEMETIS,
INC.:
NOTICE
IS HEREBY given that the 2018 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, Floor
2, Menlo Park, California 94025 on Thursday, May 17, 2018 at 1:00
p.m. (Pacific Time) for the following purposes:
1)
To elect one member of the Board of
Directors to hold office for a three-year term, until his successor
is 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, 2018; 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 March 26,
2018 as the record date for determining the stockholders entitled
to receive notice of, and to vote at, the Annual Meeting and any
adjournment 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:
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“FOR”
the individual nominated for election to the Board of Directors;
and,
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“FOR”
ratification of RSM US LLP as our independent registered public
accounting firm for fiscal year 2018.
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, 2017 (the “2017 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 2017 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: (408) 252-8044
www.aemetis.com
AEMETIS, INC.
PROXY STATEMENT FOR ANNUAL MEETING OF STOCKHOLDERS
To be
held May 17, 2018
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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Director
Compensation
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13
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Directors’
Outstanding Equity Awards At Fiscal Year End
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14
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Proposal 1:
Election of Directors
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16
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Proposal 2:
Ratification of Auditors
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17
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Executive
Compensation
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18
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Employment
Contracts And Termination Of Employment And Change-In-Control
Arrangements
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21
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Equity
Compensation Plan
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23
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Security Ownership
by Certain Beneficial Owners and Management
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25
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Section
16(A) Beneficial Ownership Reporting Compliance
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26
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Certain
Relationships And Related Transactions
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26
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Other
Matters
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27
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Householding
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27
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PROXY STATEMENT FOR ANNUAL MEETING OF STOCKHOLDERS
To be held May 17, 2018
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, May 17, 2018, 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, Floor 2, Menlo Park, California 94025 on Thursday, May
17, 2018, at 1:00 p.m. (Pacific Time). The 2017 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 2017 Annual Report, which provide
additional important information concerning the Company. This Proxy
Statement, the related proxy card and the 2017 Annual Report are
being first mailed to stockholders of Aemetis, Inc. on or about
April 7, 2018.
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 2017 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 May 17, 2018
The
Notice of Annual Meeting of Stockholders, proxy statement and 2017
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:
●
To elect one member
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, 2018;
and
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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 Directors’
recommendations?
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A:
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The
Board recommends a vote:
●
“FOR”
the individual nominated for election to the Board of
Directors;
●
“FOR”
ratification of RSM US LLP as our independent registered public
accounting firm for fiscal year 2018; 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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1
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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 by
telephone 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
March 26, 2018 (the “Record Date”) may vote at the
Annual Meeting. On the Record Date, we had a total of 20,222,890
shares of common stock issued and outstanding, which were held of
record by 247 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 1,323,394 shares of Series B
Preferred Stock, or preferred stock, outstanding, which were held
of record by 43 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
132,339 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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A:
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Registered Stockholders.
If your shares are registered
directly in your name with Aemetis’ 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.
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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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 March 26, 2018. You
may be requested to present valid, government-issued 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.
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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.
Please
note that voting facilities for registered stockholders will close
at 11:59 P.M. (Eastern Time) on May 16, 2018.
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.
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 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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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).
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 nominee for
director who receives the most votes cast in his favor will be
elected to serve as director.
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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:
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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 Proposal 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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A:
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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, an abstention or
broker non-vote 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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5
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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.
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Q:
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May I propose actions for consideration at next year’s annual
meeting of stockholders or nominate individuals to serve as
directors?
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A:
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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 2019 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 2019 Annual Meeting must be received by
Todd Waltz, Corporate Secretary, on or after
December 8,
2018, and prior to 5:00
p.m. (Pacific Time) on
January 7,
2019 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 2017
Annual Report, on our website at www.aemetis.com. The information
on our website is not a part of this Proxy
Statement.
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Q:
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How do I obtain a separate set of proxy materials or request a
single set for my household?
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A:
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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 2017 Annual Report 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 2017 Annual Report and a
separate proxy statement by contacting our Corporate Secretary by
telephone 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.
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Q:
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What if I have questions about lost stock certificates or need to
change my mailing address?
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A:
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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
BOARD OF DIRECTORS MEETINGS AND COMMITTEES
The
Board of Directors is presently composed of five (5) members: Eric
A. McAfee, Francis Barton, Lydia I. Beebe, John Block and Steven
Hutcheson. Mr. McAfee serves as Chairman of the Board of Directors.
