Attached files
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| EX-10.4 - AMENDED AND RESTATED LIMITED GUARANTY - AEMETIS, INC | amtx_ex104.htm |
| EX-10.2 - AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT - AEMETIS, INC | amtx_ex102.htm |
| 8-K - CURRENT REPORT - AEMETIS, INC | amtx_8k.htm |
Exhibit
10.3
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED OR REGISTERED
UNDER STATE SECURITIES OR BLUE SKY LAWS. THESE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION, AND
NEITHER THESE SECURITIES NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED OR DISPOSED OF.
UNLESS PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER
OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE THE DATE THAT
IS 4 MONTHS AND A DAY AFTER THE LATER OF (I) AUGUST 23, 2018, AND
(II) THE DATE THE ISSUER BECOMES A REPORTING ISSUER IN ANY PROVINCE
OR TERRITORY OF CANADA.
STOCK
APPRECIATION RIGHTS AGREEMENT
Stock
Appreciation Rights Agreement (this “Agreement”) dated August 23, 2018
between AEMETIS, INC., a
Delaware corporation (the “Corporation”), and THIRD EYE CAPITAL CORPORATION, an
Ontario corporation as administrative agent on behalf of the
Noteholders (the “Agent”). The Corporation and the
Agent are collectively referred to herein as the
“Parties”).
WHEREAS:
(1)
Goodland Advanced
Fuels, Inc. (the “Borrower”), the Agent and the
noteholders party thereto entered into a Note Purchase Agreement
dated June 30, 2017 as amended by Amendment No. 1 to Note Purchase
Agreement dated on or about June 28, 2018 (the “First Amendment”, and as may be
further amended, restated, supplemented or otherwise modified from
time to time, the “NPA”);
(2)
On the date of the
NPA, each of the Corporation and Aemetis Advanced Products Keyes,
Inc. entered into a Limited Guaranty guaranteeing certain
obligations of the Borrower pursuant to the NPA;
(3)
Pursuant to the
First Amendment, the Corporation desires to provide incentive cash
compensation to the Noteholders in the form of Stock Appreciation
Rights (as defined below) as herein provided with a view to
promoting an alignment of the future interests of the Corporation
and the Noteholders in connection with the NPA; and
(4)
It is a condition
precedent to the effectiveness of the First Amendment that the
Corporation shall have executed and delivered this Agreement to the
Agent for the benefit of the Noteholders, and this Agreement is a
Note Purchase Document.
NOW THEREFORE in consideration of the
payment of $1.00, the mutual covenants herein contained, and other
good and valuable consideration, the sufficiency and receipt of
which are hereby acknowledged, the parties hereto agree as
follows:
Section 1
Definitions
In this
Agreement, the following terms shall have the following meanings
ascribed thereto:
“Business
Day” means
any day other than a Saturday, Sunday or statutory holiday in New
York City;
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“Exercise
Date” means the date 12 months following the date
hereof (or, if not a Business Day, then the next Business
Day);
“Fair
Market Value” means the volume weighted average price
for a Share on the Stock Exchange for the thirty (30) Trading Days
immediately preceding the applicable date;
“Grant
Date” means the date hereof;
“Share”
means a share of common stock of the Corporation, which are
currently listed for trading on the NASDAQ exchange, or such other
share as may be substituted therefor as a result of amendments to
the articles of the Corporation, arrangement, reorganization or
otherwise, including any rights that form a part of the common
share or substituted share;
“Stock
Appreciation Right” or “SAR” means a right granted to the
Agent pursuant to this Agreement that is represented by a
bookkeeping entry on the books of the Corporation, the value of
which shall be calculated by reference to the Fair Market Value and
the terms of this Agreement;
“Stock Exchange” means
the NASDAQ exchange, or if the Shares are not listed thereon,
such other stock exchange on which the Shares are listed, or if the
Shares are not listed on any stock exchange, then on the
over-the-counter market;
“Trading
Day” means
any date on which the Stock Exchange is open for the trading of
Shares and on which Shares are actually traded;
References to $ or
“dollars” herein shall be to the lawful currency of the
United States. All other capitalized words used herein and not
herein defined shall have the meaning ascribed thereto in the
NPA.
Section 2
Grant
of Stock Appreciation Right
The
Corporation hereby irrevocably and unconditionally grants to the
Agent, for the ratable benefit of the Noteholders, 1,050,000 SARs.
Each SAR shall not be subject to vesting and, subject to the
earlier exercise of the Call Option or the Put Option, shall
terminate on the Exercise Date following payment in full of the
Fair Market Value as contemplated in Section 5 hereof.
