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 SEC 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 at
20400 Stevens Creek Blvd., Suite 700, Cupertino, CA 95014,
Attention: Investor Relations.
BY ORDER OF THE BOARD OF DIRECTORS
Todd
Waltz
Corporate
Secretary
Aemetis,
Inc.
July
12, 2021
Appendix A
AEMETIS,
INC.
AMENDED
AND RESTATED 2019 STOCK PLAN
1. Purposes of this Plan.
The purposes of this Plan are to attract and retain the best
available personnel for positions of substantial responsibility, to
provide additional incentive to Employees, Directors and
Consultants and to promote the success of the Company’s
business. This Plan permits the grant of Incentive Stock Options,
Nonstatutory Stock Options, Stock Appreciation Rights, Restricted
Stock, Restricted Stock Units, Performance Units, Performance
Shares and other stock or cash awards as the Administrator may
determine.
2. Effective Date and Term.
The original version of the Plan became effective on April 25, 2019
upon its approval by the stockholders (the “Effective Date”). The
Plan was amended and restated by the Board as set forth herein
effective April 3, 2020, subject to approval by the Company’s
stockholders in accordance with Section 24. Unless sooner
terminated under Section 17, this Plan shall continue in effect for
a term of ten (10) years following the date that the original
version of this Plan was adopted by the Board, except with respect
to Awards then outstanding. This Plan replaces the Prior Plans for
Awards granted on or after the Effective Date. Following the
Effective Date, no further awards have been or will be granted
under the Prior Plans and any outstanding awards granted under the
Prior Plans shall continue to be subject to the terms and
conditions of the applicable Prior Plan.
3.
Definitions. As used herein,
the following definitions shall apply
(a)
“2007 Plan” means
the Second Amended and Restated 2007 Stock Plan, as Amended and
Restated February 19, 2015.
(b)
“Administrator”
means the Board or any of its Committees as shall be administering
this Plan in accordance with Section 4
hereof.
(c)
“Applicable Laws”
means any applicable legal requirements relating to the
administration and issuance of Awards under this Plan, including
the requirements of U.S. state corporate laws, U.S. federal and
state securities laws, the Code, the requirements of any stock
exchange or quotation system on which the Common Stock is listed or
quoted and the applicable laws of any other country or jurisdiction
where Awards are, or will be, granted under this Plan. For all
purposes of this Plan, references to statutes and regulations shall
be deemed to include any amendments thereto and any successor
statutes or regulations, where necessary as determined by the
Administrator in its sole discretion.
(d)
“Award“Award”
means, individually or collectively, a grant under this Plan of
Options, Stock Appreciation Rights, Restricted Stock, Restricted
Stock Units, Performance Units, Performance Shares and other stock
or cash awards as the Administrator may determine.
(e)
“Award
Agreement” means the
written or electronic agreement setting forth the terms and
provisions applicable to each Award granted under this Plan. The
Award Agreement is subject to the terms and conditions of this
Plan
(f)
“Board” means the
Board of Directors of the Company.
(g)
“Change in Control”
means the occurrence of any of the following events:
(i) A change in the
ownership of the Company which occurs on the date that any one
person, or more than one person acting as a group,
(“Person”) acquires
ownership of the stock of the Company that, together with the stock
held by such Person, constitutes more than fifty percent (50%) of
the total voting power of the stock of the Company; provided,
however, that for purposes of this subsection (i), the acquisition
of additional stock by any one Person, who is considered to own
more than fifty percent (50%) of the total voting power of the
stock of the Company will not be considered a Change in Control;
or
(ii) A
change in the ownership of a substantial portion of the
Company’s assets which occurs on the date that any Person
acquires (or has acquired during the twelve (12)-month period
ending on the date of the most recent acquisition by such person or
persons) assets from the Company that have a total gross fair
market value equal to or more than fifty percent (50%) of the total
gross fair market value of all of the assets of the Company
immediately prior to such acquisition or acquisitions; provided,
however, that for purposes of this subsection (ii), the following
will not constitute a change in the ownership of a substantial
portion of the Company’s assets: (A) a transfer to an entity
that is controlled by the Company’s stockholders immediately
after the transfer, or (B) a transfer of assets by the Company to:
(1) a stockholder of the Company (immediately before the asset
transfer) in exchange for or with respect to the Company’s
stock, (2) an entity, fifty percent (50%) or more of the total
value or voting power of which is owned, directly or indirectly, by
the Company, (3) a Person, that owns, directly or indirectly, fifty
percent (50%) or more of the total value or voting power of all the
outstanding stock of the Company, or (4) an entity, at least fifty
percent (50%) of the total value or voting power of which is owned,
directly or indirectly, by a Person described in this subsection
(ii)(B)(3). For purposes of this subsection (ii), gross fair market
value means the value of the assets of the Company, or the value of
the assets being disposed of, determined without regard to any
liabilities associated with such assets.
For
purposes of this Section 2(f), persons will be considered to be
acting as a group if they are owners of a corporation that enters
into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the Company.
(h)
“Code” means the
Internal Revenue Code of 1986, as amended, and the applicable
rulings and regulations promulgated thereunder.
(i)
Committee means a committee of
Directors or of other individuals satisfying Applicable Laws
appointed by the Board in accordance with Section 4
hereof.
(j) “Common Stock”
means the common stock of the Company, par value $0.001 per share
or such other class of shares or other securities as may be
applicable under Section 15 of this Plan.
(k)
“Company” means
Aemetis, Inc., a Delaware corporation, or any successor
thereto.
(l) “Consultant” means
any person who is engaged by the Company or any Parent or
Subsidiary to render consulting or advisory services to such
entity.
(m)
“Director” means a member
of the Board.
(n) “Disability” means
total and permanent disability as defined in Section 22(e)(3) of
the Code, provided that in the case of Awards other than Incentive
Stock Options, the Administrator in its discretion may determine
whether a permanent and total disability exists in accordance with
uniform and non-discriminatory standards adopted by the
Administrator from time to time.
(o) “Employee” means
any person, including Officers and Directors, employed by the
Company or any Parent or Subsidiary of the Company. Neither service
as a Director nor payment of a director’s fee by the Company
shall be sufficient to constitute “employment” by the
Company.
(p) “Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the
applicable rulings and regulations promulgated
thereunder.
(q) “Exchange Program”
means a program under which (i) outstanding Awards are surrendered
or cancelled in exchange for Awards of the same type (which may
have lower exercise prices and different terms), Awards of a
different type, and/or cash, (ii) Participants would have the
opportunity to transfer any outstanding Awards to a financial
institution or other person or entity selected by the
Administrator, and/or
(iii)
the exercise price of an outstanding Award is reduced. The
Administrator will determine the terms and conditions of any
Exchange Program in its sole discretion.
(r)
“Fair Market
Value” means, as of any date, the value of Common
Stock determined as follows:
(i) If the Common Stock
is listed on any established stock exchange or a national market
system, including without limitation the Nasdaq National Market or
The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair
Market Value shall be the closing sales price for such stock (or
the closing bid, if no sales were reported) as quoted on such
exchange or system on the day of determination, as reported in
The Wall Street Journal or
such other source as the Administrator deems reliable;
(ii) If
the Common Stock is regularly quoted by a recognized securities
dealer but selling prices are not reported, its Fair Market Value
shall be the mean between the high bid and low asked prices for the
Common Stock on the day of determination; or
(iii) In
the absence of an established market for the Common Stock, the Fair
Market Value thereof shall be determined in good faith by the
Administrator.
(s)
“Fiscal Year” means the
fiscal year of the Company.
(t) “Incentive
Stock Option” means an Option that by its terms
qualifies or is otherwise intended to qualify as an incentive stock
option within the meaning of Section 422 of the Code.
(u)
“Nonstatutory Stock
Option” means an Option not intended to qualify as an
Incentive Stock Option.
(v) “Officer” means a
person who is an officer of the Company within the meaning of
Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(w)
“Option” means a
stock option granted pursuant to Section 8 of this
Plan.
(x)
“Parent” means a
“parent corporation,” whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(y)
“Participant” means
the holder of an outstanding Award.
(z)
“Performance Goals” will
have the meaning set forth in Section 13 of this Plan.
(aa)
“Performance
Period” means any Fiscal Year of the Company or such
other period as determined by the Administrator in its sole
discretion.
(bb)
“Performance
Share” means an Award denominated in Shares which may
be earned in whole or in part upon attainment of Performance Goals
or other vesting criteria as the Administrator may determine
pursuant to Section 12.
(cc) “Performance
Unit” means an Award which may be earned in whole or
in part upon attainment of Performance Goals or other vesting
criteria as the Administrator may determine and which may be
settled for cash, Shares or other securities or a combination of
the foregoing pursuant to Section 12.
(dd) “Period
of Restriction” means the period during which the
transfer of Shares of Restricted Stock are subject to restrictions
and, therefore, the Shares are subject to a substantial risk of
forfeiture. Such restrictions may be based on the passage of time,
the achievement of target levels of performance, or the occurrence
of other events as determined by the Administrator.
(ee)
“Plan” means this Amended
and Restated Aemetis, Inc. 2019 Stock Plan, as amended or restated
from time to time.
(ff)
“Prior Plans” means the
2007 Plan and the Zymetis Plan
(gg) “Restricted
Stock” means Shares issued pursuant to an Award of
Restricted Stock under Section 10 of this Plan, or issued pursuant
to an early exercise of an Option.
(hh) “Restricted
Stock Unit” means a bookkeeping entry representing an
amount equal to the Fair Market Value of one Share, granted
pursuant to Section 11. Each Restricted Stock Unit represents an
unfunded and unsecured obligation of the Company.
(ii)
“Rule
16b-3” means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3, as in effect when discretion is being
exercised with respect to this Plan.
(jj)
“Section 16(b)” means
Section 16(b) of the Exchange Act.
(kk)
“Service Provider” means
an Employee, Director or Consultant.
(ll)
“Share” means a
share of the Common Stock, as adjusted in accordance with Section
15 below.
(mm) “Stock
Appreciation Right” means an Award, granted alone or
in connection with an Option, that pursuant to Section 9 is
designated as a Stock Appreciation Right.
(nn)
“Subsidiary” means a
“subsidiary corporation,” whether now or hereafter
existing, as defined in Section 424(f) of the Code.
(oo)
“Zymetis Plan” means the
Zymetis, Inc. 2006 Stock Incentive Plan.
4.
Stock Subject to this
Plan.
(a)
Base Shares Subject to the
Plan. Subject to the provisions of this Section 4 and
Section 15 of this Plan, the maximum aggregate number of Shares
that may be awarded and sold under this Plan shall not, as of July
1, 2021 exceed 4,558,621 Shares, provided that such number shall be
subject to an annual increase as provided in clause (b) below. The
Shares may be authorized but unissued, or reacquired Common
Stock.
(b)
Automatic Share Reserve
Increase. The number of Shares available for issuance under
this Plan as set forth in clause (a) above will be increased on the
first day of each Fiscal Year beginning with the 2022 Fiscal Year,
in an amount equal to the lesser of (i) four percent (4%) of the
sum of (A) the number of Shares outstanding on the first day of
such Fiscal Year plus (B) 2,541,823, or (ii) such number of Shares
otherwise determined by the Board.
(c) Lapsed Awards. If an
Award or an award under a Prior Plan expires or becomes
unexercisable without having been exercised in full, or, with
respect to Restricted Stock, Restricted Stock Units, Performance
Shares or Performance Units, is forfeited to or repurchased by the
Company, the unpurchased Shares (or for Awards other than Options
and Stock Appreciation Rights, the forfeited or repurchased Shares)
which were subject thereto will become available for future grant
or sale under this Plan (unless this Plan has terminated). Upon
exercise of a Stock Appreciation Right settled in Shares, the gross
number of Shares covered by the portion of the Award so exercised
will cease to be available under this Plan. Shares that have
actually been issued under this Plan under any Award will not be
returned to this Plan and will not become available for future
distribution under this Plan; provided, however, that if unvested
Shares of Restricted Stock, Restricted Stock Units, Performance
Shares or Performance Units are repurchased by the Company or are
forfeited to the Company, such Shares will become available for
future grant under this Plan. Shares used to pay the tax and/or
exercise price of an Award will become available for future grant
or sale under this Plan. To the extent an Award under this Plan is
paid out in cash rather than Shares, such cash payment will not
result in reducing the number of Shares available for issuance
under this Plan. Notwithstanding the foregoing provisions of this
Section 3(c), subject to adjustment provided in Section 15, the
maximum number of Shares that may be issued upon the exercise of
Incentive Stock Options will equal the aggregate Share number
stated in Section 3(a), plus any increase in the aggregate Share
number per Section 3(b), plus, to the extent allowable under
Section 422 of the Code, any Shares that become available for
issuance under this Plan under this Section 3(c).
5.
Administration of this
Plan.
(a) Administrator. This Plan
shall be administered by the Board or a Committee appointed by the
Board, which Committee shall be constituted to comply with
Applicable Laws. Different Committees with respect to different
groups of Service Providers may administer this Plan.
(b) Rule 16b-3. To the extent
desirable to qualify transactions hereunder as exempt under Rule
16b-3, the transactions contemplated hereunder will be structured
to satisfy the requirements for exemption under Rule
16b-3.
(c) Powers of the
Administrator. Subject to the provisions of this Plan and,
in the case of a Committee, the specific duties delegated by the
Board to such Committee, and subject to the approval of any
relevant authorities, the Administrator shall have the authority in
its discretion:
(i)
to determine the
Fair Market Value;
(ii)
to select the Service Providers to whom Awards may from time to
time be granted hereunder;
(iii)
to determine the
number of Shares to be covered by each such Award granted
hereunder;
(iv)
to determine the
terms and conditions of any, and to institute an Exchange
Program;
(v)
to approve forms of agreement for use under this Plan;
(vi)
to
determine the terms and conditions, not inconsistent with the terms
of this Plan, of any Award granted hereunder. Such terms and
conditions include, but are not limited to, the exercise price, the
time or times when Awards may be exercised (which may be based on
performance criteria), any vesting acceleration or waiver of
forfeiture restrictions, and any restriction or limitation
regarding any Award or the Common Stock relating thereto, based in
each case on such factors as the Administrator, in its sole
discretion, shall determine;
(vii)
to
prescribe, amend and rescind rules and regulations relating to this
Plan, including rules and regulations relating to sub-plans
established for the purpose of satisfying applicable foreign
laws;
(viii)
to construe and
interpret the terms of this Plan and Awards granted pursuant to
this Plan;
(ix)
to modify or amend
each Award (subject to Section 17(c) of this Plan);
and
(x)
to make all other
determinations deemed necessary or advisable for administering this
Plan.
(d) Effect of Administrator’s
Decision. All decisions, determinations and interpretations
of the Administrator shall be final and binding on all
Participants.
6. Eligibility. Nonstatutory
Stock Options, Restricted Stock, Restricted Stock Units, Stock
Appreciation Rights, Performance Units, Performance Shares, and
such other cash or stock awards as the Administrator determines may
be granted to Service Providers. Incentive Stock Options may be
granted only to Employees.
7. At-Will Employment.
Neither this Plan nor any Award shall confer upon any Participant
any right with respect to continuing the Participant’s
relationship as a Service Provider with the Company, nor shall it
interfere in any way with his or her right or the Company’s
right to terminate such relationship at any time, with or without
cause, and with or without notice.
(i) Incentive Stock Option
Limit. Each Option shall be designated in the Award
Agreement as either an Incentive Stock Option or a Nonstatutory
Stock Option. However, notwithstanding such designation, to the
extent that the aggregate Fair Market Value of the Shares with
respect to which Incentive Stock Options are exercisable for the
first time by the Participant during any calendar year (under all
plans of the Company and any Parent or Subsidiary) exceeds
$100,000, such Options shall be treated as Nonstatutory Stock
Options. For purposes of this Section 8(a), Incentive Stock Options
shall be taken into account in the order in which they were
granted. The Fair Market Value of the Shares shall be determined as
of the time the Option with respect to such Shares is
granted.
(ii) Number
of Shares. The Administrator will have complete discretion
to determine the number of Shares subject to an Option granted to
any Participant, provided that during any Fiscal Year.
(b) Term of Option. The term
of each Option shall be stated in the Award Agreement; provided,
however, that the term shall be (i) no more than fifteen (15) years
from the date of grant thereof for the Option that is granted to a
Director and (ii) no more than ten (10) years from the date of
grant thereof for the Option that is granted to a non-Director
Service Provider. In the case of an Incentive Stock Option granted
to a Participant who, at the time the Option is granted, owns stock
representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the
term of the Option shall be five (5) years from the date of grant
or such shorter term as may be provided in the Award
Agreement.
(c)
Option Exercise Price and
Consideration.
(i) Exercise Price. The per
share exercise price for the Shares to be issued upon exercise of
an Option shall be such price as is determined by the
Administrator, but shall be subject to the following:
(A)
In the case of an
Incentive Stock Option
a) granted to an
Employee who, at the time of grant of such Option, owns stock
representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the
exercise price shall be no less than 110% of the Fair Market Value
per Share on the date of grant; and
b) granted to any
other Employee, the per Share exercise price shall be no less than
100% of the Fair Market Value per Share on the date of
grant.
(B) In the case of a
Nonstatutory Stock Option, the per Share exercise price shall be no
less than 100% of the Fair Market Value per Share on the date of
grant.
(ii) Notwithstanding
the foregoing provisions of this Section 6(c), Options may be
granted with a per Share exercise price of less than 100% of the
Fair Market Value per Share on the date of grant pursuant to a
transaction described in, and in a manner consistent with, Section
424(a) of the Code.
(iii)
Forms of Consideration. The consideration to be paid for the
Shares to be issued upon exercise of an Option, including the
method of payment, shall be determined by the Administrator (and,
in the case of an Incentive Stock Option, shall be determined at
the time of grant). Such consideration may consist of, without
limitation, (i) cash, (ii) check, (iii) promissory note, (iv)
surrender of other Shares which (x) shall be valued at its Fair
Market Value on the date of exercise, and (y) must be owned free
and clear of any liens, claims, encumbrances or security interests,
if accepting such Shares, in the sole discretion of the
Administrator, shall not result in any adverse accounting
consequences to the Company, (v) consideration received by the
Company under a cashless exercise program implemented by the
Company in connection with this Plan, or (vi) any combination of
the foregoing methods of payment. In making its determination as to
the type of consideration to accept, the Administrator shall
consider if acceptance of such consideration may be reasonably
expected to benefit the Company.
(i) Procedure for Exercise; Rights
as a Stockholder. Any Option granted hereunder shall be
exercisable according to the terms hereof at such times and under
such conditions as determined by the Administrator and set forth in
the Award Agreement. An Option may not be exercised for a fraction
of a Share.
An
Option shall be deemed exercised when the Company receives: (i)
written or electronic notice of exercise (in accordance with the
Award Agreement) from the person entitled to exercise the Option,
and (ii) full payment for the Shares with respect to which the
Option is exercised (together with any applicable withholding
taxes). Full payment may consist of any consideration and method of
payment authorized by the Administrator and permitted by the Award
Agreement and this Plan. Shares issued upon exercise of an Option
shall be issued in the name of the Participant or, if requested by
the Participant, in the name of the Participant and his or her
spouse. Until the Shares are issued (as evidenced by the
appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), no right to vote or
receive dividends or any other rights as a stockholder shall exist
with respect to the Shares, notwithstanding the exercise of the
Option. The Company shall issue (or cause to be issued) such Shares
promptly after the Option is exercised. No adjustment will be made
for a dividend or other right for which the record date is prior to
the date the Shares are issued, except as provided in Section 15 of
this Plan.
Exercise of an
Option in any manner shall result in a decrease in the number of
Shares thereafter available for sale under the Option, by the
number of Shares as to which the Option is exercised.
(ii) Termination
of Relationship as a Service Provider. If a Participant
ceases to be a Service Provider, other than upon the
Participant’s termination as the result of the
Participant’s death or Disability, the Participant may
exercise his or her Option within such period of time as is
specified in the Award Agreement to the extent that the Option is
vested on the date of termination (but in no event later than the
expiration of the term of such Option as set forth in the Award
Agreement). In the absence of a specified time in the Award
Agreement, the Option shall remain exercisable for three (3) months
following the Participant’s termination. Unless otherwise
provided by the Administrator, if, on the date of termination, the
Participant is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option shall revert
to this Plan. If, after termination, the Participant does not
exercise the vested portion of his or her Option within the time
specified by the Administrator, the Option shall terminate, and the
Shares covered by such Option shall revert to this
Plan.
(iii) Disability
of Participant. If a Participant ceases to be a Service
Provider as a result of the Participant’s Disability, the
Participant may exercise his or her Option within such period of
time as is specified in the Award Agreement to the extent the
Option is vested on the date of termination (but in no event later
than the expiration of the term of such Option as set forth in the
Award Agreement). In the absence of a specified time in the Award
Agreement, the Option shall remain exercisable for twelve (12)
months following the Participant’s termination. Unless
otherwise provided by the Administrator, if, on the date of
termination, the Participant is not vested as to his or her entire
Option, the Shares covered by the unvested portion of the Option
shall revert to this Plan. If, after termination, the Participant
does not exercise the vested portion of his or her Option within
the time specified herein, the Option shall terminate, and the
Shares covered by such Option shall revert to this
Plan.
(iv) Death
of Participant. If a Participant dies while a Service
Provider, the Option may be exercised by the Participant’s
designated beneficiary within such period of time as is specified
in the Award Agreement to the extent that the Option is vested on
the date of death (but in no event may the Option be exercised
later than the expiration of the term of such Option as set forth
in the Award Agreement), provided such beneficiary has been
designated prior to Participant’s death in a form acceptable
to the Administrator. If no such beneficiary has been designated by
the Participant, then such Option may be exercised by the personal
representative of the Participant’s estate or by the
person(s) to whom the Option is transferred pursuant to the
Participant’s will or in accordance with the laws of descent
and distribution. In the absence of a specified time in the Award
Agreement, the Option shall remain exercisable for twelve (12)
months following the Participant’s termination. Unless
otherwise provided by the Administrator, if, at the time of death,
the Participant is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option shall
immediately revert to this Plan. If the vested portion of the
Option is not so exercised within the time specified herein, the
Option shall terminate, and the Shares covered by such Option shall
revert to this Plan.
9.
Stock Appreciation
Rights.
(a) Grant of Stock Appreciation
Rights. Subject to the terms and conditions of this Plan, a
Stock Appreciation Right may be granted to Service Providers at any
time and from time to time as will be determined by the
Administrator, in its sole discretion.
(b) Number of Shares. The
Administrator will have complete discretion to determine the number
of Stock Appreciation Rights granted to any
Participant.
(c) Exercise Price and Other
Terms. The Administrator, subject to the provisions of this
Plan, shall have complete discretion to determine the terms and
conditions of Stock Appreciation Rights granted under this Plan,
provided, however, that the exercise price will be no less than
100% of the Fair Market Value of a Share on the date of
grant.
(d) Stock Appreciation Right
Agreement. Each Stock Appreciation Right grant will be
evidenced by an Award Agreement that will specify the exercise
price, the term of the Stock Appreciation Right, the conditions of
exercise, and such other terms and conditions as the Administrator,
in its sole discretion, will determine.
(e) Expiration of Stock Appreciation
Rights. A Stock Appreciation Right granted under this Plan
will expire on the date determined by the Administrator, in its
sole discretion, and set forth in the Award Agreement; provided,
however, that the term will be no more than ten (10) years from the
date of grant thereof. Notwithstanding the foregoing, the rules of
Section 8(d) also will apply to Stock Appreciation
Rights.
(f) Payment of Stock Appreciation
Right Amount. Upon exercise of a Stock Appreciation Right, a
Participant will be entitled to receive payment from the Company in
an amount determined by multiplying:
(i)
The difference
between the Fair Market Value of a Share on the date of exercise
over the exercise price; times
(ii)
the number of
Shares with respect to which the Stock Appreciation Right is
exercised.
At the
discretion of the Administrator, the payment upon Stock
Appreciation Right exercise may be in cash, in Shares of equivalent
value, or in some combination thereof.
(a) Grant of Restricted
Stock. Subject to the terms and provisions of this Plan, the
Administrator, at any time and from time to time, may grant Shares
of Restricted Stock to Service Providers in such amounts as the
Administrator, in its sole discretion, will determine.
(b) Restricted Stock
Agreement. Each Award of Restricted Stock will be evidenced
by an Award Agreement that will specify the Period of Restriction,
the number of Shares granted, and such other terms and conditions
as the Administrator, in its sole discretion, will determine.