Harold Sorgenti retired from the Board of Directors, Audit
Committee and Governance, Compensation and Governance Committee in
November 2017. There are no family relationships between any
director and executive officer.
The Board of Directors held seven (7) meetings during fiscal year
2017. 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 2017 and was eligible to
attend.
BOARD INDEPENDENCE
The Board of Directors has determined that the director 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. 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 has
designated Francis Barton as Presiding Director, to preside over
the board’s Executive Sessions
.
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.
Set
forth below is information regarding our directors as of April 3,
2018 and the class under which each director serves and, assuming
the reelection of the director nominee at the Annual Meeting, the
expiration of the term of such director
:
|
Name
|
|
Age
|
|
Position
|
|
Director Since
|
|
Classification
(Term
Expiration)
|
|
Eric A.
McAfee
|
|
55
|
|
Chief
Executive Officer and Chairman of the Board
|
|
2006
|
|
Class I
(2019)
|
|
Francis
P. Barton
|
|
71
|
|
Director
|
|
2012
|
|
Class I
(2019)
|
|
Lydia
I. Beebe
|
|
65
|
|
Director
|
|
2016
|
|
Class
III (2020)
|
|
John R.
Block
|
|
83
|
|
Director
|
|
2008
|
|
Class
III (2020)
|
|
Dr.
Steven W. Hutcheson
|
|
64
|
|
Director
|
|
2011
|
|
Class
II (2021)
|
7
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, and a
member of its Compensation, Governance and Nominating Committee.
Mr. Barton served on the board of directors of Etubics, Inc from
2014 - 2016, and was chair of its Audit Committee and member of its
Compensation, Governance and Nominating Committee.
Mr. Barton's
experience as Executive Vice President and Chief Financial Officer
as well as his extensive financial background qualify him for the
position. Mr. Barton also serves as the Chairman of the Audit
Committee and as a member of the Governance, Compensation and
Nominating Committee of the company.
Lydia I. Beebe
was appointed to the
Company’s Board of Directors in November 2016. Ms. Beebe now
has her own corporate governance consulting business, LIBB
Advisors. She was Senior Counsel for Wilson Sonsini Goodrich and
Rosati from 2015 until 2017. 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, and Kansas City Southern. She previously
served on the boards of the Council of Institutional Investors,
Presidio Trust, and California Fair Employment & Housing
Commission.
Mr.
Beebe's
extensive
experience in the energy business and her expertise in corporate
governance qualify her for the position
. Ms. Beebe also
serves as the Chairman of the Governance Compensation and
Nominating Committee and as a member of the Audit
Committee.
8
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's
experience with
agricultural commodities and his understanding of political affairs
qualify him for the position.
Mr. Block also
serves as a member of the Company’s Audit
Committee.
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 B.A. 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's
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. Dr.
Hutcheson also serves as a member of the Governance, Compensation
and Nominating Committee.
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 Governance page of 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
|
|
Francis
Barton
|
|
C
|
|
M
|
|
Lydia
I. Beebe
|
|
M
|
|
C
|
|
John R.
Block
|
|
M
|
|
-
|
|
Dr.
Steven W. Hutcheson
|
|
-
|
|
M
|
|
M =
Member
|
|
C =
Chair
|
|
|
9
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.
Francis
Barton, Lydia I. Beebe, John R. Block and Harold Sorgenti (until
November 2017) served as members of the Audit Committee in 2017
with Mr. Barton serving as Chairman. 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 2017. Each
director 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 2017.
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, 2017. In addition, the Audit Committee has
discussed with our independent auditors the matters required to be
discussed under Public Company Accounting Oversight Board (PCAOB)
Audit Standard No. 1301, Communications with Audit Committees. 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 2017 Annual Report.
Respectfully
submitted by:
Francis
Barton (Chair)
Lydia
I. Beebe
John R.
Block
10
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.
Francis
Barton, Lydia I. Beebe, Dr. Steven Hutcheson, and Harold Sorgenti
(until November 2017) served as members of the Governance,
Compensation and Nominating Committee in 2017 with Mr. Sorgenti
serving as Chairman until May 2017. Ms. Beebe assumed the Chair
position for the Governance, Compensation and Nominating Committee
at the May 18, 2017 meeting. 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 permit him or her, given individual
circumstances, to perform the 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.