Section 3
Call
Option
(1)
The Corporation
shall have the right (the “Call Option”) to redeem or
purchase for cancelation each SAR at any time during the first 11
months following the Grant Date. Upon such election, the
Corporation shall make payment to, or to the order of, the Agent by
bank draft, certified cheque or wire transfer as directed by the
Agent, an amount equal to $2.00 for each SAR subject to such Call
Option; provided that the Corporation may elect to satisfy the Call
Option by issuing such number of Shares equal to: (A) the total
cash consideration that would have been payable pursuant to the
Call Option, being $2,100,000, divided by (B) the Fair Market Value
per Share calculated as at the date of the Call Option election.
Such Shares shall be issued to, or at the direction of, the Agent
for the ratable benefit of the Noteholders. Any such election shall
be irrevocable and must be made in writing to the Agent by delivery
of an election in the form scheduled hereto.
(2)
Upon election of
the Call Option and payment thereof, the parties shall take such
further actions as necessary, and shall executed and deliver such
documents, instruments and agreements and do all such other acts
and things as may be reasonably required, in the opinion of the
Agent and Corporation, to codify and document the cancellation and
termination of the SARs subject to such Call Option.
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Section 4
Put
Option
(1)
The Agent shall
have the right (the “Put
Option”) to require the Corporation to redeem or
purchase for cancelation each SAR during the 11th month following
the Grant Date. Upon such election, the Corporation shall make
payment to, or to the order of, the Agent by bank draft, certified
cheque or wire transfer as directed by the Agent, an amount equal
to $1.00 for each SAR subject to such Put Option. Any such election
shall be irrevocable and must be made in writing to the Corporation
by delivery of an election in the form scheduled
hereto.
(2)
Upon election of
the Put Option and payment thereof by the Corporation, the parties
shall take such further actions as necessary, and shall executed
and deliver such documents, instruments and agreements and do all
such other acts and things as may be reasonably required, in the
opinion of the Agent and Corporation, to codify and document the
cancellation and termination of the SARs subject to such Put
Option.
Section 5
Exercise
of SARs
(1)
Subject to the
earlier exercise of the Call Option or the Put Option, each SAR
shall be immediately exercised, with no further action or notice on
behalf of the Parties, on the Exercise Date.
(2)
On the Exercise
Date, each SAR represents an obligation of the Corporation to pay
to the Agent, for the ratable benefit of the Noteholders, an amount
equal to the Fair Market Value in cash.
(3)
The Corporation
shall pay the Fair Market Value to, or to the order of, the Agent
for the ratable benefit of the Noteholders, by bank draft,
certified cheque or wire transfer of immediately available funds on
the Exercise Date.
(4)
All payments by the
Corporation under this Agreement shall be made free and clear of
and without deduction or withholding for any taxes.
Section 6
Adjustments
In the
event of any subdivision, consolidation, stock dividend, capital
reorganization, reclassification, exchange, or other change with
respect to the Shares, or a consolidation, amalgamation, merger,
spin-off, sale, lease or exchange of all or substantially all of
the property of the Corporation or other distribution of the
Corporation’s assets to shareholders (other than the payment
of dividends in respect of the Shares), the Stock Appreciation
Rights shall be adjusted in such manner, if any, as the Agent may
in its discretion deem appropriate to preserve, proportionally, the
Noteholders’ interests under this Agreement with respect to
the Stock Appreciation Rights.
Section 7
Non-transferable
(1)
The SARs are
non-transferable. No certificates representing the SAR’s will
be issued by the Corporation.
(2)
Nothing contained
in this Agreement, and no action taken pursuant to its provisions,
will create or be construed to create a trust of any kind or a
fiduciary relationship between the Corporation and the Agent or the
Noteholders or any other person.
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Section 8
Representations
and Warranties of Agent on behalf of the Noteholders
The
Agent, on behalf of each of the Noteholders, hereby represent and
warrant to the Corporation that on and as of the date
hereof:
(1)
This Agreement is
made with it in reliance upon its representation to the
Corporation, which by its execution of this Agreement it hereby
confirms, that the securities represented by this Agreement (the
“Securities”) to
be received by it will be acquired for investment by it and not
with a view to the resale or distribution of any part thereof, and
that it has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing
this Agreement, it further represents that it has no contract,
undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third
person, with respect to the Securities.
(2)
It understands that
the Securities are not and will not be registered under the U.S.
Securities Act of 1933, as amended (the “Securities Act”) on the grounds
that the sale provided for in this Agreement and the issuance of
Securities hereunder are exempt from registration under the
Securities Act pursuant to Regulation S thereof or another
exemption thereunder, and that the Corporation’s reliance on
such exemption is predicated on its representations set forth
herein.
(3)
It believes that it
has received all the information it considers necessary or
appropriate for deciding whether to enter into this Agreement. It
further represents that it has had an opportunity to ask questions
and receive answers from the Corporation regarding the terms and
conditions of this Agreement and the business, properties,
prospects, and financial condition of the Corporation and to obtain
additional information necessary to verify the accuracy of any
information furnished to it or to which it had access.
(4)
It represents that
it is experienced in evaluating and investing in private placement
transactions of securities of companies in a similar stage of
development and acknowledges that it is able to fend for itself,
that it can bear the economic risk of this investment, and that it
has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of this
investment.
(5)
It represents that
is not a U.S. person (as defined in in Rule 902(k) of Regulation S)
and is not acquiring the Securities for the account or benefit of,
directly or indirectly, any U.S. Person;
(6)
It represents that
it is knowledgeable of the relevant securities laws applicable in
the jurisdiction outside the United States in which it is resident
that would apply to the acquisition of the Securities and is not
relying on the Company to ensure compliance with any such
laws;
(7)
It represents that
the Securities were not offered to it in the United States, that at
the time its purchase decision was made, it was outside the United
States, and that this Agreement was delivered to, completed,
executed and delivered by, it (or its authorized signatory) outside
the United States;
(8)
It understands that
the Securities may not be sold, transferred, or otherwise disposed
of;
(9)
If necessary, it
shall file with the Corporation an Internal Revenue Service Form
W-8BEN-E and, on an ongoing basis, will provide such other
information or documents as shall be requested by the Corporation
to enable it to comply with the requirements of the Internal
Revenue Service.
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Section 9
Further
Assurances
The
Parties shall take such further actions as necessary, and shall
executed and deliver such documents, instruments and agreements and
do all such other acts and things as may be reasonably required, in
the opinion of the Agent and Corporation, to give effect to the
provisions of this Agreement.
Section 10
Governing
Law
This
Agreement shall be governed by, and construed in accordance with,
the laws of the state of New York without regard to its conflicts
of law rules. Each of the Parties hereby irrevocably waives all
right to trial by jury in any action, proceeding or counterclaim
(whether based on contract, tort or otherwise) arising out of or
relating to this Agreement.
Section 11
Successors
and Assigns
This
Agreement will be binding upon and inure to the benefit of the
Parties and their respective successors and permitted
assigns.
Section 12
Entire
Agreement
This
Agreement constitutes the entire agreement of the parties relating
to the subject matter hereof and supersedes all prior agreements,
understandings, and discussions, whether written or oral, relative
to the subject matter hereof. Except as otherwise specifically set
forth in this Agreement, neither party makes any representation,
warranty, undertaking, promise, inducement or condition, express,
implied or collateral, to the other.
Section 13
Conflict
or Inconsistency
In the
event of any conflict or inconsistency between the terms of this
Agreement and the terms of the NPA, the terms of this Agreement
shall prevail.
Section 14
Execution in Counterparts
This
Agreement may be executed in counterparts and by facsimile, each of
which shall be deemed to be an original and which together shall
constitute one and the same agreement.
[signature page
follows]
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IN WITNESS WHEREOF the parties hereto
have duly executed this agreement as of the date first above
written.
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AEMETIS INC.
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By:
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/s/
Eric A. McAfee
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Name:
Eric A. McAfee
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Title:
Chief Executive Officer
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THIRD EYE CAPITAL
CORPORATION,as Agent
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By:
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/s/
Arif N.
Bhalwani
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Name:
Arif N.
Bhalwani
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Title:
Managing
Director
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SCHEDULE
CALL / PUT ELECTION
[DATE]
ADDRESSEE: [Third Eye Capital Corporation,
as Agent OR Aemetis, Inc.]
Re:
[CALL / PUT]
Option – Stock Appreciation
Rights Agreement
We refer to the Stock Appreciation Rights
Agreement, dated August 23, 2018 among Aemetis, Inc. and Third Eye
Capital Corporation, as agent for the Noteholders (the
“Agreement”). All
undefined capitalized terms used herein have the meaning ascribed
thereto in the Agreement.
We hereby give you notice, as of the date hereof,
of the irrevocable exercise of the [Call / Put]
Option in our favour, pursuant to the
Agreement.
IN WITNESS
WHEREOF, this election has been
duly executed by an authorized officer or representatives as of the
date first above mentioned.
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[NAME]
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By:
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Name:
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Title:
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