Unless the Administrator determines otherwise, Shares of Restricted
Stock will be held by the Company as escrow agent until the
restrictions on such Shares have lapsed.
(c) Transferability. Except
as provided in this Section 10, Shares of Restricted Stock may not
be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated until the end of the applicable Period of
Restriction.
(d) Other Restrictions. The
Administrator, in its sole discretion, may impose such other
restrictions on Shares of Restricted Stock as it may deem advisable
or appropriate.
(e) Removal of Restrictions.
Except as otherwise provided in this Section 10, Shares of
Restricted Stock covered by each Restricted Stock grant made under
this Plan will be released from escrow as soon as practicable after
the last day of the Period of Restriction. The Administrator, in
its discretion, may accelerate the time at which any restrictions
will lapse or be removed.
(f) Voting Rights. During the
Period of Restriction, Service Providers holding Shares of
Restricted Stock granted hereunder may exercise full voting rights
with respect to those Shares, unless the Administrator determines
otherwise.
(g) Dividends and Other
Distributions. During the Period of Restriction, Service
Providers holding Shares of Restricted Stock will be entitled to
receive all dividends and other distributions paid with respect to
such Shares unless otherwise provided in the Award Agreement. If
any such dividends or distributions are paid in Shares, the Shares
will be subject to the same restrictions on transferability and
forfeitability as the Shares of Restricted Stock with respect to
which they were paid.
(h) Return of Restricted Stock to
Company. On the date set forth in the Award Agreement, the
Restricted Stock for which restrictions have not lapsed will revert
to the Company and again will become available for grant under this
Plan.
11.
Restricted Stock
Units.
(a) Grant. Restricted Stock
Units may be granted at any time and from time to time as
determined by the Administrator. Each Restricted Stock Unit grant
will be evidenced by an Award Agreement that will specify such
other terms and conditions as the Administrator, in its sole
discretion, will determine, including all terms, conditions, and
restrictions related to the grant, the number of Restricted Stock
Units and the form of payout, which, subject to Section 11(d), may
be left to the discretion of the Administrator.
(b) Vesting Criteria and Other
Terms. The Administrator will set vesting criteria in its
discretion, which, depending on the extent to which the criteria
are met, will determine the number of Restricted Stock Units that
will be paid out to the Participant. After the grant of Restricted
Stock Units, the Administrator, in its sole discretion, may reduce
or waive any restrictions for such Restricted Stock Units. Each
Award of Restricted Stock Units will be evidenced by an Award
Agreement that will specify the vesting criteria, and such other
terms and conditions as the Administrator, in its sole discretion
will determine. The Administrator, in its discretion, may
accelerate the time at which any restrictions will lapse or be
removed.
(c) Earning Restricted Stock
Units. Upon meeting the applicable vesting criteria, the
Participant will be entitled to receive a payout as specified in
the Award Agreement.
(d) Form and Timing of
Payment. Payment of earned Restricted Stock Units will be
made as soon as practicable after the date(s) set forth in the
Award Agreement. The Administrator, in its sole discretion, may pay
earned Restricted Stock Units in cash, Shares, or a combination
thereof. Shares represented by Restricted Stock Units that are
fully paid in cash again will be available for grant under this
Plan.
(e)
Cancellation. On the date
set forth in the Award Agreement, all unearned Restricted Stock
Units will be forfeited to the
Company.
12.
Performance Units and
Performance Shares.
(a) Grant of Performance
Units/Shares. Performance Units and Performance Shares may
be granted to Service Providers at any time and from time to time,
as will be determined by the Administrator, in its sole discretion.
The Administrator will have complete discretion in determining the
number of Performance Units/Shares granted to each Participant
provided that during any Fiscal Year.
(b) Value of Performance
Units/Shares. Each Performance Unit will have an initial
value that is established by the Administrator on or before the
date of grant. Each Performance Share will have an initial value
equal to the Fair Market Value of a Share on the date of
grant.
(c) Performance Objectives and Other
Terms. The Administrator will set performance objectives or
other vesting provisions. The Administrator may set vesting
criteria based upon the achievement of Company-wide, business unit,
or individual goals (including, but not limited to, continued
employment), or any other basis determined by the Administrator in
its discretion. Each Award of Performance Units/Shares will be
evidenced by an Award Agreement that will specify the Performance
Period, and such other terms and conditions as the Administrator,
in its sole discretion, will determine. The Administrator, in its
sole discretion, may provide at the time of or following the date
of grant for accelerated vesting for an Award of Performance
Units/Shares.
(d) Earning of Performance
Units/Shares. After the applicable Performance Period has
ended, the holder of Performance Units/Shares will be entitled to
receive a payout of the number of Performance Units/Shares earned
by the Participant over the Performance Period, to be determined as
a function of the extent to which the corresponding performance
objectives or other vesting provisions have been achieved. After
the grant of a Performance Unit/Share, the Administrator, in its
sole discretion, may reduce or waive any performance objectives or
other vesting provisions for such Performance
Unit/Share.
(e) Form and Timing of Payment of
Performance Units/Shares. Payment of earned Performance
Units/Shares will be made as soon as practicable after the
expiration of the applicable Performance Period. The Administrator,
in its sole discretion, may pay earned Performance Units/Shares in
the form of cash, in Shares (which have an aggregate Fair Market
Value equal to the value of the earned Performance Units/Shares at
the close of the applicable Performance Period), or in a
combination thereof.
(f) Cancellation of Performance
Units/Shares. On the date set forth in the Award Agreement,
all unearned or unvested Performance Units/Shares will be forfeited
to the Company and be available for future grant under this
Plan.
13. Leaves of Absence.
Unless the Administrator provides otherwise, vesting of Awards
granted hereunder will be suspended during any unpaid leave of
absence. A Service Provider will not cease to be an Employee in the
case of (i) any leave of absence approved by the Company, or (ii)
transfers between locations of the Company or between the Company,
its Parent, or any Subsidiary. For purposes of Incentive Stock
Options, no such leave may exceed three (3) months, unless
reemployment upon expiration of such leave is guaranteed by statute
or contract. If reemployment upon expiration of a leave of absence
approved by the Company is not so guaranteed, then six (6) months
and one (1) day following the commencement of such leave any
Incentive Stock Option held by the Participant will cease to be
treated as an Incentive Stock Option and will be treated for tax
purposes as a Nonstatutory Stock Option.
14. Transferability of
Awards. Unless determined otherwise by the Administrator,
Awards may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or the
laws of descent and distribution, and may be exercised during the
lifetime of the Participant, only by the Participant. If the
Administrator makes an Award transferable, such Award may only be
transferred (i) by will,
(ii) by
the laws of descent and distribution, (iii) to arevocable trust, or
(iv) as permitted under the Rules as to Use of Form S-8, as
amended, so as to continue to provide that the Award, and the
Shares issued under the Award, continue to comply with the
requirements of the S-8 registration statement.
15.
Adjustments; Dissolution
or Liquidation; Merger or Change in Control.
(a) Adjustments. In the
event that any dividend or other distribution (whether in the form
of cash, Shares, other securities, or other property),
recapitalization, stock split, reverse stock split, reorganization,
merger, consolidation, split-up, spin-off, combination, repurchase,
or exchange of Shares or other securities of the Company, or other
change in the corporate structure of the Company affecting the
Shares occurs, the Administrator, in order to prevent diminution or
enlargement of the benefits or potential benefits intended to be
made available under this Plan, shall adjust the number and class
of Shares that may be delivered under this Plan and/or the number,
class, price of Shares covered by each outstanding Award, and the
numerical Share limits set forth in Sections 3, 8, 9, 10, 11, and
12. Unless otherwise determined by the Administrator, such adjusted
Award shall be subject to the same restrictions and vesting
schedule to which the underlying Award is subject.
(b) Dissolution or
Liquidation. In the event of the proposed dissolution or
liquidation of the Company, the Administrator shall notify each
Participant as soon as practicable prior to the effective date of
such proposed transaction. To the extent it has not been previously
exercised, an Option or Stock Appreciation Right will terminate
immediately prior to the consummation of such proposed
action.
(c) Merger or Change in
Control. In the event of a merger of the Company with or
into another corporation, or a Change in Control, each outstanding
Award shall be assumed or an equivalent option substituted by the
successor corporation or a Parent or Subsidiary of the successor
corporation. In the event that the successor corporation in a
merger or Change in Control refuses to assume or substitute for the
Award, then the Participant will fully vest in and have the right
to exercise all of his or her outstanding Options and Stock
Appreciation Rights, including Shares as to which such Awards would
not otherwise be vested or exercisable, all restrictions on
Restricted Stock will lapse, and, with respect to Restricted Stock
Units, Performance Shares and Performance Units, all Performance
Goals or other vesting criteria will be deemed achieved at target
levels and all other terms and conditions met. In addition, if an
Option or Stock Appreciation Right is not assumed or substituted
for in the event of a Change in Control, the Administrator will
notify the Participant in writing or electronically that the Option
or Stock Appreciation Right will be fully vested and exercisable
for fifteen (15) days prior to the effective date of the merger or
Change in Control, and the Option or Stock Appreciation Right will
terminate upon the expiration of such period.
For the
purposes of this Section 15(c), an Award will be considered assumed
if, following the Change in Control, the Award confers the right to
purchase or receive, for each Share subject to the Award
immediately prior to the Change in Control, the consideration
(whether stock, cash, or other securities or property) or, in the
case of a Stock Appreciation Right upon the exercise of which the
Administrator determines to pay cash or a Performance Share or
Performance Unit which the Administrator can determine to pay in
cash, the fair market value of theconsideration received in the
merger or Change in Control by holders of Common Stock for each
Share held on the effective date of the transaction (and if holders
were offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding Shares);
provided, however, that if such consideration received in the
Change in Control is not solely common stock of the successor
corporation, the Administrator may, with the consent of the
successor corporation, provide for the consideration to be received
upon the exercise of an Option or Stock Appreciation Right or upon
the payout of a Performance Share or Performance Unit, for each
Share subject to such Award (or in the case of Performance Units,
the number of implied shares determined by dividing the value of
the Performance Units by the per share consideration received by
holders of Common Stock in the Change in Control), to be solely
common stock of the successor corporation equal in fair market
value to the per share consideration received by holders of Common
Stock in the Change in Control.
Notwithstanding
anything in this Section 15(c) to the contrary, an Award that
vests, is earned or paid-out upon the satisfaction of one or more
Performance Goals will not be considered assumed if the Company or
its successor modifies any of such Performance Goals without the
Participant’s consent; provided, however, a modification to
such Performance Goals only to reflect the successor
corporation’s post-Change in Control corporate structure will
not be deemed to invalidate an otherwise valid Award
assumption.
16. Time of Granting Awards.
The date of grant of an Award shall, for all purposes, be the date
on which the Administrator makes the determination granting such
Award, or such later date as is determined by the Administrator.
Notice of the determination shall be given to each Service Provider
to whom an Award is so granted within a reasonable time after the
date of such grant.
17.
Amendment and Termination of
this Plan.
(a)
Amendment and
Termination. The Board may at any time amend, alter,
suspend, or terminate this Plan.
(b) Stockholder Approval.
The Board shall obtain stockholder approval of any Plan amendment
to the extent necessary and desirable to comply with Applicable
Laws.
(c) Effect of Amendment or
Termination. No amendment, alteration, suspension, or
termination of this Plan shall impair the rights of any
Participant, unless otherwise mutually agreed to by and between the
Participant and the Administrator, which agreement must be in
writing and signed by the Participant and the Company. Termination
of this Plan shall not affect the Administrator’s ability to
exercise the powers granted to it hereunder with respect to Awards
granted under this Plan prior to the date of such
termination.
(a) Withholding Requirements.
Prior to the delivery of any Shares or cash pursuant to an Award
(or exercise thereof), the Company will have the power and the
right to deduct or withhold, or require a Participant to remit to
the Company, an amount sufficient to satisfy federal, state, local,
foreign, or other taxes (including the Participant’s FICA
obligation) required to be withheld with respect to such Award (or
exercise thereof).
(b) Withholding
Arrangements. The Administrator, in its sole discretion and
pursuant to such procedures as it may specify from time to time,
may permit a Participant to satisfy such tax withholding
obligation, in whole or in part by (without limitation) (i) paying
cash, (ii) electing to have the Company withhold otherwise
deliverable cash or Shares having a Fair Market Value equal to the
minimum amount required to be withheld, (iii) delivering to the
Company already-owned Shares having a Fair Market Value equal to
the amount required to be withheld, or (iv) selling a sufficient
number of Shares otherwise deliverable to the Participant through
such means as the Administrator may determine in its sole
discretion (whether through a broker or otherwise) equal to the
amount required to be withheld. The amount of the withholding
requirement will be deemed to include any amount which the
Administrator agrees may be withheld at the time the election is
made, not to exceed the amount determined by using the maximum
federal, state, or local marginal income tax rates applicable to
the Participant with respect to the Award on the date that the
amount of tax to be withheld is to be determined. The Fair Market
Value of the Shares to be withheld or delivered will be determined
as of the date that the taxes are required to be
withheld.
(c) Section 409A of the Code.
Notwithstanding any contrary provision in this Plan or an Award
Agreement, if any provision of this Plan or an Award Agreement
contravenes any regulations or guidance promulgated under Section
409A of the Code or would cause an Award to be subject to
additional taxes, accelerated taxation, interest, and/or penalties
under Section 409A of the Code, such provision of this Plan or
Award Agreement may be modified by the Administrator without the
consent of the Participant in any manner the Administrator deems
reasonable or necessary. In making such modifications the
Administrator shall attempt, but shall not be obligated, to
maintain, to the maximum extent practicable, the original intent of
the applicable provision without contravening the provisions of
Section 409A of the Code. Any payments under this Agreement that
may be excluded from Section 409A either as separation pay due to
an involuntary separation from service or as a short- term deferral
will be excluded from Section 409A to the maximum extent possible.
Moreover, any discretionary authority that the Administrator may
have pursuant to this Plan shall not be applicable to an Award that
is subject to Section 409A of the Code to the extent such
discretionary authority would contravene Section 409A of the Code
or the guidance promulgated thereunder. The Company shall use
commercially reasonable efforts to implement the provisions of this
Section 19(c) in good faith; provided that neither the Company nor
the Administrator nor any of the officers, employees, managers,
directors, or representatives of the Company Group shall have any
liability to Participants with respect to this Section
19(c).
19. Recoupment.
Notwithstanding anything in this Plan to the contrary, all Awards
granted under this Plan, any payments made under this Plan and any
Shares issued upon exercise of an Option or settlement of an Award
shall be subject to clawback or recoupment as permitted or mandated
by applicable law, rules, regulations or Company policy as enacted,
adopted or modified from time to time. For the avoidance of doubt,
this provision shall apply to any gains realized upon exercise or
settlement of an Award or disposition of Shares received upon the
exercise or settlement of an Award.
20.
Conditions Upon Issuance of
Shares.
(a) Legal Compliance. Shares
shall not be issued pursuant to the exercise of an Award unless the
exercise of such Award and the issuance and delivery of such Shares
shall comply with Applicable Laws and shall be further subject to
the approval of counsel for the Company with respect to such
compliance.
(b) Investment
Representations. As a condition to the exercise of an Award,
the Administrator may require the person exercising such Award to
represent and warrant at the time of any such exercise that the
Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is
required.
21. No Effect on Employment or
Service. Neither this Plan nor any Award will confer upon a
Participant any right with respect to continuing the
Participant’s relationship as a Service Provider with the
Company, nor will they interfere in any way with the
Participant’s right or the Company’s right to terminate
such relationship at any time, with or without cause, to the extent
permitted by Applicable Laws.
22. Inability to Obtain
Authority. The inability of the Company to obtain authority
from any regulatory body having jurisdiction, which authority is
deemed by the Company’s counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the
Company of any liability in respect of the failure to issue or sell
such Shares as to which such requisite authority shall not have
been obtained.
23. Reservation of Shares.
The Company, during the term of this Plan, shall at all times
reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of this Plan.
24. Stockholder Approval.
This Plan shall be subject to approval by the stockholders of the
Company within twelve (12) months after the date this Plan is
approved by the Board. Such stockholder approval shall be obtained
in the degree and manner required under Applicable
Laws.
25. Governing Law . The
validity and enforceability of this Plan shall be governed by and
construed in accordance with the laws of the State of California
without regard to otherwise governing principles of conflicts of
law.
Appendix B
PLAN OF CONVERSION
of
Aemetis, Inc., a Nevada corporation
into
Aemetis, Inc., a Delaware corporation
THIS PLAN OF CONVERSION, dated as of
[ ], 2021 (including all of the Exhibits attached hereto, this
“Plan”),
is hereby adopted by Aemetis, Inc., a Nevada corporation, in order
to set forth the terms, conditions and procedures governing the
conversion of Aemetis, Inc. from a Nevada corporation to a Delaware
corporation pursuant to Section 265 of the General Corporation Law
of the State of Delaware, as amended (the “DGCL”), and
Section 92A.120 of the Nevada Revised Statutes, as amended (the
“NRS”).
RECITALS
WHEREAS, Aemetis, Inc.
is a corporation organized and existing under the laws of the State
of Nevada (the “Converting
Entity”);
WHEREAS, the Board of
Directors of the Converting Entity has determined that it would be
advisable and in the best interests of the Converting Entity and
its stockholders for the Converting Entity to convert from a Nevada
corporation to a Delaware corporation pursuant to Section 265 of
the DGCL and Section 92A.120 of the NRS;
WHEREAS, the form, terms
and provisions of this Plan have been authorized, approved and
adopted by the Board of Directors of the Converting
Entity;
WHEREAS, the Board of
Directors of the Converting Entity has submitted this Plan to the
stockholders of the Converting Entity for approval;
and
WHEREAS, this Plan has
been authorized, approved and adopted by the holders of a majority
of the votingpower of the stockholders of the Converting
Entity.
NOW, THEREFORE, the
Converting Entity hereby adopts this Plan as follows:
PLAN OF CONVERSION
1.
Conversion; Effect of
Conversion.
(a) Upon the Effective
Time (as defined in Section 3 below), the Converting Entity shall
be converted from a Nevada corporation to a Delaware corporation
pursuant to Section 265 of the DGCL and Section 92A.120 of the NRS
(the “Conversion”)
and the Converting Entity, as converted to a Delaware corporation
(the “Converted
Entity”), shall thereafter be subject to all of the
provisions of the DGCL, except that notwithstanding Section 106 of
the DGCL, the existence of the Converted Entity shall be deemed to
have commenced on the date the Converting Entity commenced its
existence in the State of Nevada.
(b) Upon the Effective
Time, by virtue of the Conversion and without any further action on
the part of the Converting Entity or its stockholders, the
Converted Entity shall, for all purposes of the laws of the State
of Delaware, be deemed to be the same entity as the Converting
Entity existing immediately prior to the Effective Time. Upon the
Effective Time, by virtue of the Conversion and without any further
action on the part of the Converting Entity or its stockholders,
for all purposes of the laws of the State of Delaware, all of the
rights, privileges and powers of the Converting Entity existing
immediately prior to the Effective Time, and all property, real,
personal and mixed, and all debts due to the Converting Entity
existing immediately prior to the Effective Time, as well as all
other things and causes of action belonging to the Converting
Entity existing immediately prior to the Effective Time, shall
remain vested in the Converted Entity and shall be the property of
the Converted Entity and the title to any real property vested by
deed or otherwise in the Converting Entity existing immediately
prior to the Effective Time shall not revert or be in any way
impaired by reason of the Conversion; but all rights of creditors
and all liens upon any property of the Converting Entity existing
immediately prior to the Effective Time shall be preserved
unimpaired, and all debts, liabilities and duties of the Converting
Entity existing immediately prior to the Effective Time shall
remain attached to the Converted Entityupon the Effective Time, and
may be enforced against the Converted Entity to the same extent as
if said debts, liabilities and duties had originally been incurred
or contracted by the Converted Entity in its capacity as a
corporation of the State of Delaware. The rights, privileges,
powers and interests in property of the Converting Entity existing
immediately prior to the Effective Time, as well as the debts,
liabilities and duties of the Converting Entity existing
immediately prior to the Effective Time, shall not be deemed, as a
consequence of the Conversion, to have been transferred to the
Converted Entity upon the Effective Time for any purpose of the
laws of the State of Delaware.
(c) The Conversion
shall not be deemed to affect any obligations or liabilities of the
Converting Entity incurred prior to the Conversion or the personal
liability of any person incurred prior to the
Conversion.
(d) Upon the Effective
Time, the name of the Converted Entity shall remain unchangedand
continue to be “Aemetis, Inc.”
(e) The Converting
Entity intends for the Conversion to constitute a tax-free
reorganization qualifying under Section 368(a) of the Internal
Revenue Code of 1986, as amended.
2. Filings. As promptly as
practicable following the adoption of this Plan by the Board of
Directors and the stockholders of the Converting Entity, the
Converting Entity shall cause the Conversion to be effective
by:
(a) executing and
filing (or causing the execution and filing of) Articles of
Conversion pursuant to Section 92A.205 of the NRS, substantially in
the form of EXHIBIT A hereto
(the “Nevada Articles of
Conversion”), with the Secretary of State of the State
of Nevada;
(b) executing and
filing (or causing the execution and filing of) a Certificate of
Conversion pursuant to Sections 103 and 265 of the DGCL,
substantially in the form of EXHIBIT B hereto (the
“Delaware
Certificate of Conversion”), with the Secretary of
State of the State of Delaware;
(c) executing and
filing (or causing the execution and filing of) a Certificate of
Incorporation of the Converted Entity, substantially in the form of
EXHIBIT C hereto (the
“Delaware
Certificate of Incorporation”), with the Secretary of
State of the State of Delaware; and
(d) executing and
filing (or causing the execution and filing of) a Certificate of
Designations of Series B Preferred Stock of the Converted Entity,
substantially in the form of EXHIBIT D hereto (the
“Delaware
Certificate of Designations”), with the Secretary of
State of the State of Delaware.
3. Effective Time. The Conversion
shall become effective upon the last to occur of the filing of the
Nevada Articles of Conversion, the Delaware Certificate of
Conversion, the Delaware Certificate of Incorporation and the
Delaware Certificate of Designations (the time of the effectiveness
of the Conversion, the “Effective
Time”).
4. Effect of Conversion on Common
Stock. Upon the Effective Time, by virtue of the Conversion
and without any further action on the part of the Converting Entity
or its stockholders, each share of Common Stock, $0.001 par value
per share, of the Converting Entity (“Converting Entity Common
Stock”) that is issued and outstanding immediately
prior to the Effective Time shall convert into one validly issued,
fully paid and nonassessable share of Common Stock, $0.001 par
value per share, of the Converted Entity (“Converted Entity Common
Stock”).
5. Effect of Conversion on Preferred
Stock. Upon the Effective Time, by virtue of the Conversion
and without any further action on the part of the Converting Entity
or its stockholders, each share of Preferred Stock, $0.001 par
value per share, of the Converting Entity (“Converting Entity Preferred
Stock”) that is issued and outstanding immediately
prior to the Effective Time shall convert into one validly issued,
fully paid and nonassessable share of Preferred Stock, $0.001 par
value per share, of the Converted Entity (“Converted Entity Preferred
Stock”).
6. Effect of Conversion on Outstanding
Stock Options. Upon the Effective Time, by virtue of the
Conversion and without any further action on the part of the
Converting Entity or its stockholders, each option to acquire
shares of Converting Entity CommonStock or Converting Entity
Preferred Stock outstanding immediately prior to the Effective Time
shall convert into an equivalent option to acquire, upon the same
terms and conditions (including the vesting schedule and exercise
price per share applicable to each such option) as were in effect
immediately prior to the Effective Time, the same number of shares
of Converted Entity Common Stock or Converted Entity Preferred
Stock, as applicable.
7. Effect of Conversion on Shares of
Restricted Stock. Upon the Effective Time, by virtue of the
Conversion and without any further action on the part of the
Converting Entity or its stockholders, each restricted share of
Converting Entity Common Stock or Converting Entity Preferred Stock
outstanding immediately prior to the Effective Time shall convert
into an equivalent restricted share of Converted Entity Common
Stock or Stock or Converted Entity Preferred Stock with the same
terms and conditions (including the vesting schedule applicable to
each such share) as were in effect immediately prior to the
Effective Time.