A copy
of the Committee’s written charter is available on the
Governance page of the investor relations section of our website at
www.aemetis.com. In 2017, the Governance, Compensation and
Nominating Committee held five (5) meetings. Each director 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 2017.
11
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 the Governance page of the investor relations section of
our website at www.aemetis.com. 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 2017, 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.
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 and Ms. Beebe, we did not have
any directors at the annual meeting of stockholders in
2017.
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.
12
DIRECTOR COMPENSATION (2017)
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
2017. 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
($)
|
Stock Option
Awards
(1)(2))
($)
|
Total
($) |
|
Francis
Barton
|
104,000
|
73,720
|
177,720
|
|
Lydia I.
Beebe
|
88,500
|
22,558
|
111,058
|
|
John R.
Block
|
78,500
|
51,162
|
129,662
|
|
Dr. Steven
Hutcheson
|
78,250
|
44,970
|
123,220
|
|
Harold
Sorgenti
|
69,083
|
48,365
|
117,448
|
(1)
The amounts in this
column represent the aggregate grant date fair value of awarded
stock options under ASC Topic 718. The assumptions made when
calculating the amounts in this table are found in Note 9 (Stock
Based Compensation) of the Notes to Consolidated Financial
Statements in our 2017 Annual Report filed with the SEC on March
29, 2018.
(2)
For information
regarding the aggregate number of shares subject to all outstanding
stock option awards and warrant awards held by each named
individual at the end of fiscal year 2017, please see the table
below titled “
Directors’ Outstanding Equity Awards at
Fiscal Year End (2017)”
on page 14.
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 options exercisable for
10,000 shares of the Company’s common stock, which vests
quarterly over two years subject to continuing services to the
Company. Board members also receive a discretionary annual equity
compensation awards in the form of stock options, recognizing the
annual services of the Director as well as the longevity of
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 $20,000 is paid
to the chairman of the Audit Committee.
13
DIRECTORS’ OUTSTANDING EQUITY AWARDS AT FISCAL YEAR END
(2017)
The
following table shows all outstanding equity awards held by each
person serving as a director of Aemetis, Inc. at the end of
2017.
|
|
|
|
|
Option/Warrant
Awards
|
||||||
|
Name
|
|
Award
Date
|
|
No.
of
securities
underlying unexercised
options/
warrants (#) exercisable
|
|
No.
of
securities
underlying unexercised
options/
warrants (#) unexercisable
|
|
Option/
warrant exercise
price
($)
|
|
Option/
warrant expiration date
|
|
Francis
Barton
|
|
11/16/17
|
|
30,000
(1)
|
|
-
|
|
0.67
|
|
11/16/2027
|
|
|
|
01/19/17
|
|
50,000
(1)
|
|
-
|
|
1.72
|
|
01/19/27
|
|
|
|
05/19/16
|
|
38,250
(2)
|
|
12,750
|
|
2.54
|
|
05/21/26
|
|
|
|
12/10/15
|
|
15,000
(3)
|
|
-
|
|
2.59
|
|
12/10/25
|
|
|
|
12/15/14
|
|
8,000
(2)
|
|
-
|
|
4.66
|
|
12/15/19
|
|
|
|
03/13/14
|
|
12,500
(4)
|
|
-
|
|
4.20
|
|
03/13/19
|
|
|
|
08/02/13
|
|
25,000
(3)
|
|
-
|
|
4.00
|
|
08/02/18
|
|
|
|
03/14/13
|
|
10,000
(5)
|
|
-
|
|
6.50
|
|
03/13/18
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lydia
I. Beebe
|
|
11/16/17
|
|
10,000
(1)
|
|
-
|
|
0.67
|
|
11/17/26
|
|
|
|
01/19/17
|
|
15,000
(1)
|
|
-
|
|
1.72
|
|
01/19/27
|
|
|
|
11/17/16
|
|
5,000
(4)
|
|
5,000
(4)
|
|
1.85
|
|
05/21/26
|
14
|
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
|
|
John R.
