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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To elect five (5) members of the Board of Directors to hold office for one to three-year terms, if Proposal No. 2 is approved, or, if Proposal No. 2 is not approved, for one-year terms until the Annual Meeting of Stockholders in 2016, or in either case until their successors are duly elected and qualified;
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To approve a proposal to amend the Company’s Articles of Incorporation to divide our Board of Directors into three classes, with directors in each class serving staggered three-year terms;
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To approve a proposal to amend the Company’s Articles of Incorporation to eliminate the ability of stockholders to act by written consent;
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To hold a non-binding advisory vote to approve our executive compensation;
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To hold a non-binding advisory vote on the frequency of holding an advisory vote to approve our executive compensation;
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To approve the Company’s Second Amended and Restated 2007 Stock Plan (“Amended and Restated Plan”) to extend its term and increase the number of shares automatically added to the shares reserved for issuance thereunder each year; and
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To ratify the appointment of McGladrey LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2015.
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“FOR” the five (5) individuals nominated for election to the Board of Directors;
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“FOR” the amendment of our Articles of Incorporation to classify the Board of Directors into three classes;
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“FOR” the amendment of our Articles of Incorporation to eliminate the ability of stockholders to act by written consent;
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“FOR” the approval, on an advisory basis, of the compensation of our named executive officers;
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“FOR” the approval, on an advisory basis, of an advisory vote on executive compensation every three years;
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“FOR” approval of the Amended and Restated Plan; and
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“FOR” ratification of McGladrey LLP as our independent registered public accounting firm for fiscal year 2015.
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1)
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To elect five (5) members of the Board of Directors to hold office for one to three-year terms, if Proposal No. 2 is approved, or, if Proposal No. 2 is not approved, for one-year terms until the Annual Meeting of Stockholders in 2016, or in either case until their successors are duly elected and qualified;
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2)
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To approve a proposal to amend the Company’s Articles of Incorporation to divide our Board of Directors into three classes, with directors in each class serving staggered three-year terms;
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3)
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To approve a proposal to amend the Company’s Articles of Incorporation to eliminate the ability of stockholders to act by written consent;
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4)
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To hold a non-binding advisory vote to approve our executive compensation;
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5)
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To hold a non-binding advisory vote on the frequency of holding an advisory vote to approve our executive compensation;
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6)
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To approve the Second Amended and Restated 2007 Stock Plan (“Amended and Restated Plan”) to extend its term and increase the number of shares automatically added to the shares reserved for issuance thereunder each year;
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7)
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To ratify the appointment of McGladrey LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2015; and
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8)
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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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“FOR” the five (5) individuals nominated for election to the Board of Directors;
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“FOR” the amendment of our Articles of Incorporation to classify the Board of Directors into three classes;
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“FOR” the amendment of our Articles of Incorporation to eliminate the ability of stockholders to act by written consent;
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“
FOR
” the approval, on an advisory basis, of the compensation of our named executive officers;
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“FOR” the approval, on an advisory basis, of an advisory vote on executive compensation every three years;
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“FOR” approval of the Amended and Restated Plan; and
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“FOR” ratification of McGladrey LLP as our independent registered public accounting firm for fiscal year 2015.
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Page
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Information Concerning Solicitation of Proxies and Voting
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4
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Proposal 1: Election of Directors
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10
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Board of Directors Meetings and Committees
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10
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Proposal 2: Approval of Amendment to the Company's Articles of Incorporation to Classify the Board of Directors into Three Classes
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18
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Proposal 3: Approval of Amendment to the Company's Articles of Incorporation to Eliminate the Ability of Stockholders to Act by Written Consent | 21 | |
Proposal 4: Advisory Vote on Executive Compensation
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23
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Executive Compensation
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25
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Employment Contracts And Termination Of Employment And Change-In-Control Arrangements
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33
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Equity Compensation Plans
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36
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Proposal 5: Advisory Vote on the Frequency of an Advisory Vote on Executive Compensation
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37
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Proposal 6: Approval of Second Amended and Restated 2007 Stock Plan
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38
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Proposal 7: Ratification of Auditors
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42
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Security Ownership by Certain Beneficial Owners and Management | 44 | |
Section 16(A) Beneficial Ownership Reporting Compliance
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45
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Certain Relationships And Related Transactions
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46
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Other Matters
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47
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Householding
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48
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Q:
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What is the purpose of the Annual Meeting?