8. Effect of Conversion on Outstanding
Warrants or Other Rights. Upon the Effective Time, by
virtueof the Conversion and without any further action on the part
of the Converting Entity or its stockholders, each warrant or other
right to acquire shares of Converting Entity Common Stock or
Converting Entity Preferred Stock outstanding immediately prior to
the Effective Time shall convert into an equivalent warrant or
other right to acquire, upon the same terms and conditions
(including the exercise price per share applicable to each such
warrant or other right) as were in effect immediately prior to the
Effective Time, the same number of shares of Converted Entity
Common Stock or Converted Entity Preferred Stock,
respectively.
9. Effect of Conversion on Outstanding
Units. Upon the Effective Time, by virtue of the Conversion
and without any further action on the part of the Converting Entity
or its stockholders, each unit of Converting Entity outstanding
immediately prior to the Effective Time shall convert into an
equivalent restricted or non-restricted unit, as applicable, each
comprised of the equivalent number of Converted Entity Common
Stock, Converted Entity Preferred Stock, or other warrants or
rights as applicable.
10. Effect of Conversion on Stock
Certificates. All of the outstanding certificates
representing shares of Converting Entity Common Stock or Converting
Entity Preferred Stock immediately prior to the Effective Time
shall be deemed for all purposes to continue to evidence ownership
of and to represent the same number of shares of Converted Entity
Common Stock or Converted Entity Preferred Stock, as
applicable.
11. Effect of Conversion on Employee
Benefit, Stock Option or Other Similar Plans. Upon the
Effective Time, by virtue of the Conversion and without any further
action on the part of the Converting Entity or its stockholders,
each employee benefit plan, stock option plan or other similarplan
to which the Converting Entity is a party shall continue to be a
plan of the Converted Entity. To the extent that any such plan
provides for the issuance of Converting Entity Common Stock or
Converting Entity Preferred Stock, upon the Effective Time, such
plan shall be deemed to provide for the issuance of Converted
Entity Common Stock or Converted Entity Preferred Stock, as
applicable.
12. Further Assurances. If, at any
time after the Effective Time, the Converted Entity shall determine
or be advised that any deeds, bills of sale, assignments,
agreements, documents or assurances or any other acts or things are
necessary, desirable or proper, consistent with the terms of this
Plan, (a) to vest, perfect or confirm, of record or otherwise, in
the Converted Entity its right, title or interest in, to or under
any of the rights, privileges, immunities, powers, purposes,
franchises, properties or assets of the Converting Entity existing
immediately prior to the Effective Time, or (b) to otherwise carry
out the purposes of this Plan, the Converted Entity and its
officers and directors (or their designees), are hereby authorized
to solicit in the name of the Converted Entity any third-party
consents or other documents required to be delivered by any
third-party, to execute and deliver, in the name and on behalf of
the Converted Entity, all such deeds, bills of sale, assignments,
agreements, documents and assurances and do, in the name and on
behalf of the Converted Entity, all such other acts and things
necessary, desirable or proper to vest, perfect or confirm its
right, title or interest in, to or under any of the rights,
privileges, immunities, powers, purposes, franchises, properties or
assets of the Converting Entity existing immediately prior to the
Effective Time and otherwise to carry out the purposes of this
Plan.
13. Effect of Conversion on Directors and
Officers. Upon the Effective Time, by virtue of the
Conversion and without any further action on the part of the
Converting Entity or its stockholders, the members of the Board of
Directors and the officers of the Converting Entity holding their
respective offices in the Converting Entity existing immediately
prior to the Effective Time shall continue in their respective
offices as members of the Board of Directors and officers,
respectively, of the Converted Entity.
14. Delaware Bylaws. Upon the
Effective Time, the bylaws of the Converted Entity shall be the
Bylaws of Aemetis, Inc., substantially in the form of EXHIBIT E hereto.
15. Delaware Indemnification
Agreements. As promptly as practicable following the
Effective Time, the Converted Entity shall enter into an
Indemnification Agreement substantially in the form of EXHIBIT F hereto with each member of the
Board of Directors of the Converted Entity and each executive
officer of the Converted Entity.
16. Copy of Plan of Conversion.
After the Conversion, a copy of this Plan will be kept on file at
the offices of the Converted Entity, and any stockholder of the
Converted Entity (or former stockholder of the Converting Entity)
may request a copy of this Plan at no charge at any
time.
17. Termination. At any time prior
to the Effective Time, this Plan may be terminated and the
transactions contemplated hereby may be abandoned by action of the
Board of Directors of the Converting Entity if, in the opinion of
the Board of Directors of the Converting Entity, such action would
be in the best interests of the Converting Entity and its
stockholders. In the event of termination of this Plan, this Plan
shall becomevoid and of no further force or effect.
18. Third Party Beneficiaries. This
Plan shall not confer any rights or remedies upon any person other
than as expressly provided herein.
19. Severability. Whenever
possible, each provision of this Plan will be interpreted in such
manner as to be effective and valid under applicable law, but if
any provision of this Plan is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating
the remainder of this Plan.
***
IN
WITNESS WHEREOF, the undersigned
hereby causes this Plan to be duly executed as of the date
hereof.
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AEMETIS,
INC.
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a Nevada corporation
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By:
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/s/
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Name: Eric
McAfee
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Title: Chief
Executive Officer
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Appendix C
Appendix D
STATE OF DELAWARE
CERTIFICATE OF CONVERSION
FROM
A NON-DELAWARE CORPORATION
TO A DELAWARE CORPORATION
PURSUANT TO SECTION 265 OF THE
DELAWARE GENERAL CORPORATION LAW
1.)
The
jurisdiction where the Non-Delaware Corporation first formed is
Nevada.
2.)
The
jurisdiction immediately prior to filing this Certificate is
Nevada.
3.)
The
date the Non-Delaware Corporation first formed is October 24,
2006.
4.)
The name of the Non-Delaware Corporation immediately prior to
filing this Certificate is Aemetis, Inc.
5.)
The name of the Corporation as set forth in the Certificate of
Incorporation is Aemetis, Inc.
IN WITNESS
WHEREOF, the undersigned being
duly authorized to sign on behalf of the converting Non-Delaware
Corporation has executed this Certificate on [_________],
2021.
AEMETIS, INC.
By:
Name:
Eric McAfee
Title:
Chief Executive Officer
Appendix
E
CERTIFICATE
OF INCORPORATION
OF
AEMETIS,
INC.
ARTICLE
I
NAME
The name of the corporation is Aemetis, Inc.
ARTICLE
II
REGISTERED OFFICE AND AGENT
The
address of the Corporation’s registered office in the State
of Delaware is [●], in the City of [●], County of
[●], Delaware [●]. The name of its registered agent at
such address is [●].
ARTICLE
III
PURPOSE AND DURATION
The
purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware (the “DGCL”). The Corporation
is to have a perpetual existence.
ARTICLE
IV CAPITAL
STOCK
The
total number of shares of all classes of capital stock that the
Corporation shall have authority to issue is 145,000,000, of which
(i) 80,000,000 shares shall be a class designated as common stock,
par value $0.001 per share (“Common Stock”), and (ii)
65,000,000 shares shall be a class designated as preferred stock,
par value $0.001 per share (“Preferred
Stock”).
Section 1. Subject to the
rights of the holders of any series of Preferred Stock, the number
of authorized shares of any of the Common Stock or Preferred Stock
may be increased or decreased (but not below the number of shares
of such class thereof then outstanding) by the affirmative vote of
the holders of a majority in voting power of the stock of the
Corporation entitled to vote thereon irrespective of the provisions
of Section 242(b)(2) of the DGCL or any successor provision
thereof, and no vote of the holders of any shares of Common Stock
or Preferred Stock voting separately as a class shall be required
therefor.
Section 2. Subject to all the
rights, powers and preferences of the Preferred Stock and except as
provided by law or in this Certificate of Incorporation (including
any Certificate of Designation (as defined below): (i) the holders
of the Common Stock shall have the exclusive right to vote for the
election of directors of the Corporation and on all other matters
requiring stockholder action, each outstanding share entitling the
holder thereof to one vote on each matter properly submitted to the
stockholders of the Corporation for their vote; provided, however,
that, except as otherwise required by law, holders of Common Stock,
as such, shall not be entitled to vote on any amendment to this
Certificate of Incorporation (including any Certificate of
Designation) that alters or changes the powers, preferences, rights
or other terms of one or more outstanding series of Preferred Stock
if the holders of such affected series of Preferred Stock are
entitled to vote, either separately or together with the holders of
one or more other such series, on such amendment pursuant to this
Certificate of Incorporation (including any Certificate of
Designation) or pursuant to the DGCL; (ii) dividends may be
declared and paid or set apart for payment upon the Common Stock
out of any assets or funds of the Corporation legally available for
the payment of dividends, but only when and as declared by the
Board of Directors of the Corporation (the “Board”) or any authorized
committee thereof; and (iii) upon the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the net
assets of the Corporation shall be distributed pro rata to the
holders of the Common Stock.
Section 3. Shares of Preferred
Stock may be issued from time to time in one or more series. The
Board, or any authorized committee thereof, is hereby authorized to
provide from time to time by resolution or resolutions for the
creation and issuance, out of the authorized and unissued shares of
Preferred Stock, of one or more series of Preferred Stock by filing
a certificate (a “Certificate of
Designation”)
pursuant to the DGCL, setting forth such resolution or resolutions
and, with respect to each such series, establishing the designation
of such series and the number of shares to be included in such
series and fixing the terms of such series, the voting powers (full
or limited, or no voting power), preferences and relative,
participating, optional or other special rights, and the
qualifications, limitations and restrictions thereof, of the shares
of each such series. Without limiting the generality of the
foregoing, and subject to the rights of the holders of any series
of Preferred Stock then outstanding, the resolution or resolutions
providing for the establishment of any series of Preferred Stock
may, to the extent permitted by law, provide that such series shall
be superior to, rank equally with or be junior to the Preferred
Stock of any other series. The terms, voting powers, preferences
and relative, participating, optional and other special rights, and
the qualifications, limitations or restrictions thereof, of each
series of Preferred Stock may be different from those of any and
all other series at any time outstanding. Except as otherwise
expressly provided in this Certificate of Incorporation (including
any Certificate of Designation relating to any series of Preferred
Stock), no vote of the holders of shares of Preferred Stock or
Common Stock shall be a prerequisite to the issuance of any shares
of any series of the Preferred Stock so authorized in accordance
with this Certificate of Incorporation (including any Certificate
of Designation relating to any series of Preferred Stock). Except
as otherwise required by law, holders of Common Stock shall not be
entitled to vote on any amendment to this Certificate of
Incorporation (including any Certificate of Designation relating to
any series of Preferred Stock) that relates solely to the terms of
one or more outstanding seriesof Preferred Stock if the holders of
such affected series are entitled, either separately or together
with the holders of one or more other such series, to vote thereon
pursuant to this Certificate of Incorporation (including any
Certificate of Designation relating to any series of Preferred
Stock) or pursuant to the DGCL. Unless otherwise provided in the
Certificate of Designation establishing a series of Preferred
Stock, the Board may, by resolution or resolutions, increase or
decrease (but not below the number of shares of such series then
outstanding) the number of shares of such series and, if the number
of shares of such series shall be so decreased, the shares
constituting such decrease shall resume the status that they had
prior to the adoption of the resolution or resolutions originally
fixing the number of shares of such series.
ARTICLE
V
BOARD OF DIRECTORS
For the
management of the business and for the conduct of the affairs of
the Corporation, it is further provided that:
Section 1. Except as otherwise
provided in this Certificate of Incorporation and the DGCL, the
business and affairs of the Corporation shall be managed by or
under the direction of the Board. Subject to the terms of the
Stockholders Agreement and any special rights of the holders of
Preferred Stock to elect directors, the number of directors which
shall constitute the whole Board shall be fixed exclusively by one
or more resolutions adopted from time to time by the Board. Except
as otherwise expressly provided by the bylaws of the Corporation
(as the same may be amended and/or restated from time to time, the
“Bylaws”) or delegated by
resolution of the Board, the Board shall have the exclusive power
and authority to appoint and remove officers of the
Corporation.
Section 2. Other than any
directors elected by the separate vote of the holders of one or
more series of Preferred Stock, if applicable, the Board shall be
and is divided into three classes, designated as Class I, Class II
and Class III, as nearly equal in number as possible. The Board may
assign members of the Board already in office to such classes as of
the effectiveness of this Certificate of Incorporation (the
“Effective
Time”). Directors shall be assigned to each class in
accordance with a resolution or resolutions adopted by the Board.
At the first annual meeting of stockholders following the Effective
Time, the term of office of the Class I directors shall expire and
Class I directors elected to succeed those directors whose terms
expired shall be elected for a full term of three years. At the
second annual meeting of stockholders following the Effective Time,
the term of office of the Class II directors shall expire and Class
II directors elected to succeed those directors whose terms expired
shall be elected for a full term of three years. At the third
annual meeting of stockholders following the Effective Time, the
term of office of the Class III directors shall expire and Class
III directors elected to succeed those directors whose terms
expired shall be elected for a full term of three years. Subject to
any special rights of the holders of one or more series of
Preferred Stock to elect directors, at each succeeding annual
meeting of stockholders, directors shall be elected for a full term
of three years to succeed the directors of the class whose terms
expire at such annual meeting. If the number of such directors is
changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as
nearly equal as possible, and any such additional director of any
class elected to fill a newly created directorship resulting from
an increase in such class shall hold office for a term that shall
coincide with the remaining term of that class, but in no case
shall a decrease in the number of directors remove or shorten the
term of any incumbent director. Any such director shall hold office
until the annual meeting at which his or her term expires and until
his or her successor shall be elected and qualified, or until his
or her earlier death, resignation, disqualification or removal from
office.
Section 3. Subject to any
special rights of the holders of one or more series of Preferred
Stock to elect directors, any director may be removed from office
at any time, but only for cause and only by the affirmative vote of
the holders of at least a majority of the voting power of the
outstanding shares of stock of the Corporation entitled to vote on
the election of directors.
Section 4. Except as otherwise
expressly required by law, subject to any special rights of the
holders of one or more series of Preferred Stock to elect
directors, any vacancies on the Board resulting from death,
resignation, disqualification, removal or other causes and any
newly created directorships resulting from any increase in the
number of directors shall be filled only by the affirmative vote of
a majority of the directors then in office, even if less than a
quorum, and shall not be filled by the stockholders. Any director
appointed in accordance with the preceding sentence shall hold
office for a term that shall coincide with the remaining term of
the class to which the director shall have been appointed and until
such director’s successor shall have been elected and
qualified or until his or her earlier death, resignation,
disqualification or removal.
Section 5. During any period
when the holders of any series of Preferred Stock have the special
right to elect additional directors, upon commencement and for the
duration of such period during which such right continues: (i) the
then otherwise total authorized number of directors of the
Corporation shall automatically be increased by such specified
number of additional directors, and the holders of such seriesof
Preferred Stock shall be entitled to elect the additional directors
so provided for or fixed pursuant to the Certificate of Designation
establishing such series of Preferred Stock; and (ii) each such
additional director shall serve until such director’s
successor shall have been duly elected and qualified, or until such
director’s right to hold such office terminates pursuant to
the Certificate of Designation establishing such series of
Preferred Stock, whichever occurs earlier, subject to his or her
earlier death, resignation, disqualification or removal. Except as
otherwise provided by this Certificate of Incorporation (including
any Certificate of Designation establishing any series of Preferred
Stock), whenever the holders of any series of Preferred Stock
having the special right to elect additional directors are divested
of such right pursuant to this Certificate of Incorporation
(including pursuant to any such Certificate of Designation), the
terms of office of all such additional directors elected by the
holders of such series, or elected to fill any vacancies resulting
from the death, resignation, disqualification or removal of such
additional directors, shall forthwith terminate and the total
authorized number of directors of the Corporation shall be reduced
accordingly.
Section 6. The directors of the
Corporation need not be elected by written ballot unless the Bylaws
so provide.
Section 7. Except as may
otherwise be set forth in the resolution or resolutions of the
Board providing for the issuance of one or more series of Preferred
Stock, and then only with respect to such series of Preferred
Stock, cumulative voting in the election of directors is
specifically denied.
ARTICLE
VI
STOCKHOLDERS
Section 1. Any action required
or permitted to be taken by the stockholders of the Corporation
must be effected at a duly called annualor special meeting of the
stockholders of the Corporation (and may not be taken by consent of
the stockholders in lieu of a meeting); provided, however, that any
action required or permitted to be taken by any holders of
Preferred Stock, voting separately as a series or separately as a
class with one or more other such series, may be taken without a
meeting, without prior notice and without a vote, to the extent
expressly so provided by the applicable Certificate of Designation
relating to such series of Preferred Stock.
Section 2. Subject to the
special rights of the holders of one or more series of Preferred
Stock and the Bylaws of the Corporation, special meetings of the
stockholders of the Corporation may be called, for any purpose or
purposes, at any time by the Board,but such special meetings may
not be called by stockholders or any other Personor Persons (as
defined below).
Section 3. Advance notice of
stockholder nominations for the election of directors and of other
business proposed to be brought by stockholders before any meeting
of the stockholders of the Corporation shall be given in the manner
provided in the Bylaws of the Corporation.
ARTICLEVII
LIABILITY AND INDEMNIFICATION
Section 1. To the fullest
extent permitted by the DGCL (including Section 102(b)(7)), as the
same exists or as may hereafter be amended, a director of the
Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty
as a director. If the DGCL is amended after approval by the
stockholders of this Article VII to authorize corporate action
further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the DGCLas so amended, automatically and without further action,
upon the date of such amendment.
Section 2. The Corporation, to
the fullest extent permitted by law, shall indemnify and advance
expenses to any Person made or threatened to be made a party to any
action, suit or proceeding, whether criminal, civil, administrative
or investigative, by reason of the fact that he or she is or was a
director or officer of the Corporation or any predecessor of the
Corporation, or, while serving as a director or officer of the
Corporation, servesor served at any other enterprise as a director
or officer at the request of the Corporation or any predecessor to
the Corporation.
Section 3. The Corporation, to
the fullest extent permitted by law, may indemnify and advance
expenses to any Person made or threatened to be made a party to an
action, suit or proceeding, whether criminal, civil, administrative
or investigative, by reason of the fact that he or she is or was an
employee or agent of the Corporation or any predecessor of the
Corporation, or servesor served at any other enterprise as an
employee or agent at the request of the Corporation or any
predecessor to the Corporation.
Section 4. Neither any
amendment or repeal of this Article VII, nor the adoption by
amendment of this Certificate of Incorporation of any provision
inconsistent with this Article VII, shall eliminate or reduce the
effect of this Article VII in respect of any matter occurring, or
any action or proceeding accruing or arising (or that, but for this
Article VII, would accrue or arise) prior to such amendment or
repeal or adoption of an inconsistent provision.
ARTICLE
VIII
EXCLUSIVE FORUM
Section 1. Unless the
Corporation consents in writing to the selection of an alternative
forum, (a) the Court of Chancery (the “Chancery Court”) of the
State of Delaware (or, in the event that the Chancery Court does
not have jurisdiction, the federal district court for the District
of Delaware or, in the event that the federal district court for
the District of Delaware does not have jurisdiction, other state
courts of the State of Delaware) shall, to the fullest extent
permitted by law, be the sole and exclusive forum for (i) any
derivative action, suit or proceeding brought on behalf of the
Corporation, (ii) any action, suit or proceeding asserting a claim
of breach of a fiduciary duty owed by any director, officer or
stockholder of the Corporation to the Corporation or to the
Corporation’s stockholders, (iii) any action, suit or
proceeding arising pursuant to any provision of the DGCL or the
Bylaws or this Certificate of Incorporation (as it may be amended
and/or restated from time to time) or (iv) any action, suit or
proceeding asserting a claim against the Corporation governed by
the internal affairs doctrine; and (b) subject to the preceding
provisions of this Article VIII, the federal district courts of the
United States of America shall be the exclusive forum for the
resolution of any complaint asserting a cause of action arising
under the Securities Act of 1933, as amended. If any action the
subject matter of which is within the scope of clause (a) of the
immediately preceding sentence is filed in a court other than the
courts in the State of Delaware (a “Foreign Action”) in the
name of any stockholder, such stockholder shall be deemed to have
consented to (x) the personal jurisdiction of the state and federal
courts in the State of Delaware in connection with any action
brought in any such court to enforce the provisions of clause (a)
of the immediately preceding sentence and (y) having service of
process made upon such stockholder in any such action by service
upon such stockholder’s counsel in the Foreign Action as
agent for such stockholder.
Section 2. Any person or entity
purchasing or otherwise acquiring any interest in any security of
the Corporation shall be deemed to have notice of and consented to
this Article VIII. Notwithstanding the foregoing, the provisions of
this Article VIII shall not apply to suits brought to enforce any
liability or duty created by the Exchange Act or any other claim
for which the federal courts of the United States have exclusive
jurisdiction.
ARTICLE
IX
AMENDMENT
OF THE CERTIFICATE OF INCORPORATION AND BYLAWS
Section 1. The Corporation
reserves the right to amend, alter,change or repeal any provision
contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by this Certificate of Incorporation and
the DGCL, and all rights, preferences and privileges herein
conferred upon stockholders by and pursuant to this Certificate of
Incorporation in its current form or as hereafter amended are
granted, subject to the rights reserved in this Article IX.
Notwithstanding the foregoing and notwithstanding any other
provisions of this Certificate of Incorporation or any provision of
law which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of the holders of any particular
class or classes or series of stock required by law or by this
Certificate of Incorporation (including any Certificate of
Designation in respect of one or more series of Preferred Stock),
the affirmative vote of the holders of at least 66 2/3% of the
voting power of the outstanding shares of stock entitled to vote
thereon, voting together as a single class, shall be required to
alter, amend or repeal Articles V, VI, VII, VIII or this Article
IX.
Section 2. The Board is
expressly authorized to make, repeal, alter, amend and rescind, in
whole or in part, the Bylaws. Notwithstanding the foregoing or any
other provisions of this Certificate of Incorporation or any
provision of law which might otherwise permit a lesser vote or no
vote, but in addition to any affirmative vote of the holders of any
particular class or classes or series of stock required by law or
by this Certificate of Incorporation (including any Certificate of
Designation in respect of one or more series of Preferred Stock),
the affirmative vote of the holders of at least 66 2/3% of the
voting power of the outstanding shares of stock entitled to vote
thereon, voting together as a single class, shall be required in
order for the stockholders of the Corporation to alter, amend or
repeal, in whole or in part, any provision of the Bylaws or to
adopt any provision inconsistent therewith.
ARTICLE
X
DGCL SECTION 203 AND BUSINESS COMBINATIONS
Section 1. The Corporation
hereby expressly elects not to be governed by Section 203 of the
DGCL.
Section 2. Notwithstanding the
foregoing, the Corporation shall not engagein any business
combination (as defined below), at any point in time at which the
Corporation’s Common Stock is registered under Section 12(b)
or 12(g) of the Exchange Act, with any interested stockholder (as
defined below) for a period of three (3) years following the time
that such stockholder became an interested stockholder,
unless:
(a)
prior to such time,
the Board approved either the business combination or the
transaction which resulted in the stockholder becoming an
interested stockholder,
(b)
upon consummation
of the transaction which resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least
85% of the voting stock (as defined below) of the Corporation
outstanding at the time the transaction commenced, excluding for
purposes of determining the voting stock outstanding (but not the
outstanding voting stock owned by the interested stockholder) those
shares owned (i) by persons who are directors and also officers and
(ii) employee stock plans in which employee participants do not
have the right to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange offer,
or
(c)
at or subsequent to
such time, the business combination is approved by the Board and
authorized at an annual or special meeting of stockholders, and not
by written consent, by the affirmative vote of at least 66 2/3% of
the outstanding voting stock of the Corporation which is not owned
by the interested stockholder.
Section 3. For purposes of this
Article X, references to:
(a)
“affiliate” means a person
that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with,
another person.
(b)
“associate”, when used to
indicate a relationship with any person, means: (i) any
corporation, partnership, unincorporated association or other
entity of which such person is a director, officer or partner or
is, directly or indirectly, the owner of 20% or more of any class
of voting stock;
(ii)
any trust or other estate in which such person has at least a 20%
beneficial interest or as to which such person serves as trustee or
in a similar fiduciary capacity; and (iii) any relative or spouse
of such person, or any relative of such spouse, who has the same
residence as such person.