Block
|
|
11/16/17
|
|
20,000
(1)
|
|
-
|
|
0.67
|
|
11/16/27
|
|
|
|
01/19/17
|
|
35,000
(1)
|
|
-
|
|
1.72
|
|
01/19/27
|
|
|
|
05/19/16
|
|
27,000
(2)
|
|
9,000
(2)
|
|
2.54
|
|
05/21/26
|
|
|
|
12/10/15
|
|
10,000
(3)
|
|
-
|
|
2.59
|
|
12/10/25
|
|
|
|
12/15/14
|
|
5,000
(2)
|
|
-
|
|
4.66
|
|
12/15/19
|
|
|
|
03/13/14
|
|
10,000
(4)
|
|
-
|
|
4.20
|
|
03/12/19
|
|
|
|
08/02/13
|
|
20,000
(3)
|
|
-
|
|
4.00
|
|
08/03/18
|
|
|
|
03/14/13
|
|
10,000
(5)
|
|
-
|
|
6.50
|
|
03/13/18
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dr.
Steven Hutcheson
|
|
11/16/17
|
|
16,250
(1)
|
|
-
|
|
0.67
|
|
11/26/27
|
|
|
|
01/19/17
|
|
31,250
(1)
|
|
-
|
|
1.72
|
|
01/19/27
|
|
|
|
05/19/16
|
|
27,000
(2)
|
|
9,000
|
|
2.54
|
|
05/21/26
|
|
|
|
12/10/15
|
|
10,000
(3)
|
|
-
|
|
2.59
|
|
12/10/25
|
|
|
|
12/15/14
|
|
5,000
(2)
|
|
-
|
|
4.66
|
|
12/15/19
|
|
|
|
03/13/14
|
|
10,000
(4)
|
|
-
|
|
4.20
|
|
03/12/19
|
|
|
|
08/02/13
|
|
20,000
(3)
|
|
-
|
|
4.00
|
|
08/03/18
|
|
|
|
03/14/13
|
|
10,000
(5)
|
|
-
|
|
6.50
|
|
03/13/18
|
——————
(1)
Options fully vested
on the date of grant.
(2)
50% vested immediately and One-twelfth (1/12) of
the remaining options vest every three months following the date of
grant.
(3)
Warrants fully
vested on the date of grant.
(4)
One-twelfth (1/12)
of the options vest every three months from the date of
grant.
(5)
A
portion of the options representing 1,000 shares vest on date of
the grant, one-twelfth (1/12) of the options vest every three
months from the date of grant.
15
PROPOSAL ONE:
ELECTION OF DIRECTORS
The Board of Directors currently consists of five (5) directors
classified into three separate classes, consisting of two (2)
directors in two classes, and one (1) in the third class, 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, 2021
and 2020, respectively.
NOMINEES
The Board of Directors approved Dr. Steven W. Hutcheson as nominee
for election to the Board as the Class II director at the Annual
Meeting. If elected, Dr. Hutcheson will serve as the Class II
director for a three-year term expiring in 2021. The nominee is
currently a director of the Company. Please see above for
information concerning our incumbent director standing for
re-election.
Unless otherwise instructed, the proxy holders will vote the
proxies received by them FOR the nominee set forth above. If the
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 the nominee would be unable or unwilling to serve as a
director.
VOTE REQUIRED
If a quorum is present, the nominee 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
NOMINEE.
16
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, 2018. The Board
recommends that stockholders vote for ratification of such
appointment. Although ratification by stockholders is neither
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, 2017 and
2016 are described below under the caption “Principal
Accountant Fees and Services.” Representatives of RSM US LLP
will be present at the Annual Meeting by phone 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 2017
RSM US
LLP was appointed as our registered independent public accountant
on May 21, 2012. The fees billed by RSM US LLP for the audits of
the 2017 and 2016 financial statements are as follows:
|
|
2016
|
2017
|
|
Audit
Fees
|
$
270,000
|
$
311,300
|
|
Audit-Related
Fees
|
40,500
|
--
|
|
Total Audit and
Audit-Related Fees
|
$
310,500
|
311,300
|
Audit Fees consist of fees billed for professional services
rendered for the audit of the Company’s consolidated annual
financial statements and the audit of internal controls, 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 2017, 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.
17
EXECUTIVE COMPENSATION
NAMED EXECUTIVE OFFICERS
The following table sets forth the name, age (as of April
3
, 2018) and
position of each of our named executive officers for
2017.
|
Name
|
|
Age
|
|
Position
|
|
Eric A.
McAfee
|
|
55
|
|
Chief
Executive Officer and Chairman of the Board
|
|
Todd A.
Waltz
|
|
56
|
|
Executive
Vice President, Chief Financial Officer and Secretary
|
|
Andrew
B. Foster
|
|
52
|
|
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
Aemetis 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.
SUMMARY COMPENSATION TABLE (2017)
The
following table sets forth information concerning compensation paid
or accrued for services rendered to the Company in all capacities
for the fiscal years 2016 and 2017 to the named executive officers,
which includes the Company’s Chief Executive Officer and the
Company’s other two most highly compensated executive
officers who were serving as executive officers at the end of
fiscal year 2017.
18
|
Name and
Principal Position
|
|
Year
|
Salary
($)
|
Bonus
($)
|
Option
Awards
(1)
($)
|
Total
Compensation ($)
|
|
Eric A. McAfee,
Chief
(2)
Executive Officer
|
|
2017
|
310,000
|
40,000
|
-
|
350,000
|
|
|
|
2016
|
250,000
|
-
|
-
|
250,000
|
|
|
|
|
|
|
|
|
|
Todd A. Waltz,
Chief Financial Officer
|
|
2017
|
250,000
|
40,000
|
134,177
|
424,177
|
|
|
|
2016
|
230,000
|
44,000
|
217,571
|
491,571
|
|
|
|
|
|
|
|
|
|
Andrew B. Foster,
Executive Vice President
|
|
2017
|
230,000
|
40,000
|
134,177
|
404,177
|
|
|
|
2016
|
210,000
|
44,000
|
181,309
|
435,309
|
———————
(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 granted during fiscal years 2016 and 2017 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 9 (Stock Based Compensation) of the Notes to
Consolidated Financial Statements in Part II, Item 8 of the 2017
Annual Report filed with the SEC on March 29, 2018.
(2)
Mr. McAfee’s
compensation is solely for his service as an executive officer and
he does not receive any compensation for his services as Chairman
of the Board of Directors.
19
OUTSTANDING EQUITY AWARDS AT FISCAL YEAR END (2017)
The
following table shows all outstanding equity awards held by the
named executive officers at the end of fiscal year
2017.
|
|
|
|
|
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
|
|
11/16/17
|
|
30,000
(1)
|
|
-
|
|
0.67
|
|
11/16/27
|
|
|
|
01/19/17
|
|
25,000
(2)
|
|
75,000
(2)
|
|
1.72
|
|
01/19/27
|
|
|
|
05/19/16
|
|
60,000
(2)
|
|
60,000
(2)
|
|
2.54
|
|
5/21/26
|
|
|
|
12/10/15
|
|
13,333
(3)
|
|
6,667
(3)
|
|
2.59
|
|
12/10/25
|
|
|
|
5/21/15
|
|
16,667
(2)
|
|
3,333
(2)
|
|
4.35
|
|
5/21/22
|
|
|
|
12/15/14
|
|
10,000
(2)
|
|
-
|
|
4.66
|
|
12/15/19
|
|
|
|
03/13/14
|
|
15,000
(2)
|
|
-
|
|
4.20
|
|
3/12/19
|
|
|
|
08/02/13
|
|
30,000
(4)
|
|
-
|
|
4.00
|
|
8/3/18
|
|
|
|
03/14/13
|
|
30,000
(2)
|
|
-
|
|
6.50
|
|
3/13/18
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Andrew
B. Foster
|
|
11/19/17
|
|
30,000
(1)
|
|
-
|
|
0.67
|
|
11/16/27
|
|
|
|
01/19/17
|
|
25,000
(2)
|
|
75,000
(2)
|
|
1.72
|
|
01/19/27
|
|
|
|
05/19/16
|
|
50,000
(2)
|
|
50,000
(2)
|
|
2.54
|
|
5/21/26
|
|
|
|
12/10/15
|
|
13,333
(3)
|
|
6,667
(3)
|
|
2.59
|
|
12/10/25
|
|
|
|
5/21/15
|
|
16,667
(2)
|
|
3,333
(2)
|
|
4.35
|
|
5/21/22
|
|
|
|
12/15/14
|
|
10,000
(2)
|
|
-
|
|
4.66
|
|
12/15/19
|
|
|
|
03/13/14
|
|
10,000
(2)
|
|
-
|
|
4.20
|
|
3/12/19
|
|
|
|
08/02/13
|
|
15,000
(4)
|
|
-
|
|
4.00
|
|
8/3/18
|
|
|
|
03/14/13
|
|
10,000
(2)
|
|
-
|
|
6.50
|
|
3/13/18
|
———————
(1)
Option fully vested on the date
of grant.
(2)
One-twelfth (1/12) of the options vest every three
months following the date of grant.