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A:
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To vote on the following proposals:
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To elect five (5) members of the Board of Directors to hold office for one to three-year terms, if Proposal No. 2 is approved, or, if Proposal No. 2 is not approved, for one-year terms until the Annual Meeting of Stockholders in 2016, or in either case until their successors are duly elected and qualified;
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To approve a proposal to amend the Company’s Articles of Incorporation to divide our Board of Directors into three classes, with directors in each class serving staggered three-year terms;
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To approve a proposal to amend the Company’s Articles of Incorporation to eliminate the ability of stockholders to act by written consent;
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To hold a non-binding advisory vote to approve our executive compensation;
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To hold a non-binding advisory vote on the frequency of holding an advisory vote to approve our executive compensation;
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To approve the Company’s Second Amended and Restated 2007 Stock Plan (“Amended and Restated Plan”) to extend its term and increase the number of shares automatically added to the shares reserved for issuance thereunder each year;
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To ratify the appointment of McGladrey LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2015; 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 Director’s recommendations?
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A:
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The Board recommends a vote:
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“FOR” the five (5) individuals nominated for election to the Board of Directors;
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“FOR” the amendment of our Articles of Incorporation to classify the Board of Directors into three classes;
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“FOR” the amendment of our Articles of Incorporation to eliminate the ability of stockholders to act by written consent;
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“FOR” the approval, on an advisory basis, of the compensation of our named executive officers;
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“FOR” the approval, on an advisory basis, of an advisory vote on executive compensation every three years;
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“FOR” approval of the Amended and Restated Plan;
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“FOR” ratification of McGladrey LLP as our independent registered public accounting firm for fiscal year 2015; and
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“FOR” or “AGAINST” other matters that properly come before the Annual Meeting, as the proxy holders deem advisable.
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Q:
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Why did I receive an Internet Availability Notice instead of a full set of the proxy materials?
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A:
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We are pleased to take advantage of the SEC rules that allow companies to furnish their proxy materials over the Internet. Accordingly, we sent to our stockholders the Internet Availability Notice regarding Internet availability of the proxy materials for this year’s Annual Meeting. Instructions on how to access the proxy materials over the Internet or to request a paper copy can be found in the Internet Availability Notice. In addition, stockholders may request to receive proxy materials in printed form by mail on an ongoing basis by submitting a request to our Corporate Secretary at (408) 213-0940, by email at twaltz@aemetis.com, or by writing to: Aemetis, Inc., 20400 Stevens Creek Blvd., Suite 700, Cupertino, CA 95014, attn.: Corporate Secretary. A stockholder’s election to receive proxy materials by mail will remain in effect until the stockholder terminates it.
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Q:
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Can I vote my shares by filling out and returning the Internet Availability Notice?
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A:
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No. The Internet Availability Notice does, however, provide instructions on how to vote your shares.
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Q:
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Who is entitled to vote at the meeting?
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A:
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Stockholders Entitled to Vote.
Stockholders who our records show owned shares of Aemetis, Inc. as of the close of business on April 2, 2015 (the “Record Date”) may vote at the Annual Meeting. On the Record Date, we had a total of 19,847,142 shares of common stock issued and outstanding, which were held of record by 286 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 1,558,394 shares of Series B Preferred Stock, or preferred stock, outstanding, which were held of record by 48 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 155,839 votes (shares of preferred stock outstanding divided by 10 to reflect the reverse stock split) at the Annual Meeting, or one vote for every ten shares of preferred stock.
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Q:
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What is the difference between record stockholders and street name stockholders?
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Registered Stockholders.
If your shares are registered directly in your name with Aemetis’s transfer agent, you are considered, with respect to those shares, the stockholder of record, and the Internet Availability Notice is being sent to you by Aemetis, Inc. As the stockholder of record, you have the right to grant your voting proxy directly to the individuals listed on the proxy card or to vote by telephone or the Internet as instructed in the Internet Availability Notice or in person at the Annual Meeting.
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Street Name Stockholders.
If your shares are held in a stock brokerage account or by a bank or other nominee, you are considered, with respect to those shares, the beneficial owner of shares held in street name. The Internet Availability Notice is being forwarded to you by your broker or nominee, who is considered, with respect to those shares, the record holder. As the beneficial owner, you have the right to direct your broker or nominee how to vote, and you are also invited to attend the Annual Meeting. However, since you are not the record holder, you may not vote these shares in person at the Annual Meeting unless you follow your broker’s procedures for obtaining a legal proxy. Your broker or nominee will provide a voting instruction card for you to use.
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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 April 2, 2015. You may be requested to present photo identification, such as a driver’s license or passport, to gain admission to the Annual Meeting.