(c)
“business
combination”, when used in reference to the
Corporation and any interested stockholder of the Corporation,
means:
(i)
any merger or
consolidation of the Corporation or any direct or indirect
majority-owned subsidiary of the Corporation (a) with the
interested stockholder, or (b) with any other corporation,
partnership, unincorporated association or other entity if (x) the
merger or consolidation is caused by the interested stockholder and
(y) as a result of such merger or consolidation Section 2 of this
Article X is not applicable to the surviving entity;
(ii)
any sale, lease,
exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions), except proportionately as
a stockholder of the Corporation, to or with the interested
stockholder, whether as part of a dissolution or otherwise, of
assets of the Corporation or of any direct or indirect
majority-owned subsidiary of the Corporation which assets have an
aggregate market value equal to 10% or more of either the aggregate
market value of all the assets of the Corporation determined on a
consolidated basis or the aggregate market value of all the
outstanding stock of the Corporation;
any
transaction which results in the issuance or transfer by the
Corporation, or by any direct or indirect majority-owned subsidiary
of the Corporation, of any stock of the Corporation, or of such
subsidiary, to the interested stockholder, except: (a) pursuant to
the exercise, exchange or conversion of securities exercisable for,
exchangeable for or convertible into stock of the Corporation, or
any such subsidiary, which securities were outstanding prior to the
time that the interested stockholder became such; (b) pursuant to a
merger under Sections 251(g) of the DGCL; (c) pursuant to a
dividend or distribution paid or made, or the exercise, exchange or
conversion of securities exercisable for, exchangeable for or
convertible into stock of the Corporation or any such subsidiary
which security is distributed, pro rata to all holders of a class
or seriesof stock of the Corporation subsequent to the time the
interested stockholder became such; (d) pursuant to an exchange
offer by the Corporation to purchase stock made on the same terms
to all holders of said stock; or (e) any issuance or transfer of
stock by the Corporation; provided, however, that in no case under
items (c) through (e) of this subsection (iii) shall there be an
increase in the interested stockholder’s proportionate share
of the stock of any class or series of the Corporation or of the
voting stock of the Corporation (except as a resultof immaterial
changes due to fractional share adjustments);
(iii)
any transaction
involving the Corporation, or any direct or indirect majority-owned
subsidiary of the Corporation, which has the effect, directly or
indirectly, of increasing the proportionate share of stock of any
class or series, or securities exercisable for, exchangeable for or
convertible into stock of any class or series, of the Corporation,
or of any such subsidiary, which is owned by the interested
stockholder, except as a result of immaterial changes due to
fractional share adjustments or as a result of any purchase or
redemption of any shares of stock not caused, directly or
indirectly, by the interested stockholder; or
(iv)
any receipt by the
interested stockholder of the benefit, directly or indirectly
(except proportionately as a stockholder of the Corporation), of
any loans, advances, guarantees, pledges, or other financial
benefits (other than those expressly permitted in
subsections
(i)
through (iv) above)
provided by or through the Corporation or any direct or indirect
majority-owned subsidiary of the Corporation.
(d)
“control”,
including the terms “controlling,” “controlled
by” and “under common control with,” means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a person, whether
through the ownership of voting stock, by contract or otherwise. A
person who is the owner of 20% or more of the outstanding voting
stock of a corporation, partnership, unincorporated association or
other entity shall be presumed to have control of such entity, in
the absence of proof by a preponderance of the evidence to the
contrary. Notwithstanding the foregoing, a presumption of control
shall not apply where such person holds voting stock, in good faith
and not for the purpose of circumventing this Section 2, as an
agent, bank, broker, nominee, custodian or trustee for one or more
owners who do not individually or as a group have control of such
entity.
(e)
“interested stockholder”
means (x) any person (other than the Corporation or any direct or
indirect majority-owned subsidiary of the Corporation) that (i) is
the owner of 15% or more of the outstanding voting stock of the
Corporation, or (ii) is an affiliate or associate of the
Corporation and was the owner of 15% or more of the outstanding
voting stock of the Corporation at any time within the three (3)
year period immediately prior to the date on which it is sought to
be determined whether such person is an interested stockholder, and
(y) the affiliates and associates of such person; but
“interested stockholder” shall not include any person
whose ownership of shares in excess of the 15% limitation set forth
herein is the result of any action taken solely by the Corporation,
provided that such person shall be an interested stockholder if
thereafter such person acquires any additional shares of voting
stock of the Corporation, except as a result of further corporate
action not caused, directly or indirectly, by such person. For the
purpose of determining whether a person is an interested
stockholder, the voting stock of the Corporation deemed to be
outstanding shall include stock deemed to be owned by the person
through application of the definition of “owner” below
but shall not include any other unissued stock of the Corporation
which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
(f)
“owner,”
including the terms “own” and “owned,” when
used with respect to any stock, means a person that individually or
with or through any of its affiliates or associates:
(i)beneficially
owns such stock, directly or indirectly; or
(ii)
has (a) the right
to acquire such stock (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding, or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise; provided, however, that a person shall not be deemed the
owner of stock tendered pursuant to a tender or exchange offer made
by such person or any of such person’s affiliates or
associates until such tendered stock is accepted for purchase or
exchange; or (b) the right to vote such stock pursuant to any
agreement, arrangement or understanding; provided, however, that a
person shall not be deemed the owner of any stock because of such
person’s right to vote such stock if the agreement,
arrangement or understanding to vote such stock arises solely from
a revocable proxy or consent given in response to a proxy or
consent solicitation made to ten (10) or more persons;
or
(iii)
has any agreement,
arrangement or understanding for the purpose of acquiring, holding,
voting (except voting pursuant to a revocable proxy or consent as
described in item (b) of subsection (ii) above), or disposing of
such stock with any other person that owns, or whose affiliates or
associates own, directly or indirectly, such stock.
(g)
“person”
means any individual, corporation, partnership, unincorporated
association or other entity.
(h)
“stock” means, with
respect to any corporation, capital stock and, with respect to any
other entity, any equity interest.
(i)
“voting stock” means, with
respect to a corporation, stock of any class or series entitled to
vote generally in the election of directors and, with respect to
any entity that is not a corporation, any equity interest entitled
to vote generally in the election of the governing body of such
entity. Every reference to a percentage of votingstock shall refer
to such percentage of the votes of such voting stock.
ARTICLE
XI
TRANSFER AND OWNERSHIP RESTRICTIONS
A.
As used
in this Article XI, the following capitalized terms have the
following meanings when used herein with initial capital letters
(and any references to any portions of Treasury Regulation §
1.382-2T shall include any successor
provisions):
“5-percent
Transaction” means any Transfer described in clause
(1) or (2) of Section B.
“5-percent
Stockholder” means a Person or group of Persons that
is, or would be treated as, a “5-percent shareholder”
of the Corporation pursuant to Treasury Regulation §
1.382-2T(g); provided, that for the sole purpose of determining
whether any legal entity is a “5-percent Stockholder,”
Corporation Securities held by such legal entity shall not be
treated as no longer owned by such legal entity pursuant to
Treasury Regulation § 1.382-2T(h)(2)(i)(A).
“Agent”
has the meaning set forth in Section E.
“Code”
means the United States Internal Revenue Code of 1986, as amended
from time to time, and the Treasury Regulations promulgated
thereunder.
“Corporation
Security” or “Corporation
Securities” means (i) shares of common stock
of the Corporation, (ii) shares of preferred stock of the
Corporation (other than preferred stock described in Section
1504(a)(4) of the Code), (iii) warrants, rights, or options
(including options within the meaning of Treasury Regulation §
1.382-4(d)(9) (but, for the avoidance of doubt, without regard for
whether such options are treated as exercised under such Treasury
Regulations)) to purchase securities of the Corporation, and (iv)
any interest that would be treated as “stock” of the
Corporation pursuant to Treasury Regulation §
1.382-2T(f)(18).
“Effective
Date” means the date of filing of this Certificate of
Incorporation of the Corporation with the Secretary of State of the
State of Delaware.
“Excess
Securities” has the meaning given such term in Section
D.
“Expiration
Date” means the earlier of (i) the repeal of Section
382 of the Code or any successor statute if the Board determines
that this Article XI is no longer necessary for the preservation of
Tax Benefits or (ii) such date as the Board shall fix in accordance
with Section L.
“Percentage
Stock Ownership” means the percentage Stock Ownership
interest of any Person or group (as the context may require) for
purposes of Section 382 of the Code as determined in accordance
with the Treasury Regulation § 1.382-2T(g), (h), (j) and (k)
and Treasury Regulation § 1.382-4 or any successor provision;
provided, that (a) for purposes of applying Treasury Regulation
§ 1.382-2T(k)(2), the Corporation shall be treated as having
“actual knowledge” of the beneficial ownership of all
outstanding Corporation Securities that would be attributed to any
Person and (b) for the sole purpose of determining the Percentage
Stock Ownership of any legal entity (and not for the purpose of
determining the Percentage Stock Ownership of any other Person),
Corporation Securities held by such legal entity shall not be
treated as no longer owned by such entity pursuant to Treasury
Regulation § 1.382-2T(h)(2)(i)(A).
“Person”
means any individual, firm, corporation or other legal entity,
or any
group of such “Persons” having a formal or informal
understanding among themselves to make a “coordinated
acquisition,” within the meaning of Treasury Regulation
§ 1.382-3(a)(1), of Company Securities or who are otherwise
treated as an “entity” within the meaning of Treasury
Regulation § 1.382-3(a)(1), and shall include any
successor (by merger or otherwise) of such entity or
group;provided,
however, that a
Person shall not mean a Public Group.
“Prohibited
Distributions” means any and all dividends or other
distributions paid by the Corporation with respect to any Excess
Securities received by a Purported Transferee.
“Prohibited
Transfer” means any Transfer or purported Transfer of
Corporation Securities to the extent that such Transfer is
prohibited and/or void under this Article XI.
“Public
Group” has the meaning set forth in Treasury
Regulation § 1.382-2T(f)(13).
“Purported
Transferee” has the meaning set forth in Section
D.
“Security”
or “Securities” has the
meaning set forth in Section G.
“Stock
Ownership” means any direct or indirect ownership of
any interest that would be treated as “stock” of the
Corporation pursuant to Treasury Regulation § 1.382-2T(f)(18),
including any ownership by virtue of application of constructive
ownership rules, with such direct, indirect, and constructive
ownership determined under the provisions of Section 382 of the
Code and the Treasury Regulations promulgated
thereunder.
“Tax
Benefits” means the net operating loss carryforwards,
capital loss carryforwards, carryforwards of disallowed interest
under Section 163(j) of the Code, general business credit
carryforwards, alternative minimum tax credit carryforwards and
foreign tax credit carryforwards, as well as any loss or deduction
attributable to a “net unrealized built-in loss” within
the meaning of Section 382 of the Code, of the Corporation or any
direct or indirect subsidiary thereof.
“Transfer”
means, any direct or indirect sale, transfer, assignment,
conveyance, pledge or other disposition or other action taken by a
person, other than the Corporation, that alters the Percentage
Stock Ownership of any Person or Public Group. A
Transfer also shall include the creation or grant of an option
(including an option within the meaning of Treasury Regulation
§ 1.382-4(d)(9) (but, for the avoidance of doubt, without
regard for whether such options are treated as exercised under such
Treasury Regulations)). For the avoidance of doubt, a
Transfer shall not include the creation or grant of an option by
the Corporation, nor shall a Transfer include the issuance of
Corporation Securities by the Corporation.
“Transferee”
means any Person to whom Corporation Securities are
Transferred.
“Treasury
Regulations” means the regulations, including
temporary regulations or any successor regulations promulgated
under the Code, as amended from time to time. Any reference to any
portions of any Treasury Regulations shall include any successor
provisions.
B.
Transfer and Ownership Restrictions. In order to
preserve the Tax Benefits, from and after the Effective Date of
this Article XI, any attempted Transfer of Corporation Securities
prior to the Expiration Date and any attempted Transfer of
Corporation Securities pursuant to an agreement entered into prior
to the Expiration Date, shall be prohibited and void ab initio to the extent that, as a
result of such Transfer (or any series of Transfers of which such
Transfer is a part), either (1) any Person or group of Persons
would become a 5-percent Stockholder or (2) the Percentage Stock
Ownership in the Corporation of any 5-percent Stockholder would be
increased.
C.
Exceptions. The restrictions set forth in Section
B of this Article XI shall not apply to an attempted Transfer that
is a 5-percent Transaction if the transferor or the Transferee
obtains the written approval of the Board or a duly authorized
committee thereof. As a condition to granting its
approval pursuant to this Section C, the Board, may, in its
discretion, require (at the expense of the transferor and/or
Transferee) an opinion of counsel selected by the Board that the
Transfer shall not result in the application of any limitation
under Section 382 or Section 383 of the Code on the use of the Tax
Benefits;provided
that the Board may grant such approval notwithstanding the effect
of such approval on the Tax Benefits if it determines that the
approval is in the best interests of the
Corporation. The Board may impose any conditions that it
deems reasonable and appropriate in connection with such approval,
including, without limitation, restrictions on the ability of any
Transferee to Transfer Corporation Securities acquired through a
Transfer. Approvals of the Board hereunder may be given
prospectively or retroactively. The Board, to the
fullest extent permitted by law, may exercise the authority granted
by this Article XI through duly authorized officers or agents of
the Corporation. Nothing in this Section C shall be
construed to limit or restrict the Board in the exercise of its
fiduciary duties under applicable law.
D.
Excess Securities.
(a) No
employee or agent of the Corporation shall record any Prohibited
Transfer, and the purported transferee of such a Prohibited
Transfer (the “Purported
Transferee”)
shall not be recognized as a stockholder of the Corporation for any
purpose whatsoever in respect of (i) the Corporation Securities
which are the subject of the Prohibited Transfer and (ii) in the
case of a Prohibited Transfer of Corporation Securities that are
not Common Stock to a holder of Common Stock, the shares of Common
Stock of such Purported Transferee (the “Excess
Securities”). Until and unless
the Excess Securities are acquired by another person in a Transfer
that is not a Prohibited Transfer or until an approval is obtained
under Section C of this Article XI, the Purported Transferee shall
not be entitled with respect to such Excess Securities to any
rights of stockholders of the Corporation, including, without
limitation, the right to vote such Excess Securities and to receive
dividends or distributions, whether liquidating or otherwise, in
respect thereof, if any, and the Excess Securities shall be deemed
to remain with the transferor unless and until the Excess
Securities are transferred to the Agent pursuant to Section E of
this Article XI or until an approval is obtained under Section C of
this Article XI. After the Excess Securities have been
acquired in a Transfer that is not a Prohibited Transfer, the
Corporation Securities shall cease to be Excess
Securities. For this purpose, any Transfer of Excess
Securities not in accordance with the provisions of this Section D
or Section E shall also be a Prohibited Transfer.
(b) The
Corporation may require as a condition to the registration of the
Transfer of any Corporation Securities or the payment of any
distribution on any Corporation Securities that the proposed
Transferee or payee furnish to the Corporation all information
reasonably requested by the Corporation with respect to all the
direct or indirect ownership interests in such Corporation
Securities. The Corporation may make such arrangements
or issue such instructions to its stock transfer agent as may be
determined by the Board to be necessary or advisable to implement
this Article XI, including, without limitation, authorizing such
transfer agent to require an affidavit from a Purported Transferee
regarding such Person’s actual and constructive ownership of
stock and other evidence that a Transfer will not be prohibited by
this Article XI as a condition to registering any
transfer.
E.
Transfer to Agent. If the Board determines that a
Transfer of Corporation Securities constitutes a Prohibited
Transfer then, upon written demand by the Corporation sent within
thirty days of the date on which the Board determines that the
attempted Transfer would result in Excess Securities, the Purported
Transferee shall transfer or cause to be transferred any
certificate or other evidence of ownership of the Excess Securities
within the Purported Transferee’s possession or control,
together with any Prohibited Distributions, to an agent designated
by the Board (the “Agent”). The
Agent shall thereupon sell to a buyer or buyers, which may include
the Corporation, the Excess Securities transferred to it in one or
more arm’s-length transactions (on the public securities
market on which such Excess Securities are traded, if possible, or
otherwise privately);provided, however, that any such sale
must not constitute a Prohibited Transfer and provided, further, that the Agent shall effect such sale
or sales in an orderly fashion and shall not be required to effect
any such sale within any specific time frame if, in the
Agent’s discretion, such sale or sales would disrupt the
market for the Corporation Securities or otherwise would adversely
affect the value of the Corporation Securities. If the
Purported Transferee has resold the Excess Securities before
receiving the Corporation’s demand to surrender Excess
Securities to the Agent, the Purported Transferee shall be deemed
to have sold the Excess Securities for the Agent, and shall be
required to transfer to the Agent any Prohibited Distributions and
proceeds of such sale, except to the extent that the Corporation
grants written permission to the Purported Transferee to retain a
portion of such sales proceeds not exceeding the amount that the
Purported Transferee would have received from the Agent pursuant to
Section F of this Article XI if the Agent rather than the Purported
Transferee had resold the Excess Securities.
F.
Application of Proceeds and Prohibited
Distributions. The Agent shall apply any proceeds
of a sale by it of Excess Securities and, if the Purported
Transferee has previously resold the Excess Securities, any amounts
received by it from a Purported Transferee, together, in either
case, with any Prohibited Distributions, as follows: (a)
first, such amounts shall be paid to the Agent to the extent
necessary to cover its costs and expenses incurred in connection
with its duties hereunder; (b) second, any remaining amounts shall
be paid to the Purported Transferee, in an amount equal to the
lesser of the proceeds of a sale of Excess Securities or the amount
paid by the Purported Transferee for the Excess Securities
(or the
fair market value at the time of the Transfer, in the case of a
purported Transfer of Excess Securities that was, in whole or in
part, a gift, inheritance or similar Transfer) which amount
(or fair market value) shall be determined at the sole discretion
of the Board; and (c) third, any remaining amounts shall be paid to
one or more organizations qualifying under Section 501(c)(3) of the
Code (or any comparable successor provision) selected by the
Board. The Purported Transferee of Excess Securities
shall have no claim, cause of action or any other recourse
whatsoever against any transferor of Excess
Securities. The Purported Transferee’s sole right
with respect to such shares shall be limited to the amount payable
to the Purported Transferee pursuant to this Section
F. In no event shall the proceeds of any sale of Excess
Securities pursuant to this Section F inure to the benefit of the
Corporation or the Agent, except to the extent used to cover costs
and expenses incurred by the Agent in performing its duties
hereunder.
G.
Modification of Remedies for Certain Indirect Transfers. In
the event of any Transfer which does not involve a transfer of
securities of the Corporation within the meaning of the DGCL
(“Securities,” and
individually, a “Security”), but which
would cause a 5-percent Stockholder to violate a restriction on
Transfers provided for in this Article XI, the application of
Section E and Section F of this Article XI shall be modified as
described in this Section G. In such case, no such 5-percent
Stockholder shall be required to dispose of any interest that is
not a Security, but such 5-percent Stockholder and/or any Person
whose ownership of Securities is attributed to such 5-percent
Stockholder shall be deemed to have disposed of, and shall be
required to dispose of, sufficient Securities (which Securities
shall be disposed of in the inverse order in which they were
acquired) to cause such 5-percent Stockholder, following such
disposition, not to be in violation of this Article XI. Such
disposition shall be deemed to occur simultaneously with the
Transfer giving rise to the application of this provision, and such
number of Securities that are deemed to be disposed of shall be
considered Excess Securities and shall be disposed of through the
Agent as provided in Section E and Section F of this Article XI,
except that the maximum aggregate amount payable either to such
5-percent Stockholder, or to such other Person that was the direct
holder of such Excess Securities, in connection with such sale
shall be the fair market value of such Excess Securities at the
time of the purported Transfer (determined at the sole discretion
of the Board). All expenses incurred by the Agent in disposing of
such Excess Securities shall be paid out of any amounts due such
5-percent Stockholder or such other Person. The purpose of this
Section G is to extend the provisions set forth in Sections B, D
and E of this Article XI to situations in which there is a
5-percent Transaction without the direct transfer of Securities,
and this Section G, along with the other provisions of this Article
XI, shall be interpreted to produce the same results, with
differences as the context requires, as a direct Transfer of
Corporation Securities.
H.
Legal Proceedings; Prompt Enforcement. If the
Purported Transferee fails to surrender the Excess Securities or
the proceeds of a sale thereof to the Agent within thirty days from
the date on which the Corporation makes a written demand pursuant
to Section E of this Article XI (whether or not made within the
time specified in Section E of this Article XI), then the
Corporation shall promptly take all cost effective actions which it
believes are appropriate to enforce the provisions hereof,
including the institution of legal proceedings to compel the
surrender. Nothing in this Section H shall (a) be deemed
inconsistent with any Transfer of the Excess Securities provided in
this Article XI being void ab
initio; (b) preclude the Corporation in its discretion from
immediately bringing legal proceedings without a prior demand; or
(c) cause any failure of the Corporation to act within the time
periods set forth in Section E of this Article XI to constitute a
waiver or loss of any right of the Corporation under this Article
XI. The Board may authorize such additional actions as
it deems advisable to give effect to the provisions of this Article
XI.
I.
Liability. To the fullest extent permitted by
law, any stockholder subject to the provisions of this Article XI
who knowingly violates the provisions of this Article XI and any
Persons controlling, controlled by or under common control with
such stockholder shall be jointly and severally liable to the
Corporation for, and shall indemnify and hold the Corporation
harmless against, any and all damages suffered as a result of such
violation, including but not limited to damages resulting from a
reduction in, or elimination of, the Corporation’s ability to
utilize its Tax Benefits, and attorneys’ and auditors’
fees incurred in connection with such violation.
J.
Obligation to Provide Information. As a condition
to the registration of the Transfer of any Corporation Securities,
any Person who is a beneficial, legal or record holder of
Corporation Securities, and any proposed Transferee and any Person
controlling, controlled by or under common control with the
proposed Transferee, shall provide such information as the
Corporation may request from time to time in order to determine
compliance with this Article XI or the status of the Tax Benefits
of the Corporation.
K.
Legends. The Board may require that any
certificates issued by the Corporation evidencing ownership of
Corporation Securities that are subject to the restrictions on
transfer and ownership contained in this Article XI bear the
following legend:
“THE
CERTIFICATE OF INCORPORATION, AS AMENDED (THE “CERTIFICATE OF INCORPORATION”), OF
THE CORPORATION CONTAINS RESTRICTIONS PROHIBITING THE TRANSFER (AS
DEFINED IN THE CERTIFICATE OF INCORPORATION) OF CORPORATION
SECURITIES OF THE CORPORATION (INCLUDING THE CREATION OR GRANT OF
CERTAIN OPTIONS, RIGHTS AND WARRANTS) WITHOUT THE PRIOR
AUTHORIZATION OF THE BOARD OF DIRECTORS OF THE CORPORATION (THE
“BOARD OF
DIRECTORS”) IF SUCH TRANSFER AFFECTS THE PERCENTAGE OF
CORPORATION SECURITIES OF THE CORPORATION (WITHIN THE MEANING OF
SECTION 382 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”) AND THE
TREASURY REGULATIONS PROMULGATED THEREUNDER), THAT IS TREATED AS
OWNED BY A FIVE PERCENT SHAREHOLDER UNDER THE CODE AND SUCH
REGULATIONS. IF THE TRANSFER RESTRICTIONS ARE VIOLATED,
THEN THE TRANSFER WILL BE VOID AB
INITIO AND THE PURPORTED TRANSFEREE OF THE CORPORATION
SECURITIES WILL BE REQUIRED TO TRANSFER EXCESS SECURITIES (AS
DEFINED IN THE CERTIFICATE OF INCORPORATION) TO THE
CORPORATION’S AGENT. THE CORPORATION WILL FURNISH
WITHOUT CHARGE TO THE HOLDER OF RECORD OF THIS CERTIFICATE A COPY
OF THE CERTIFICATE OF INCORPORATION, CONTAINING THE
ABOVE-REFERENCED TRANSFER RESTRICTIONS, UPON WRITTEN REQUEST TO THE
CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS. ANY
HOLDER WHO KNOWINGLY VIOLATES THE TRANSFER RESTRICTIONS AND ANY
PERSONS CONTROLLING, CONTROLLED BY OR UNDER COMMON CONTROL WITH
SUCH HOLDER SHALL BE JOINTLY AND SEVERALLY LIABLE TO THE
CORPORATION FOR, AND SHALL INDEMNIFY AND HOLD THE CORPORATION
HARMLESS AGAINST, ANY AND ALL DAMAGES SUFFERED AS A RESULT OF SUCH
VIOLATION, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM A
REDUCTION IN, OR ELIMINATION OF, THE CORPORATION’S ABILITY TO
UTILIZE ITS TAX BENEFITS (AS DEFINED IN THE CERTIFICATE OF
INCORPORATION).”