(3)
One-twelfth (1/12) of the warrants vest every
three months following the date of grant.
(4)
Warrants fully vested on the date of
grant.
20
STOCK OPTION GRANTS (2017)
The
exercise price for stock option awards granted during 2017 was set
at the closing price as reported by NASDAQ on the date of grant,
and each such award has a term of 10 years from the date of grant.
One twelfth (1/12
th
) of the options
granted to employees and executives during January 2017 vest every
three months from the date of grant. Grants to non-employee Board
members and grants made during December 2017 vested immediately. No
outstanding stock option awards were materially modified during
2017.
OPTION EXERCISES AND STOCK VESTED (2017)
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 originally received an annual salary of $180,000 per year,
subject to annual review and adjustments. 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. For 2017, the annual bonus for Mr.
McAfee was determined by taking into consideration the
profitability of future operations, likelihood of future success of
the company, and executive leadership participation qualities,
adjusted by the impact of external policy as well as, political and
economic events, as positive or negative influences on the amount
of difficulty required to execute on the business plan. This amount
was then scaled to $40,000 to reflect the amount of cash available
for executive bonuses for the 2017 fiscal year. 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.
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
originally received an annual salary of $180,000 per year, subject
to annual review and adjustments. 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. For 2017, the annual bonus for Mr. Waltz was based on an
estimation of his contribution to the goals achieved by the
company, as defined by the same formula applied to the CEO. This
bonus amount was then scaled to $40,000 to reflect the amount of
cash available for executive bonuses for the 2017 fiscal year. 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.
21
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 originally received an annual salary of
$180,000 per year, subject to annual review and adjustments.
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. For 2017, the annual
bonus for Mr. Foster was based on an estimation of his contribution
to the goals achieved by the company, as defined by the same
formula applied to the CEO. This bonus amount was then scaled to
$40,000 to reflect the amount of cash available for executive
bonuses for the 2017 fiscal year. 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 options to
purchase a total of 300,000 shares of common stock with an exercise
price equal to the fair market value on the date of grant. One
thirty-sixth (1/36
th
) of the options
award vested each month after the Employment Commencement Date
(defined by the agreement as October 1, 2006), so as to be 100%
vested on the three-year anniversary of the Employment Commencement
Date.
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
(2017)
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, 2017, 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 $0.55 per share as reported on the NASDAQ Global Market on
December 29, 2017, the last trading day of our fiscal year. Actual
payments made at any future date would vary, including based upon
the amount the named executive officer would have accrued under the
applicable benefit or compensation plan as well as based upon the
price of our common stock.
22
|
Name
|
|
Category
of
Benefit
|
Termination
Without Cause
or Constructive Termination
Not in
Connection
with a
Change
in Control
($)
|
Termination
Without Cause
or Constructive Termination in Connection with
or after
a
Change in
Control ($)
|
|
Eric A.
McAfee
|
|
Salary
|
155,000
|
155,000
|
|
|
|
COBRA
|
17,099
|
17,099
|
|
|
|
Equity
Acceleration
|
-
|
|
|
|
|
Total
|
172,099
|
172,099
|
|
|
|
|
|
|
|
Todd A.
Waltz
|
|
Salary
|
62,500
|
62,500
|
|
|
|
COBRA
|
6,848
|
6,848
|
|
|
|
Equity
Acceleration
|
-
|
-
|
|
|
|
Total
|
69,348
|
69,348
|
|
|
|
|
|
|
|
Andrew B.
Foster
|
|
Salary
|
57,500
|
57,500
|
|
|
|
COBRA
|
8,158
|
8,158
|
|
|
|
Equity
Acceleration
|
-
|
-
|
|
|
|
Total
|
65,659
|
65,659
|
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 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, 2017.
23
|
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)
|
2,151,892
|
2.69
|
133,780
|
|
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 new hire employees not approved by
security holders
|
37,000
|
3.15
|
63,000
|
|
Total
|
2,513,892
|
|
196,780
|
———————
(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 Executive Compensation section 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,
2017 and the Company’s proxy statement for the 2018 Annual
Meeting of Stockholders.
Respectfully
submitted by,
Lydia
I. Beebe (Chair)
Francis
P. Barton
Dr.
Steven W. Hutcheson
24
SECURITY OWNERSHIP BY CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The
following table sets forth information as of March 26, 2018,
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 20,222,890 shares of common stock outstanding as of
March 26, 2018. The percentage of beneficial ownership of Series B
preferred stock is based upon 1.323,394 shares of Series B
preferred stock outstanding as of March 26, 2018. 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
|
16.33
%
|
-
|
*
|
|
Francis
Barton
(2)
|
273,000
|
1.33
%
|
-
|
*
|
|
Lydia I. Beebe
(3)
|
82,500
|
*
|
|
*
|
|
John R. Block
(4)
|
204,462
|
1.00
%
|
-
|
*
|
|
Dr. Steven
Hutcheson
(5)
|
378,257
|
1.86
%
|
-
|
*
|
|
Andrew Foster
(6)
|
216,667
|
1.06
%
|
-
|
*
|
|
Todd A. Waltz
(7)
|
417,068
|
2.04
%
|
-
|
*
|
|
All
officers and directors as a group (7 Persons)
|
4,894,970
|
24.16
%
|
-
|
*
|
|
5%
or more Holders
|
|
|
|
|
|
Third Eye Capital
(8)
|
1,598,608
|
7.91
%
|
-
|
*
|
|
161 Bay Street,
Suite 3930
|
|
|
|
|
|
Toronto, Ontario
M5J 2S1
|
|
|
|
|
|
Laird Cagan
(9)
|
1,665,489
|
8.24
%
|
-
|
*
|
|
20400 Stevens Creek
Blvd., Suite 700
|
|
|
|
|
|
Cupertino, CA
95014
|
|
|
|
|
|
Mahesh
Pawani
|
53,536
|
*
|
400,000
|
30.23
%
|
|
Villa No. 6, Street
29, Community 317, Al Mankhool,
|
|
|
|
|
|
Dubai, United Arab
Emirates
|
|
|
|
|
|
Frederick WB
Vogel
|
43,844
|
*
|
350,000
|
26.45
%
|
|
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, 203,000 shares issuable pursuant to
options exercisable within 60 days of March 26, 2018 and 40,000
common stock warrants fully exercisable.
(3)
Includes 82,500
shares held by Ms. Beebe issuable pursuant to options exercisable
within 60 days of March 26 , 2018.
(4)
Includes 34,462
shares held by Mr. Block, 140,000 shares issuable pursuant to
options exercisable within 60 days of March 26, 2018, and 30,000
common stock warrants fully exercisable.
(5)
Includes 215,757
shares held by Dr. Hutcheson, 132,500 shares issuable pursuant to
options exercisable within 60 days of March 26, 2018 and 30,000
common stock warrants fully exercisable.
(6)
Includes 186,667
shares issuable pursuant to options exercisable within 60 days of
March 26, 2018, and 30,000 fully exercisable common stock warrants
by Mr. Foster.
(7)
Includes 165,401
shares held by Mr. Waltz, 206,667 shares issuable pursuant to
options exercisable within 60 days of March 26, 2018 and 45,000
fully exercisable common stock warrants.
(8)
Includes
1,162,039 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 436,569 shares of common stock.
(9)
Includes (i)
1,500,114 shares held by Cagan Capital, LLC, a company owned by Mr.
Cagan, and (ii) 165,375 shares held by Mr. Cagan
individually
.
25
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 Form 5, we believe during the year ended December 31, 2017
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 2017 and
2016 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
Audit Committee is responsible for reviewing and approving in
advance any proposed related person transactions. The Audit
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, the Company’s Chairman and CEO, and McAfee
Capital, owned by Eric McAfee, $0.4 million in connection with
employment agreements and expense reimbursements previously accrued
as salaries expense and accrued liabilities. The balance accrued
related to these employment agreements was $0.4 million as of
December 31, 2017 and December 31, 2016. For the years ended
December 31, 2017 and 2016, the Company expensed $0.1 million each
respectively, to reimburse actual expenses incurred by McAfee
Capital and related entities. The Company previously 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, 2017, $0.1 million remained as a prepaid expense
related to Redwood Capital. As consideration for the reaffirmation
of guaranties required by Amendment No. 13 to the Note Purchase
Agreement, which the Company entered into with Third Eye Capital on
March 1, 2017, the Company also agreed to pay $0.2 million in
consideration to McAfee Capital in exchange for their willingness
to provide the guarantees. The balance of $342 thousand and $156
thousand for guarantee fee remained as accrued liability as of
December 31, 2017 and December 31, 2016 respectively.
The Company owes
the then current directors amounts totaling $1.1 million and $1.5
million at both December 31, 2017 and 2016, 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, 2017 and 2016, the Company expensed $0.4 million each
year, in connection with board compensation fees.
On
January 14, 2013, Laird Cagan loaned $0.1 million to the Company
through a promissory note with a 5% annualized interest rate and
the right to exercise 5,000 warrants at $0.01 per share. On
December 12, 2017, the Company issued 165,375 shares of common
stock to Laird Cagan to extinguish this promissory
note.
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 $56,808 during fiscal year 2017 and $54,390
during the fiscal year 2016.
26
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.
April
3, 2018
27
|
AEMETIS, INC.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF
DIRECTORS
ANNUAL
MEETING OF STOCKHOLDERS – MAY 17, 2018 AT 1:00 PM LOCAL
TIME
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CONTROL ID:
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REQUEST ID:
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The undersigned hereby appoints Eric A. McAfee,
Francis Barton, Lydia Beebe, John Block, and Dr. Steven Hutcheson
(collectively, the “Proxies”), or any of them, each
with the power of substitution, to represent and vote the shares of
the undersigned, with all the powers which the undersigned would
possess if personally present, at the Annual Meeting of
Stockholders (the “Annual Meeting”) of Aemetis, Inc., a
Nevada corporation (the “Company”), to be held on
Thursday, May 17, 2018 at 1:00 p.m. (Pacific Time), at the offices
of Shearman & Sterling LLP, 1460 El Camino Real, Menlo Park,
California 94025, and at any adjournments or postponements
thereof.
SHARES REPRESENTED BY THIS
PROXY CARD WILL BE VOTED AS DIRECTED BY THE STOCKHOLDER. IF NO SUCH
DIRECTIONS ARE INDICATED, THE PROXIES WILL HAVE AUTHORITY TO VOTE
FOR THE ELECTION OF THE DIRECTOR NOMINEE LISTED ON THE REVERSE SIDE
AND FOR PROPOSAL 2.
IN THEIR DISCRETION, THE
PROXIES ARE AUTHORIZED TO VOTE UPON SUCH OTHER BUSINESS AS MAY
PROPERLY COME BEFORE THE ANNUAL MEETING.
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(CONTINUED AND TO BE SIGNED ON REVERSE SIDE.)
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VOTING INSTRUCTIONS
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If you vote by phone, fax or internet, please DO NOT mail your
proxy card.
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MAIL:
|
Please
mark, sign, date, and return this Proxy Card promptly using the
enclosed envelope.
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FAX:
|
Complete the reverse portion of this Proxy Card
and Fax to
202-521-3464.
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INTERNET:
|
https://www.iproxydirect.com/AMTX
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PHONE:
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1-866-752-VOTE(8683)
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ANNUAL MEETING OF THE STOCKHOLDERS OFAEMETIS, INC.
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PLEASE COMPLETE, DATE, SIGN AND RETURN PROMPTLY IN THE ENCLOSED
ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN
HERE:
☒
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PROXY
SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
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Proposal 1
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FOR
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WITHHOLD
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Election of Directors:
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CONTROL ID:
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Dr.
Steven W. Hutcheson
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☐
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☐
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REQUEST ID:
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Proposal 2
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FOR
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AGAINST
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ABSTAIN
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To ratify the appointment of RSM US LLP as our independent
registered public accounting firm for the fiscal year ending
December 31, 2018.
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☐
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☐
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☐
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Proposal 3
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To transact such other business as may properly come before the
meeting and any adjournment or postponement thereof.
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MARK “X” HERE IF YOU PLAN
TO ATTEND THE MEETING:
☐
|
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The Board of Directors recommends that you vote: “FOR”
the one (1) individual 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 2018.
MARK HERE FOR ADDRESS CHANGE
☐
New Address (if applicable):
_____________________________
_____________________________
_____________________________
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IMPORTANT:
Please sign exactly
as your name or names appear on this Proxy. When shares are held
jointly, each holder should sign. When signing as executor,
administrator, attorney, trustee or guardian, please give full
title as such. If the signer is a corporation, please sign full
corporate name by duly authorized officer, giving full title as
such. If signer is a partnership, please sign in partnership name
by authorized person.
Dated:
________________________, 2018
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___________________________________________
(Print
Name of Stockholder and/or Joint Tenant)
______________________________________________
(Signature
of Stockholder)
___________________________________________
(Second
Signature if held jointly)
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TABLE OF CONTENTS