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Q:
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How can I vote my shares?
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A:
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Registered Stockholders:
Registered stockholders may vote in person at the Annual Meeting or by one of the following methods:
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By Mail.
Complete, sign and date the proxy card and return it in the prepaid envelope provided.
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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.
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Please note that voting facilities for registered stockholders will close at 11:59 pm (eastern time) on May 20, 2015.
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Street Name Stockholders:
If your shares are held by a broker, bank or other nominee, you must follow the instructions on the form you receive from your broker, bank or other nominee in order for your shares to be voted. Please follow their instructions carefully. Also, please note that if the holder of record of your shares is a broker, bank or other nominee and you wish to vote in person at the Annual Meeting, you must request a legal proxy from the bank, broker or other nominee that holds your shares and present that proxy and proof of identification at the Annual Meeting to vote your shares.
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Based on the instructions provided by the broker, bank or other holder of record of their shares, street name stockholders may generally vote by one of the following methods:
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By Mail.
You may vote by signing, dating and returning your voting instruction card in the enclosed pre-addressed envelope;
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By Methods Listed on the Voting Instruction Card.
Please refer to your voting instruction card or other information forwarded by your bank, broker or other holder of record to determine whether you may vote by the Internet, telephone, mail or fax, and follow the instructions on the voting instruction card or other information provided by the record holder; or
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In Person with a Legal Proxy from the Record Holder.
A street name stockholder who wishes to vote at the Annual Meeting will need to obtain a legal proxy from his or her bank or brokerage firm. Please consult the voting instruction card sent to you by your bank or broker to determine how to obtain a legal proxy in order to vote in person at the Annual Meeting.
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Q:
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If I sign a proxy, how will it be voted?
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A:
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When proxies are properly delivered, the shares represented by such proxies will be voted at the Annual Meeting in accordance with the instructions of the stockholder. However, if no specific instructions are given, the shares will be voted in accordance with the above recommendations of our Board of Directors. If any matters not described in the proxy statement are properly presented at the Annual Meeting, the proxy holders will use their own judgment to determine how to vote your shares. If the Annual Meeting is adjourned, the proxy holders can vote your shares on the new meeting date as well, unless you have revoked your proxy instructions, as described below under “Can I change my vote?”
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Q:
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What should I do if I get more than one set of voting materials?
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A:
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Stockholders may receive more than one set of voting materials, including multiple Internet Availability Notices or voting instruction cards. For example, stockholders who hold shares in more than one brokerage account may receive a separate voting instruction card for each brokerage account in which shares are held. Stockholders of record whose shares are registered in more than one name will receive more than one Internet Availability Notice. You should vote in accordance with the instructions in each Internet Availability Notice and voting instruction card you receive relating to our Annual Meeting to ensure that all of your shares are voted.
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Q:
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Can I change my vote?
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A:
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Registered Stockholders:
You may change your vote at any time prior to the vote at the Annual Meeting. To revoke your proxy instructions and change your vote if you are a holder of record, you must (i) attend the Annual Meeting and vote your shares in person, (ii) advise Todd Waltz, the Company’s Corporate Secretary, at our principal executive office in writing before the proxy holders vote your shares, or (iii) deliver later dated proxy instructions in one of the manners authorized and described in this proxy statement (such as via the Internet or by telephone).
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Street Name Stockholders:
If you hold your shares through a broker, bank or other nominee, please follow the instructions provided by your broker, bank or other nominee as to how you may change your vote or obtain a “legal proxy” to vote your shares if you wish to cast your vote in person at the Annual Meeting.
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Q:
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What happens if I decide to attend the Annual Meeting but I have already voted or submitted a proxy covering my shares?
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A:
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You may attend the meeting and vote in person even if you have already voted or submitted a proxy. Please be aware that attendance at the Annual Meeting will not, by itself, revoke a proxy. If a bank, broker or other nominee holds your shares and you wish to attend the Annual Meeting and vote in person, you must obtain a “legal proxy” from the record holder of the shares giving you the right to vote the shares.
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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 five (5) nominees for director who receive the most votes cast in their favor will be elected to serve as directors.
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Proposal No. 2: Must be approved by the affirmative vote of a majority of the shares entitled to vote thereon.
● Proposal No. 3: Must be approved by the affirmative vote of a majority of the shares entitled to vote thereon.
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Proposal No. 4: 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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Proposal No. 5: The option of one year, two years or three years that receives the highest number of votes cast by stockholders will be the frequency for the advisory vote on executive compensation that has been selected by stockholders.