The
Board may also require that any certificates issued by the
Corporation evidencing ownership of Corporation Securities that are
subject to conditions imposed by the Board under Section C of this
Article XI also bear a conspicuous legend referencing the
applicable restrictions.
L.
Authority of Board.
(a)
The Board shall
have the power to determine all matters necessary for assessing
compliance with this Article XI, including, without limitation, (i)
the identification of 5-percent Stockholders; (ii) whether a
Transfer is a 5-percent Transaction or a Prohibited Transfer; (iii)
the Percentage Stock Ownershipin the Corporation of any 5-percent
Stockholder; (iv) whether an instrument constitutes a Corporation
Security; (v) the fair market value of the Corporation Securities
acquired by and the amount due to a Purported Transferee pursuant
to Section F of this Article XI; and (vi) any other matters which
the Board determines to be relevant; and the good faith
determination of the Board on such matters shall be conclusive and
binding for all the purposes of this Article XI. In
addition, the Board may, to the extent permitted by law, from time
to time establish, modify, amend or rescind by-laws, regulations
and procedures of the Corporation not inconsistent with the
provisions of this Article XI for purposes of determining whether
any Transfer of Corporation Securities would jeopardize the
Corporation’s ability to preserve and use the Tax Benefits
and for the orderly application, administration and implementation
of this Article XI. In the case of an ambiguity in the
application of any of the provisions of this Article XI, including
any definition used herein, the Board shall have the power to
determine the application of such provisions with respect to any
situation based on its reasonable belief, understanding or
knowledge of the circumstances.
(b)
Nothing contained
in this Article XI shall limit the authority of the Board to take
such other action to the extent permitted by law as it deems
necessary or advisable to protect the Corporation and its
stockholders in preserving the Tax Benefits. Without limiting the
generality of the foregoing, in the event of a change in law making
one or more of the following actions necessary or desirable, the
Board may, by adopting a written resolution, (i) accelerate or
extend the Expiration Date, (ii) modify the ownership interest
percentage in the Corporation or the Persons or groups covered by
this Article XI, (iii) modify the definitions of any terms set
forth in this Article XI or (iv) modify the terms of this Article
XI as appropriate, in each case, in order to prevent an ownership
change for purposes of Section 382 of the Code as a result of any
such changes in law; provided , however , that the Board shall not
cause there to be such acceleration, extension or modification
unless it determines, by adopting a written resolution, that such
action is reasonably necessary or advisable to preserve the Tax
Benefits or that the continuation of these restrictions is no
longer reasonably necessary for the preservation of the Tax
Benefits. Stockholders of the Corporation shall be notified of such
determination through a filing with the Securities and Exchange
Commission or such other method of notice as the Secretary of the
Corporation shall deem appropriate.
M.
Reliance. To the fullest extent permitted by law,
the Corporation and the members of the Board shall be fully
protected in relying in good faith upon the information, opinions,
reports or statements of the chief executive officer, the chief
financial officer, the chief accounting officer or the corporate
controller of the Corporation or of the Corporation’s legal
counsel, independent auditors, transfer agent, or other employees
and agents in making the determinations and findings contemplated
by this Article XI, and the members of the Board shall not be
responsible for any good faith errors made in connection
therewith. For purposes of determining the existence and
identity of, and the amount of Corporation Securities owned by, any
stockholder, the Corporation and the members of the Board will be
entitled to rely on record stockholder lists and non-objecting
beneficial ownership lists as of any date, subject to our actual
knowledge of the ownership of our Corporation
Securities.
N.
Benefits of This Article XI. Nothing in this
Article XI shall be construed to give to any Person other than the
Corporation or the Agent any legal or equitable right, remedy or
claim under this Article XI. This Article XI shall be
for the sole and exclusive benefit of the Corporation and the
Agent.
O.
Severability. The purpose of this Article XI is
to facilitate the Corporation’s ability to maintain or
preserve its Tax Benefits. If any provision of this
Article XI or the application of any such provision to any Person
or under any circumstance shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction,
such invalidity, illegality or unenforceability shall not affect
any other provision of this Article XI.
P.
Waiver. With regard to any power, remedy or right
provided herein or otherwise available to the Corporation or the
Agent under this Article XI, (1) no waiver will be effective unless
expressly contained in a writing signed by the waiving party; and
(2) no alteration, modification or impairment will be implied by
reason of any previous waiver, extension of time, delay or omission
in exercise, or other indulgence.
ARTICLE
XII
MISCELLANEOUS
If any
provision or provisions of this Certificate of Incorporation
(including any Certificate of Designation relating to any series of
Preferred Stock) shall be held to be invalid, illegal or
unenforceable as applied to any circumstance for any reason
whatsoever: (i) the validity, legality and enforceability of such
provision or provisions in any other circumstance and of the
remaining provisions of this Certificate of Incorporation
(including, without limitation, any Certificate of Designation
relating to any series of Preferred Stock and each portion of any
paragraph of this Certificate of Incorporation or Certificate of
Designation containing any such provision or provisions held to be
invalid, illegal or unenforceable that is not itself held to be
invalid, illegal or unenforceable) shall not in any way be affected
or impaired thereby and (ii) to the fullest extent possible, the
provisions of this Certificate of Incorporation (including, without
limitation, any Certificate of Designation relating to any series
of Preferred Stock and each such portion of any paragraph of this
Certificate of Incorporation or Certificate of Designation
containing any such provision or provisions held to be invalid,
illegal or unenforceable) shall be construed so as to permitthe
Corporation to protect its directors, officers, employees and
agents from personal liability in respect of their good faith
service or for the benefit of the Corporation to the fullest extent
permitted by law.
ARTICLE
XIII
DEFINITIONS
As used
in this Certificate of Incorporation, except as otherwise expressly
provided herein and unlessthe context requires otherwise, the
following terms shall have the following meanings:
“Affiliate” means, with
respect to any Person, any other Person that controls, is
controlled by or is under common control with such Person. For the
purposes of this definition, “control,” when used with
respect to any Person, means the power to direct or cause the
direction of the affairs or management of that Person, whether
through the ownership of voting securities, as trustee (or the
power to appoint a trustee), as a personal representative or
executor, by contract or credit arrangement or otherwise, and
“controlled” and “controlling” have
meanings correlative to the foregoing.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (as so amended and inclusive of such rules
and regulations).
“Person” means any
individual, general partnership, limited partnership, limited
liability company, corporation, trust, business trust, joint stock
company, joint venture, unincorporated association, cooperative or
association or any other legal entity or organization of whatever
nature, and shall include any successor (by merger or otherwise) of
such entity.
This
Certificate of Incorporation is executed on this [●]th day of
[●], 2021.
AEMETIS,
INC.
Name: Eric
McAfee
Title:
Chief Executive Officer
Appendix F
AEMETIS, INC.
CERTIFICATE OF DESIGNATION
OF
SERIES B PREFERRED STOCK
The
undersigned, an authorized officer of Aemetis, Inc., a Delaware
corporation (the “Corporation”), in accordance with
the provisions of Section 151 of the General Corporation Law of the
State of Delaware, does hereby certify that the following
resolution was duly adopted by the Board of Directors of the
Corporation on [ ], 2021:
RESOLVED,
that the Board of Directors, pursuant to authority expressly vested
in it by the provisions of the Certificate of Incorporation of the
Corporation, hereby authorizes the issuance of a series of
Preferred Stock, par value $0.001 per share, of the Corporation,
and hereby fixes the designation, preferences, rights and the
qualifications, limitations and restrictions thereof, in addition
to those set forth in the Certificate of Incorporation of the
Corporation, as follows:
A
series of Preferred Stock consisting of [1,323,394] shares is
hereby designated “Series B
Preferred” and shall have the rights, preferences,
privileges, restrictions and other matters set forth herein, in
addition to those already set forth in the Corporation's
Certificate of Incorporation.
1. Definitions.
For purposes of this Certificate, the
following definitions shall apply:
(a) “Closing Sales
Price” means, for any
security as of any date, the last sales price of such security on
the principal trading market where such security is listed or
traded as reported by Bloomberg Financial Markets (or a comparable
reporting service of national reputation selected by the
Corporation if Bloomberg Financial Markets is not then reporting
closing sales prices of such security) (collectively,
“Bloomberg”), or if the foregoing does not apply, the
last reported sales price of such security on a national exchange
or in the over-the-counter market on the electronic bulletin board
for such security as reported by Bloomberg, or, if no such price is
reported for such security by Bloomberg, the average of the bid
prices of all market makers for such security as reported in the
“pink sheets” by the National Quotation Bureau, Inc.,
in each case for such date or, if such date was not a trading day
for such security, on the next preceding date that was a trading
day. If the Closing Sales Price cannot be calculated for such
security on any of the foregoing bases, the Closing Sales Price of
such security on such date shall be the fair market value as
reasonably determined by an investment banking firm selected by the
Corporation, with the costs of such appraisal to be borne by the
Corporation.
(b) “Convertible
Securities” shall mean
any evidences of indebtedness, Preferred Stock, or other securities
convertible into or exchangeable for Common
Stock.
(c) “Distribution” shall mean the
transfer of cash or other property without consideration whether by
way of dividend or otherwise (other than dividends on Common Stock
payable in Common Stock), or the purchase or redemption of shares
of the Corporation for cash or property other than:
(i) repurchases of Common Stock issued to or held by
employees, officers, directors or consultants of the Corporation or
its subsidiaries upon termination of their employment or services
pursuant to agreements providing for the right of said repurchase,
(ii) repurchases of Common Stock issued to or held by
employees, officers, directors or consultants of the Corporation or
its subsidiaries pursuant to rights of first refusal contained in
agreements providing for such right, (iii) repurchase of
capital stock of the Corporation in connection with the settlement
of disputes with any shareholder, (iv) any other repurchase or
redemption of capital stock of the Corporation approved by the
holders of (a) a majority of the Common Stock and (b) a majority of
the Preferred Stock of the Corporation voting as separate
classes.
(d) “Dividend
Rate” shall mean an
annual rate of 5% of the Original Issue Price per share for the
Series B Preferred Stock (as appropriately adjusted for any
Recapitalizations).
(e) “Liquidation
Preference” shall mean
the Original Issue Price per share for the Series B Preferred Stock
(as appropriately adjusted for any
Recapitalizations).
(f) “Options” shall mean rights, options or warrants to
subscribe for, purchase or otherwise acquire Common Stock or
Convertible Securities.
(g) “Original Issue
Date” shall mean the
date upon which the first of such shares of Preferred Stock is
first issued.
(h) “Original Issue
Price” shall mean $3.00
per share for the Series B Preferred Stock (as appropriately
adjusted for any Recapitalizations).
(i) “Recapitalization”
shall mean any stock dividend, stock split, combination of shares,
reorganization, recapitalization, reclassification or other similar
event.
(j) “Resale Registration
Statement” shall mean a
registration statement on Form S-1 (or, if Form S-1 is not then
available to the Corporation, on such form of registration
statement as is then available) to effect a registration for resale
of shares of the Corporation’s Common Stock issuable upon
conversion of the Corporation’s Series B Preferred Stock
pursuant to the Amended and Restated Registration Rights Agreement
dated as of September 5, 2006, entered into by American Ethanol,
Inc. and holders of its Preferred Stock.
2. Dividends.
(a) Series B Preferred Stock. In any
calendar year, the holders of outstanding shares of Series B
Preferred Stock shall be entitled to receive dividends, when, as
and if declared by the Board of Directors, out of any assets at the
time legally available therefor, at the Dividend Rate payable in
preference and priority to any declaration or payment of any
Distribution on Common Stock of the Corporation in such calendar
year. No Distributions shall be made with respect to the Common
Stock until all declared dividends on the Series B Preferred Stock
have been paid or set aside for payment to the Series B Preferred
Stock holders. Payment of any dividends to the holders of the
Series B Preferred Stock shall be on a pro rata, pari passu basis in
proportion to the Dividend Rates for any other series of Preferred
Stock. The right to receive dividends on shares of Series B
Preferred Stock shall not be cumulative, and no right to such
dividends shall accrue to holders of Series B Preferred Stock by
reason of the fact that dividends on said shares are not declared
or paid in any calendar year.
(b) Additional Dividends.
Subject to the rights of any other
series of Preferred Stock, after the payment or setting aside for
payment of the dividends described in Section 2(a),
any additional dividends (other than dividends on Common Stock
payable solely in Common Stock) declared or paid in any fiscal year
shall be declared or paid among the holders of the Series B
Preferred Stock and Common Stock then outstanding in proportion to
the greatest whole number of shares of Common Stock which would be
held by each such holder if all shares of Preferred Stock were
converted at the then-effective Conversion Rate (as defined
in Section 4
hereof).
(c) Non-Cash
Distributions. Whenever a
Distribution provided for in this Section 2
shall be payable in property other
than cash, the value of such Distribution shall be deemed to be the
fair market value of such property as determined in good faith by
the Board of Directors.
3. Liquidation
Rights.
(a) Liquidation
Preference. In the event of
any liquidation, dissolution or winding up of the Corporation,
either voluntary or involuntary, the holders of the Series B
Preferred Stock shall be entitled to receive, prior and in
preference to any Distribution of any of the assets of the
Corporation to the holders of the Common Stock by reason of their
ownership of such stock, an amount per share for each share of
Series B Preferred Stock held by them equal to the sum of
(i) the Liquidation Preference specified for such share of
Series B Preferred Stock, and (ii) all declared but unpaid
dividends (if any) on such share of Series B Preferred Stock. If
upon the liquidation, dissolution or winding up of the Corporation,
the assets of the Corporation legally available for distribution to
the holders of the Series B Preferred Stock are insufficient to
permit the payment to such holders of the full amounts specified in
this Section 3(a),
then the entire assets of the Corporation legally available for
distribution shall be distributed with equal priority and
pro rata
among the holders of the Series B
Preferred Stock in proportion to the full amounts they would
otherwise be entitled to receive pursuant to this
Section 3(a).
(b) Remaining Assets. After the payment to
the holders of Series B Preferred Stock of the full preferential
amounts specified above, the entire remaining assets of the
Corporation legally available for distribution by the Corporation
shall be distributed with equal priority and pro rata among the holders of the
Common Stock in proportion to the number of shares of Common Stock
held by them.
(c) Reorganization. For purposes of this
Section 3, a
liquidation, dissolution or winding up of the Corporation shall be
deemed to be occasioned by, or to include, (a) the acquisition
of the Corporation by another entity by means of any transaction or
series of related transactions to which the Corporation is party
(including, without limitation, any stock acquisition,
reorganization, merger or consolidation but excluding any sale of
stock for capital raising purposes) that results in the voting
securities of the Corporation outstanding immediately prior thereto
failing to represent immediately after such transaction or series
of transactions (either by remaining outstanding or by being
converted into voting securities of the surviving entity or the
entity that controls such surviving entity) a majority of the total
voting power represented by the outstanding voting securities of
the Corporation, such surviving entity or the entity that controls
such surviving entity, or (b) a sale, lease or other
conveyance of all or substantially all of the assets of the
Corporation.
(d) Valuation of Non-Cash
Consideration. If any assets
of the Corporation distributed to shareholders in connection with
any liquidation, dissolution, or winding up of the Corporation are
other than cash, then the value of such assets shall be their fair
market value as determined in good faith by the Board of
Directors.
In the
event of a merger or other acquisition of the Corporation by
another entity, the Distribution date shall be deemed to be the
date such transaction closes.
4. Conversion.
The holders of the Series B Preferred
Stock shall have conversion rights as follows (the
“Conversion
Rights”):
(a) Right to Convert.
Each share of Series B Preferred
Stock shall be convertible, at the option of the holder thereof
(“Optional
Conversion”), at any
time after the date of issuance of such share at the office of the
Corporation or any transfer agent for the Series B Preferred Stock,
into that number of fully-paid, nonassessable shares of Common
Stock determined by dividing the Original Issue Price by the
Conversion Price. In order to effect the Optional Conversion under
this Paragraph 4(a), the holder must provide the Corporation a
written notice of conversion (“Notice of
Conversion”). The
“Conversion
Price” per share of
Series B Preferred Stock shall initially be the product of ten
times the Original Issue Price and shall be subject to adjustment
as provided herein. The number of shares of Common Stock into which
each share of Series B Preferred Stock of a series may be converted
is hereinafter referred to as the “Conversion
Rate” for such series.
Upon any decrease or increase in the Conversion Price, as described
in this Section 4,
the Conversion Rate shall be appropriately increased or
decreased.
(b) Automatic
Conversion.
(i) Unless otherwise
prohibited by any law, rule or regulation applicable to the
Corporation, upon the date the Resale Registration Statement is
declared effective by the SEC then each share of Series B Preferred
(but not less than all) shall be automatically converted into a
number of fully paid and nonassessable shares of Common Stock
determined in accordance with the formula set forth in Paragraph
4(a)of this Certificate (the “Automatic
Conversion”).
(ii) The Corporation and
the holders of the Series B Preferred Stock shall follow the
applicable conversion procedures set forth in this Paragraph 4
(including the requirement that the holders deliver the Series B
Preferred Stock Certificates representing the Series B Preferred
Stock being converted to the Corporation); provided, however, the
holders of Series B Preferred Stock subject to Automatic Conversion
shall not be required to deliver a Notice of Conversion to the
Corporation. Nothing set forth in this Paragraph 4(b) shall prevent
any holder of Series B Preferred Stock from exercising its right to
convert pursuant to Paragraph 4(a).
(c) Mechanics of
Conversion. In order to effect
an Optional Conversion, a holder shall: (i) fax (or otherwise
deliver) a copy of the fully executed Notice of Conversion to the
Corporation (Attention: Secretary) and (ii) surrender or cause to
be surrendered the original certificates representing the Series B
Preferred Stock being converted (the “Preferred Stock
Certificates”), duly
endorsed, along with a copy of the Notice of Conversion as soon as
practicable thereafter to the Corporation. Upon receipt by the
Corporation of a facsimile copy of a Notice of Conversion from a
holder, the Corporation shall promptly send, via facsimile, a
confirmation to such holder stating that the Notice of Conversion
has been received, the date upon which the Corporation expects to
deliver the Common Stock issuable upon such conversion andthe name
and telephone number of a contact person at the Corporation
regarding the conversion. The Corporation shall not be obligated to
issue shares of Common Stock upon a conversion unless either the
Preferred Stock Certificates are delivered to the Corporation as
provided above, or the holder notifies the Corporation that such
Preferred Stock Certificates have been lost, stolen or destroyed
and executes an agreement satisfactory to the Corporation to
indemnify the Corporation from any loss incurred by it in
connection with such certificates.
(d) Delivery of Common Stock Upon
Conversion. Upon the surrender
of Preferred Stock Certificates accompanied by a Notice of
Conversion, the Corporation (itself, or through its transfer agent)
shall, no later than the tenth business day following the date of
such surrender (or, in the case of lost, stolen or destroyed
certificates, after provision of indemnity pursuant to Paragraph
4(c) above (the “Delivery
Period”), issue and
deliver (i.e., deposit with a nationally recognized overnight
courier service postage prepaid) to the holder or its nominee (x)
that number of shares of Common Stock issuable upon conversion of
such shares of Series B Preferred Stock being converted and (y) a
certificate representing the number of shares of Series B Preferred
Stock not being converted, if any. Notwithstanding the foregoing,
if the Corporation’s transfer agent is participating in the
Depository Trust Corporation (“DTC”) Fast Automated Securities Transfer
program, and so long as the certificates therefor do not bear a
legend and the holder thereof is not then required to return such
certificate for the placement of a legend thereon, the Corporation
shall cause its transfer agent to promptly electronically transmit
the Common Stock issuable upon conversion to the holder by
crediting the account of the holder or its nominee with DTC through
its Deposit Withdrawal Agent Commission system
(“DTC
Transfer”). If the
aforementioned conditions to a DTC Transfer are not satisfied, the
Corporation shall deliver as provided above to the holder physical
certificates representing the Common Stock issuable upon
conversion. Further, a holder may instruct the Corporation to
deliver to the holder physical certificates representing the Common
Stock issuable upon conversion in lieu of delivering such shares by
way of DTC Transfer.
(e) Taxes. The Corporation shall pay any and all taxes
that may be imposed upon it with respect to the issuance and
delivery of the shares of Common Stock upon the conversion of the
Series B Preferred Stock; provided, however, that the Corporation
shall not be required to pay any tax which may be payable in
respect to any transfer involved in the issue and delivery of
shares of Common Stock upon conversion in a nameother than that in
which the shares of the Series B Preferred Stock so converted were
registered, and no such issue or delivery shall be made unless and
until the person requesting such issue or delivery has paid to the
Corporation the amount of any such tax, or has established, to the
satisfaction of the Corporation, that such tax has been
paid.
(f) Fractional Shares. If any conversion of
Series B Preferred Stock would result in the issuance of a
fractional share of Common Stock (aggregating all shares of Series
B Preferred Stock being converted pursuant to a given Notice of
Conversion), such fractional share shall be payable in cash based
upon the Closing Sales Price of the Common Stock at such time, and
the number of shares of Common Stock issuable uponconversion of the
Series B Preferred Stock shall be the next lower whole number of
shares. If the Corporation elects not to, or is unable to, make
such a cash payment, the holder shall be entitled to receive, in
lieu of the final fraction of a share, one whole share of Common
Stock.
(g) Adjustments for Subdivisions
or Combinations of Common Stock. In the event the outstanding shares of Common
Stock shall be subdivided (by stock split, by payment of a stock
dividend or otherwise), into a greater number of shares of Common
Stock, without a corresponding subdivision of the Series B
Preferred Stock, the Conversion Price in effect immediately prior
to such subdivision shall, concurrently with the effectiveness of
such subdivision, be proportionately adjusted. In the event the
outstanding shares of Common Stock shall be combined (by
reclassification or otherwise) into a lesser number of shares of
Common Stock, without a corresponding combination of the Series B
Preferred Stock, the Conversion Price in effect immediately prior
to such combination shall, concurrently with the effectiveness of
such combination, be proportionately adjusted.
(h) Adjustments for Subdivisions
or Combinations of Preferred Stock. In the event the outstanding shares of Series B
Preferred Stock shall be subdivided (by stock split, by payment of
a stock dividend or otherwise), into a greater number of shares of
Series B Preferred Stock, the Dividend Rate, Original Issue Price
and Liquidation Preference in effect immediately prior to such
subdivision shall, concurrently with the effectiveness of such
subdivision, be proportionately adjusted. In the event the
outstanding shares of Series B Preferred Stock shall be combined
(by reclassification or otherwise) into a lesser number of shares
of Series B Preferred Stock, the Dividend Rate, Original Issue
Price and Liquidation Preference in effect immediately prior to
such combination shall, concurrently with the effectiveness of such
combination, be proportionately adjusted.
(i) Adjustments for
Reclassification, Exchange and Substitution. Subject to Section 3
above (“Liquidation
Rights”), if the Common
Stock issuable upon conversion of the Series B Preferred Stock
shall be changed into the same or a different number of shares of
any other class or classes of stock, whether by capital
reorganization, reclassification or otherwise (other than a
subdivision or combination of shares provided for above), then, in
any such event, in lieu of the number of shares of Common Stock
which the holders would otherwise have been entitled to receive
each holder of such Series B Preferred Stock shall have the right
thereafter to convert such shares of Series B Preferred Stock into
a number of shares of such other class or classes of stock which a
holder of the number of shares of Common Stock deliverable upon
conversion of such series of Series B Preferred Stock immediately
before that change would have been entitled to receive in such
reorganization or reclassification, all subject to further
adjustment as provided herein with respect to such other
shares.
(j) No Impairment. The Corporation will not
through any reorganization, transfer of assets, merger,
dissolution, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of any
of the terms to be observed or performed hereunder by the
Corporation but will at all times in good faith assist in the
carrying out of all the provisions of this Section 4 and in the taking of all
such action as may be necessary or appropriate in order to protect
the Conversion Rights of the holders of Series B Preferred Stock
against impairment. Notwithstanding the foregoing, nothing in this
Section 4(j) shall
prohibit the Corporation from amending its Certificate of
Incorporation with the requisite consent of its shareholders and
the Board of Directors.
(k) Certificate as to
Adjustments. Upon the
occurrence of each adjustment or readjustment of the Conversion
Price pursuant to this Section 4,
the Corporation at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and
furnish to each holder of Series B Preferred Stock a certificate
setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based. The
Corporation shall, upon the written request at any time of any
holder of Series B Preferred Stock, furnish or cause to be
furnished to such holder a like certificate setting forth
(i) such adjustments and readjustments, (ii) the
Conversion Price at the time in effect and (iii) the number of
shares of Common Stock and the amount, if any, of other property
which at the time would be received upon the conversion of Series B
Preferred Stock.
(l) Waiver of Adjustment of
Conversion Price. Notwithstanding anything herein to the contrary,
any downward adjustment of the Conversion Price may be waived,
either prospectively or retroactively and either generally or in a
particular instance, by the consent or vote of the holders of a
majority of the outstanding shares of such series, voting
separately as a class. Any such waiver shall bind all future
holders of shares of Series B Preferred Stock.
(m) Notices of Record
Date. In the event that this
Corporation shall propose at any time:
(i) to
declare any Distribution upon its Common Stock, whether in cash,
property, stock or other securities, whether or not a regular cash
dividend and whether or not out of earnings or earned
surplus;
(ii) to
effect any reclassification or recapitalization of its Common Stock
outstanding involving a change in the Common Stock;
or
(iii) to
voluntarily liquidate or dissolve or to enter into any transaction
deemed to be a liquidation, dissolution or winding up of the
Corporation pursuant to Section 3(c);
then,
in connection with each such event, this Corporation shall send to
the holders of the Series B Preferred Stock at least 10 business
days’ prior written notice of the date on which a record
shall be taken for such Distribution (and specifying the date on
which the holders of Common Stock shall be entitled thereto and, if
applicable, the amount and character of such Distribution) or for
determining rights to vote in respect of the matters referred to in
(ii) and (iii) above.
Such
written notice shall be given by first class mail (or express
courier), postage prepaid, addressed to the holders of Series B
Preferred Stock at the address for each such holder as shown on the
books of the Corporation and shall be deemed given on the date such
notice is mailed.
The
notice provisions set forth in this section may be shortened or
waived prospectively or retrospectively by the vote or written
consent of the holders of a majority of the Series B Preferred
Stock.
(n) Reservation of Stock Issuable
Upon Conversion. The
Corporation shall at all times reserve and keep available out of
its authorized but unissued shares of Common Stock and Preferred
Stock solely for the purpose of effecting the conversion of the
shares of the Series B Preferred Stock (including those issuable
upon exercise of warrants), such number of its shares of Common
Stock and Preferred Stock as shall from time to time be sufficient
to effect the conversion of all then outstanding shares of the
Preferred Stock, warrants and other securities; and if at any time
the number of authorized but unissued shares of Common Stock and
Series B Preferred Stock shall not be sufficient to effect the
conversion of all then outstanding shares ofthe Series B Preferred
Stock, warrants and other securities, the Corporation will take
such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Common
Stock and Series B Preferred Stock to such number of shares as
shall be sufficient for such purpose.
5. Protective
Provisions. Subject to the
rights of series of Series B Preferred Stock which may from time to
time come into existence, so long as any shares of Series B
Preferred Stock are outstanding, this Corporation shall not without
first obtaining the approval (by written consent, as provided by
law) of the holders of at least two-thirds of the then outstanding
shares of Series B Preferred Stock, voting together as a
class:
(a) Increase or decrease (other than by redemption or
conversion) the total number of authorized shares of Series B
Preferred Stock;
(b) Effect
an exchange, reclassification, or cancellation of all or a part of
the Series B Preferred Stock, including a reverse stock split, but
excluding a stock split;
(c) Effect
an exchange, or create a right of exchange, of all or part of the
shares of another class of shares into shares of Series B Preferred
Stock; or
(d) Alter
or change the rights, preferences or privileges of the shares of
Series B Preferred Stock so as to affect adversely the shares of
such series, including the rights set forth in this
Certificate.
For
clarification, issuances of additional authorized shares of Series
B Preferred, under the terms herein, shall not require the
authorization or approval of the existing shareholders of Series B
Preferred Stock.
6. Reports.
The Corporation shall mail to all
holders of Series B Preferred Stock those reports, proxy statements
and other materials that it mails to all of its holders of Common
Stock.
7. Notices.
In addition to any other means of
notice provided by law or in the Corporation's Bylaws, any notice
required by the provisions of this Certificate to be given to the
holders of Series B Preferred Stock shall be deemed given if
deposited in the United States mail, postage prepaid, and addressed
to each holder of record at such holder’s address appearing
on the books of the Corporation.
IN WITNESS WHEREOF, the Company has caused this Certificate
of Designations to be duly executed as of the [ ] day of [ ],
2021.
AEMETIS,
INC.
/s/
Eric McAfee
Eric
McAfee
Chief
Executive Officer
Appendix
G
BYLAWS
OF
AEMETIS,
INC.
(A
DELAWARE CORPORATION)
AS
OF [●], 2021
TABLE
OF CONTENTS
Page
|
|
|
|
ARTICLE 1 Offices
|
1
|
1.1 Registered Office
|
1
|
1.2 Other Offices
|
1
|
ARTICLE 2 Meeting of Stockholders
|
1
|
2.1 Place of Meeting
|
1
|
2.2 Annual Meeting
|
1
|
2.3 Special Meetings
|
2
|
2.4 Notice of Meetings
|
2
|
2.5 List of Stockholders
|
2
|
2.6 Organization and Conduct of Business
|
2
|
2.7 Quorum
|
2
|
2.8 Adjournments
|
2
|
2.9 Voting Rights
|
3
|
2.10 Majority Vote
|
3
|
2.11 Record Date for Stockholder Notice and
Voting
|
3
|
2.12 Proxies
|
3
|
2.13 Inspectors of Election
|
4
|
2.14 Action Without a Meeting
|
4
|
ARTICLE 3 Directors
|
4
|
3.1 Number, Election, Tenure and Qualifications
|
4
|
3.2 Enlargement and Vacancies
|
4
|
3.3 Resignation and Removal
|
4
|
3.4 Powers
|
5
|
3.5 Chairman of the Board
|
5
|
3.6 Place of Meetings
|
5
|
3.7 Annual Meetings
|
5
|
3.8 Regular Meetings
|
5
|
3.9 Special Meetings
|
5
|
3.10 Quorum, Action at Meeting, Adjournments
|
5
|
3.11 Action Without Meeting
|
5
|
3.12 Telephone Meetings
|
5
|
3.13 Committees
|
5
|
3.14 Fees and Compensation of Directors
|
6
|
3.15 Rights of Inspection
|
6
|
TABLE
OF CONTENTS
(continued)
|
Page
|
ARTICLE 4 Officers
|
6
|
4.1 Officers Designated
|
6
|
4.2 Election
|
6
|
4.3 Tenure
|
6
|
4.4 The Chief Executive Officer
|
6
|
4.5 The Secretary
|
6
|
4.6 The Assistant Secretary
|
6
|
4.7 The Treasurer
|
6
|
4.8 Assistant Treasurers
|
7
|
4.9 Delegation of Authority
|
7
|
ARTICLE 5 Notices
|
7
|
5.1 Delivery
|
7
|
5.2 Waiver of Notice
|
7
|
ARTICLE 6 Indemnification and Insurance
|
8
|
6.1 Indemnification
|
8
|
6.2 Advance Payment
|
9
|
6.3 Non-Exclusivity and Survival of Rights;
Amendments
|
9
|
6.4 Insurance
|
9
|
6.5 Severability
|
9
|
6.6 Definitions
|
9
|
6.7 Notices
|
10
|
ARTICLE 7 Capital Stock
|
10
|
7.1 Certificates for Shares
|
10
|
7.2 Signatures on Certificates
|
11
|
7.3 Transfer of Stock
|
11
|
7.4 Registered Stockholders
|
11
|
7.5 Lost, Stolen or Destroyed Certificates
|
11
|
ARTICLE 8 Certain Transactions
|
11
|
8.1 Transactions with Interested Parties
|
11
|
8.2 Quorum
|
11
|
ARTICLE 9 General Provisions
|
11
|
9.1 Dividends
|
11
|
TABLE
OF CONTENTS
(continued)
|
Page
|
9.1 Dividend Reserve
|
11
|
9.2 Checks
|
12
|
9.3 Corporate Seal
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9.4 Execution of Corporate Contracts and
Instruments
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12
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9.5 Representation of Shares of Other
Corporations
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12
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ARTICLE 10 Amendments
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RESTATED
BYLAWS
OF
AEMETIS,
INC.
(A
DELAWARE CORPORATION)
ARTICLE
1
Offices
1.1. Registered
Office. The registered office of the corporation shall be
set forth in the Certificate of Incorporation of the
corporation.
1.2. Other
Offices. The corporation may also have offices at such other
places, either within or without the State of Delaware, as the
Board of Directors (the “Board”) may from time to time
designate or the business of the corporation may
require.
ARTICLE
2
Meeting of
Stockholders
2.1. Place
of Meeting. Meetings of stockholders may be held at such
place, either within or without of the State of Delaware, as may be
designated by or in the manner provided in these bylaws, or, if not
so designated, at the registered office of the corporation or the
principal executive offices of the corporation.
2.2. Annual
Meeting. Annual meetings of stockholders shall be held each
year at such date and time as shall be designated from time to time
by the Board or the Chief Executive Officer and stated in the
notice of the meeting. At the annual meeting, directors shall be
elected and other proper business properly brought before the
meeting in accordance with this Section 2.2 may be transacted. The
Board may postpone, reschedule or cancel any annual meeting of
stockholders previously scheduled by the Board.
To be
properly brought before the annual meeting, business must be (a)
specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board or the Chief Executive
Officer, (b) otherwise properly brought before the meeting by or at
the direction of the Board or the Chief Executive Officer, or (c)
otherwise properly brought before the meeting by a stockholder of
record. A motion related to business proposed to be brought before
any stockholders’ meeting may be made by any stockholder
entitled to vote if the business proposed is otherwise proper to be
brought before the meeting. However, any such stockholder may
propose business to be brought before a meeting only if such
stockholder has given timely notice to the Secretary of the
corporation in proper written form of the stockholder’s
intent to propose such business. To be timely, the
stockholder’s notice must be delivered by a nationally
recognized courier service or mailed by first class United States
mail, postage or delivery charges prepaid, and received at the
principal executive offices of the corporation addressed to the
attention of the Secretary of the corporation not earlier than
ninety (90) days nor more than one hundred twenty (120) days in
advance of the date the corporation’s proxy statement was
released to the stockholders in connection with the previous
year’s annual meeting of stockholders;provided, however, that in the event
that no annual meeting was held in the previous year or the date of
the annual meeting has been changed by more than thirty (30) days
from the date contemplated at the time of the previous year’s
proxy statement, notice by the stockholder must be received by the
Secretary of the corporation not later than the close of business
on the later of (x) the ninetieth (90th) day prior to such annual
meeting and (y) the seventh (7th) day following the day on which
public announcement of the date of such meeting is first made. For
the purposes of these bylaws, “public announcement”
shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or a comparable national news
service or in a document publicly filed by the corporation with the
Securities and Exchange Commission. In no event shall the public
announcement of an adjournment or postponement of an annual meeting
commence a new time period (or extend any time period) for the
giving of stockholder’s notice as described above. A
stockholder’s notice to the Secretary shall set forth as to
each matter the stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be
brought before the annual meeting, the text of the proposal or
business (including the text of any resolutions proposed for
consideration and in the event that such business includes a
proposal to amend the bylaws of the Corporation, the language of
the proposed amendment), and the reasons for conducting such
business at the annual meeting, (ii) the name and record address of
the stockholder proposing such business and the beneficial owner,
if any, on whose behalf the proposal is made, (iii) the class,
series and number of shares of the corporation that are owned
beneficially and of record by the stockholder and such beneficial
owner, (iv) any material interest of the stockholder in such
business, and (v) any other information that is required to be
provided by the stockholder pursuant to Section 14 of the
Securities Exchange Act of 1934 and the rules and regulations
promulgated thereunder (collectively, the “1934 Act”) in such
stockholder’s capacity as a proponent of a stockholder
proposal.
Notwithstanding
anything in these bylaws to the contrary, no business shall be
conducted at the annual meeting except in accordance with the
procedures set forth in this Section 2.2;provided, however, that nothing in this
Section 2.2 shall be deemed to preclude discussion by any
stockholder of any business properly brought before the annual
meeting.
The
Chairman of the Board (or such other person presiding at the
meeting in accordance with these bylaws) shall, if the facts
warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the
provisions of this Section 2.2, and if he or she should so
determine, he or she shall so declare to the meeting and any such
business not properly brought before the meeting shall not be
transacted.
2.3. Special
Meetings. Special meetings of the stockholders may be called
for any purpose or purposes, unless otherwise prescribed by statute
or by the Certificate of Incorporation, by the Secretary only at
the request of the Chairman of the Board, the Chief Executive
Officer or by a resolution duly adopted by the affirmative vote of
a majority of the Board. Such request shall state the purpose or
purposes of the proposed meeting. Business transacted at any
special meeting shall be limited to matters relating to the purpose
or purposes stated in the notice of meeting.
2.4. Notice
of Meetings. Except as otherwise provided by law, written
notice of each meeting of stockholders, annual or special, stating
the place, if any, date and time of the meeting, the means of
remote communications, if any, by which stockholders and proxy
holders may be deemed to be present in person and vote at such
meeting, and, in the case of a special meeting, the purpose or
purposes for which such special meeting is called, shall be given
to each stockholder entitled to vote at such meeting not less than
ten (10) nor more than sixty (60) days before the date of the
meeting.
When a
meeting is adjourned to another place, date or time, notice need
not be given of the adjourned meeting if the place, date and time
thereof are announced at the meeting at which the adjournment is
taken;provided, however,
that if the date of any adjourned meeting is more than thirty (30)
days after the date for which the meeting was originally noticed,
or if a new record date is fixed for the adjourned meeting, written
notice of the place, if any, date, time and means of remote
communications, if any, of the adjourned meeting shall be given in
conformity herewith. At any adjourned meeting, any business may be
transacted that might have been transacted at the original
meeting.
2.5. List
of Stockholders. The officer in charge of the stock ledger
of the corporation or the transfer agent shall prepare and make, at
least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder.
Such
list shall be open to the examination of any stockholder, for any
purpose germane to the meeting, for a period of at least
ten
(10)
days prior to the meeting, (i) on a reasonably accessible
electronic network, provided that the information required to gain
access to such list is provided with the notice of the meeting, or
(ii) during ordinary business hours, at the principal place of
business of the corporation. If the meeting is to be held at a
place, then the list shall also be produced and kept at the time
and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. If the meeting is to
be held solely by means of remote communication, then the list
shall also be open to the examination of any stockholder during the
whole time of the meeting on a reasonably accessible electronic
network, and the information required to gain access to such list
shall be provided with the notice of the meeting.
2.6. Organization
and Conduct of Business. The Chairman of the Board or, in
his or her absence or the Chief Executive Officer or, in their
absence, such person as the Board may have designated or, in the
absence of such a person, such person as may be chosen by the
holders of a majority of the shares entitled to vote who are
present, in person or by proxy, shall call to order any meeting of
the stockholders and act as chairmanof the meeting. In the absence
of the Secretary of the corporation, the secretary of the meeting
shall be such person as the chairman of the meeting
appoints.
The
chairman of any meeting of stockholders shall determine the order
of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion as
seems to him or her in order.
2.7. Quorum.
Except where otherwise provided by law or the Certificate of
Incorporation of the corporation or these bylaws, the holders of a
majority of the stock issued and outstanding and entitled to vote,
present in person or represented in proxy, regardless of whether the proxy has
authority to vote on all matters, shall constitute a quorum at all
meetings of the stockholders.
2.8. Adjournments.
Any meetingof stockholders may be adjourned from time to time to
any other time and to any other place at which a meeting of
stockholders may be held under these bylaws, which time and place
shall be announced at the meeting, by a majority of the
stockholders present in person or represented by proxy at the
meeting and entitled to vote, though less than a quorum, or, if no
stockholder is present or represented by proxy, by any officer
entitled to preside at or to act as secretary of such meeting,
without notice other than announcement at the meeting, until a
quorum shall be present or represented. At such adjourned meeting
at which a quorum shall be present or represented, any business may
be transacted which might have been transacted at the original
meeting. If the adjournment is for more than thirty (30) days, or
if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the
meeting.
2.9. Voting
Rights. Unless
otherwise provided in the Certificate of Incorporation of the
corporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote for each share of the capital
stock having voting power held by such stockholder.
2.10. Majority
Vote. When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voting power present
in person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which by
express provision of the statutes or of the Certificate of
Incorporation of the corporation or of these bylaws, a different
vote is required in which case such express provision shall govern
and control the decision of such question.
2.11. Record
Date for Stockholder Notice and Voting. For purposes of
determining the stockholders entitled to notice of, or to vote at,
any meeting of stockholders or any adjournment thereof, or entitled
to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any right in
respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board may fix, in advance,
a record date, which shall not be more than sixty (60) days nor
fewer than ten
(10)
days before the date of any such meeting nor more than sixty (60)
days before any other action to which the record date relates. A
determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of
the meeting;provided,
however, that the Board may fix a new record date for the
adjourned meeting. If the Board does not so fix a record date, the
record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of
business on the business day next preceding the day on which notice
is given or, if notice is waived, at the close of business on the
business day next preceding the day on which the meeting is held.
The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board
adopts the resolution relating to such purpose.
2.12
Proxies. Each
stockholder entitled to vote at a meeting of stockholders, or to
express consent or dissent to corporate action in writing without a
meeting, may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted
upon after the expiration of six (6) months from the date of its
execution unless (a) coupled with an interest, or (b) the person
executing it specifies therein the length of time for which it is
to be continued in force, which in no case shall exceed seven (7)
years from the date of its execution. All proxies must be filed
with the Secretary of the corporation prior to the commencement of
voting at each meeting in order to be counted in any vote at the
meeting. Subject to the limitation set forth in the last clause of
the first sentence of this Section 2.12, a duly executed proxy that
does not state that it is irrevocable shall continue in full force
and effect unless (i) revoked by the person executing it, before
the vote pursuant to that proxy, by a writing delivered to the
corporation stating that the proxy is revoked or by a subsequent
proxy executed by, or attendance at the meeting and voting in
person by, the person executing the proxy, or (ii) written notice
of the death or incapacity of the maker of that proxy is received
by the corporation before the vote pursuant to that proxy is
counted.
(a) Without limiting
the manner in which a stockholder may authorize another person or
persons to act for him as proxy pursuant to this Section 2.12, the
following shall constitute a valid means by which a stockholder may
grant such authority:
(1) A stockholder may
execute a writing authorizing another person or persons to act for
him as proxy. Execution may be accomplished by the stockholder or
his authorized officer, director, employee or agent signing such
writing or causing his or her signature to be affixed to such
writing by any reasonable means including, but not limited to, by
facsimile signature.
(2) A stockholder may
authorize another person or persons to act for him as proxy by
transmitting or authorizing the transmission of a telephone,
electronic mail or other means of electronic transmission to the
person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization or like agent
duly authorized by the person who will be the holder of the proxy
to receive such transmission, provided that any such telephone,
telegram, cablegram or other means of electronic transmission must
either set forth or be submitted with information from which it can
be determined that the telephone, electronic mail or other
electronic transmission (as defined in Section 5.1(c)) was
authorized by the stockholder. Such authorization can be
established by the signature of the stockholder on the proxy,
either in writing or by a signature stamp or facsimile signature,
or by a number or symbol from which the identity of the stockholder
can be determined, or by any other procedure deemed appropriate by
the inspectors or other persons making the determination as to due
authorization. If it is determined that such electronic mail or
other electronic transmissions are valid, the inspectors or, if
there are no inspectors, such other persons making that
determination shall specify the information upon which they
relied.
(b) Any
copy, facsimile telecommunication or other reliable reproduction of
the writing or transmission created pursuant to subsection
(a) of
this section may be substituted or used in lieu of the original
writing or transmission for any and all purposes for which the
original writing or transmission could be used, provided that such
copy, facsimile telecommunication or other reproduction shall be a
complete reproduction of the entire original writing or
transmission.
2.13. Inspectors
of Election. The corporation shall, in advance of any
meeting of stockholders, appoint one or more inspectors of election
toact at the meeting and make a written report thereof. The
corporation may designate one or more persons to act as alternate
inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders,
the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering
upon the discharge of his or her duties, shall take and sign an
oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her
ability.
2.14. Action
Without a Meeting. No action required or permitted to be
taken at any annual or special meeting of the stockholders of the
corporation may be taken without a meeting and the power of the
stockholders to consent in writing, without a meeting, to the
taking of any action is specifically denied.
ARTICLE
3
Directors
3.1. Number,
Election, Tenure and Qualifications. The number of directors
that shall constitute the entire Board shall be fixed from time to
time by resolution adopted by a majority of the entire Board. The
number of directors that shall constitute the entire Board
initially shall be five (5).
The classes of directors that shall constitute the entire
Board shall be as provided in the Certificate of Incorporation of
the corporation.
The
directors shall be elected at the annual meetings of the
stockholders, except as otherwise provided in Section 3.2, and each
director elected shall hold office until such director’s
successor is elected and qualified, unless sooner
displaced.
Subject
to the rights of holders of any class or series of preferred stock,
nominations of persons for election to the Board by or at the
direction of the Board may be made by any nominating committee or
person appointed by the Board; nominations may also be made by any
stockholder of record of the corporation entitled to vote for the
election of directors at the applicable meeting who complies with
the notice procedures set forth in this Section 3.1. Such
nominations, other than those made by or at the direction of the
Board, shall be made pursuant to timely notice in writing to the
Secretary of the corporation. To be timely, a stockholder’s
notice shall be delivered by a nationally recognized courier
service or mailed by first class United States mail, postage or
delivery charges prepaid, and received at the principal executive
offices of the corporation addressed to the attention of the
Secretary of the corporation not earlier than fifty (50) days nor
more than eighty (80) days in advance of the scheduled date of the
annual meeting of stockholders, regardless of any postponement,
deferral or adjournment of that meeting to a later date;
provided, however, that, if
fewer than sixty
(60)
days’ notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder
to be timely must be so delivered or mailed and received not later
than the close of business on the tenth (10th) day following the
earlier of
(a) the
day on which such notice of the date of the meeting was mailed or
(b) the day on which such public disclosure was made. Such
stockholder’s notice to the Secretary shall set forth: (a) as
to each person whom the stockholder proposes to nominate for
election or reelection as a director, (i) the name, age, business
address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class, series and
number of shares of capital stock of the corporation that are owned
beneficially by the person on the date of such stockholder’s
notice, (iv) a statement as to the person’s citizenship, and
(v) any other information relating to the person that is required
to be disclosed in solicitations for proxies for election of
directors pursuant to Section 14 of the 1934 Act, including,
without limitation, such person’s written consent to being
named in the proxy statement as a nominee and to serving as a
director if elected; (b) as to the stockholder giving the notice,
(i) the name and address, as such information appears on the
corporation’s books, of such stockholder and any other
stockholders known by such stockholder to be supporting such
nominee(s),
(ii)
the class, series
and number of shares of capital stock of the corporation that are
owned beneficially by the stockholder and each other stockholder
known by such stockholder to be supporting such nominee(s) on the
date of such stockholder’s notice and (iii) a representation
that the stockholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to nominate the person or
persons specified in the notice; and (c) a description of all
arrangements or understandings between the stockholder and each
nominee and other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by
the stockholder. The corporation may require any proposed nominee
to furnish such other information as may reasonably be required by
the corporation to determine the eligibility of such proposed
nominee to serve as director ofthe corporation. No person shall be
eligible for election as a director of the corporation unless
nominated in accordance with the procedures set forth
herein.
In
connection with any annual meeting of the stockholders (or, if and
as applicable, any special meeting of the stockholders), the
Chairman of the Board (or such other person presiding at such
meeting in accordance with these bylaws) shall, if the facts
warrant, determine and declare to the meeting that a nomination was
not made in accordance with the foregoing procedure, and if he or
she should so determine, he or she shall so declare to the meeting
and the defective nomination shall be disregarded.
3.2. Enlargement
and Vacancies. The number of members of the Board may be
increased at any time as provided in Section 3.1 above. Sole power
to fill vacancies and newly created directorships resulting from
any increase in the authorized number of directors shall be vested
in the Board, and each director so chosen shall hold office until
the next annual election at which the term of the class to which
they have been elected expires and until such director’s
successor is duly elected and qualified or until such
director’s earlier resignation, removal from office, death or
incapacity. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. In the
event of a vacancy in the Board, the remaining directors, except as
otherwise provided by law or these bylaws, may exercise the powers
of the full Board until the vacancy is filled.