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Proposal No. 6: 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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Proposal No. 7: Must be approved by the affirmative vote of a majority of the shares entitled to vote and present in person or represented by proxy at the Annual Meeting.
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Q:
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What are “broker non-votes?”
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A broker non-vote occurs when a brokerage firm or other nominee holding shares for a beneficial owner does not vote on a particular proposal because the nominee does not have authority to vote on that particular proposal without receiving voting instructions from the beneficial owner. Brokers are subject to the rules of the New York Stock Exchange (the “NYSE Rules”). The NYSE Rules direct that certain matters submitted to a vote of stockholders are “routine” items and brokers generally may vote on these “routine” matters on behalf of beneficial owners who have not furnished voting instructions, subject to the NYSE Rules concerning transmission of proxy materials to beneficial owners, and subject to any proxy voting policies and procedures of those brokerage firms. For “non-routine” proposals, brokers may not vote on the proposals unless they have received voting instructions from the beneficial owner, and to the extent that they have not received voting instructions, brokers report such number of shares as “non-votes.” Under current NYSE Rules, the Company believes that Proposal No. 7 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. However, under current NYSE Rules, the Company believes that brokers who have not been furnished voting instructions from their clients will not be authorized to vote in their discretion on Proposals No. 1, 2, 3, 4, 5 or 6. Accordingly, for beneficial stockholders, if you do not give your broker specific instructions, your shares may not be voted on such proposals.
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Q:
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How are abstentions and broker non-votes counted?
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Abstentions and broker non-votes will be counted for purposes of calculating whether a quorum is present at the Annual Meeting and will be counted for purposes of determining whether proposals requiring approval by the affirmative vote of a majority of the shares entitled to vote thereon or the affirmative vote of a majority of the shares entitled to vote and present in person or represented by proxy at the Annual Meeting. Thus, an abstention or broker non-vote will be counted as a vote “AGAINST” Proposals 2, 3, 4, 6 and 7.
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Q:
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What constitutes a quorum?
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A:
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The Annual Meeting will be held if a majority of the outstanding voting power of the Company, which includes shares of common stock and preferred stock (with the preferred stock being counted on an as converted to common stock basis), is represented in person or by proxy at the meeting. If you have returned valid proxy instructions or attend the Annual Meeting in person, your stock will be counted for the purpose of determining whether there is a quorum, even if you wish to abstain from voting on some or all matters at the meeting.
All shares of Aemetis common stock and preferred stock (with the preferred stock being counted on an as converted to common stock basis) represented at the Annual Meeting, including broker non-votes and abstentions, will be counted for purposes of determining the presence of a quorum.
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Q:
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How are votes counted?
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A:
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Aemetis will designate IssuerDirect 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 and our bylaws. In order for a stockholder proposal to be included in our Proxy Statement and form of Proxy relating to the meeting for our 2016 Annual Meeting of Stockholders under rules set forth in the 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 2016 Annual Meeting must be received by Todd Waltz, Corporate Secretary, on or after December 12, 2015, and prior to 5:00 p.m. (Pacific Time) on January 11, 2016 and must satisfy the requirements of the proxy rules promulgated by the Securities and Exchange Commission. Our bylaws require that certain information and acknowledgments with respect to the proposal and the stockholder making the proposal be set forth in the notice. A copy of the relevant bylaw provision is available upon written request to Aemetis, Inc. at Corporate Secretary at 20400 Stevens Creek Blvd., Suite 700, Cupertino, CA 95014. You can also access our SEC filings, including our 2014 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 Annual Report on Form 10-K and proxy statement). If you wish to receive a separate proxy statement at this time, please request the additional copy by contacting our transfer agent, Corporate Stock Transfer, by telephone at (303) 282-4800, or by facsimile at (303) 282-5800.
You may also request to receive a separate Annual Report and a separate proxy statement by contacting our Corporate Secretary at (408) 213-0940, by email at twaltz@aemetis.com, or by writing to: Aemetis, Inc., 20400 Stevens Creek Blvd., Suite 700, Cupertino, CA 95014, attn.: Corporate Secretary.
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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.
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Na
me
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Age
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Position
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Director
Since
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Classification
(Term Expiration)
(1)
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||||
Eric A. McAfee
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52 |
Chief Executive Officer and Chairman of the Board
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2006 |
Class I (2018)
|
||||
Francis P. Barton
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68 |
Director
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2012 |
Class I (2018)
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||||
John R. Block
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80 |
Director
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2008 |
Class III (2016)
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||||
Dr. Steven W. Hutcheson
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61 |
Director
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2011 |
Class II (2017)
|
||||
Harold Sorgenti
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80 |
Director
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2007 |
Class II (2017)
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(1)
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If the Classified Board Amendment is not approved, each nominee, if elected at the Annual Meeting, will serve as a director until the earlier of the 2016 Annual Meeting of Stockholders or until his successor is duly elected and qualified.
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Name of Director
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Audit
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Governance, Compensation and
Nominating
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||||||
Harold Sorgenti
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M | C | ||||||
Francis Barton
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C | M | ||||||
John R. Block
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M | |||||||
Dr. Hutcheson
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M | |||||||
M = Member
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||||||||
C = Chair
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Name
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Fees Earned
or Paid in
Cash ($)
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Option
Awards
(1)(2)
($)
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Total ($)
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|||||||||
Harold Sorgenti
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90,250 | 45,466 | 135,716 | |||||||||
John R. Block
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79,000 | 33,088 | 112,088 | |||||||||
Dr. Steven Hutcheson
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79,250 | 33,088 | 112,388 | |||||||||
Francis Barton
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102,500 | 45,466 | 147,966 |
(1)
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The amounts in this column represent the aggregate grant date fair value under ASC Topic 718. The assumptions made when calculating the amounts in this table are found in Note 11 (Stock Based Compensation) of the Notes to Consolidated Financial Statements in our 2014 Annual Report filed with the SEC on March 12, 2015.
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(2)
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The following table shows for each named individual the aggregate number of shares subject to all outstanding options and warrants held by that individual as of December 31, 2014.
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Name
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Number of Shares of Common Stock Subject to all outstanding options as of December 31, 2014
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Number of Shares of Common Stock Subject to all outstanding warrants as of December 31, 2014
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||||||
Harold Sorgenti
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62,268
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33,232
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||||
John R. Block
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56,768
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28,232
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||||
Dr. Steven Hutcheson
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41,250
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20,000
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Francis Barton
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60,500
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25,000
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Name
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Date of Grant
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Number of Shares Subject to Option (#)
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Exercise Price per Share ($)
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Grant Date Fair Value ($)
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||||||||||
12/15/2014
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8,000 | 4.66 | 18,769 | |||||||||||
Harold Sorgenti
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3/13/2014
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12,500 | 4.20 | 26,696 | ||||||||||
12/15/2014
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5,000 | 4.66 | 11,731 | |||||||||||
John R. Block
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3/13/2014
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10,000 | 4.20 | 21,357 | ||||||||||
12/15/2014
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5,000 | 4.66 | 11,731 | |||||||||||
Dr. Steven Hutcheson
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3/13/2014
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10,000 | 4.20 | 21,357 | ||||||||||
12/15/2014
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8,000 | 4.66 | 18,769 | |||||||||||
Francis Barton
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3/13/2014
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12,500 | 4.20 | 26,696 |
●
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issued time-based stock option awards to certain of our named executive officers to reward long-term strategic management and foster the enhancement and improvement of stockholder value;
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●
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approved discretionary bonuses for certain of our named executive officers in recognition of their service and contribution to the profitability of the Company during 2014; and
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●
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increased base salaries for our named executive officers for 2015 from previous base salaries that had remained unchanged since 2006 to provide our named executive officers with a more competitive annual salary.
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Name
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Age
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Position
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||
Eric A. McAfee
|
52 |
Chief Executive Officer and Chairman of the Board
|
||
Todd A. Waltz
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53 |
Executive Vice President, Chief Financial Officer and Secretary
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Andrew B. Foster
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49 |
Executive Vice President and Chief Operating Officer
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||
Sanjeev Gupta
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55 |
Executive Vice President and Managing Director, Chairman and President of Universal Biofuels
Private, Ltd.
|
●
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increase Mr. McAfee’s annual salary by $70,000 to $250,000;
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●
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increase Mr. Waltz’s annual salary by $50,000 to $230,000;
|
●
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increase Mr. Foster’s annual salary by $30,000 to $210,000; and
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●
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increase Mr. Gupta’s annual salary by $30,000 to $210,000.
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Name and Principal Position
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Year
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Salary ($)
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Bonus ($)
|
Option/ Warrant Awards
(1)
($)
|
Total Compensation ($) | |||||||||||||
Eric A. McAfee, Chief
(2)
Executive Officer
|
2014
|
180,000 | - | - | 180,000 | |||||||||||||
2013
|
180,000 | - | - | 180,000 | ||||||||||||||
2012
|
180,000 | - | - | 180,000 | ||||||||||||||
Todd A. Waltz, Chief Financial Officer
|
2014
|
180,000 | 23,500 | 55,497 | 258,997 | |||||||||||||
2013
|
180,000 | 9,000 | 184,394 | 373,394 | ||||||||||||||
2012
|
180,000 | - | 84,047 | 264,047 | ||||||||||||||
Andrew B. Foster, Executive Vice President
|
2014
|
180,000 | 23,500 | 44,819 | 248,319 | |||||||||||||
2013
|
180,000 | 9,000 | 76,262 | 265,262 | ||||||||||||||
2012
|
180,000 | - | 84,047 | 264,047 | ||||||||||||||
Sanjeev Gupta, Executive Vice President
|
2014
|
180,000 | 23,500 | 55,497 | 258,997 | |||||||||||||
2013
|
180,000 | 9,000 | 184,394 | 373,394 | ||||||||||||||
2012
|
180,000 | - | 84,047 | 264,047 |
(1)
|
These amounts reflect the value determined by the Company for accounting purposes for these awards with respect to the current fiscal year and do not reflect whether the recipient has actually realized a financial benefit from the awards (such as by exercising stock options or warrants). This column represents the aggregate grant date fair value of stock options and warrants granted during fiscal years 2014, 2013 and 2012 to each of the named executive officers, in accordance with ASC Topic 718
Compensation
. Pursuant to SEC rules, the amounts shown exclude the impact of estimated forfeitures related to service-based vesting conditions. The assumptions made when calculating the amounts in this column are found in Note 11 (Stock Based Compensation) of the Notes to Consolidated Financial Statements in Part II, Item 8 of the 2014 Annual Report filed with the SEC on March 12, 2015.
|
(2)
|
Mr. McAfee’s compensation is solely for his services as an Executive Officer and he does not receive any compensation for his services as Chairman of the Board of Directors.
|
Name
|
Grant Date
|
All Other Option/ Warrant Awards:
No. of Securities Underlying Options/ Warrants (#)
|
Exercise or Base Price of Option/ Warrant Awards ($/Sh)
|
Grant Date Fair Value of Option/ Warrant Awards
(1)
|
||||||||||
Todd A. Waltz
|
12/15/14
|
10,000 | 4.66 | 23,462 | ||||||||||
03/13/14
|
15,000 | 4.20 | 32,035 | |||||||||||
Andrew B. Foster
|
12/15/14
|
10,000 | 4.66 | 23,462 | ||||||||||
03/13/14
|
10,000 | 4.20 | 21,357 | |||||||||||
Sanjeev Gupta
|
12/15/14
|
10,000 | 4.66 | 23,462 | ||||||||||
03/13/14
|
15,000 | 4.20 | 32,035 |
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 ($)
|
Option/ warrant expiration date
|
||||||||||
Todd A. Waltz
|
12/15/14
|
- | 10,000 | (2) | 4.66 |
12/15/19
|
|||||||||
03/13/14
|
3,750 | (2) | 11,250 | (2) | 4.20 |
3/12/19
|
|||||||||
08/02/13
|
30,000 | (3) | - | 4.00 |
8/3/18
|
||||||||||
03/14/13
|
17,500 | (2) | 12,500 | (2) | 6.50 |
3/13/18
|
|||||||||
11/05/12
|
20,000 | (2) | 10,000 | (2) | 5.50 |
11/05/17
|
|||||||||
12/09/10
|
5,303 | (2) | - | 1.20 |
12/08/15
|
||||||||||
12/09/10
|
24,698 | (3) | - | 1.30 |
12/15/15
|
||||||||||
Andrew B. Foster
|
12/15/14
|
- | 10,000 | (2) | 4.66 |
12/15/19
|
|||||||||
03/13/14
|
2,500 | (2) | 7,500 | (2) | 4.20 |
3/12/19
|
|||||||||
08/02/13
|
15,000 | (3) | - | 4.00 |
8/3/18
|
||||||||||
03/14/13
|
5,834 | (2) | 4,166 | (2) | 6.50 |
3/13/18
|
|||||||||
11/05/12
|
20,000 | (2) | 10,000 | (2) | 5.50 |
11/05/17
|
|||||||||
12/09/10
|
884 | (1) | - | 1.20 |
12/08/15
|
||||||||||
12/09/10
|
4,116 | (3) | - | 1.30 |
12/15/15
|
||||||||||
7/17/07
|
30,000 | (1) | - | 30.00 |
7/16/17
|
||||||||||
Sanjeev Gupta
|
12/15/14
|
- | 10,000 | (2) | 4.66 |
12/15/19
|
|||||||||
03/13/14
|
3,750 | (2) | 11,250 | (2) | 4.20 |
3/12/19
|
|||||||||
08/02/13
|
30,000 | (3) | - | 4.00 |
8/3/18
|
||||||||||
03/14/13
|
17,500 | (2) | 12,500 | (2) | 6.50 |
3/13/18
|
|||||||||
11/05/12
|
20,000 | (2) | 10,000 | (2) | 5.50 |
11/05/17
|
|||||||||
12/09/10
|
3,535 | (2) | - | 1.20 |
12/08/15
|
||||||||||
12/09/10
|
16,465 | (3) | - | 1.30 |
12/15/15
|
(1)
|
Option fully vested on the date of grant.
|
(2)
|
One-twelfth (1/12) of the shares subject to the option vest every three months following the date of grant.
|
(3)
|
Warrants fully vested on the date of grant.
|
Option Awards
|
||||||||
Name
|
Number of
Shares Acquired
on Exercise (#)
|
Value Realized
on Exercise ($)
|
||||||
Todd A. Waltz
|
22,000 | 65,763 | ||||||
Andrew B. Foster
|
48,000 | 143,487 | ||||||
Sanjeev Gupta
|
50,000 | 149,465 |
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
|
90,000 | 90,000 | |||||||
COBRA
|
10,825 | 10,825 | ||||||||
Equity Acceleration
|
- | - | ||||||||
Total
|
100,825 | 100,825 | ||||||||
Todd A. Waltz
|
Salary
|
45,000 | 45,000 | |||||||
COBRA
|
1,761 | 1,761 | ||||||||
Equity Acceleration
|
- | 20,788 | ||||||||
Total
|
46,761 | 67,549 | ||||||||
Andrew B. Foster
|
Salary
|
45,000 | 45,000 | |||||||
COBRA
|
1,761 | 1,761 | ||||||||
Equity Acceleration
|
- | 14,825 | ||||||||
Total
|
46,761 | 64,586 | ||||||||
Sanjeev Gupta
|
Salary
|
45,000 | 45,000 | |||||||
COBRA
|
1,761 | 1,761 | ||||||||
Equity Acceleration
|
- | 20,788 | ||||||||
Total
|
46,761 | 67,549 |
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)
|
925,390 | 5.52 | 5,904 | |||||||||
Equity in the form of warrants issued to officers, directors and employees not approved by security holders
|
308,231 | 3.18 | — | |||||||||
Equity in the form of options issued to directors and consultants not approved by security holders
|
89,250 | 5.50 | — | |||||||||
Total
|
1,322,871 | 5,904 |
(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.
|
●
|
extend
the term of the 2007 Stock Plan to continue in effect until February 18, 2025, from July 17, 2017; and
|
●
|
increase the number of shares automatically added to the shares reserved for issuance under the 2007 Stock Plan each year to the lesser of: (i) three percent (3%) of the sum of (A) the number of shares outstanding on the date that the Plan was adopted by the Board plus (B) the number of shares issuable pursuant to outstanding awards on the date that the Plan was adopted by the Board, or (ii) such number as determined by the Board. The exisiting 2007 Stock Plan provides that the number of shares automatically added to the shares reserved for issuance thereunder each year is the lesser of (i) 1,000,000 Shares, (ii) one percent (1%) of the shares outstanding and issuable pursuant to outstanding awards at the end of the fiscal year, and (iii) such number as determined by the Board.
|
Name and Position
|
Number of Shares of Common Stock to be Issued Upon Exercise of Awards
|
|||
Eric A. McAfee, Chief Executive Officer
|
- | |||
Todd A. Waltz, Chief Financial Officer
|
25,000 | |||
Andrew B. Foster, Executive Vice President
|
20,000 | |||
Sanjeev Gupta, Executive Vice President
|
25,000 | |||
Francis P. Barton, Director
|
20,500 | |||
John R. Block, Director
|
15,000 | |||
Dr. Steven W. Hutcheson, Director
|
15,000 | |||
Harold Sorgenti, Director
|
20,500 | |||
All executive officers as a group
|
70,000 | |||
All directors who are not executive officers as a group
|
71,000 | |||
All employees who are not executive officers as a group
|
105,500 | |||
2014
|
2013
|
|||||||
Audit Fees
|
$ | 345,000 | $ | 270,000 | ||||
Audit-Related Fees
|
42,000 | 42,500 | ||||||
Total Audit and Audit-Related Fees
|
387,000 | 312,500 | ||||||
All Other Fees
|
–– | –– | ||||||
Total
|
$ | 387,000 | $ | 312,500 |
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)
|
3,471,548 | 17.49 | % | - | * | |||||||||||
Francis Barton
(2)
|
89,751 | * | - | * | ||||||||||||
John R. Block
(3)
|
106,219 | * | - | * | ||||||||||||
Dr. Steven Hutcheson
(4)
|
248,633 | 1.25 | % | - | * | |||||||||||
Harold Sorgenti
(5)
|
99,263 | * | - | * | ||||||||||||
Andrew Foster
(6)
|
131,114 | * | - | * | ||||||||||||
Sanjeev Gupta
(7)
|
173,420 | * | - | * | ||||||||||||
Todd A. Waltz
(8)
|
272,696 | 1.37 | % | - | * | |||||||||||
All officers and directors as a group (8 Persons)
|
4,592,644 | 22.44 | % | - | * | |||||||||||
5% or more Holders
|
||||||||||||||||
Third Eye Capital
(9)
161 Bay Street, Suite 3930
Toronto, Ontario M5J 2S1
|
2,473,165 | 12.45 | % | - | * | |||||||||||
Laird Cagan
(10)
|
2,224,392 | 11.21 | % | - | * | |||||||||||
20400 Stevens Creek Blvd., Suite 700
|
||||||||||||||||
Cupertino, CA 95014
|
||||||||||||||||
Mahesh Pawani
Villa No. 6, Street 29, Community 317, Al Mankhool,
Dubai, United Arab Emirates
|
53,542 | * | 400,000 | 25.67 | % | |||||||||||
Frederick WB Vogel
|
53,144 | * | 408,332 | 26.20 | % | |||||||||||
1660 N. La Salle Drive, Apt 2411
|
||||||||||||||||
Chicago, Illinois 60614
|
||||||||||||||||
Murlindhar Odrani
Office 119 Al Shamsi Building
Dubai, United Arab Emirates
|
- | * | 100,000 | 6.42 | % | |||||||||||
Rakesh Pahilaj Rachwani
|
- | * | 100,000 | 6.42 | % | |||||||||||
Office 119 Al Shamsi Building
|
||||||||||||||||
Dubai UAE
|
|
(1) Includes 3,411,616 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 15,000 shares held by Mr. Barton and 49,751 shares issuable pursuant to options exercisable within 60 days of April 2, 2015 and 25,000 common stock warrants fully exercisable.
|
|
(3)
Includes 19,592 shares held by Mr. Block and 58,394
shares issuable pursuant to options exercisable within 60 days of April 2, 2015, and 28,233 common stock warrants fully exercisable.
|
|
(4) Includes 195,757 shares held by Dr. Hutcheson and 32,876 shares issuable pursuant to options exercisable within 60 days of April 2, 2015 and 20,000 common stock warrants fully exercisable.
|
|
(5) Includes 24,511 shares held by Mr. Sorgenti and 41,519 shares issuable pursuant to options exercisable within 60 days of April 2, 2015, and 33,233 common stock warrants fully exercisable.
|
|
(6)
Includes 37,799 shares held by Mr. Foster and
74,219 shares issuable pursuant to options exercisable within 60 days of April 2, 2015, and 19,116 fully exercisable common stock warrants.
|
|
(7) Includes 60,920 shares held by Mr. Gupta, 66,035 shares issuable pursuant to options exercisable within 60 days of April 2, 2015, and 46,465 fully exercisable common stock warrants.
|
|
(8) Includes 150,195 shares held by Mr. Waltz, 67,803 shares issuable pursuant to options exercisable within 60 days of April 2, 2015 and 54,698 fully exercisable common stock warrants.
|
|
(9) Includes 1,631,370 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 828,454 shares of common stock, and 13,333 common stock warrants fully exercisable.
|
|
(10) Includes (i) 1,713,616 shares held by Cagan Capital, LLC, a company owned by Mr. Cagan; (ii) 13,000 shares owned by the KRC Trust and 13,000 owned by the KQC Trust, trusts for Mr. Cagan’s daughters for which Mr. Cagan is trustee, (iii) 400,000 held by The Laird Cagan 2011 Grantor Retained Annuity Trust and (iv) 84,776 shares held by Mr. Cagan individually.
|