3.3. Resignation
and Removal. Any director may resign at any time upon
written notice to the corporation at its principal place of
business or to the Chief Executive Officer or the Secretary. Such
resignation shall be effective upon receipt of such notice unless
the notice specifies such resignation to be effective at some other
time or upon the happening of some other event. Any director or the
entire Board may be removed, but only for cause, by the holders of
a majority of the shares then entitled to vote at an election of
directors, unless otherwise specified by law or the Certificate of
Incorporation of the corporation.
3.4. Powers.
The business ofthe corporation shall be managed by or under the
direction of the Board, which may exercise all such powers of the
corporation and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation of the corporation
or by these bylaws directed or required to be exercised or done by
the stockholders.
3.5. Chairman
of the Board. If the Board appoints a Chairman of the Board,
such Chairman shall, when present, preside at all meetings of the
stockholders and the Board. The Chairman shall perform such duties
and possess such powers as are customarily vested in the office of
the Chairman ofthe Board or as may be vested in the Chairman by the
Board.
3.6.
Place of Meetings. The Board
may hold meetings, both regular and special, either within or
without the State of Delaware.
3.7. Annual
Meetings. Except as the Board may otherwise determine, the
annual meetings of the Board shall be held immediately following
the annual meeting of stockholders and no notice of such meeting
shall be necessary to the Board, provided a quorum shall be
present. The annual meetings shall be for the purposes of
organization, and an election of officers and the transaction of
other business.
3.8. Regular
Meetings. Regular meetings of the Board may be held without
notice at such time and place as may be determined from time to
time by the Board; provided that any director who is absent when
such a determination is made shall be given prompt notice of such
determination.
3.9. Special
Meetings. Special meetings of the Board may be called by the
Chairman of the Board, the Chief Executive Officer, or the
Secretary, or on the written request of two or more directors, or
by one director in the event that there is only one director in
office. Notice of the time and place, if any, of special meetings
shall be delivered personally or by telephone to each director, or
sent by first-class mail or commercial delivery service, facsimile
transmission, or by electronic mail or other electronic means,
charges prepaid, sent to such director’s business or home
address as they appear upon the records of the corporation. In case
such notice is mailed, it shall be deposited in the United States
mail at least four (4) days prior to the time of holding of the
meeting. In case such notice is delivered personally or by
telephone or by commercial delivery service, facsimile
transmission, or electronic mail or other electronic means, it
shall be so delivered at least twenty-four (24) hours prior to the
time of the holding of the meeting. A notice or waiver of notice of
a meeting of the Board need not specify the purposes of the
meeting.
3.10. Quorum,
Action at Meeting, Adjournments. At all meetings of the
Board, a majority of directors then in office, but in no event less
than one-third (1/3) of the entire Board, shall constitute a quorum
for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall
be the act of the Board, except as may be otherwise specifically
provided by law or by the Certificate of Incorporation of the
corporation. For purposes of this Section 3.10, the term
“entire Board” shall mean the number of directors last
fixed by directors in accordance with these bylaws;provided, however, that if fewer than a
majority of the entire Board remain in office as a result of the
death, removal or resignation of one or more directors, then the
term “entire Board” shall mean the number of directors
then serving in office, but solely for the purpose of forming a
quorum so that the Board may appoint new directors to fill the
vacancies caused by such death, removal or resignation. If a quorum
shall not be present at any meeting of the board of directors, a
majority of the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
3.11. Action
Without Meeting. Unless otherwise restricted by the
Certificate of Incorporation of the corporation or these bylaws,
any action required or permitted to be taken at any meeting of the
Board or of any committee thereof may be taken without a meeting,
if all members of the Board or committee, as the case may be,
consent thereto in writing or by electronic transmission, and the
writing or writings or electronic transmission or transmissions are
filed with the minutes of proceedings of the Board or
committee.
3.12. Telephone
Meetings. Unless otherwise restricted by the Certificate of
Incorporation of the corporation or these bylaws, any member of the
Board or any committee thereof may participate in a meeting of the
Board or of any committee, as the case may be, by means of
conference telephone or by any form of communications equipment by
means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute
presence in person at the meeting.
3.13. Committees.
The Board may, by resolution passed by a majority of the whole
Board, designate one or more committees, each committee to consist
of one or more of the directors of the corporation. The Board may
designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a
member of a committee, the member or members present at any meeting
and not disqualified from voting, whether or not the member or
members present constitute a quorum, may unanimously appoint
another member of the Board to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board, shall have and may
exercise all the powers and authority of the Board in the
management of the business and affairs of the corporation, and may
authorize the seal of the corporation to be affixed to all papers
which may require it; but no such committee shall have the power or
authority in reference to (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly
required by the DGCL to be submitted to stockholders for approval
or (ii) adopting, amending or repealing any of these bylaws. Such
committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board.
Each committee shall keep regular minutes of its meetings and make
such reports to the Board as the Board may request. Except as the
Board may otherwise determine, any committee may make rules for the
conduct of its business, but unless otherwise provided by the
directors or in such rules, its business shall be conducted as
nearly as possible in the same manner as is provided in these
bylaws for the conduct of its business by the Board.
3.14. Fees
and Compensation of Directors. Unless otherwise restricted
by the Certificate of Incorporation of the corporation or these
bylaws, the Board shall have the authority to fix the compensation
of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board and may be paid a fixed sum
for attendance at each meeting of the Board or a stated salary as
director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
3.15. Rights
of Inspection. Any director shall have the right to examine
the corporation’s stock ledger, a list of its stockholders
and its other books and records for a purpose reasonably related to
his or her position as a director.
ARTICLE
4
Officers
4.1. Officers
Designated.
The officers of the corporation shall be chosen by the Board of
Directors and shall at a minimum consist of a Chief Executive
Officer, a Secretary and a Treasurer. The Board of Directors may
also choose a Chairman of the Board, Chief Operating Officer, Vice
Presidents and one (1) or more Assistant Secretaries and Assistant
Treasurers. Two (2) or more offices may be held by the same
person.
4.2. Election.
The Board of Directors shall appoint the officers of the
corporation who shall hold office at the pleasure of the Board of
Directors. No officer need be a member of the Board of
Directors.
4.3. Other
Officers. The Board of Directors may appoint other officers
and agents as it shall deem necessary who shall hold their
positions for such terms and exercise such powers and perform such
duties as shall be determined from time to time by the Board unless
otherwise received in writing. Any such officer or agent may be
removed at any time, with or without cause, by the Board of
Directors unless otherwise agreed in writing.
4.4. Tenure.
Each officer of the corporation shall hold office until such
officer’s successor is elected and qualified, unless a
different term is specified in the vote choosing or appointing such
officer, or until such officer’s earlier death, resignation,
removal or incapacity. Any officer elected or appointed by the
Board or by the Chief Executive Officer may be removed with or
without cause at any time by the affirmative vote of a majority of
the Board or a committee duly authorized to do so. Any vacancy
occurring in any office of the corporation may be filled by the
Board,at its discretion. Any officer may resign by delivering such
officer’s written resignation to the corporation at its
principal place of business or to the Chief Executive Officer or
the Secretary. Such resignation shall be effective upon receipt
unless it is specified to be effective at some other time or upon
the happening of some other event.
4.5. The
Chief Executive Officer. Subject to such supervisory powers,
if any, as may be given by the Board to the Chairman of the Board,
the Chief Executive Officer shall preside at all meetings of the
stockholders and in the absence of the Chairman of the Board, or if
there be none, at all meetings of the Board, shall have general and
active management of the business of the corporation and shall
seethat all orders and resolutions of the Board are carried into
effect. He or she shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation,
except where required or permitted by law to be otherwise signed
and executed andexcept where the signing and execution thereof
shall be expressly delegated by the Board to some other officer or
agent of the corporation.
4.6. The
Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record
all the proceedings of the meetings of the corporation and of the
Board of Directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. He
shall give or cause to be given notice of all meetings of the
stockholders and special meetings of the Board of Directors and
shall perform such other duties as may be prescribed by the Board,
the Chief Executive Officer, or the President, under whose
supervision he shall be.
4.7. The
Assistant Secretary. The Assistant Secretary, or if there be
more than one (1), the Assistant Secretaries, in the order of
seniority determined by the Board, shall, in the absence or
disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and
have such other powers as the Board may from time to time
prescribe.
4.8. The
Treasurer. The Treasurer shall be the chief financial
officer of the corporation and shall have the custody of the
corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the
corporation and shall deposit all moneys and other valuable effects
in the name and to the credit of the corporation in such
depositories as may be designated by the Board. He shall disburse
the funds of the corporation as may be ordered by the Board, taking
proper vouchers for such disbursements, and shall render to the
Chief Executive Officer or the President and the Board, at its
regular meetings, or when the Board of Directors so requires, an
account of all his transactions as Treasurer and of the financial
condition of the corporation. The Treasurer is authorized to
execute and file on behalf of the corporation all federal tax
returns and all elections under federal tax laws. If required by
the Board, he shall give the corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board
for the faithful performance of the duties of his office and for
the restoration to the corporation, in case of his death,
resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his
possession or under his control, belonging to the
corporation.
4.9. The
Assistant Treasurer. The Assistant Treasurer, or if there
shall be more than one (1), the Assistant Treasurers, in the order
of seniority determined by the Board, shall, in the absence or
disability of the Treasurer, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties and
have such other powers as the Board of Directors may from time to
time prescribe. The Assistant Treasurer is also authorized to
execute and file on behalf of the corporation all federal tax
returns and all elections under federal tax laws.
4.10. Delegation
of Authority. The Board may from time to time delegate the
powers or duties of any officer to any other officers or agents,
notwithstanding any provision hereof.
ARTICLE
5
Notices
5.1. Delivery.
Whenever, under the provisions of law, or of the Certificate of
Incorporation of the corporation or these bylaws, written notice is
required to be given to any director or stockholder, such notice
may be given by mail, addressed to such director or stockholder, at
such person’s address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be
deemed to be given at the time when the same shall be deposited in
the United States mail or delivered to a nationally recognized
courier service. Unless written notice by mail is required by law,
written notice may also be given by commercial delivery service,
facsimile transmission, electronic mail or other electronic means
addressed to such director or stockholder at such person’s
address as it appears on the records of the corporation, in which
case such notice shall be deemed to be given when delivered into
the control of the persons charged with effecting such
transmission, the transmission charge to be paid by the corporation
or the person sending such notice and not by the addressee. Oral
notice or other in-hand delivery, in person or by telephone, shall
be deemed given at the time it is actually given.
(a) Without limiting
the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders given by the corporation
under any provision of Delaware General Corporation Law, the
Certificate of Incorporation, or these bylaws shall be effective if
given by a form of electronic transmission consented to by the
stockholder to whom the notice is given. Any such consent shall be
revocable by the stockholder by written notice to the corporation.
Any such consent shall be deemed revoked if (i) the corporation is
unable to deliver by electronic transmission two consecutive
notices given by the corporation in accordance with such consent,
and (ii) such inability becomes known to the secretary or an
assistant secretary of the corporation or to the transfer agent or
other person responsible for the giving of notice;provided, however, the inadvertent
failure to treat such inability as a revocation shall not
invalidate any meeting or other action.
(b) Notice given
pursuant to subsection 5.1 (a) shall be deemed given: (1) if by
facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive notice; (2) if by electronic
mail, when directed to an electronic mail address at which the
stockholder has consented to receive notice; (3) if by a posting on
an electronic network together with separate notice to the
stockholder of such specific posting, upon the later of (A) such
posting and (B) the giving of such separate notice; and (4) if by
any other form of electronic transmission, when directed to the
stockholder. An affidavit of the secretary or an assistant
secretary or of the transfer agent or other agent of the
corporation that the notice has been given by a form of electronic
transmission shall, in the absence of fraud, be prima facie
evidence of the facts stated therein.
(c) For purposes of
these bylaws, “electronic transmission” means any form
of communication, not directly involving the physical transmission
of paper, that creates a record that may be retained, retrieved and
reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated
process.
5.2. Waiver
of Notice. Whenever any notice is required to be given under
the provisions of law or of the Certificate of Incorporation of the
corporation or of these bylaws, a waiver thereof in writing, signed
by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent thereto.
In addition to the foregoing, notice of a meeting need not be given
to any director who signs a waiver of notice or a consent, or
electronically transmits the same, to holding the meeting or an
approval of the minutes thereof, whether before or after the
meeting, or who attends the meeting without protesting, prior
thereto or at its commencement, the lack of notice to such
director. All such waivers, consents and approvals shall be filed
with the corporate records or made a part of the minutes of the
meeting.
ARTICLE
6
Indemnification and Insurance
(a) Each person who was
or is made a party or is threatened to be made a party to or is
involved in any action, suit, or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a
“proceeding”),
by reason of the fact that he or she or a person of whom he or she
is the legal representative is or was a director or officer of the
corporation (or any predecessor) or is or was serving at the
request of the corporation (or any predecessor) as a director,
officer, employee or agent of another corporation or of a
partnership, joint venture, trust, employee benefit plan sponsored
or maintained by the corporation, or other enterprise (or any
predecessor of any of such entities), whether the basis of such
proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving
as a director, officer, employee or agent, shall be indemnified and
held harmless by the corporation to the fullest extent authorized
by the General Corporation Law of the State of Delaware, as the
same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the
corporation to provide broader indemnification rights than said law
permitted the corporation to provide prior to such amendment),
against all expense, liability and loss (including
attorneys’fees, judgments, fines, ERISA excise taxes or
penalties, and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection
therewith;provided,
however, that except as provided in Section 6.1(c), the
corporation shall indemnify any such person seeking indemnification
in connection with a proceeding (or part thereof) initiated by such
person only if such proceeding (or part thereof) was authorized by
the Board. The right to indemnification conferred in this Section
6.1 shall be a contract right and may be enforced by the person
entitled to indemnification in a court of competent
jurisdiction.
(b) To obtain
indemnification under this Section 6.1, a claimant shall submit to
the corporation a written request, including therein or therewith
such documentation and information as is reasonably available to
the claimant and is reasonably necessary to determine whether and
to what extent the claimant is entitled to indemnification. Upon
written request by a claimant for indemnification pursuant to the
preceding sentence, a determination, if required by applicable law,
with respect to the claimant’s entitlement thereto shall be
made as follows: (i) if requested by the claimant, by Independent
Counsel (as hereinafter defined), or (ii) if no request is made by
the claimant for a determination by Independent Counsel, (A) by the
Board by a majority vote of the Disinterested Directors (as
hereinafter defined), even though less than a quorum, or (B) by a
committee of Disinterested Directors designated by majority vote of
the Disinterested Directors, even though less than a quorum, or (C)
if there are no Disinterested Directors or the Disinterested
Directors so direct, by Independent Counsel in a written opinion to
the Board, a copy of which shall be delivered to the claimant, or
(D) if a quorum of Disinterested Directors so directs, by the
stockholders of the corporation. In the event the determination of
entitlement to indemnification is to be made by Independent Counsel
at the request of the claimant, the Independent Counsel shall be
selected by the Board unless there shall have occurred within two
years prior to the date of the commencement of the proceeding for
which indemnification is claimed a “Change of Control”
(as hereinafter defined), in which case Independent Counsel shall
be selected by the claimant unless the claimant shall request that
such selection be made by the Board. If it is so determined that
the claimant is entitled to indemnification, payment to the
claimant shall be made within ten (10) days after such
determination.
(c) If a claim for the
indemnification under this Section 6.1 is not paid in full by the
corporation within thirty (30) days after a written claim pursuant
to Section 6.1(b) has been received by the corporation, the
claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to
be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce
a claim for expenses incurred in defending any proceeding in
advance of its final disposition where the required undertaking, if
any is required, has been tendered to the corporation) that the
claimant has not met the standard of conduct that makes it
permissible under the General Corporation Law of the State of
Delaware for the corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on
the corporation. Neither the failure of the corporation (including
its Board, Independent Counsel or stockholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set
forth in the General Corporation Law of the State of Delaware, nor
an actual determination by the corporation (including its Board,
Independent Counsel or stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met the
applicable standard of conduct.
(d) If a determination
shall have been made pursuant tothis Section 6.1 that the claimant
is entitled to indemnification, the corporation shall be bound by
such determination in any judicial proceeding commenced pursuant to
Section 6.1(c). The corporation shall be precluded from asserting
in any judicial proceeding commenced pursuant to the Section 6.1(c)
that the procedures and presumptions of this Article 6 are not
valid, binding and enforceable and shall stipulate in such
proceeding that the corporation is bound by all the provisions of
this Article 6.
6.2. Advance
Payment. The right to indemnification under this Article 6
shall include the right to be paid by the corporation the expenses
incurred in defending any such proceeding in advance of its final
disposition, such advances to be paid by the corporation within
twenty (20) days after the receipt by the corporation of a
statement or statements from the claimant requesting such advance
or advances from time to time;provided, however, that if the General
Corporation Law of the State of Delaware requires, the payment of
such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding,
shall be made only upon delivery to the corporation of an
undertaking by or on behalf of such director or officer to repay
all amounts so advanced if it shall ultimately be determined that
such director or officer is not entitled to be indemnified under
Section 6.1 or otherwise.
Notwithstanding the
foregoing, no advance shall be made by the corporation to an
officer of the corporation (except by reason of the fact that such
officer is or was a director of the corporation, in which event
this paragraph shall not apply) in any action, suit or proceeding,
whether civil, criminal, administrative or investigative, if a
determination is reasonably and promptly made (i) by the Board by a
majority vote of the Disinterested Directors, even though less than
a quorum, or (B) by a committee of Disinterested Directors
designated by majority vote of the Disinterested Directors, even
though less than a quorum, or (C) if there are no Disinterested
Directors or the Disinterested Directors so direct, by Independent
Counsel in a written opinion to the Board, a copy of which shall be
delivered to the claimant, that the facts known to the
decision-making party at the time such determination is made
demonstrate clearly and convincingly that such person acted in bad
faith or in a manner that such person did not believe to be in or
not opposed to the best interests of the corporation.
6.3. Non-Exclusivity
and Survival of Rights; Amendments. The right to indemnification
and the payment of expenses incurred in defending a proceeding in
advance of its final disposition conferred in this Article 6 shall
not be deemed exclusive of any other rightwhich any person may have
or hereafter acquire under any statute, provision of the
Certificate of Incorporation of the corporation, bylaws, agreement,
vote of stockholders or Disinterested Directors or otherwise, both
as to action in such person’s official capacity and as to
action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer,
employee or agent of the corporation and shall inure to the benefit
of the heirs, executors and administrators of such a person. Any
repeal or modification of the provisions of this Article 6 shall
not in any way diminish or adversely affect the rights of any
director, officer, employee or agent of the corporation hereunder
in respect of any act, omission, occurrence or matter arising prior
to any such repeal or modification.
6.4. Insurance.
The corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise against any expense, liability or loss
asserted against such person and incurred by such person in any
such capacity, or arising out of such person’s status as
such, whether or not the corporation would have the power to
indemnify such person against such liability under the provisions
of the General Corporation Law of State of Delaware.
6.5. Severability.
If any word, clause, provision or provisions of this Article 6
shall be held to be invalid, illegal or unenforceable for any
reason whatsoever: (i) the validity, legality and enforceability of
the remaining provisions of this Article 6 (including, without
limitation, each portion of any section or paragraph of this
Article 6 containing any such provision held to be invalid, illegal
or unenforceable, that is not itself heldto be invalid, illegal or
unenforceable) shall not in any way be affected or impaired
thereby; and
(ii) to
the fullest extent possible, the provisions of this Article 6
(including, without limitation, each such portion of any section or
paragraph of this Article 6 containing any such provision held to
be invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
6.6. Definitions.
For the purposeof this Article 6: “Change of Control” shall
mean:
(1)
the acquisition by
any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the 1934 Act (a “Person”)), directly or indirectly,
of beneficial ownership (within the meaningof Rule 13d-3
promulgated under the 1934 Act) of 20% or more of either (i) the
then outstanding shares of common stock of the corporation (the
“Outstanding Corporation
Common Stock”) or (ii) the combined voting power of
the then outstanding voting securities of the corporation entitled
to vote generally in the election of directors (the
“Outstanding Corporation
Voting Securities”); provided, however, that for purposes of
this part (1), the following acquisitions shall not constitute a
Change of Control: (i) any acquisition directly from the
corporation or any acquisition from other stockholders where (A)
such acquisition was approved in advance by the Board
and
(B)
such acquisition would not constitute a Change of Control under
part (2) or part (4) of this definition, (ii) any acquisition by
the corporation, (iii) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the corporation or
any corporation controlled by the corporation, or (iv) any
acquisition by any corporation pursuant to a transaction that
complies with clauses (i), (ii) and (iii) of part (4) of this
definition; or
(2)
the acquisition by
any Person, directly or indirectly, of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the 1934 Act) of 50% or
more of either (i) the Outstanding Corporation Common Stock or (ii)
the Outstanding Corporation Voting Securities; or
individuals who, as
of the date hereof, constitute the Board (the “Incumbent Board”) cease for any
reason to constitute at least a majority of the Board;provided, however, that any individual
becoming a director subsequent to the date hereof whose election,
or nomination for election by the stockholders, was approved by a
vote of at least a majority of the directors then comprising the
Incumbent Board (or such committee thereof that shall then have the
authority to nominate persons for election as directors) shall be
considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal
of directors or other actual or threatened solicitation of proxies
of consents by or on behalf of a Person other than the Board;
or
(3)
consummation of a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the
corporation (a “Business
Combination”), in each case, unless, immediately
following such Business Combination, (i) all or substantially all
of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Corporation Common Stock and
Outstanding Corporation Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 50% of, respectively, the then outstanding shares of common
stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors,
as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation that as a
result of such transaction owns the corporation or all or
substantially all of the corporation’s assets either directly
or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business
Combination of the Outstanding Corporation Common Stock and
Outstanding Corporation Voting Securities, as the case may be, (ii)
no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the
corporation or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 20% or more
of, respectively, the then outstanding shares of common stock of
the corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of
such corporation except to the extent that such ownership existed
prior to the Business Combination, and (iii) at least a majority of
the members of the board of directors of the corporation resulting
from such Business Combination were members of the Incumbent Board
at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination;
or
(4)
approval by the
stockholders of a complete liquidation or dissolution of the
corporation.
“Disinterested Director” shall mean
a director of the corporation who is not and was not a party to the
matter in respect of which indemnification is sought by the
claimant.
“Independent Counsel” shall mean a
law firm, a member of a law firm, or an independent practitioner,
that is experienced in matters of corporation law and shall include
any person who, under the applicable standards of professional
conduct then prevailing, would not have a conflict of interest in
representing either the corporation or the claimant in an action to
determine the claimant’s rights under this Article
6.
6.7. Notices.
Any notice, request or other communication required or permitted to
be given to the corporation under this Article 6 shall be in
writing and either delivered in person or sent by telecopy, telex,
electronic mail, overnight mail or courier service, or certified or
registered mail, postage or charges prepaid, return copy requested,
or other means of electronic transmission to the Secretary of the
corporation and shall be effective only upon receipt bythe
Secretary.
ARTICLE
7
Capital
Stock
7.1. Certificates
for Shares. The shares of the corporation shall be
represented by certificates or shall be uncertificated.
Certificates shall be signed by, or in the name of the corporation
by, the Chairman of the Board, the Chief Executive Officer, the
President or a Vice President and by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the
corporation. Certificates may be issued for partly paid shares and
in such case upon the face or back of the certificates issued to
represent any such partly paid shares, the total amount of the
consideration to be paid therefor, and the amount paid thereon
shall be specified.
Within
a reasonable time after the issuance or transfer of uncertificated
stock, the corporation shall send to the registered owner thereof a
written notice containing the information required by the General
Corporation Law of the State of Delaware or a statement that the
corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative
participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
7.2. Signatures
on Certificates. Any or all of the signatures on a
certificate may be a facsimile. In case any officer, transfer agent
or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of
issue.
7.3. Transfer
of Stock. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate of shares duly endorsed
oraccompanied by proper evidence of succession, assignation or
authority to transfer, it shall be the duty of the corporation to
issue a new certificate to the person entitled thereto, cancel the
old certificate and record the transaction upon its books. Upon
receipt of proper transfer instructions from the registered owner
of uncertificated shares, such uncertificated shares shall be
canceled and issuance of new equivalent uncertificated shares or
certificated shares shall be made to the person entitled thereto
and the transaction shall be recorded upon the books of the
corporation.
7.4. Registered
Stockholders. The corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner,
and to hold liable for calls and assessments a person registered on
its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share
or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
7.5. Lost,
Stolen or Destroyed Certificates. The corporation may direct
that a new certificate or certificates be issued to replace any
certificate or certificates theretofore issued by the corporation
alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of
stock to be lost, stolen or destroyed and on such terms and
conditions as the corporation may require. When authorizing the
issue of a new certificate or certificates, the corporation may, in
its discretion and as a condition precedent to the issuance
thereof, require the owner of the lost, stolen or destroyed
certificate or certificates, or his or her legal representative, to
advertise the same in such manner as it shall require, to indemnify
the corporation in such manner as it may require, and/or to give
the corporation a bond or other adequate security in such sum as it
may direct as indemnity against any claim that may be made against
the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
ARTICLE
8
Certain Transactions
8.1. Transactions
with Interested Parties. No contract or transaction between
the corporation and one or more of its directors or officers, or
between the corporation and any other corporation, partnership,
association or other organization in which one or more of its
directors or officers are directors or have a financial interest,
shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the
meeting of the board or committee thereof which authorizes the
contract or transaction or solely because the vote or votes of such
director orofficer are counted for such purpose, if:
(a) the material facts
as to such director’s or officer’s relationship or
interest and as to the contract or transaction are disclosed or are
known to the Board or the committee, and the Board or committee in
good faith authorizes the contract ortransaction by the affirmative
votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or
(b) the material facts
as to such director’s or officer’s relationship or
interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled tovote thereon, and the contract
or transaction is specifically approved in good faith by vote of
the stockholders; or
(c) the contract or
transaction is fair as to the corporation as of the time it is
authorized, approved or ratified, by the Board, a committee thereof
or the stockholders.
8.2. Quorum.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board or of a committee
which authorizes the contract or transaction.
ARTICLE
9
General Provisions
9.1. Dividends.
Dividends upon the capital stock of the corporation, subject to any
restrictions contained in the General Corporation Law of the State
of Delaware or the provisions of the Certificate of Incorporation
of the corporation, if any, may be declared by the Board at any
regular or special meeting or by unanimous written consent.
Dividends may be paid in cash, in property or in shares of capital
stock, subject to the provisions of the Certificate of
Incorporation of the corporation.
9.2. Dividend
Reserve. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends
such sum or sums as the directors from time to time, in their
absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of
the corporation, and the directors may modify or abolish any such
reserve in the manner in which it was created.
9.3. Checks.
All checks or demands for money and notes of the corporation shall
be signed by such officer or officers or such other person or
persons as the Boardmay fromtime to time designate.
9.4. Corporate
Seal. The Board may, by resolution, adopt a corporate seal.
The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the word
“Delaware.” The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or otherwise
reproduced. The seal may be altered from time to time by the
Board.
9.5. Execution
of Corporate Contracts and Instruments. The Board, except as
otherwise provided in these bylaws, may authorize any officer or
officers, or agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the corporation;
such authority may be general or confined to specific instances.
Unless so authorized or ratified by the Board or within the agency
power of an officer, no officer, agent or employee shall have any
power or authority to bind the corporation by any contract or
engagement or to pledge its credit or to render it liable forany
purpose or for any amount.
9.6. Representation
of Shares of Other Corporations. The Chief Executive
Officer, the President or any Vice President, the Treasurer or any
Assistant Treasurer, or the Secretary or any Assistant Secretary of
the corporation is authorized to vote, represent and exercise on
behalf of the corporation all rights incident to any and all shares
of any corporation or corporations standing in the name of the
corporation. The authority herein granted to said officers to vote
or represent on behalf of the corporation any and all shares heldby
the corporation in any other corporation or corporations may be
exercised either by such officers in person or by any other person
authorized so to do by proxy or power of attorney duly executed by
said officers.
ARTICLE
10
Amendments
The
Board is expressly empowered to adopt, amend or repeal these
bylaws. The stockholders shall also have power to adopt, amend or
repeal these bylaws;provided,
however, that in addition to any vote of the holders of any
class or series of stock of the corporation required by law or by
the Certificate of Incorporation of the corporation, the
affirmative vote of the holders of at least a majority of the
voting power of all of the then outstanding shares of the stock of
the corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required for
such adoption, amendment or repeal by the stockholder of any
provision of these bylaws.
SECRETARY’S
CERTIFICATE OF ADOPTION OF THE RESTATED BYLAWS OF
AEMETIS,
INC.
I, the
undersigned, do hereby certify:
1.
That I am the duly
elected and acting Chief Executive Officer of Aemetis, Inc., a
Delaware corporation; and
2.
That the foregoing
is a full, true and correct copy of the Bylaws of the corporation
as adopted by the directors of said corporation and to become
effective as of [●], 2021.
IN
WITNESS WHEREOF, I have hereunto subscribed my name this
[●]th day of [●], 2021.
/s/
Eric McAfee
Eric
McAfee
Chief
Executive Officer
Appendix H
INDEMNIFICATION AGREEMENT
This
INDEMNIFICATION AGREEMENT (this “Agreement”) is made and
entered into as of (the “Effective Date”) by and between
Aemetis, Inc., a Delaware corporation (the “Company”), and [ ] (the
“Indemnitee”).
WHEREAS, the
Company believes it is essential to retain and attract qualified
directors and officers; WHEREAS, the Indemnitee is a director
and/or officer of the Company;
WHEREAS,both the
Company and the Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and
officers of public companies;
WHEREAS, the
Company’s Certificate of Incorporation (the
“Certificate of
Incorporation”) and Bylaws (the “Bylaws”) require the
Company to indemnify and advance expenses to its directors and
officers to the extent permitted by the DGCL (as hereinafter
defined);
WHEREAS,the
Indemnitee has been serving and intends to continue serving as a
director and/or officer of the Company in part in reliance on the
Certificate of Incorporation and Bylaws; and
WHEREAS, in
recognition of the Indemnitee’s need for (i) substantial
protection against personal liability based on the
Indemnitee’s reliance on the Certificate of Incorporation and
Bylaws, (ii) specific contractual assurance that the protection
promised by the Certificate of Incorporation and Bylaws will be
available to the Indemnitee, regardless of, among other things, any
amendment to or revocation of the Bylaws, any change in the
composition of the Company’s Board of Directors (the
“Board”) or any
acquisition transaction relating to the Company, and (iii) an
inducement to continue to provide effective services to the Company
as a director and/or officer thereof, the Company wishes to provide
for the indemnification of the Indemnitee and to advance expenses
to the Indemnitee to the fullest extent permitted by law and as set
forth in this Agreement, and, to the extent insurance is maintained
by the Company, to provide for the continued coverage of the
Indemnitee under the Company’s directors’ and
officers’ liability insurance policies.
NOW,
THEREFORE, in consideration of the premises contained herein and of
the Indemnitee continuing to serve the Company directly or, at its
request, with another enterprise, and intending to be legally bound
hereby, the parties hereto agree as follows:
(a)
A
“Change in Control” shall be
deemed to have occurred if:
(i) any
“person,” as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (the “Exchange Act”), other than (a) a
trustee or other fiduciary holding securities under an employee
benefit plan of the Company; (b) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company; or (c)
any current beneficial stockholder or group, as defined by Rule
13d-5 of the Exchange Act, including the heirs, assigns and
successors thereof, of beneficial ownership, within the meaning of
Rule 13d-3 of the Exchange Act, of securities possessing more than
50% of the total combined voting power of the Company’s
outstanding securities; hereafter becomes the “beneficial
owner,” as defined in Rule 13d-3 of the Exchange Act,
directly or indirectly, of securities of the Company representing
20% or more of the total combined voting power represented by the
Company’s then outstanding Voting Securities;
(ii) during
any period of two consecutive years, individuals who at the
beginning of such period constitute the Board and any new director
whose election by the Board or nomination for election by the
Company’s stockholders was approved by a vote of at least
two-thirds of the directors then in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority thereof; or
(iii) the
stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than a merger or
consolidation which would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least 80% of the
total voting power represented by the Voting Securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation, or the stockholders of the Company approve
a plan of complete liquidation of the Company or an agreement for
the sale or disposition by the Company, in one transaction or a
series of transactions, of all or substantially all of the
Company’s assets.
(b) “DGCL” shall mean the
General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended or interpreted; provided,
however, that in the case of any such amendment or interpretation,
only to the extent that such amendment or interpretation permits
the Company to provide broader indemnification rights than were
permitted prior thereto.
(c) “Expense” shall mean
attorneys’ fees and all other costs, expenses and obligations
paid or incurred in connection with investigating, defending, being
a witness in or participating in (including on appeal), or
preparing for any of the foregoing, any Proceeding relating to any
Indemnifiable Event.
(d) “Indemnifiable Event”
shall mean any event or occurrence that takes place either prior to
or after the execution of this Agreement, related to the fact that
the Indemnitee is or was a director or officer of the Company, or
is or was serving at the request of the Company as a director,
officer, employee, or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, or by reason of
anything done or not done by the Indemnitee in any such
capacity.
(e) “Potential Change in Control” shall be
deemed to occur if (i) the Company enters into an agreement or
arrangement, the consummation of which would result in the
occurrence of a Change in Control; (ii) any person (including the
Company) publicly announces an intention to take or to consider
taking actions which, if consummated, would constitute a Change in
Control; (iii) any person (other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company
acting in such capacity or a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company) who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 10% or more of the combined
voting power of the Company’s then outstanding Voting
Securities, increases his or her beneficial ownership of such
securities by 5% or more over the percentage so owned by such
person on the date hereof; or (iv) the Board adopts a resolution to
the effect that, for purposes of this Agreement, a Potential Change
in Control has occurred.
(f) “Proceeding” shall mean
any threatened, pending or completed action, suit, investigation or
proceeding, and any appeal thereof, whether civil, criminal,
administrative or investigative and/or any inquiry or
investigation, whether conducted by the Company or any other party,
that the Indemnitee in good faith believes might lead to the
institution of any such action.
(g) “Reviewing Party” shall mean any
appropriate person or body consisting of a member or members of the
Company’s Board or any other person or body appointed by the
Board (including the special independent counsel referred to in
Section 6) who is not a party to the particular Proceeding with
respect to which the Indemnitee is seeking
indemnification.
(h)
“Voting
Securities”
shall mean any securities of the Company which vote generally in
the election of directors.
2.
Indemnification. In the event the
Indemnitee was or is a party to or is involved (as a party,
witness, or otherwise) in any Proceeding by reason of (or arising
in part out of) an Indemnifiable Event, whether the basis of the
Proceeding is the Indemnitee’s alleged action in an official
capacity as a director or officer or in any other capacity while
serving as a director or officer, the Company shall indemnify the
Indemnitee to the fullest extent permitted by the DGCL against any
and all Expenses, liability, and loss (including judgments, fines,
ERISA excise taxes or penalties, and amounts paid or to be paid in
settlement, and any interest, assessments, or other charges imposed
thereon, and any federal, state, local, or foreign taxes imposed on
any director or officer as a result of the actual or deemed receipt
of any payments under this Agreement) (collectively,
“Liabilities”) reasonably
incurred or suffered by such person in connection with such
Proceeding. The Company shall provide indemnification pursuant to
this Section 2 as soon as practicable, but in no event later than
30 days after it receives written demand from the Indemnitee.
Notwithstanding anything in this Agreement to the contrary and
except as provided in Section 5 below, the Indemnitee shall not be
entitled to indemnification pursuant to this Agreement (i) in
connection with any Proceeding initiated by the Indemnitee against
the Company or any director or officer of the Company unless the
Company has joined in or consented to the initiation of such
Proceeding or (ii) on account of any suit in which judgment is
rendered against the Indemnitee pursuant to Section 16(b) of the
Exchange Act for an accounting of profits made from the purchase or
sale by the Indemnitee of securities of the Company.
3.
Advancement of Expenses. The Company
shall advance Expenses to the Indemnitee within 30 business days of
such request (an “Expense Advance”);
provided, however, that if required by applicable corporate laws
such Expenses shall be advanced only upon delivery to the Company
of an undertaking by or on behalf of the Indemnitee to repay such
amount if it is ultimately determined that the Indemnitee is not
entitled to be indemnified by the Company; and provided further,
that the Company shall make such advances only to the extent
permitted by law. Expenses incurred by the Indemnitee while not
acting in his/her capacity as a director or officer, including
service with respect to employee benefit plans, may be advanced
upon such terms and conditions as the Board, in its sole
discretion, deems appropriate.
4.
Review Procedure for Indemnification.
Notwithstanding the foregoing, (i) the obligations of the Company
under Sections 2 and 3 above shall be subject to the condition that
the Reviewing Party shall not have determined (in a written
opinion, in any case in which the special independent counsel
referred to in Section 6 hereof is involved) that the Indemnitee
would not be permitted to be indemnified under applicable law, and
(ii) the obligation of the Company to make an Expense Advance
pursuant to Section 3 above shall be subject to the condition that,
if, when and to the extent that the Reviewing Party determines that
the Indemnitee would not bepermitted to be so indemnified under
applicable law, the Company shall be entitled to be reimbursed by
the Indemnitee (who hereby agrees to reimburse the Company) for all
such amounts theretofore paid; provided, however, that if the
Indemnitee has commenced legal proceedings in a court of competent
jurisdiction pursuant to Section 5 below to secure a determination
that the Indemnitee should be indemnified under applicable law, any
determination made by the Reviewing Party that the Indemnitee would
not be permitted to be indemnified under applicable law shall not
be binding and the Indemnitee shall not be required to reimburse
the Company for any Expense Advance until a final judicial
determination is made with respect thereto (as to which all rights
of appeal therefrom have been exhausted or have lapsed). The
Indemnitee’s obligation to reimburse the Company for Expense
Advances pursuant to this Section 4 shall be unsecured and no
interest shall be charged thereon. The Reviewing Party shall be
selected by the Board, unless there has been a Change in Control,
other than a Change in Control which has been approved by a
majority of the Company’s Board who were directors
immediately prior to such Change in Control, in which case the
Reviewing Party shall be the special independent counsel referred
to in Section 6 hereof.
5.
Enforcement of Indemnification Rights.
If the Reviewing Party determines that the Indemnitee substantively
would not be permitted to be indemnified in whole or in part under
applicable law, or if the Indemnitee has not otherwise been paid in
full pursuantto Sections 2 and 3 above within 30 days after a
written demand has been received by the Company, the Indemnitee
shall have the right to commence litigation in any court in the
State of Delaware having subject matter jurisdiction thereof and in
which venue is proper to recover the unpaid amount of the demand
(an “Enforcement
Proceeding”) and, if successful in whole or in part,
the Indemnitee shall be entitled to be paid any and all Expenses in
connection with such Enforcement Proceeding. The Company hereby
consents to service of process for such Enforcement Proceeding and
to appear in any such Enforcement Proceeding. Any determination by
the Reviewing Party otherwise shall be conclusive and binding on
the Company and the Indemnitee.
Change in Control. The Company agrees
that if there is a Change in Control of the Company, other than a
Change in Control which has been approved by a majority of the
Company’s Board who were directors immediately prior to such
Change in Control, then with respect to all matters thereafter
arising concerning the rights of the Indemnitee to indemnity
payments and Expense Advances under this Agreement or any other
agreement or under applicable law or the Company’s
Certificate of Incorporation or Bylaws now or hereafter in effect
relating to indemnification for Indemnifiable Events, the Company
shall seek legal advice only from special independent counsel
selected by the Indemnitee and approved by the Company, which
approval shall not be unreasonably withheld. Such special
independent counsel shall not have otherwise performed services for
the Company or the Indemnitee, other than in connection with such
matters, within the last five years. Such independent counsel shall
not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of
interest in representing either the Company or the Indemnitee in an
action to determine the Indemnitee’s rights under this
Agreement. Such counsel, among other things, shall render its
written opinion to the Company and the Indemnitee as to whether and
to what extent the Indemnitee would be permitted to be indemnified
under applicable law. The Company agrees to pay the reasonable fees
of the special independent counsel referred to above and to
indemnify fully such counsel against any and all expenses
(including attorneys’ fees), claims, liabilities and damages
arising out of or relating to this Agreement or the engagement of
special independent counsel pursuant to this
Agreement.
6.
Establishment of Trust. In the event of
a Potential Change in Control, the Company shall, upon written
request by the Indemnitee, create a trust (the “Trust”) for the benefit
of the Indemnitee, and from time to time upon written request of
the Indemnitee shall fund such Trust, to the extent permitted by
law, in an amount sufficient to satisfy any and all Expenses
reasonably anticipated at the time of each such request to be
incurred in connection with investigating, preparing for and
defending any Proceeding relating to an Indemnifiable Event, and
any and all judgments, fines, penalties and settlement amounts of
any and all Proceedings relating to an Indemnifiable Event from
time to time actually paid or claimed, reasonably anticipated or
proposed to be paid. The amount or amounts to be deposited in the
Trust pursuant to the foregoing funding obligation shall be
determined by the Reviewing Party, in any case in which the special
independent counsel referred to in Section 6 is involved. The terms
of the Trust shall provide that upon a Change in Control (i) the
Trust shall not be revokedor the principal thereof invaded, without
the written consent of the Indemnitee, (ii) the trustee of the
Trust (the “Trustee”) shall advance,
within ten business days of a request by the Indemnitee, any and
all Expenses to the Indemnitee, to the extent permitted by law (and
the Indemnitee hereby agrees to reimburse the Trust under the
circumstances under which the Indemnitee would be required to
reimburse the Companyunder Section 4 of this Agreement), (iii) the
Trust shall continue to be funded by the Company in accordance with
the funding obligation set forth above, (iv) the Trustee shall
promptly pay to the Indemnitee all amounts for which the Indemnitee
shall be entitled toindemnification pursuant to this Agreement or
otherwise, and
(v) all
unexpended funds in the Trust shall revert to the Company upon a
final determination by the Reviewing Party or a court of competent
jurisdiction, as the case may be, that the Indemnitee has been
fully indemnified under the terms of this Agreement. The Trustee
shall be a bank or trust company or other individual or entity
chosen by the Indemnitee and acceptable to and approved of by the
Company. Nothing in this Section 7 shall relieve the Company of any
of its obligations under this Agreement. All income earned on the
assets held in the Trust shall be reported as income by the Company
for federal, state, local and foreign tax purposes.
7.
Partial Indemnity. If the Indemnitee is
entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of the Expenses and
Liabilities, but not, however, for all of the total amount thereof,
the Company shall nevertheless indemnify the Indemnitee for the
portion thereof to which the Indemnitee is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the
extent that the Indemnitee has been successful on the merits or
otherwise in defense of any or all Proceedings relating in whole or
in part to an Indemnifiable Event or in defense of any issue or
matter therein, including dismissal without prejudice, the
Indemnitee shall be indemnified against all Expenses incurred in
connection therewith. In connection with any determination by the
Reviewing Party or otherwise as to whether the Indemnitee is
entitled to be indemnified hereunder, the burden of proof shall be
on the Companyto establish that the Indemnitee is not so
entitled.
8.
Non-exclusivity. The rights of the
Indemnitee hereunder shall be in addition to any other rights the
Indemnitee may have under any statute, provision of the
Company’s Certificate of Incorporation or Bylaws, vote of
stockholders or disinterested directors or otherwise, both as to
action in an official capacity and as to action in another capacity
while holding such office. To the extent that a change in the DGCL
permits greater indemnification by agreement than would be afforded
currently under the Company’s Certificate of Incorporation
and Bylaws and this Agreement, it is the intent of the parties
hereto that the Indemnitee shall enjoy by this Agreement the
greater benefits so afforded by such change.
9.
Liability Insurance. To the extent the
Company maintains an insurance policy or policies providing
directors’ and officers’ liability insurance, the
Indemnitee shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the
coverage available for any director or officer of the
Company.
10.
Settlement of Claims. The Company shall
not be liable to indemnify the Indemnitee under this Agreement (a)
for any amounts paid in settlement of any action or claim effected
without the Company’s written consent, which consent shall
not be unreasonably withheld; or (b) for any judicial award if the
Companywas not given a reasonable and timely opportunity, at its
expense, to participate in the defense of such action.
11.
No Presumption. For purposes of this
Agreement, to the fullest extent permitted by law, the termination
of any Proceeding, action, suit or claim, by judgment, order,
settlement (whether with or without court approval) or conviction,
or upon a plea of nolo contendere, or its equivalent, shall not
create a presumption that the Indemnitee did not meet any
particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted
by applicable law.
12.
Period of Limitations. No legal action
shall be brought and no cause of action shall be asserted by or on
behalf of the Company or any affiliate of the Company against the
Indemnitee or the Indemnitee’s spouse, heirs, executors or
personal or legal representatives after the expiration of two years
from the date of accrual of such cause of action, or such longer
period as may be required by state law under the circumstances, and
any claim or cause of action of the Company or its affiliate shall
be extinguished and deemed released unless asserted by the timely
filing of a legal action within such period; provided, however,
that if any shorter period of limitations is otherwise applicable
to any such cause of action, such shorter period shall
govern.
13.
Amendment of this Agreement. No
supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both of the parties hereto.
No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar), nor shall such waiver constitute a
continuing waiver. Except as specifically provided herein, no
failure to exercise or any delay in exercising any right or remedy
hereunder shall constitute a waiver thereof.
14.
Primacy of Indemnification.
Notwithstanding that the Indemnitee may have certain rights to
indemnification, advancement of expenses and/or insurance provided
by other persons (collectively, the “Other Indemnitors”), the
Company: (i) shall be the indemnitor of first resort (i.e., its
obligations to the Indemnitee are primary and any obligation of the
Other Indemnitors to advance expenses or to provide indemnification
for the same expenses or liabilities incurred by the Indemnitee are
secondary); and (ii) shall be required to advance the full amount
of expenses incurred by the Indemnitee and shall be liable for the
full amount of all Expenses, without regard to any rights the
Indemnitee may have against any of the Other
Indemnitors.
15.
Subrogation. In the event of payment
under this Agreement, the Company shall be subrogated to the extent
of such payment to all of the rights of recovery of the Indemnitee
(other than against the Other Indemnitors), who shall execute all
papers required and shall do everything that may be necessary to
secure such rights, including the execution of such documents
necessary to enable the Company effectively to bring suit to
enforce such rights.
16.
No Duplication of Payments. Except as
otherwise set forth in Section 16 above, the Company shall not be
liable under this Agreement to make any payment in connection with
any claim made against Indemnitee to the extent the Indemnitee has
otherwise actually received payment (under any insurance policy,
Bylaw, vote, agreement or otherwise) of the amounts otherwise
indemnifiable hereunder.
17.
Binding Effect. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective successors, assigns, including
any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business and/or
assets of the Company, spouses, heirs, and personal and legal
representatives. The Company shall require and cause any successor
(whether direct or indirect by purchase, merger, consolidation or
otherwise) to all, substantially all, or a substantial part, of the
business and/or assets of the Company, by written agreement in form
and substance satisfactory to the Indemnitee, expressly to assume
and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform if no
such succession had taken place. This Agreement shall continue in
effect regardless of whether the Indemnitee continues to serve as a
director or officer of the Company or of any other enterprise at
the Company’s request.
18.
Severability. The provisions of this
Agreement shall be severable in the event that any of the
provisions hereof (including any provision within a single section,
paragraph or sentence) is held by a court of competent jurisdiction
to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted
by law. Furthermore, to the fullest extent possible, the provisions
of this Agreement (including, without limitation, each portion of
this Agreement containing any provision held to be invalid, void or
otherwise unenforceable, that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the
intentmanifested by the provision held invalid, illegal or
unenforceable.
19.
Governing Law. This Agreement shall be
governed by and construed and enforced in accordance with the laws
of the State of Delaware applicable to contracts made and to be
performed in such State without giving effect to the principles of
conflicts of laws.
20.
Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the
same instrument.
21.
Notices. All notices, demands, and other
communications required or permitted hereunder shall be made in
writing and shall be deemed to have been duly given if delivered by
hand, against receipt, or mailed, postage prepaid, certified or
registered mail, return receipt requested, and addressed to the
Company at:
Aemetis,
Inc.
20400 Stevens
Creek Blvd., Suite 700
Cupertino, CA
95014Attn: Executive Chairman
and to
the Indemnitee at:
Notice
of change of address shall be effective only when done in
accordance with this Section. All notices complying with this
Section shall be deemed to have been received on the date of
delivery or on the third business day after mailing.
22.
Entire Agreement. This Agreement
contains the entire agreement of the parties relating to this
subject matter, and the parties agree that this Agreement
supersedes all prior written or oral agreements, representations,
and warranties relating to the subject matter hereof, including but
not limited to any previous Indemnification
Agreements.
* *
*
IN
WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the day first set forth
above.
THE
COMPANY:
AEMETIS,
INC.
INDEMNITEE: