(1)
At December 31, 2023, Mr. Littlefair held 607,257 shares of common stock on December 31, 2015.
(2)At December 31, 2015, the Time-Vested Percentage of the 2012 PVUs was 100%, or 400,000 shares, and the Time-Vested Percentage of the 2014 PVUs was 47.92%, or 35,940 shares.40,392 RSUs that had not vested. The amounts in this row were determined by multiplying the 400,000 shares and the 35,940 sharesunvested RSUs by $3.60,$3.83, the closing price of our common stock on December 31, 2015.
(3)29, 2023.
(2)
At December 31, 2015,2023, Mr. Littlefair held 105,126 RSUs that had not vested,no unvested options and have an exercise price less than $3.83, the closing price of which 15,126 were granted before November 2014.our common stock on December 29, 2023. The amounts in this row were determined by multiplying the RSUstotal number of unvested shares underlying the options by $3.60, the closingexcess of $3.83 over the exercise price of our common stockfor such options.
(3)
Executive change in control severance is based on December 31, 2015.a double-trigger, requiring both a change in control event and either i) a voluntary termination with Good Reason or ii) an involuntary termination without Cause.
The following table shows the potential cash payments
uponor other benefits to be provided to our Chief Financial Officer, Robert M. Vreeland, if a termination and/or a change in control
had occurred as of
the Company for our Chief Financial Officer, Robert M. Vreeland. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Benefit and Payments | | Voluntary
Termination | | Voluntary
Termination
for Good
Reason | | Involuntary
Without
Cause
Termination | | Failure to
Renew
Employment
Agreement | | For Cause
Termination | | Change
in
Control | | Voluntary
Termination
for Good
Reason in
connection
with a
Change in
Control | | Involuntary
Without
Cause
Termination
in
connection
with a
Change in
Control | | Termination
Due to
Disability | | Termination
Due to
Death | |
|---|
Cash Severance Payment | | $ | 0 | | $ | 669,698 | | $ | 669,698 | | $ | 669,698 | | $ | 0 | | $ | 0 | | $ | 933,089 | | $ | 933,089 | | $ | 0 | | $ | 0 | |
Continuation of Medical/Welfare Benefits (present value) | | $ | 0 | | $ | 5,692 | | $ | 5,692 | | $ | 5,692 | | $ | 0 | | $ | 0 | | $ | 5,692 | | $ | 5,692 | | $ | 0 | | $ | 0 | |
Vacation Pay | | $ | 17,684 | | $ | 17,684 | | $ | 17,684 | | $ | 17,684 | | $ | 17,684 | | $ | 17,684 | | $ | 17,684 | | $ | 17,684 | | $ | 17,684 | | $ | 17,684 | |
RSU Vesting(1) | | $ | 0 | | $ | 0 | | $ | 108,000 | | $ | 108,000 | | $ | 0 | | $ | 0 | | $ | 108,000 | | $ | 108,000 | | $ | 108,000 | | $ | 108,000 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total: | | $ | 17,684 | | $ | 693,074 | | $ | 801,074 | | $ | 801,074 | | $ | 17,684 | | $ | 17,684 | | $ | 1,064,465 | | $ | 1,064,465 | | $ | 125,684 | | $ | 125,684 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Benefit and Payments | | | Voluntary
Termination | | | Voluntary
Termination
for Good
Reason | | | Involuntary
Not For
Cause
Termination | | | Failure to
Renew
Employment
Agreement | | | For Cause
Termination | | | Change in
Control
Termination(3) | | | Termination
Due to
Death or
Disability | |
| Cash Severance Payment | | | | | — | | | | | $ | 1,104,105 | | | | | $ | 1,104,105 | | | | | $ | 1,104,105 | | | | | | — | | | | | $ | 1,558,362 | | | | | | — | | |
| Continuation of Medical/Welfare Benefits (present value) | | | | | — | | | | | $ | 15,177 | | | | | $ | 15,177 | | | | | $ | 15,177 | | | | | | — | | | | | $ | 15,177 | | | | | | — | | |
| Vacation Pay | | | | $ | 44,094 | | | | | $ | 44,094 | | | | | $ | 44,094 | | | | | $ | 44,094 | | | | | $ | 44,094 | | | | | $ | 44,094 | | | | | $ | 44,094 | | |
| RSU Vesting(1) | | | | | — | | | | | | — | | | | | $ | 86,451 | | | | | $ | 86,451 | | | | | | — | | | | | $ | 86,451 | | | | | $ | 86,451 | | |
| Option Vesting(2) | | | | | — | | | | | | — | | | | | $ | — | | | | | $ | — | | | | | | — | | | | | $ | — | | | | | $ | — | | |
| Total: | | | | $ | 44,094 | | | | | $ | 1,163,376 | | | | | $ | 1,249,827 | | | | | $ | 1,249,827 | | | | | $ | 44,094 | | | | | $ | 1,704,084 | | | | | $ | 130,545 | | |
(1)
At December 31, 2015,2023, Mr. Vreeland held 30,00022,572 RSUs that had not vested, all which were granted after November 2014.vested. The amounts in this row were determined by multiplying the unvested RSUs by $3.60,$3.83, the closing price of our common stock on December 29, 2023.
(2)
At December 31, 2015.
Mitchell W. Pratt
The following table shows the potential cash payments upon termination and/or a change in control of the Company for our Chief Operating Officer2023, Mr. Vreeland held no unvested options and Secretary, Mitchell W. Pratt.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Benefit and Payments | | Voluntary
Termination | | Voluntary
Termination
for Good
Reason | | Involuntary
Without
Cause
Termination | | Failure to
Renew
Employment
Agreement | | For Cause
Termination | | Change
in
Control | | Voluntary
Termination
for Good
Reason in
connection
with a
Change in
Control | | Involuntary
Without
Cause
Termination
in
connection
with a
Change in
Control | | Termination
Due to
Disability | | Termination
Due to
Death | |
|---|
Cash Severance Payment | | $ | 0 | | $ | 1,329,824 | | $ | 1,329,824 | | $ | 1,329,824 | | $ | 0 | | $ | 0 | | $ | 1,896,477 | | $ | 1,896,477 | | $ | 0 | | $ | 0 | |
Continuation of Medical/Welfare Benefits (present value) | | $ | 0 | | $ | 14,625 | | $ | 14,625 | | $ | 14,625 | | $ | 0 | | $ | 0 | | $ | 14,625 | | $ | 14,625 | | $ | 0 | | $ | 0 | |
Vacation Pay | | $ | 55,531 | | $ | 55,531 | | $ | 55,531 | | $ | 55,531 | | $ | 55,531 | | $ | 55,531 | | $ | 55,531 | | $ | 55,531 | | $ | 55,531 | | $ | 55,531 | |
Repurchase of Common Stock(1) | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 644,393 | | $ | 644,393 | |
PVU Vesting(2) | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 855,943 | | $ | 855,943 | |
RSU Vesting(3) | | $ | 0 | | $ | 0 | | $ | 288,000 | | $ | 288,000 | | $ | 0 | | $ | 0 | | $ | 288,000 | | $ | 288,000 | | $ | 288,000 | | $ | 288,000 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total: | | $ | 55,531 | | $ | 1,399,980 | | $ | 1,687,980 | | $ | 1,687,980 | | $ | 55,531 | | $ | 55,531 | | $ | 2,254,633 | | $ | 2,254,633 | | $ | 1,843,867 | | $ | 1,843,867 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
(1)Assumes a fair market value of $3.60 per share,have an exercise price less than $3.83, the closing price of our common stock on December 31, 2015. Mr. Pratt held 178,998 shares of common stock on December 31, 2015.
(2)At December 31, 2015, the Time-Vested Percentage of the 2012 PVUs was 100%, or 215,000 shares, and the Time-Vested Percentage of the 2014 PVUs was 47.92%, or 22,762 shares.29, 2022. The amounts in this row were determined by multiplying the 215,000total number of unvested shares underlying the options by the excess of $3.83 over the exercise price for such options.
(3)
Executive change in control severance is based on a double-trigger, requiring both a change in control event and either i) a voluntary termination with Good Reason or ii) an involuntary termination without Cause.
Mitchell W. Pratt
The following table shows the 22,762 shares by $3.60, the closing pricepotential cash payments or other benefits to be provided to our Chief Technology Development Officer, Mitchell W. Pratt, if a termination and/or a change in control had occurred as of our common stock on December 31, 2015.
(3)2023:| Benefit and Payments | | | Voluntary
Termination | | | Voluntary
Termination
for Good
Reason | | | Involuntary
Not For
Cause
Termination | | | Failure to
Renew
Employment
Agreement | | | For Cause
Termination | | | Change in
Control
Termination(3) | | | Termination
Due to
Death or
Disability | |
| Cash Severance Payment | | | | | — | | | | | $ | 1,287,719 | | | | | $ | 1,287,719 | | | | | $ | 1,287,719 | | | | | | — | | | | | $ | 1,816,093 | | | | | | — | | |
| Continuation of Medical/Welfare Benefits (present value) | | | | | — | | | | | $ | 26,745 | | | | | $ | 26,745 | | | | | $ | 26,745 | | | | | | — | | | | | $ | 26,745 | | | | | | — | | |
| Vacation Pay | | | | $ | 63,462 | | | | | $ | 63,342 | | | | | $ | 63,342 | | | | | $ | 63,342 | | | | | $ | 63,462 | | | | | $ | 63,642 | | | | | $ | 63,642 | | |
| RSU Vesting(1) | | | | | — | | | | | | — | | | | | $ | 86,451 | | | | | $ | 86,451 | | | | | | — | | | | | $ | 86,451 | | | | | $ | 86,451 | | |
| Option Vesting(2) | | | | | — | | | | | | — | | | | | $ | — | | | | | $ | — | | | | | | — | | | | | $ | — | | | | | $ | — | | |
| Total: | | | | $ | 63,462 | | | | | $ | 1,337,926 | | | | | $ | 1,464,377 | | | | | $ | 1,464,377 | | | | | $ | 63,462 | | | | | $ | 1,992,751 | | | | | $ | 149,913 | | |
(1)
At December 31, 2015,2023, Mr. Pratt held 80,00022,572 RSUs that had not vested, all which were granted after November 2014.vested. The amounts in this row were determined by multiplying the unvested RSUs by $3.60,$3.83, the closing price of our common stock on December 31, 2015.
The following table shows the potential cash payments upon termination and/or a change in control of the Company for our Senior Vice President, Sales and Finance, Peter J. Grace.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Benefit and Payments | | Voluntary
Termination | | Voluntary
Termination
for Good
Reason | | Involuntary
Without
Cause
Termination | | Failure to
Renew
Employment
Agreement | | For Cause
Termination | | Change
in
Control | | Voluntary
Termination
for Good
Reason in
connection
with a
Change in
Control | | Involuntary
Without
Cause
Termination
in
connection
with a
Change in
Control | | Termination
Due to
Disability | | Termination
Due to
Death | |
|---|
Cash Severance Payment | | $ | 0 | | $ | 1,442,940 | | $ | 1,442,940 | | $ | 1,442,940 | | $ | 0 | | $ | 0 | | $ | 2,090,808 | | $ | 2,090,808 | | $ | 0 | | $ | 0 | |
Continuation of Medical/Welfare Benefits (present value) | | $ | 0 | | $ | 16,470 | | $ | 16,470 | | $ | 16,470 | | $ | 0 | | $ | 0 | | $ | 16,470 | | $ | 16,470 | | $ | 0 | | $ | 0 | |
Vacation Pay | | $ | 41,597 | | $ | 41,597 | | $ | 41,597 | | $ | 41,597 | | $ | 41,597 | | $ | 41,597 | | $ | 41,597 | | $ | 41,597 | | $ | 41,597 | | $ | 41,597 | |
PVU Vesting(1) | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 454,223 | | $ | 454,223 | |
RSU Vesting(2) | | $ | 0 | | $ | 0 | | $ | 144,000 | | $ | 144,000 | | $ | 0 | | $ | 0 | | $ | 144,000 | | $ | 144,000 | | $ | 144,000 | | $ | 144,000 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total: | | $ | 41,597 | | $ | 1,501,007 | | $ | 1,645,007 | | $ | 1,645,007 | | $ | 41,597 | | $ | 41,597 | | $ | 2,292,875 | | $ | 2,292,875 | | $ | 639,820 | | $ | 639,820 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
29, 2023.(2)
At December 31, 2015,2023, Mr. Pratt held zero options that had not vested and have an exercise price less than $3.83, the Time-Vested Percentageclosing price of the 2012 PVUs was 100%, or 110,000 shares, and the Time-Vested Percentage of the 2014 PVUs was 47.92%, or 16,173 shares.our common stock on December 29, 2023. The amounts in this row were determined by multiplying the 110,000total number of unvested shares underlying the options by the excess of $3.83 over the exercise price for such options.
(3)
Executive change in control severance is based on a double-trigger, requiring both a change in control event and either i) a voluntary termination with Good Reason or ii) an involuntary termination without Cause.
Barclay F. Corbus
The following table shows the 16,173 shares by $3.60, the closing pricepotential cash payments or other benefits to be provided to our Senior Vice President, Strategic Development and Head of our common stock onRenewable Fuels, Barclay F. Corbus, if a termination and/or a change in control had occurred as of December 31, 2015.
(2)2023:| Benefit and Payments | | | Voluntary
Termination | | | Voluntary
Termination
for Good
Reason | | | Involuntary
Not For
Cause
Termination | | | Failure to
Renew
Employment
Agreement | | | For Cause
Termination | | | Change in
Control
Termination(3) | | | Termination
Due to
Death or
Disability | |
| Cash Severance Payment | | | | | — | | | | | $ | 1,182,083 | | | | | $ | 1,182,083 | | | | | $ | 1,182,083 | | | | | | — | | | | | $ | 1,668,137 | | | | | | — | | |
| Continuation of Medical/Welfare Benefits (present value) | | | | | — | | | | | $ | 34,260 | | | | | $ | 34,260 | | | | | $ | 34,260 | | | | | | — | | | | | $ | 34,260 | | | | | | — | | |
| Vacation Pay | | | | $ | 57,692 | | | | | $ | 57,692 | | | | | $ | 57,692 | | | | | $ | 57,692 | | | | | $ | 57,692 | | | | | $ | 57,692 | | | | | $ | 57,692 | | |
| RSU Vesting(1) | | | | | — | | | | | | — | | | | | $ | 86,451 | | | | | $ | 86,451 | | | | | | — | | | | | $ | 86,451 | | | | | $ | 86,451 | | |
| Option Vesting(2) | | | | | — | | | | | | — | | | | | $ | — | | | | | $ | — | | | | | | — | | | | | $ | — | | | | | $ | — | | |
| Total: | | | | $ | 57,692 | | | | | $ | 1,274,035 | | | | | $ | 1,360,486 | | | | | $ | 1,360,486 | | | | | $ | 55,256 | | | | | $ | 1,846,540 | | | | | $ | 144,143 | | |
(1)
At December 31, 2015,2023, Mr. GraceCorbus held 40,00022,572 RSUs that had not vested, all which were granted after November 2014.vested. The amounts in this row were determined by multiplying the unvested RSUs by $3.60,$3.83, the closing price of our common stock on December 31, 2015.29, 2023.
Barclay F. Corbus
The following table shows the potential cash payments upon termination and/or a change in control of the Company for our Senior Vice President of Strategic Development, Barclay F. Corbus.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Benefit and Payments | | Voluntary
Termination | | Voluntary
Termination
for Good
Reason | | Involuntary
Without
Cause
Termination | | Failure to
Renew
Employment
Agreement | | For Cause
Termination | | Change in
Control | | Voluntary
Termination
for Good
Reason in
connection
with a
Change in
Control | | Involuntary
Without
Cause
Termination
in connection
with a
Change in
Control | | Termination
Due to
Disability | | Termination
Due to
Death | |
|---|
Cash Severance Payment | | $ | 0 | | $ | 1,225,230 | | $ | 1,225,230 | | $ | 1,225,230 | | $ | 0 | | $ | 0 | | $ | 1,747,314 | | $ | 1,747,314 | | $ | 0 | | $ | 0 | |
Continuation of Medical/Welfare Benefits (present value) | | $ | 0 | | $ | 18,340 | | $ | 18,340 | | $ | 18,340 | | $ | 0 | | $ | 0 | | $ | 18,340 | | $ | 18,340 | | $ | 0 | | $ | 0 | |
Vacation Pay | | $ | 51,163 | | $ | 51,163 | | $ | 51,163 | | $ | 51,163 | | $ | 51,163 | | $ | 51,163 | | $ | 51,163 | | $ | 51,163 | | $ | 51,163 | | $ | 51,163 | |
PVU Vesting(1) | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 0 | | $ | 784,692 | | $ | 784,692 | |
RSU Vesting(2) | | $ | 0 | | $ | 0 | | $ | 230,400 | | $ | 230,400 | | $ | 0 | | $ | 0 | | $ | 230,400 | | $ | 230,400 | | $ | 230,400 | | $ | 230,400 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total: | | $ | 51,163 | | $ | 1,294,733 | | $ | 1,525,133 | | $ | 1,525,133 | | $ | 51,163 | | $ | 51,163 | | $ | 2,047,217 | | $ | 2,047,217 | | $ | 1,066,255 | | $ | 1,066,255 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
At December 31, 2015,2023, Mr. Corbus held no unvested options and have an exercise price less than $3.83, the Time-Vested Percentageclosing price of the 2012 PVUs was 100%, or 200,000 shares, and the Time-Vested Percentage of the 2014 PVUs was 47.92%, or 17,970 shares.our common stock on December 29, 2023. The amounts in this row were determined by multiplying the 200,000total number of unvested shares underlying the options by the excess of $3.83 over the exercise price for such options.
(3)
Executive change in control severance is based on a double-trigger, requiring both a change in control event and either i) a voluntary termination with Good Reason or ii) an involuntary termination without Cause.
Pay Ratio
We are required by applicable SEC rules to disclose the annual total compensation of our Chief Executive Officer, the median annual total compensation of all of our other employees, and the 17,970 shares by $3.60,ratio of these two amounts.
In determining the closing pricemedian annual total compensation of our common stock onemployees other than our Chief Executive Officer, we started by preparing a list of all such employees as of December 31, 2015.
(2)At2023 and each such employee’s taxable earnings for 2023 as reflected in our payroll records, which generally consists of salary; regular, hourly, and overtime wages; commissions; incentives and other miscellaneous earnings. This list includes all our employees on such date (except solely for our Chief Executive Officer), whether employed on a full-time, part-time, seasonal or temporary basis and wherever located, resulting in 559 employees who are all located in the United States and Canada. For any such employees who are permanently employed (in other words, who are not employed on a seasonal or temporary basis) and who joined the Company after January 1, 2023, this list reflects 2023 taxable earnings on an annualized basis. We then ordered the employees in this list based on the amounts of their 2023 taxable earnings, selected the single employee at the midpoint of the re-ordered list, and calculated the amount of this single midpoint employee’s annual total compensation using the methodology required by SEC rules for calculating the total compensation of our named executive officers as reported in the Summary Compensation Table above. The annual total compensation for our median employee was $105,469, and the annual total compensation for our Chief Executive Officer was $1,977,858. We estimate the ratio of the annual total compensation of our Chief Executive Officer to the median annual total compensation of all our other employees is 19 to 1.We believe this pay ratio is a reasonable estimate calculated in a manner consistent with applicable SEC rules. In light of the many different methodologies, exclusions, estimates and assumptions companies are permitted to use in determining an estimate of their respective pay ratios, as well as the differing employment and compensation practices and industry standards that impact these ratios, our estimated pay ratio information may not be comparable to the pay ratio information reported by other companies, and we discourage the use of this information as a basis for comparison between companies. Neither our compensation committee nor our management used our pay ratio information in making compensation decisions for 2023 or 2024.
Pay Versus Performance
Under rules adopted pursuant to the Dodd-Frank Act, we are required to disclose certain information about the relationship between the compensation actually paid to our named executive officers and certain measures of company performance. The material that follows is provided in compliance with these rules; however, additional information regarding our compensation philosophy, the structure of our performance-based compensation programs, and compensation decisions made this year is described above in our “Compensation Discussion and Analysis.”
The following table provides information regarding compensation actually paid to our principal executive officer, or PEO, and other NEOs for each year from 2020 to 2023, compared to our total stockholder return (“TSR”) from December 31, 2015, 2019 through the end of each such year, and our Net Income, and Adjusted EBITDA for each such year.
| Year | | | Summary
Compensation
Table Total
for CEO(1) | | | Compensation
Actually
Paid to
CEO(2) | | | Average
Summary
Compensation
Table Total
for Other
NEOs(3) | | | Average
Compensation
Actually
Paid for
Other
NEOs(2)(3) | | | Value of
initial fixed
$100 investment
based on(4): | | | Net Income
(loss) ($)
(in thousands) | | | Economic
Adjusted
EBITDA ($)(6)
(in thousands) | |
| | TSR | | | Peer Group
TSR | |
| 2023 | | | | $ | 1,977,858 | | | | | $ | 21,562 | | | | | $ | 1,379,125 | | | | | $ | 435,876 | | | | | $ | 222.67 | | | | | $ | 150.31 | | | | | $ | (99,497) | | | | | $ | 43,571 | | |
| 2022 | | | | $ | 1,125,510 | | | | | $ | 297,609 | | | | | $ | 650,073 | | | | | $ | 278,924 | | | | | $ | 256.16 | | | | | $ | 114.70 | | | | | $ | (58,733) | | | | | $ | 50,003 | | |
| 2021 | | | | $ | 10,811,193 | | | | | $ | 9,710,227 | | | | | $ | 5,208,251 | | | | | $ | 4,623,456 | | | | | $ | 301.97 | | | | | $ | 146.23 | | | | | $ | (93,146) | | | | | $ | 57,032 | | |
| 2020 | | | | $ | 1,826,353 | | | | | $ | 4,056,472 | | | | | $ | 951,260 | | | | | $ | 2,120,126 | | | | | $ | 387.19 | | | | | $ | 128.61 | | | | | $ | (9,864) | | | | | $ | 45,134 | | |
(1)
Mr. Corbus held 64,000 RSUs that hadLittlefair was the CEO for each of 2020, 2021, 2022 and 2023.
(2)
SEC rules require certain adjustments be made to the Summary Compensation Table totals to determine “compensation actually paid” as reported in the Pay versus Performance Table. “Compensation actually paid” does not vested, allnecessarily represent cash and/or equity value transferred to the applicable NEO without restriction, but rather is a value calculated under applicable SEC rules. In general, “compensation actually paid” is calculated as Summary Compensation Table total compensation adjusted to include the fair market value of equity awards as of December 31 of the applicable year or, if earlier, the vesting date (rather than the grant date). NEOs do not participate in a defined benefit plan so no adjustment for pension benefits is included in the table below. Similarly, no adjustment is made for dividends as dividends are factored into the fair value of the award. Finally, there were no equity awards which were granted after November 2014.and vested in the same year, other than the award of profits interest granted to Mr. Pratt in 2023 under the CLNE PlasmaFlow Holdings, LLC 2023 Equity Incentive Plan. The amounts in this rowfollowing table details these adjustments:
| Year | | | Executive(s) | | | Summary
Compensation
Table Total | | | Subtract
Stock
Awards ($) | | | Add
Year-End
Equity
Value ($) | | | Add
Change in
Value of Prior
Unvested
Equity
Awards ($) | | | Add Value
of Equity
Awards
That
Vested in
the Year of
Grant | | | Add
Change in
Value of
Vested
Equity
Awards ($) | | | Subtract
Value of
Equity Awards
that Failed
to Meet
Vesting
Conditions | | | Compensation
Actually
Paid ($) | |
| 2023 | | | CEO | | | | $ | 1,977,858 | | | | | $ | 738,750 | | | | | $ | 455,211 | | | | | $ | (1,604,939) | | | | | $ | — | | | | | $ | (67,818) | | | | | | — | | | | | $ | 21,562 | | |
| | Other NEOs | | | | $ | 1,379,125 | | | | | $ | 655,633 | | | | | $ | 384,401 | | | | | $ | (661,310) | | | | | $ | 31,800 | | | | | $ | (42,507) | | | | | | — | | | | | $ | 435,876 | | |
| 2022 | | | CEO | | | | $ | 1,125,510 | | | | | $ | 852 | | | | | $ | 780 | | | | | $ | (833,791) | | | | | $ | — | | | | | $ | 5,962 | | | | | | — | | | | | $ | 297,609 | | |
| | Other NEOs | | | | $ | 650,073 | | | | | $ | 284 | | | | | $ | 260 | | | | | $ | (374,021) | | | | | $ | — | | | | | $ | 2,896 | | | | | | — | | | | | $ | 278,924 | | |
| 2021 | | | CEO | | | | $ | 10,811,193 | | | | | $ | 9,200,924 | | | | | $ | 7,210,210 | | | | | $ | (239,935) | | | | | $ | — | | | | | $ | 1,283,125 | | | | | $ | 153,443 | | | | | $ | 9,710,227 | | |
| | Other NEOs | | | | $ | 5,208,251 | | | | | $ | 4,353,301 | | | | | $ | 3,316,767 | | | | | $ | (131,158) | | | | | $ | — | | | | | $ | 663,205 | | | | | $ | 80,307 | | | | | $ | 4,623,456 | | |
| 2020 | | | CEO | | | | $ | 1,826,353 | | | | | $ | 296,208 | | | | | $ | 1,057,074 | | | | | $ | 1,448,260 | | | | | $ | | | | | | $ | 53,165 | | | | | | 32,172 | | | | | $ | 4,056,472 | | |
| | Other NEOs | | | | $ | 951,260 | | | | | $ | 165,528 | | | | | $ | 590,718 | | | | | $ | 741,170 | | | | | $ | | | | | | $ | 19,344 | | | | | | 16,838 | | | | | $ | 2,120,126 | | |
(3)
For each of 2020, 2021, 2022 and 2023, the other NEOs were Messrs. Vreeland, Pratt, and Corbus.
(4)
TSR is determined based on the value of an initial fixed investment of $100. The TSR peer group consists of the Russell 2000 Index.
(5)
The most important performance measures used by multiplying the RSUs by $3.60,Company to link executive compensation actually paid to the closing priceCompany’s NEOs, for the most recently completed fiscal year, to the Company’s performance are as follows:
•
Adjusted EBITDA (6)
•
Volume (in GGEs)
•
Volume Margin per GGE
•
Volume of RNG
(6)
Please see “Calculation of 2023 Adjusted EBITDA” below for more information on how we define Adjusted EBITDA.
Relationship Between “Compensation Actually Paid” and Performance Measures
The charts below show, for the past four years, the relationship of the Company’s TSR relative to its peers as well as the relationship between the CEO and non-CEO “compensation actually paid” and (i) the Company’s TSR; (ii) the Company’s net income; and (iii) the Company’s Economic Adjusted EBITDA.
Risks Related to Compensation Policies and Practices
The compensation committee regularly monitors and considers whether our overall compensation programs, including our executive compensation program, create incentives for employees to take excessive or unreasonable risks that could materially harm our Company. Although risk-taking is a necessary part of any business, the compensation committee focuses on aligning the Company’s compensation policies with the long-term interests of the Company and its stockholders and avoiding short-term rewards for management decisions that could pose long-term risks to the Company. Although a portion of our commonexecutive compensation plan is performance-based, which could motivate risk-taking, we do not believe our overall compensation structure encourages excessive or unnecessary risk-taking. We believe our approach to goal-setting, the mix of different types of compensation, payouts at multiple levels of performance, evaluation of performance results, and allowance for compensation committee discretion in determining award types, levels and payouts assist in mitigating these risks, as follows:
•
Our compensation structure includes a combination of compensation vehicles, including a competitive base salary and benefits generally available to all of our employees, equity awards to incentivize long-term performance and align the interests of our employees with those of our stockholders, annual
cash incentives to reward executives for achieving Company objectives, and change in control and post-termination severance compensation to encourage retention of our key executives.
•
To discourage excessive or unnecessary risk-taking, for 2023, payouts to each named executive officer under our performance-based cash incentive plan were based on seven distinct performance metrics, each with material weighting. Additionally, the compensation committee retains the discretion to increase or decrease payouts under this incentive plan as it deems appropriate.
•
To help mitigate risks of overpayment, we maintain a clawback policy that complies with recently adopted SEC and Nasdaq requirements. We also have adopted stock ownership guidelines applicable to all of our named executive officers to ensure they have a meaningful equity stake in the Company.
We further believe that our internal legal and financial controls appropriately mitigate the probability and potential impact of an individual employee committing our Company to a harmful long-term business transaction in exchange for a short-term compensation benefit.
Based on December 31, 2015.the factors described above, we believe our 2023 compensation programs do not create risks that are reasonably likely to have a material adverse effect on our Company.
OverviewCalculation of Director Compensation2023 Adjusted EBITDA
The following table shows adjusted EBITDA as we defined it for 2023 and reconciles this non-GAAP financial measure to the GAAP measure net income (loss):
| | | | Year Ended
December 31, 2023 | |
| | | | (in thousands) | |
| Net loss attributable to Clean Energy Fuels Corp. | | | | $ | (99,497) | | |
| Income tax benefit | | | | | (423) | | |
| Interest expense | | | | | 22,924 | | |
| Interest income | | | | | (11,148) | | |
| Depreciation and amortization | | | | | 45,674 | | |
| Amazon warrant charges | | | | | 60,609 | | |
| Stock-based compensation | | | | | 23,336 | | |
| Loss (income) from SAFE&CEC S.r.l equity method investment | | | | | 1,700 | | |
| Loss (gain) from change in fair value of derivative instruments | | | | | 158 | | |
| Depreciation and amortization from RNG equity method investments | | | | | 1,666 | | |
| Interest expense from RNG equity method investments | | | | | 992 | | |
| Interest income from RNG equity method investments | | | | | (2,420) | | |
| Adjusted EBITDA | | | | $ | 43,571 | | |
DIRECTOR COMPENSATION
Overview
We use cash and
stock-based incentiveequity compensation to attract and retain qualified candidates to serve on our Board.
The amount and type of cash and equity compensation awarded to non-employee directors in 2023 was determined by the compensation committee in its sole discretion. In setting non-employee director compensation
we considerfor 2023, the compensation committee considered a variety of factors, including the significant amount of time that our directors spend in fulfilling their duties to our Company, as well as the level of experience and
skillsskill required of the members of the Board.
We have also awardedFurther, in setting director compensation,
our compensation committee considered that a director’s independence may be jeopardized if director compensation and perquisites exceed customary levels, if the Company makes charitable or political contributions to
individual non-employee directors in recognitionorganizations with which a director is affiliated or if the Company enters into consulting contracts with (or provides other indirect forms of
outstanding servicecompensation to) a director or
efforts on the Company's behalf.an organization with which a director is affiliated. Directors who are our employees receive no additional compensation for their services as directors.
Cash In addition, for 2023 and 2024 each of Mr. Soulas, Mr. Wolffsheim and Ms. Boissy-Rousseau voluntarily waived their right to receive compensation for their services as a director of our Company.
In November 2022, following consultation with the compensation committee’s independent compensation consultant, Semler Brossy, we adopted our new Directors’ Compensation
PaidPolicy, effective January 1, 2023. We adopted our new Directors’ Compensation Policy to
Non-Employee Board Members We payformalize our director compensation arrangements and director equity award grant practices, and we believe our new policy will facilitate our Board’s mission of attracting and retaining highly skilled directors.
After reviewing the factors described above and others that it considered relevant, the compensation committee approved the non-employee director compensation program described below. The compensation paid pursuant to the non-employee director compensation program is described below.
Cash
For 2023 and 2024, our non-employee directors (other than Mr. Soulas, Mr. Wolffsheim and Ms. Boissy-Rousseau) received (or will receive) the following cash compensationcompensation:
| Type of Retainer or Fee | | | 2023 Amounts | | | 2024 Amounts | |
| Annual Cash Retainer | | | | $ | 70,000 | | | | | $ | 70,000 | | |
| Annual Chairperson Retainer | | | | $ | 60,000 | | | | | $ | 60,000 | | |
| Annual Audit Committee Chairperson Retainer | | | | $ | 15,000 | | | | | $ | 15,000 | | |
| Annual Compensation Committee Chairperson Retainer | | | | $ | 10,000 | | | | | $ | 10,000 | | |
| Annual Nominating and Corporate Governance Committee Chairperson Retainer | | | | $ | 5,000 | | | | | $ | 5,000 | | |
| Annual Audit Committee Member Retainer | | | | $ | 5,000 | | | | | $ | 5,000 | | |
| Annual Compensation Committee Member Retainer | | | | $ | 4,000 | | | | | $ | 4,000 | | |
| Annual Nominating and Corporate Governance Committee Member Retainer | | | | $ | 3,000 | | | | | $ | 3,000 | | |
These cash retainers will be paid on a quarterly basis, following the end of each quarter in arrears, and will be pro-rated if a non-employee director serves (or serves in the corresponding position, as the case may be) for only a portion of the quarter.
Equity
Pursuant to
ourthe Directors’ Compensation Policy, effective January 1, 2023, the non-employee
directors:•Except for Messrs. Mitchelldirectors receive an annual equity award with a value of $120,000, which award shall be fifty percent (50%) in non-statutory stock options (the “Annual Stock Option Award”) and Miller, allfifty percent (50%) in restricted stock units of the Company (collectively with the Annual Stock Option Award, the “Equity Awards”). Equity awards are generally granted to Directors on the date of each Annual Meeting. Subject to the non-employee director’s continued service with the Company, each Equity Award will vest in one installment on the first anniversary
of the date of grant (or on the date of the following year’s Annual Meeting, if earlier). Each new non-employee director appointed or elected after the date of the Annual Meeting, will automatically be granted pro-rated levels of the annual Equity Awards described above. In addition, each Equity Award will be subject to the terms and conditions of the 2016 Plan and will be evidenced by, and subject to the terms and conditions of, any award agreement in the form approved by the Board to evidence such type of grant pursuant to the Directors’ Compensation Policy.
Each of our non-employee directors is also reimbursed for reasonable out-of-pocket expenses for attendance at Board and committee meetings.
Director Stock Ownership Guidelines
We believe it is important to encourage our directors to hold a material amount of our common stock, which links their long-term economic interest directly to that of our stockholders. To achieve this goal, we have established stock ownership guidelines applicable to our independent directors. These guidelines provide that each independent director is required to own shares of our common stock valued at $180,000 or more by five years after the date of a director’s initial election to the Board. Stock options are
paid $60,000 per year.
•In recognitionnot counted toward satisfaction of these stock ownership requirements. Directors who attain this stock ownership level by the stated deadline will continue to satisfy the stock ownership requirements if the value of their stock holdings declines after such deadline solely due to a decrease in the trading price of our common stock. All of our independent directors have satisfied these stock ownership guidelines as of the additional responsibilities of Mr. Miller, Chair of the audit committee, and Mr. Mitchell, Chairman ofRecord Date. In addition, the Board Mr. Miller is paid $70,000 per year and Mr. Mitchell is paid $120,000 per year, except that in February 2015 Mr. Mitchell voluntarily elected to reduce his annual cash compensation to $108,000.Stock-Based Incentive Compensation
From time to time, and typically on an annual basis, we award equity awards to non-employee directors; providedhas determined that the determinationdirector stock ownership guidelines do not apply to Ms. Boissy-Rousseau or Mr. Soulas (nor did they apply to Mr. Wolffsheim during his Board service) for so long as each is designated by TMS to which directorsserve as a director and waives his or her right to receive awards, as well ascompensation for serving on the timing and the amount of any such awards, is discretionary.Board. See the footnotesdescriptions under “Proposal 1: Election of Directors — General” and “Director Compensation” for more information.
We have also established stock ownership guidelines applicable to the certain of our executive officers, which are described under “Compensation Disclosure and Analysis — Executive Stock Ownership Guidelines” above.
Director Compensation table below for information about the outstanding stock and option awards held by our directors at December 31, 2015.Table
2015 Director Compensation
The following table summarizes the compensation we paid to directors who are not employees of our Company for the fiscal year ended December 31, 2015:
| | | | | | | | | | |
Name(1) | | Fees Earned or
Paid in Cash
($) | | Stock
Awards(2)
($) | | Total
($) | |
|---|
Warren I. Mitchell, Chairman(3) | | | 108,000 | | | 100,400 | | | 208,400 | |
John S. Herrington(4) | | | 60,000 | | | 100,400 | | | 160,400 | |
James C. Miller III(5) | | | 70,000 | | | 100,400 | | | 170,400 | |
T. Boone Pickens(6) | | | 60,000 | | | 100,400 | | | 160,400 | |
Kenneth M. Socha(7) | | | 60,000 | | | 100,400 | | | 160,400 | |
Vincent C. Taormina(8) | | | 60,000 | | | 100,400 | | | 160,400 | |
James E. O'Connor(9) | | | 60,000 | | | 100,400 | | | 160,400 | |
Stephen A. Scully(10) | | | 60,000 | | | 100,400 | | | 160,400 | |
| Name(1) | | | Fees Earned or
Paid in Cash
($) | | | Stock
Awards(2)
($) | | | Option
Awards(3)
($) | | | Total
($) | |
| Stephen A. Scully(4) | | | | | 135,000 | | | | | | 60,000 | | | | | | 59,999 | | | | | | 254,999 | | |
| Lizabeth Ardisana(5) | | | | | 87,000 | | | | | | 60,000 | | | | | | 59,999 | | | | | | 206,999 | | |
| Karine Boissy-Rousseau | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
| James C. Miller III(6) | | | | | 85,000 | | | | | | 60,000 | | | | | | 59,999 | | | | | | 204,999 | | |
| Lorraine Paskett(7) | | | | | 35,000 | | | | | | — | | | | | | — | | | | | | 35,000 | | |
| Kenneth M. Socha(8) | | | | | 77,000 | | | | | | 60,000 | | | | | | 59,999 | | | | | | 196,999 | | |
| Mathieu Soulas | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
| Vincent C. Taormina(9) | | | | | 80,000 | | | | | | 60,000 | | | | | | 59,999 | | | | | | 199,999 | | |
| Parker A. Weil(10) | | | | | 80,000 | | | | | | 60,000 | | | | | | 59,999 | | | | | | 198,999 | | |
| Laurent Wolffsheim(11) | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
(1)
Andrew J. Littlefair, our President and Chief Executive Officer, is not included in this table because he is an employee of the Company and thus receives no additional compensation for his services as a director. The compensation received by Mr. Littlefair as an employee of the Company is shown in the Summary Compensation Table above.
Messrs. Soulas and Wolffsheim and Ms. Boissy-Rousseau each voluntarily waived their right to receive compensation for 2023. In addition, due to clerical errors, the fees paid to Ms. Ardisana and Mr. Socha for Board service in 2023 were $3,000 and $7,000 less than such director earned, respectively. The Company paid Ms. Ardisana and Mr. Socha such amounts in 2024. Mr. Weil was paid $1,000 more in fees for 2023 than provided under the Directors’ Compensation Policy, which the Board determined to treat as earned.
(2)
On November 16, 2016,May 18, 2023, each non-employee director (other than Ms. Paskett, Mr. Wolffsheim and Ms. Boissy-Rousseau) received a restricted stock unit award covering 13,129 shares of our non-employee directors was granted ancommon stock (the “2023 Director RSU award.Grants”). Ms. Paskett did not receive a 2023 Director RSU Grant because she resigned from the Board on May 17, 2023. The amounts listedshown in this column reflectrepresent the grant date fair valuesvalue of the 2023 Director RSU Grants calculated in accordance with FASB ASC 718. For a discussion about the valuation models and assumptions used to calculate the fair value of these awards, see Note 13 to the consolidated financial statements included in the Annual Report.
(3)
On May 18, 2023, each non-employee director (other than Ms. Paskett, Mr. Wolffsheim and Ms. Boissy-Rousseau) received an option award covering 19,169 shares and having an exercise price equal to $4.57 (the “2023 Director Option Grants”). Ms. Paskett did not receive a 2023 Director Option Grant because she resigned from our board of directors on May 17, 2023. The amounts shown in this column represent the grant date fair value of these option awards calculated in accordance with FASB ASC 718. For a discussion regardingabout the valuation modelmodels and assumptions used to calculate the fair value of these stock awards, see note 11Note 13 to the consolidated financial statements included in the Annual Report.
(3)
(4)
As of December 31, 2015, Mr. Mitchell had fully vested and outstanding options to purchase the following: 72,500 shares at an exercise price of $12.00, 25,000 shares at an exercise price of $15.27, 25,997 shares at an exercise price of $5.09, 19,638 shares at an exercise price of $6.33, 20,000 shares at an exercise price of $14.06, 20,000 shares at an exercise price of $13.49, 20,000 shares at an exercise price of $14.22, 25,000 shares at an exercise price of $15.11, 20,000 shares at an exercise price of $13.09, 20,000 shares at an exercise price of $11.93 and 20,000 shares at an exercise price of $5.54. As of December 31, 2015, Mr. Mitchell had an outstanding unvested RSU award for 20,000 shares.
(4)As of December 31, 2015, Mr. Herrington had fully vested and outstanding options to purchase the following: 80,000 shares at an exercise price of $12.00, 25,000 shares at an exercise price of $15.27, 25,997 shares at an exercise price of $5.09, 19,638 shares at an exercise price of $6.33, 20,000 shares at an exercise price of $14.06, 20,000 shares at an exercise price of $13.49, 20,000 shares at an exercise price of $14.22, 25,000 shares at an exercise price of $15.11, 20,000 shares at an exercise price of $13.09, 20,000 shares at an exercise price of $11.93 and 20,000 shares at an exercise price of $5.54. As of December 31, 2015, Mr. Herrington had an outstanding unvested RSU award for 20,000 shares.
(5)As of December 31, 2015, Mr. Miller had fully vested and outstanding options to purchase the following: 8,250 shares at an exercise price of $15.27, 17,145 shares at an exercise price of $5.09, 12,961 shares at an exercise price of $6.33, 20,000 shares at an exercise price of $14.06, 20,000 shares at an exercise price of $13.49, 20,000 shares at an exercise price of $14.22, 25,000 shares at an exercise price of $15.11, 20,000 shares at an exercise price of $13.09, 20,000 shares at an exercise price of $11.93 and 20,000 shares at
an exercise price of $5.54. As of December 31, 2015, Mr. Miller had an outstanding unvested RSU award for 20,000 shares.
(6)As of December 31, 2015, Mr. Pickens had fully vested and outstanding options to purchase the following: 113,897 shares at an exercise price of $5.09, 86,103 shares at an exercise price of $6.33, 400,000 shares at an exercise price of $14.06, 20,000 shares at an exercise price of $13.49, 20,000 shares at an exercise price of $14.22, 25,000 shares at an exercise price of $15.11, 20,000 shares at an exercise price of $13.09, 20,000 shares at an exercise price of $11.93 and 20,000 shares at an exercise price of $5.54. As of December 31, 2015, Mr. Pickens had an outstanding unvested RSU award for 20,000 shares.
(7)As of December 31, 2015, Mr. Socha had fully vested and outstanding options to purchase the following: 10,000 shares at an exercise price of $5.09, 19,638 shares at an exercise price of $6.33, 20,000 shares at an exercise price of $14.06, 20,000 shares at an exercise price of $13.49, 20,000 shares at an exercise price of $14.22, 25,000 shares at an exercise price of $15.11, 20,000 shares at an exercise price of $13.09, 20,000 shares at an exercise price of $11.93 and 20,000 shares at an exercise price of $5.54. As of December 31, 2015, Mr. Socha had an outstanding unvested RSU award for 20,000 shares.
(8)As of December 31, 2015, Mr. Taormina had fully vested and outstanding options to purchase the following: 25,000 shares at an exercise price of $14.43, 25,997 shares at an exercise price of $5.09, 19,638 shares at an exercise price of $6.33, 20,000 shares at an exercise price of $14.06, 20,000 shares at an exercise price of $13.49, 20,000 shares at an exercise price of $14.22, 25,000 shares at an exercise price of $15.11, 20,000 shares at an exercise price of $13.09, 20,000 shares at an exercise price of $11.93 and 20,000 shares at an exercise price of $5.54. As of December 31, 2015, Mr. Taormina had an outstanding unvested RSU award for 20,000 shares.
(9)As of December 31, 2015, Mr. O'Connor had fully vested and outstanding options to purchase the following: 25,000 shares at an exercise price of $15.11, 20,000 shares at an exercise price of $13.09, 20,000 shares at an exercise price of $11.93 and 20,000 shares at an exercise price of $5.54. As of December 31, 2015, Mr. O'Connor had an outstanding unvested RSU award for 20,000 shares.
(10)As of December 31, 2015,2023, Mr. Scully had fully vested and outstanding options to purchase the following: 20,000 shares at an exercise price of $11.93 and$11.93; 20,000 shares at an exercise price of $5.54.$5.54; 40,000 shares at an exercise price of $1.37; 42,500 shares at an exercise price of $2.19; 42,000 shares at an exercise price of $2.56; 75,000 shares at an exercise price of $10.18; 86,956 shares at an exercise price of $6.60; and 19,169 outstanding unvested options to purchase shares at an exercise price of $4.57. As of December 31, 2015,2023, Mr. Scully also had an13,129 outstanding unvested RSU award forrestricted stock units.
(5)
As of December 31, 2023, Ms. Ardisana had fully vested and outstanding options to purchase the following: 22,000 shares at an exercise price of $2.56; 51,813 shares at an exercise price of $10.18; 86,956 shares at an exercise price of $6.60; and 19,169 outstanding unvested options to purchase shares at an exercise price of $4.57. As of December 31, 2023, Ms. Ardisana also had 13,129 outstanding unvested restricted stock units.
(6)
As of December 31, 2023, Mr. Miller had fully vested and outstanding options to purchase the following: 20,000 shares.shares at an exercise price of $11.93; 20,000 shares at an exercise price of $5.54; 42,500 shares at an exercise price of $2.19; 42,000 shares at an exercise price of $2.56; 51,813 shares at an exercise price of $10.18; 86,956 shares at an exercise price of $6.60; and 19,169 outstanding unvested options to purchase shares at an exercise price of $4.57. As of December 31, 2023, Mr. Miller also had 13,129 outstanding unvested restricted stock units.
Equity Incentive Plans
The Company currently maintains three equity incentive plans:
(7)
As of December 31, 2023, Ms. Paskett had outstanding unvested options to purchase the 2002 Plan,following: 100,000 shares at an exercise price of $6.49. Ms. Paskett resigned from the 2006 PlanBoard effective May 17, 2023, and her unvested options were forfeited as of such date.
(8)
As of December 31, 2023, Mr. Socha had fully vested and outstanding options to purchase the ESPP, eachfollowing: 20,000 shares at an exercise price of which is described below. Stockholders are$11.93; 20,000 shares at an exercise price of $5.54; 42,500 shares at an exercise price of $2.19; 42,000 shares at an exercise price of $2.56; 51,813 shares at an exercise price of $10.18; 86,956 shares at an exercise price of $6.60; and 19,169 outstanding unvested options to purchase shares at an exercise price of $4.57. As of December 31, 2023, Mr. Socha also being askedhad 13,129 outstanding unvested restricted stock units.
(9)
As of December 31, 2023, Mr. Taormina had fully vested and outstanding options to
approve a new equity incentive plan,purchase the
2016 Plan, described under Proposal No. 3 above.2002 Stock Option Plan
Ourfollowing: 20,000 shares at an exercise price of $11.93; 20,000 shares at an exercise price of $5.54; 40,000 shares at an exercise price of $1.37; 42,500 shares at an exercise price of $2.19; 42,000 shares at an exercise price of $2.56; 51,813 shares at an exercise price of $10.18; 86,956 shares at an exercise price of $6.60; and 19,169 outstanding unvested options to purchase shares at an exercise price of $4.57. As of December 31, 2023, Mr. Taormina also had 13,129 outstanding unvested restricted stock units.
(10)
As of December 31, 2023, Mr. Weil had fully vested and outstanding options to purchase the following: 42,000 shares at an exercise price of $2.70; 51,813 shares at an exercise price of $10.18; 86,956 shares at an exercise price of $6.60; and 19,169 outstanding unvested options to purchase shares at an exercise price of $4.57. As of December 31, 2023, Mr. Weil also had 13,129 outstanding unvested restricted stock units. Mr. Weil resigned from the Board adopted our 2002 Plan in December 2002. Our stockholders have approved the planeffective February 22, 2024, and all material amendments. Upon the closinghis unvested options and RSUs were forfeited as of our initial public offering, the share reserve available for grant under the 2002 Plansuch date.
(11)
Effective September 20, 2023, Mr. Soulas was
cancelled and all new grants since then have been made under our 2006 Plan, described below. If any outstanding option under the 2002 Plan expires or is cancelled, the
shares allocableappointed to the unexercised portionBoard by TMS, pursuant to its board designation right, to replace Mr. Wolffsheim, who resigned from the Board on the same date.
EQUITY COMPENSATION PLANS
Securities Authorized for Issuance Under Equity Compensation Plans
The following table summarizes information about compensation plans under which our equity securities are authorized for issuance as of that option will be addedDecember 31, 2023:
| | | | Equity Compensation Plan Information | |
| Plan Category | | | Number of Securities
to be Issued upon
Exercise of
Outstanding Options,
Warrants and Rights | | | Weighted-Average
Exercise Price of
Outstanding
Options, Warrants
and Rights | | | Number of Securities
Remaining Available
for Future Issuance
under Equity
Compensation Plans | |
| Equity compensation plans approved by security holders | | | | | 18,225,286(1) | | | | | $ | 6.00(2) | | | | | | 8,587,958(3) | | |
| Equity compensation plans not approved by security holders | | | | | — | | | | | | — | | | | | | — | | |
| Total | | | | | 18,225,286 | | | | | $ | 6.00 | | | | | | 8,587,958 | | |
(1)
Of these shares, 1,070,300 were subject to
the share reserveoptions then outstanding under the 2006 Plan,
and will be available for grant16,755,277 were subject to options then outstanding under the
2006 Plan. The 2002 Plan may be administered by the Board or a committee of the Board. In the case of options intended to qualify as "performance based compensation" within the meaning of Section 162(m) of the Code, the administrator of the plan will consist of two or more outside directors within the meaning of Section 162(m) of the Code. The administrator has the authority, in its sole discretion:
•to determine the fair market value of the common stock,
•to determine the terms and conditions of any options, including exercise price, the method of payment of the exercise price, term, vesting and whether the option is a non-statutory stock option or an incentive stock option,
•to reduce the exercise price of any option to the then current fair market value if the fair market value of the optioned stock has declined since the date of grant of that option,
•to delegate to others responsibilities to assist in administering the 20022016 Plan, and
•- 399,709 were subject to
construe and interpretRSUs then outstanding under the terms of the 2002 Plan and option agreements and other documentation related2016 Plan. The Company’s authority to the 2002 Plan.
Effective upon the closing of our initial public offering, we may no longer grant new options under the 2002 Plan.
With respect to options intended to qualify as "performance based compensation" within the meaning of Section 162(m) of the Code, the exercise price must be at least equal to the fair market value of our common stock on the date of grant. In addition, the exercise price for any incentive stock option granted to any employee owning more than 10% of our common stock may not be less than 110% of the fair market value of our common stock on the date of grant. The term of any stock option may not exceed ten years, except that with respect to any participant who owns 10% or more of the voting power of all classes of our outstanding capital stock, the term for incentive stock options must not exceed five years.
Unless the administrator determines otherwise, unvested shares typically will be subject to forfeiture or to our right of repurchase, which we may exercise upon the voluntary or involuntary termination of the participant's service with us for any reason, including death or disability.
The 2002 Plan provides that in the event of a "change in control," as defined in the 2002 Plan, our Company and the successor corporation, if any, may agree:
•that all options outstanding on the date that immediately precedes the change in control will become immediately exercisable on that date, with the 2002 Plan terminating upon the date of the change in control (with 21 days prior written notice to the optionees),
•to terminate the 2002 Plan and cancel all outstanding options effective as of the date of the change in control, and either (1) provide 21 days prior written notice to optionees so that the optionees can exercise options that are otherwise exercisable at that time, (2) replace such
options with comparable options in the successor corporation or parent thereof, or (3) deliver to each optionee the difference between the fair market value of a share on the date of the change in control and the exercise price of the optionee's option, multiplied by the number of shares underlying the option, or
•that the successor corporation or its parent will assume the 2002 Plan and all outstanding options effective as of the date of the change in control.
The administrator has the authority to amend, suspend or discontinue the 2002 Plan, subject to the approval of the stockholders in the case of certain amendments. No amendment, suspension or discontinuation will impair the rights of any option, unless agreed to by the optionee.
Amended and Restated 2006 Equity Incentive Plan
Our 2006 Plan was initially adopted by our Board and approved by our stockholders in December 2006. Under the 2006 Plan, at December 31, 2015, 20,890,500 shares of common stock were authorized for issuance and 262,461 shares were available for grants of future awards. By the terms of the 2006 Plan, the number of shares authorized for issuance under the 2006 Plan increased by 1,000,000 on January 5, 2016. The number of shares reserved for issuance under the 2006 Plan increases automatically, without the need for further Board or stockholder approval, on the first day of each of our fiscal years (up through January 1, 2016) by the lesser of (1) 15% of our outstanding common stock on the last day of the immediately preceding fiscal year, (2) 1,000,000 shares of common stock, or (3) such lesser number of shares as may be determined by the Board.
If any outstanding option under the 2002 Plan expires or is cancelled, the shares allocable to the unexercised portion of that option will be added to the share reserve under the 2006 Plan and will become available for grant under the 2006 Plan.
No participant in the 2006 Plan can receive option grants, stock appreciation rights or stock awards for more than 2,000,000 shares total in any calendar year, or for more than 4,000,000 shares total in connection with the participant's initial service.
The 2006 Plan is to be administered by our Board or the compensation committee of the Board. In the case of options intended to qualify as "performance based compensation" within the meaning of Section 162(m) of the Code, the administrator of the plan will consist of two or more outside directors within the meaning of Section 162(m) of the Code. The administrator has the authority, in its sole discretion:
•to select the recipients to whom options, stock awards, stock appreciation rights and cash awards may, from time to time, be granted under the 2006 Plan,
•to determine whether and to what extent options, stock awards, stock appreciation rights and cash awards are granted under the 2006 Plan,
•to determine the number of shares that are covered by options, stock awards, and stock appreciation rights and the terms of the related agreements,
•to determine the terms and conditions of any options, stock awards and stock appreciation rights, including exercise price, the method of payment of the exercise price, term, vesting and whether an option is a non-statutory stock option or an incentive stock option, and
•to construe and interpret the terms of the 2006 Plan and agreements and other documentation related to the 2006 Plan.
The 2006 Plan provides for the grant of options to purchase shares of common stock, stock awards, stock appreciation rights and cash awards. Incentive stock options may be granted only to employees. Nonstatutory stock options and other stock based awards may be granted to employees, non-employee directors, advisors and consultants.
Although the 2006 Plan provides the administrator with the discretion to determine the vesting schedule, we expect that options (other than the initial option grants) and stock awards (other than initial stock awards) will generally vest over three years, at a rate of 34%, 33%, and 33% per year, respectively, if the grantee is then in service to the Company.
The 2006 Plan provides that in the event of a "change in control," as defined in the 2006 Plan, all awards outstanding on the date that immediately precedes the change in control will become immediately exercisable on that date, unless otherwise expressly provided in the award agreement.
The plan terminates 10 years after its initial adoption, unless earlier terminated by the Board. The Board or the compensation committee may amend or terminate the plan at any time, subject to stockholder approval where required by applicable law. Any amendment or termination may not impair the rights of holders of outstanding awards without their consent.
The federal tax rules applicable to awards under the 2006 Plan terminated upon the adoption of the 2016 Plan in May 2016. If stockholders approve the 2024 Plan at the Annual Meeting, any shares then available under the Code are summarized below. This summary omits the tax laws of any municipality, state, or foreign country in which a participant resides. Stock option grants2016 Plan will become available under the 20062024 Plan, and we will no longer have the authority to grant new awards under the 2016 Plan.
(2)
This weighted-average exercise price does not reflect 399,709 shares that will be issued upon the settlement of outstanding RSUs.
(3)
Represents (a) 6,250,580 shares available for future issuance under the 2016 Plan as of December 31, 2023, and (b) 2,397,334 shares available for future issuance under the ESPP, excluding 59,956 shares that were subject to purchase under the ESPP during the purchase period ended December 31, 2023. Shares available under the 2016 Plan may be intendedused for any type of award authorized in that plan. This column does not reflect the 4,000,000 additional shares that will be available under the 2024 Plan if stockholders approve the 2024 Plan at the Annual Meeting.
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Related Party Transactions
Except as described below, since January 1, 2023, there has not been, nor is there currently proposed, any transaction or series of similar transactions in which we were or are to qualify as incentivebe a participant, in which the amount involved exceeds $120,000 and in which any of our directors, executive officers, holders of more than 5% of our common stock options under Section 422or any immediate family member of any of the Codeforegoing had or will have a direct or indirect material interest. This does not include employment compensation or compensation for Board service, which are described elsewhere in this Proxy Statement.
Relationships with TotalEnergies and its Affiliates
During 2023, the Company recognized revenue of $1.4 million related to RINs and LNG sold to TotalEnergies and its affiliates in the ordinary course of business and AFTCs associated therewith.
During 2023, the Company paid TotalEnergies $6.9 million for expenses incurred in the ordinary course of business and settlements on commodity swap contracts.
TotalEnergies Agreements
On May 9, 2018, we entered into a stock purchase agreement (the “Purchase Agreement”) with TotalEnergies Marketing Services, SAS (“TMS”) for the sale and issuance to TMS of up to 50,856,296 shares of our common stock, representing approximately 25% of the outstanding shares of our common stock and the largest ownership position of our Company, for a per share purchase price of $1.64 and an aggregate cash purchase price of $83.4 million. The TotalEnergies private placement closed on June 13, 2018.
Pursuant to the Purchase Agreement, TMS has the right to designate up to two individuals to serve as directors on our Board. Subject to certain limited conditions as described in the Purchase Agreement, including compliance with our governing documents and all applicable laws, rules and regulations, we will be obligated to appoint or nominate for election as directors of our Company the individuals so designated by TMS and, from and after such appointment or election, either (1) appoint one of these individuals to serve on the audit committee of the Board and any other Board committees that may be formed from time to time for the purpose of making decisions that are strategically significant to our Company, or (2) nominate another individual as an observer of such Board committees, who is to be invited to attend all meetings of such committees in a non-voting observer capacity. TMS’ rights and our obligations relating to these designees and observers continue until (and if) (a) with respect to TMS’ right to designate two individuals to serve as directors on our Board and an optional observer to serve on certain Board committees, TMS’ voting power is less than 16.7% but more than 10.0%, and (b) with respect to TMS’ right to designate one individual to serve as a director on our Board and an optional observer to serve on certain Board committees, TMS’ voting power is less than 10.0%, in each case measured in relation to the votes then entitled to be cast in an election of directors by our stockholders.
The Purchase Agreement also provides that, until the later of May 9, 2020 or such date when TMS ceases to hold more than 5% of our common stock then outstanding, among other similar undertakings and subject to customary conditions and exceptions, TMS and its affiliates are prohibited from purchasing shares of our common stock or otherwise pursuing transactions that would result in TMS owning more than 30% of our equity securities without the approval of our Board.
In connection with the Purchase Agreement on May 9, 2018, we and all of our then-directors and officers entered into a voting agreement with TMS. Pursuant to the voting agreement, each of our directors and officers agreed to vote all shares of our common stock presently or hereafter owned or controlled by such director or officer, in any vote of our stockholders that may be held from time to time, in favor of the election of the individuals designated by TMS to serve as directors on our Board. Each of our directors and officers has also granted to TMS a proxy to vote all such shares in accordance with the terms of the voting agreement. For each of our directors and officers party to the voting agreement, the voting obligations contained in the agreement continue from and after, and for so long as, TMS’ director designation rights
are in effect, as described above, and such director or officer continues to serve in such capacity for our Company and continues to hold shares of our common stock.
Pursuant to the Purchase Agreement, we also entered into a registration rights agreement with TMS on June 13, 2018. Pursuant to the registration rights agreement, we became obligated to, at our expense, (1) file one or more registration statements with the SEC to cover the resale of the shares of our common stock purchased by TMS under the Purchase Agreement, (2) use our commercially reasonable efforts to cause all such registration statements to be declared effective in a timely manner, (3) use our commercially reasonable efforts to maintain the effectiveness of such registration statements until all such shares are sold or may be non-qualified stock options governed by Section 83sold without restriction pursuant to applicable rules under the Securities Act, and (4) make and keep available adequate current public information and timely file with the SEC all required reports and other documents until all such shares are sold or may be sold without restriction. If such registration statements are not filed or declared effective as described above or any such effective registration statements subsequently become unavailable for more than 30 days in any 12-month period while they are required to be maintained as effective, then we would be required to pay liquidated damages to TMS equal to 0.75% of the Code. Generally, no federal income taxaggregate purchase price for the shares remaining eligible for such registration rights each month for each such failure (up to a maximum of 4.0% of the aggregate purchase price for the shares remaining eligible for such registration rights each year).
Commodity Swap Arrangements
In October 2018, we entered into commodity swap arrangements with TotalEnergies Gas & Power North America, an affiliate of TotalEnergies and TotalEnergies Holdings USA Inc. (“THUSA”), intended to manage diesel price fluctuation risks related to the natural gas fuel supply commitments we expect to make in our anticipated fueling agreements with fleet operators that participate in our Zero Now truck financing program, which arrangements cover five million diesel gallons of natural gas fuel volume annually from April 2019 through June 2024. During the year ended December 31, 2023, the Company paid TotalEnergies Gas & Power North America $6.3 million for settlements on commodity swap contracts and recognized revenue of $1.4 million related to settlements on commodity swap contracts.
Joint Venture
On March 3, 2021, we entered into an agreement (the “TotalEnergies JV Agreement”) with TotalEnergies to create 50/50 joint ventures to develop anaerobic digester gas (“ADG”) RNG production facilities in the United States. The TotalEnergies JV Agreement contemplates investing up to $400.0 million of equity in production projects, and TotalEnergies and the Company each committed to initially provide $50.0 million. Pursuant to the TotalEnergies JV Agreement, the Company and TotalEnergies have given each party a limited right of first opportunity to invest in ADG RNG projects they respectively originate. Currently, there is payable by a participant uponone ADG RNG joint venture project under construction pursuant to the grantTotalEnergies JV Agreement. This project is estimated to produce up to 1.1 million GGEs of a stock option,RNG annually, all of which will be available to us for sale to the vehicle fuels market. During 2023, the Company recognized management fee revenue of $0.3 million related to the joint venture with TotalEnergies.
Relationship Involving Mr. Littlefair
The son of Andrew J. Littlefair, our President and
a deductionChief Executive Officer, is
not takenemployed by the
Company. Under current tax laws, ifCompany in a
participant exercises a non-qualified stock option, he or she will have taxable income equal tonon-executive officer position and received total cash compensation of approximately $124,440 in 2023. His compensation, which was approved by the
difference betweenCompany’s audit committee, was established by the
market price of the common stock on the exercise date and the stock option grant price. We will be entitled to a corresponding deduction on our income tax return. A participant will not have any taxable income upon exercising an incentive stock option after theCompany in accordance with its compensation practices applicable
holding periods have been satisfied (except that the alternative minimum tax may apply), and we will not receive a deduction when an incentive stock option is exercised. The treatment for a participant of a disposition of shares acquired through the exercise of a stock option depends on how long the shares were held and on whether the shares were acquired by exercising an incentive stock option or a non-qualified stock option. We may be entitled to a deduction in the case of a disposition of shares acquired under an incentive stock option before the applicable holding periods have been satisfied. Restricted stock is also governed by Section 83 of the Code. Generally, no taxes are due when the award is initially made, but the award becomes taxable when it is no longer subject to a "substantial risk of forfeiture" (it becomes vested or transferable). Income tax is paid on the value of the stock or units at ordinary rates when the restrictions lapse, and then at capital gain rates when the shares are sold.
Section 409A of the Code affects taxation of awards to employees but does not affect our ability to deduct deferred compensation. Section 409A does not apply to incentive stock options, non-qualified stock options (that are not discounted),with comparable qualifications and restricted stock, provided that there is no deferralresponsibilities and holding similar positions and without the involvement of income beyond the vesting date. Section 409A also does not cover stock appreciation rights if the stock appreciation rights are issued by a public company on its traded stock, the exercise price is not less than the fair market value of the underlying stock on the date of grant, the rights are settled in such stock,Andrew J. Littlefair.
Policies and there are not any features that defer the recognition of income beyond the exercise date. It is the Company's intentProcedures for Related Party Transactions
Our audit committee charter requires that all
awards granted under the 2006 Plan comply with Section 409A of the Code. As described above, awards granted under the 2006 Plan may qualifyrelated party transactions, as "performance based compensation" under Section 162(m) of the Code. To qualify, options and other awards mustdefined in applicable SEC rules, be granted under the 2006 Plan by a committee consisting solely of two or more "outside directors" (as defined under Section 162 regulations) and satisfy the 2006 Plan's limit on the total number of shares that may be awarded to any one participant during any calendar year. In addition, for awards other than options and stock settled stock appreciation rights to qualify, the grant, issuance, vesting, or retention of the award must be contingent upon satisfying one or more of the performance criteria set forth in the 2006 Plan, as established and certified by a committee consisting solely of two or more "outside directors."
Employee Stock Purchase Plan
The ESPP was adopted by the Board in February 2013reviewed and approved by our stockholders in May 2013. Under the ESPP, eligible employees may authorize payroll deductions of eligible compensation for the purchase of common stock during each purchase period.
The compensationaudit committee serves as the administratoror another independent body of the ESPP, and asBoard, in accordance with applicable Nasdaq rules. When evaluating any such has full authority to adopt such rules and procedures as it may deem necessary for proper plan administration and to interprettransaction, our audit committee focuses on whether the provisionsterms of the ESPP.
A total of 2,500,000 shares of common stocktransaction are authorized for purchase over the termat least as favorable to us as terms we would receive on an arm’s-length basis from an unaffiliated third party. Each of the ESPP, subjecttransactions described above that was required to adjustment in the event of a stock split, stock dividend, combination or reclassification or similar event.
The ESPP is implemented through two offering periods per calendar year, with each offering period lasting six months. The administrator of the ESPP may alter the duration of future offering periods in advance without stockholder approval. Each participant is granted a separate purchase right to purchase shares of common stock for each offering period in which he or she participates. Purchase rights under the ESPP are granted on the start date of each offering period in which the participant participatesbe reviewed and are automatically exercised on the last day of the offering period. Each purchase right entitles the participant to purchase the whole number of shares of common stock obtained by dividing the participant's payroll deductions for the offering periodapproved by the purchase priceaudit committee in effect for such period.
Except as described in this paragraphaccordance with respect to certain foreign employees, all employees of the Companyits charter was so reviewed and its subsidiaries are eligible to participate in the ESPP, except that the ESPP
approved.
administrator may exclude from an offering period any individual who is regularly expected to work less than twenty hours per week or less than five months per calendar year in the employ of the Company or any subsidiary, or has not been employed for such continuous period as the ESPP administrator may require (not to exceed two years). An eligible employee may only join an offering period on the start date of that period. Subsidiaries include any subsidiary corporation of the Company, whether now existing or hereafter organized, which elects, with the approval of the ESPP administrator, to extend the benefits of the ESPP to their eligible employees. Employees who are citizens or residents of a non-U.S. jurisdiction (without regard to whether he or she is also a citizen of the United States or a resident alien (within the meaning of Section 7701(b)(1)(A) of the Code)) are ineligible to participate in the ESPP if his or her participation is prohibited under the laws on the applicable non-U.S. jurisdiction or if complying with the laws of the applicable non-U.S. jurisdiction would cause the ESPP or an offering to violate Section 423 of the Code.
Each participant in the ESPP may authorize periodic payroll deductions that may not exceed the lesser of (i) 10% of his or her compensation, which is defined in the ESPP to include his or her regular base salary in effect at the beginning of the offering period, exclusive of any payments for overtime, bonuses, annual awards, other incentive payments, reimbursements of expense allowances, fringe benefits (cash or non-cash), moving expenses, deferred compensation, or contributions (other than contributions under a 401(k) or cafeteria plan) and (ii) such lesser amount determined by the administrator of the ESPP per offering period. A participant may increase or reduce his or her rate of payroll deductions during an offering period. On the last day of each offering period, the accumulated payroll deductions of each participant are automatically applied to the purchase of shares of common stock at the purchase price in effect for that period.
The purchase price per share at which common stock is purchased on the participant's behalf for each offering period is equal to 85% of the fair market value per share of the common stock on the last day of the offering period.
The fair market value of the common stock on a given date is the closing sales price of the common stock on the NASDAQ Global Select Market as of such date.
The ESPP imposes certain limitations upon a participant's right to acquire common stock, including the following limitations:
•No purchase right may be granted to any individual who owns stock (including stock purchasable under any outstanding options or purchase rights) possessing 5% or more of the total combined voting power or value of all classes of stock of the Company or any of its affiliates.
•No purchase right granted to a participant may permit such individual to purchase common stock at a rate greater than $25,000 worth of such common stock (valued at the time such purchase right is granted) for each calendar year.
A participant's purchase right immediately terminates upon such participant's loss of eligible employee status, and his or her accumulated payroll deductions for the offering period in which the
purchase right terminates are refunded. A participant may withdraw from an offering period by giving advance notice prior to the end of that period and his or her accumulated payroll for the offering period in which withdrawal occurs shall be refunded.
The purchase rights are not assignable or transferable (other than by will or the laws of descent and distribution) and are exercisable only by the participant.
In the event of the proposed dissolution or liquidation of the Company, the then-current offering period will terminate immediately prior to the consummation of such dissolution or liquidation, unless otherwise provided by the ESPP administrator. In the event of "corporate transaction," as defined in the ESPP, during an offering period, all outstanding purchase rights shall be assumed by the successor corporation (or a parent or subsidiary thereof), unless the ESPP administrator determines, in its sole discretion, to shorten the offering period then in-effect to a new purchase date. If the ESPP administrator shortens the offering period then in progress to a new purchase date, the ESPP administrator will provide notice to each participant that (i) his or her purchase right will be automatically exercised on the new purchase date or (ii) the Company will pay to him or her, on the new purchase date, cash, cash equivalents, or property as determined by the ESPP administrator that is equal to the difference in the fair market value of the shares of common stock covered by his or her purchase right and the purchase price due had the purchase right been automatically exercised on the new purchase date.
In the event any change is made to the outstanding shares of common stock by reason of any stock split, stock dividend, recapitalization, combination of shares, exchange of shares or other change in corporate structure effected without the Company's receipt of consideration, appropriate adjustments will be made to (i) the maximum number of securities issuable under the ESPP, including the maximum number of securities issuable per participant on any one purchase date and (ii) the number of securities subject to each outstanding purchase right and the purchase price payable per share thereunder.
The administrator of the ESPP may at any time terminate or amend the ESPP. To the extent necessary to comply with Section 423 of the Code (or any successor rule or provision or any other applicable law), the Company shall obtain stockholder approval in such a manner and to such a degree as may be required. The ESPP will terminate upon the earlier to occur of (i) 10 years following the date of the original adoption of the ESPP or (ii) the date on which all purchase rights are exercised in connection with a Corporate Transaction.
The ESPP is intended to be an "employee stock purchase plan" within the meaning of Section 423 of the Code. Under a plan which so qualifies, no taxable income will be recognized by a participant, and no deductions will be allowable to the Company, in connection with the grant or exercise of an outstanding purchase right.
Taxable income will not be recognized until there is a sale or other disposition of the shares acquired under the ESPP or in the event the participant should die while still owning the purchased shares.
If the participant sells or otherwise disposes of the purchased shares within two years after the start date of the offering period in which such shares were acquired or within one year after the actual purchase date of those shares, then the participant will recognize ordinary income in the year of such sale or disposition equal to the amount by which the fair market value of the shares on the purchase date exceeded the purchase price paid for those shares, and the Company will be entitled to an income tax deduction, for the taxable year in which such sale or disposition occurs, equal in amount to such excess.
If the participant sells or disposes of the purchased shares more than two years after the start date of the offering period in which such shares were acquired and more than one year after the actual purchase date of those shares, then the participant will recognize ordinary income in the year of such sale or disposition equal to the lesser of (i) the amount by which the fair market value of the shares on the sale or disposition date exceeds the purchase price paid for those shares or (ii) 15% of the fair market value of the shares on the start date of the offering period, and any additional gain upon the disposition will be taxed as long-term capital gain. The Company will not be entitled to any income tax deduction with respect to such sale or disposition.
If the participant still owns the purchased shares at the time of his or her death, the lesser of (i) the amount by which the fair market value of the shares on the date of death exceeds the purchase price and (ii) 15% of the fair market value of the shares on his or her entry date into the offering period in which those shares were acquired will constitute ordinary income in the year of death.
TABLE OF CONTENTS
REPORT OF THE
AUDIT COMMITTEE OF THE BOARD
REPORT
The audit committee
overseesis responsible for overseeing our
accounting, auditing and financial reporting
processpractices on behalf of the Board. Management is responsible for the preparation
presentation and
integritypresentation of our consolidated financial statements, including establishing accounting and financial reporting principles and
designingestablishing and maintaining systems of internal control over financial reporting. Our independent registered public accounting firm is responsible for expressing an opinion on our consolidated financial statements and an opinion on our internal control over financial reporting.
In performing its responsibilities, the audit committee has reviewed and discussed, with management and KPMG LLP, our independent registered public accounting firm, the audited consolidated financial statements included in the Annual Report. The audit committee has also discussed with KPMG LLP the matters required to be discussed by
Auditing Standards No. 16, "Communications with Audit Committees." Pursuant to the applicable independence requirements of the Public Company Accounting Oversight Board (United States),(the “PCAOB”) and the SEC.
Additionally, the audit committee has received the
required written disclosures and
the letter from KPMG LLP
required by applicable requirements of the PCAOB regarding KPMG LLP’s communications with the audit committee concerning independence and has discussed with KPMG LLP its independence.
Based on the reviews and discussions referred to above, the audit committee recommended to the Board that the audited consolidated financial statements of Clean Energy Fuels Corp. be included in our annual report on Form 10-K for the year ended December 31, 2023 for filing with the SEC.
Audit Committee:
James C. Miller III, Chairman
Patrick J. Ford
Stephen A. Scully
Vincent C. Taormina
This audit committee report shall not be deemed to be “soliciting material,” or to be “filed” with the SEC or subject to Regulation 14A or 14C under the Exchange Act, other than as provided by applicable SEC rules, or to the liabilities of Section 18 of the Exchange Act, except to the extent that we specifically request that the information be treated as soliciting material or specifically incorporate it by reference into a document filed under the Securities Act or the Exchange Act. This audit committee report will not be deemed to be incorporated by reference into any filing under the Securities Act or the Exchange Act, except to the extent that we specifically incorporate it by reference.
OTHER MATTERS
Stockholder Proposals for 2025 Annual Meeting
Stockholder Proposals to be Considered for Inclusion in Our Proxy Materials
Stockholder proposals submitted pursuant to Rule 14a-8 under the Exchange Act and intended to be presented at our 2025 annual meeting of stockholders and considered for inclusion in our proxy materials for that meeting must be received by our Secretary at our principal executive offices no later than December 2, 2024. However, if we change the date of the 2025 annual meeting of stockholders by more than 30 days from the date of this year’s Annual Meeting, then such proposals must be received a reasonable time before we begin to print and send our proxy materials for the 2025 annual meeting of stockholders.
Director Nominations or Stockholder Proposals to be Brought Before an Annual Meeting But Not Included in Our Proxy Materials
Our amended and restated bylaws provide that, for stockholder nominations of directors or other proposals to be considered at an annual meeting but not sought to be included in our proxy materials for the meeting, the stockholder must have given timely written notice of the director nomination or proposal to us. To be timely for our 2025 annual meeting of stockholders, a stockholder’s notice must be delivered to or mailed and received by our Corporate Secretary at our principal executive offices between the close of business on February 15, 2025 and the close of business on March 17, 2025; provided, however, that if our 2025 annual meeting of stockholders is not held between April 16, 2025 and June 15, 2025, then notice will be timely if it is received not earlier than the close of business on the 90th day prior to such annual meeting and not later than the close of business on the later of the 60th day prior to such annual meeting or, in the event public announcement of the date of such annual meeting is first made by us fewer than 70 days prior to the date of such annual meeting, the close of business on the 10th day following the day on which public announcement of the date of such meeting is first made by us. A stockholder’s notice to the Company must set forth, as to each director nominee or other proposal the stockholder proposes to bring before our 2025 annual meeting, all of the information required by our amended and restated bylaws. We will not entertain any director nominations or other proposals at the Annual Report. | | |
| | Audit Committee: |
| | James C. Miller III,Chairman |
| | John S. Herrington |
| | Stephen A. Scully |
| | Vincent C. Taormina |
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Since January 1, 2015, there hasMeeting or at our 2025 annual meeting that do not been, nor is there currently proposed, any transaction or series of similar transactions to which we are or were a participant, in whichmeet the amount involved exceeds $120,000 and in which any of our directors, executive officers, holders of more than five percent of our common stock or any immediate family member of any of the foregoing had, or will have, a direct or indirect material interest. This does not include employment compensation or compensation for Board service, which are described elsewhere in this Proxy Statement.
Our audit committee charter requires that all related party transactions, as defined in Item 404(a) of Regulation S-K promulgated by the SEC, be reviewed and approved by our audit committee, in accordance with NASDAQ Marketplace Rule 5630. When evaluating such transactions, our audit committee focuses on whether the terms of such transactions are at least as favorable to us as terms we would receive on an arm's-length basis from an unaffiliated third party. The policies and procedures for approving related party transactions arerequirements set forth in our audit committee charter,amended and restated bylaws. Stockholder proposals or director nominations submitted to the Company’s Secretary that do not comply with the above requirements may not be brought before the 2025 annual meeting of stockholders.
In addition, a stockholder who intends to solicit proxies in support of director nominees other than the Company’s nominees at the 2025 annual meeting of stockholders must provide written notice to the Company setting forth the information required by Rule 14a-19 under the Exchange Act, unless the required information has been provided in a preliminary or definitive Proxy Statement previously filed by the stockholder. Such written notice must be provided in accordance with Rule 14a-19 no later than March 17, 2025. If we change the date of the 2025 annual meeting of stockholders by more than 30 days from the date of this year’s Annual Meeting, written notice must be provided by the later of 60 days prior to the date of the 2025 annual meeting of stockholders or the 10th day following the day on which
was adoptedpublic announcement of the date of the 2025 annual meeting of stockholders is first made. The notice requirement under Rule 14a-19 is in
September 2006addition to the applicable notice requirements under our amended and
revised in December 2015.
OTHER MATTERS
restated bylaws as described above.
Other Business at the Annual Meeting
We
have not received any notice of other business to come before the Annual Meeting as of the date of this Proxy Statement and we do not otherwise know of
noany other
mattersbusiness to be submitted at the Annual Meeting. If any other matters are properly brought before the Annual Meeting,
itthe individuals we have designated as proxies for the Annual Meeting will vote on such matters in their discretion. It is the intention of
the persons named in the enclosed proxy cardsuch individuals to vote the shares
that they representrepresented by proxy at the Annual Meeting on any such matter as recommended by the Board or, if no recommendation is given, in accordance with their judgment.
More Information About the Company
For furthermore information about Clean Energy Fuels Corp.,the Company, please refer to our Annual Report, which accompanies this Proxy Statement. Our annual report on Form 10-K for the year ended December 31, 2023, which is a part of the Annual Report, was filed with the SEC on March 3, 2016,February 29, 2024, and is publicly availableaccessible on our website athttp:https://investors.cleanenergyfuels.com/SEC.cfmannual-reports. You may also obtain a copy of the Annual Report at no charge and copies of any exhibit listed in the Annual Report for a fee (equal to our reasonable expenses in furnishing such exhibit) by sending a written request to the attention of Investor Relations Clean Energy Fuels Corp., 4675 MacArthur Court, Suite 800, Newport Beach, California 92660. | | |
| | By order of the Board, |
|
|
 |
| | MITCHELL W. PRATT |
| | Corporate Secretary |
at the address of our principal executive offices.
By order of the Board,
JAMES W. SYTSMA
Corporate Secretary
CLEAN ENERGY FUELS CORP.
2016
2024 PERFORMANCE INCENTIVE PLAN
1.
The purpose of this Clean Energy Fuels Corp. 20162024 Performance Incentive Plan (this "“Plan"”) of Clean Energy Fuels Corp., a Delaware corporation (the "“Corporation"”), is to promote the success of the Corporation and the interests of the Corporation'sCorporation’s stockholders by providing an additional means through the grant of awards to attract, motivate, retain and reward selected employees and other eligible persons. 2.
The Administrator (as such term is defined in Section 3.1) may grant awards under this Plan only to those persons that the Administrator determines to be Eligible Persons. An "“Eligible Person"” is any person who is either: (a) an officer (whether or not a director) or employee of the Corporation or one of its Subsidiaries; (b) a director of the Corporation or one of its Subsidiaries; or (c) an individual consultant or advisor who renders or has rendered bona fide services (other than services in connection with the offering or sale of securities of the Corporation or one of its Subsidiaries in a capital-raising transaction or as a market maker or promoter of securities of the Corporation or one of its Subsidiaries) to the Corporation or one of its Subsidiaries and who is selected to participate in this Plan by the Administrator; provided, however, that a person who is otherwise an Eligible Person under clause (c) above may participate in this Plan only if such participation would not adversely affect either the Corporation'sCorporation’s eligibility to use Form S-8 to register under the Securities Act of 1933, as amended (the "“Securities Act"”), the offering and sale of shares issuable under this Plan by the Corporation or the Corporation'sCorporation’s compliance with any other applicable laws. An Eligible Person who has been granted an award (a "participant"“participant”) may, if otherwise eligible, be granted additional awards if the Administrator shall so determine. As used herein, "“Subsidiary"” means any corporation or other entity a majority of whose outstanding voting stock or voting power is beneficially owned directly or indirectly by the Corporation; and "“Board"” means the Board of Directors of the Corporation. 3.
3.1The Administrator. This Plan shall be administered by and all awards under this Plan shall be authorized by the Administrator. The "“Administrator"” means the Board or one or more committees appointed by the Board or another committee (within its delegated authority) to administer all or certain aspects of this Plan. Any such committee shall be comprised solely of one or more directors or such number of directors as may be required under applicable law. A committee may delegate some or all of its authority to another committee so constituted. The Board or a committee comprised solely of directors may also delegate, to the extent permitted by Section 157(c) of the Delaware General Corporation Law and any other applicable law, to one or more officers of the Corporation, its powers under this Plan (a) to designate the officers and employees of the Corporation and its Subsidiaries who will receive grants of awards under this Plan, and (b) to determine the number of shares subject to, and the other terms and conditions of, such awards. The Board may delegate different levels of authority to different committees with administrative and grant authority under this Plan. Unless otherwise provided in the Bylaws of the Corporation or the applicable charter of any Administrator: (a) a majority of the members of the acting Administrator shall constitute a quorum, and (b) the vote of a majority of the members present assuming the presence of a quorum or the unanimous written consent of the members of the Administrator shall constitute action by the acting Administrator. 3.2Powers of the Administrator. Subject to the express provisions of this Plan, the Administrator is authorized and empowered to do all things necessary or desirable in connection with the
authorization of awards and the administration of this Plan (in the case of a committee or delegation to one or more officers, within any express limits on the authority delegated to that committee or person(s)), including, without limitation, the authority to:
(a)
determine eligibility and, from among those persons determined to be eligible, the particular Eligible Persons who will receive an award under this Plan;
(b)
grant awards to Eligible Persons, determine the price (if any) at which securities will be offered or awarded and the number of securities to be offered or awarded to any of such persons (in the case of securities-based awards), determine the other specific terms and conditions of awards consistent with the express limits of this Plan, subject to the limits of this Section 3.2, establish the installment(s) (if any) in which such awards shall become exercisable or shall vest (which may include, without limitation, performance and/or time-based schedules), or determine that no delayed exercisability or vesting is required, establish any applicable performance-based exercisability or vesting requirements, determine the extent (if any) to which any applicable exercise and vesting requirements have been satisfied, and establish the events (if any) of termination, expiration or reversion of such awards;
(c)
approve the forms of any award agreements (which need not be identical either as to type of award or among participants);
(d)
construe and interpret this Plan and any agreements defining the rights and obligations of the Corporation, its Subsidiaries, and participants under this Plan, make any and all determinations necessary under this Plan and any such agreements, further define the terms used in this Plan, and prescribe, amend and rescind rules and regulations relating to the administration of this Plan or the awards granted under this Plan;
(e)
cancel, modify, or waive the Corporation'sCorporation’s rights with respect to, or modify, discontinue, suspend, or terminate any or all outstanding awards, subject to any required consent under Section 8.6.5;
8.6(e);
(f)
accelerate, waive or extend the vesting or exercisability, or modify or extend the term of, any or all such outstanding awards (in the case of options or stock appreciation rights, within the maximum ten-year term of such awards) in such circumstances as the Administrator may deem appropriate (including, without limitation, in connection with a termination of employment or services or other events of a personal nature) subject to any required consent under Section 8.6.5;
8.6(e);
(g)
adjust the number of shares of Common Stock subject to any award, adjust the price of any or all outstanding awards or otherwise waive or change previously imposed terms and conditions, in such circumstances as the Administrator may deem appropriate, in each case subject to Sections 4 and 8.6 (and subject to the no repricing provision below);
(h)
determine the date of grant of an award, which may be a designated date after but not before the date of the Administrator'sAdministrator’s action to grant the award (unless otherwise designated by the Administrator, the date of grant of an award shall be the date upon which the Administrator took the action granting an award);
(i)
determine whether, and the extent to which, adjustments are required pursuant to Section 7.1 hereof and take any of the actions contemplated by Section 7.2 in connection with the occurrence of an event of the type contemplated by Section 7.2;
(j)
acquire or settle (subject to Sections 7 and 8.6) rights under awards in cash, stock of equivalent value, or other consideration (subject to the no repricing provision below); and
(k)
determine the fair market value of the Common Stock or awards under this Plan from time to time and/or the manner in which such value will be determined.
Notwithstanding the foregoing and except for an adjustment pursuant to Section 7.1 or a repricing approved by stockholders, in no case may the Administrator (1) amend an outstanding stock option or SAR to reduce the exercise price or base price of the award, (2) cancel, exchange, or surrender an outstanding stock option or SAR in exchange for cash or other awards for the purpose of repricing the award, or (3) cancel, exchange, or surrender an outstanding stock option or SAR in exchange for an option or SAR with an exercise or base price that is less than the exercise or base price of the original award.
Notwithstanding the foregoing, and except as provided in the next sentence, all awards granted under this Plan shall be subject to a minimum vesting requirement of one year, and no portion of any award may vest earlier than the first anniversary of the grant date of the award (the "“Minimum Vesting Requirement"”).
The Minimum Vesting Requirement shall not apply to 5% of the total number of shares available under this Plan, and shall not limit or restrict the
Administrator'sAdministrator’s discretion to accelerate the vesting of any award in circumstances it determines to be appropriate.
3.3Binding Determinations. Any determination or other action taken by, or inaction of, the Corporation, any Subsidiary, or the Administrator relating or pursuant to this Plan (or any award made under this Plan) and within its authority hereunder or under applicable law shall be within the absolute discretion of that entity or body and shall be conclusive and binding upon all persons. Neither the Board nor any Board committee, nor any member thereof or person acting at the direction thereof, shall be liable for any act, omission, interpretation, construction or determination made in good faith in connection with this Plan (or any award made under this Plan), and all such persons shall be entitled to indemnification and reimbursement by the Corporation in respect of any claim, loss, damage or expense (including, without limitation, attorneys'attorneys’ fees) arising or resulting therefrom to the fullest extent permitted by law and/or under any directors and officers liability insurance coverage that may be in effect from time to time. Neither the Board nor any Board committee, nor any member thereof or person acting at the direction thereof, nor the Corporation or any of its Subsidiaries, shall be liable for any damages of a participant should an option intended as an ISO (as defined below) fail to actually meet the requirements of the Internal Revenue Code of 1986, as amended (the "“Code"”), applicable to ISOs, should any other award(s) fail to qualify for any intended tax treatment, should any award grant or other action with respect thereto not satisfy Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended, or otherwise for any tax or other liability imposed on a participant with respect to an award. 3.4Reliance on Experts. In making any determination or in taking or not taking any action under this Plan, the Administrator may obtain and may rely upon the advice of experts, including employees and professional advisors to the Corporation. No director, officer or agent of the Corporation or any of its Subsidiaries shall be liable for any such action or determination taken or made or omitted in good faith. 3.5Delegation. The Administrator may delegate ministerial, non-discretionary functions to individuals who are officers or employees of the Corporation or any of its Subsidiaries or to third parties. 4.
SHARES OF COMMON STOCK SUBJECT TO THE PLAN; SHARE LIMITS
4.1Shares Available. Subject to the provisions of Section 7.1, the capital stock that may be delivered under this Plan shall be shares of the Corporation'sCorporation’s authorized but unissued Common Stock and any shares of its Common Stock held as treasury shares. For purposes of this Plan, "“Common Stock"” shall mean the common stock of the Corporation and such other securities or property as may
become the subject of awards under this Plan, or may become subject to such awards, pursuant to an adjustment made under Section 7.1.
4.2Share Limits. The maximum number of shares of Common Stock that may be delivered pursuant to awards granted to Eligible Persons under this Plan (the "“Share Limit"”) is equal to the sum of the following: (a)
4,000,000 shares of Common Stock, plus
(2)
(b)
the number of shares of Common Stock available for additional award grant purposes under the Amended and Restated 2016 Performance Incentive Plan (the “2016 Plan”) as of the date of stockholder approval of this Plan (the “Stockholder Approval Date”) and determined immediately prior to the termination of authority to grant new awards under the 2016 Plan as of the Stockholder Approval Date, plus
(c)
the number of any shares subject to stock options granted under the Corporation's Amended and Restated 2002 Stock Option Plan (the "2002 Plan") or theCorporation’s Amended and Restated 2006 Equity Incentive Plan (the "“2006 Plan"”) and the 2016 Plan and outstanding on the date of the stockholder approval of this Plan (the "Stockholder Approval Date") which expire, or for any reason are cancelled or terminated, after the Stockholder Approval Date without being exercised, plus;
(3)plus
(d)
the number of any shares subject to restricted stock and restricted stock unit awards granted under the
20022006 Plan or the
20062016 Plan that are outstanding and unvested on the Stockholder Approval Date that are forfeited, terminated, cancelled or otherwise reacquired by the Corporation
after the Stockholder Approval Date without having become
vested.vested, provided that in order to
take the Full Value Award ratio below into account, each share subject to any such award shall be credited as 1.5 shares when determining the number of shares that shall become available for new awards under this Plan,
provided that in no event shall the Share Limit exceed
20,594,15924,675,720 shares (which is the sum of the
6,050,0004,000,000 shares set forth above,
plus the number of shares available under the 2016 Plan for additional award grant purposes as of the Effective Date defined below, plus the aggregate number of shares subject to awards previously granted and outstanding under the
20022006 Plan and the
20062016 Plan as of the Effective
Date)Date, with any shares subject to restricted stock and restricted stock unit awards outstanding under the 2006 Plan and the 2016 Plan being taken into account based on the Full-Value Award share counting ratio of 1.5).
Shares issued in respect of any "Full-Value Award"“Full-Value Award” granted under this Plan shall be counted against the foregoing Share Limit as 1.5 shares for every one share issued in connection with such award. (For example, if a stock bonus of 100 shares of Common Stock is granted under this Plan, 150 shares shall be counted against the Share Limit in connection with that award.) For this purpose, a "“Full-Value Award"” means any award under this Plan that isnot a stock option grant or a stock appreciation right grant. The following limits also apply with respect to awards granted under this Plan:
(e)
The maximum number of shares of Common Stock that may be delivered pursuant to options qualified as incentive stock options granted under this Plan is 6,050,0004,000,000 shares.
(b)The maximum number of shares of Common Stock subject to those options and stock appreciation rights that are granted under this Plan during any one calendar year to any one individual is 2,000,000 shares.
(c)The maximum number of shares of Common Stock subject to all awards that are granted under this Plan during any one calendar year to any one individual is 2,000,000 shares.
(d)
(f)
Awards that are granted under this Plan during any one calendar year to any person who, on the grant date of the award, is a non-employee director are subject to the limits of this Section
4.2(d)4.2(f). The maximum number of shares of Common Stock subject to those awards that are granted under this Plan during any one calendar year to an individual who, on the grant date of the award, is a non-employee director is the number of shares that produce a grant date fair value for the award that, when combined with the grant date fair value of any other awards granted under this Plan during that same calendar year to that individual in his or her capacity as a non-employee director, is $400,000; provided that this limit is $600,000 as to (1) a non-employee director who is serving as the Independent Chair of the Board or the Lead Independent Director at the time the applicable grant is made or (2) any new non-employee director for the calendar year in which the non-employee director is first elected or appointed to the Board. For purposes of this Section
4.2(d)4.2(f), a
"non-employee director"“non-employee director” is an individual who, on the grant date of the award, is a member of the Board who
is not then an officer or employee of the Corporation or one of its Subsidiaries. For purposes of this Section 4.2(d)4.2(f), "grant“grant date fair value"value” means the value of the award as of the date of grant of the award and as determined using the equity award valuation principles applied in the Corporation'sCorporation’s financial reporting. The limits of this Section 4.2(d)4.2(f) do not apply to, and shall be determined without taking into account, any award granted to an individual who, on the grant date of the award, is an officer or employee of the Corporation or one of its subsidiaries. The limits of this Section 4.2(d)4.2(f) apply on an individual basis and not on an aggregate basis to all non-employee directors as a group.
(e)Additional limits with respect to Qualified Performance-Based Awards are set forth in Section 5.2.3.
Each of the foregoing numerical limits is subject to adjustment as contemplated by Section 4.3, Section 7.1, and Section 8.10.
4.3Awards Settled in Cash, Reissue of Awards and Shares. Except as provided in the next sentence, shares that are subject to or underlie awards granted under this Plan which expire or for any reason are cancelled or terminated, are forfeited, fail to vest, or for any other reason are not paid or delivered under this Plan shall not be counted against the Share Limit and shall be available for subsequent awards under this Plan. Shares that are exchanged by a participant or withheld by the Corporation as full or partial payment in connection with any award under this Plan, as well as any shares exchanged by a participant or withheld by the Corporation or one of its Subsidiaries to satisfy the tax withholding obligations related to any award, shall be counted against the Share Limit and shall not be available for subsequent awards under this Plan. Any shares of Common Stock repurchased with the proceeds of any option exercise price shall not be available for awards under this Plan. To the extent that shares of Common Stock are delivered pursuant to the exercise
of a stock appreciation right granted under this Plan, the number of underlying shares as to which the exercise related shall be counted against the Share Limit. (For purposes of clarity, if a stock appreciation right relates to 100,000 shares and is exercised at a time when the payment due to the participant is 15,000 shares, 100,000 shares shall be counted against the Share Limit with respect to such exercise.
In addition, shares that are exchanged by a participant or withheld by the Corporation after the Stockholder Approval Date as full or partial payment in connection with any award granted under the 2002 Plan or 2006 Plan, as well as any shares exchanged by a participant or withheld by the Corporation or one of its Subsidiaries after the Stockholder Approval Date to satisfy the tax withholding obligations related to any award granted under the 2002 Plan or 2006 Plan, shall not be available for new awards under this Plan. To the extent that an award granted under this Plan is settled in cash or a form other than shares of Common Stock, the shares that would have been delivered had there been no such cash or other settlement shall not be counted against the Share Limit and shall be available for subsequent awards under this Plan. In the event that shares of Common Stock are delivered in respect of a dividend equivalent right granted under this Plan, the number of shares delivered with respect to the award shall be counted against the Share Limit. (For purposes of clarity, if 1,000 dividend equivalent rights are granted and outstanding when the Corporation pays a dividend, and 50 shares are delivered in payment of those rights with respect to that dividend, 75 shares (after giving effect to the Full-Value Award premium counting rules) shall be counted against the Share Limit).
Except as otherwise providedThe Company may not increase the Share Limits by
repurchasing shares of Common Stock on the
Administrator, shares delivered in respectmarket (by using cash received through the exercise of
dividend equivalent rights shall not count against any individual award limit under this Plan other than the aggregate Share Limit.stock options or otherwise). Refer to Section 8.10 for application of the foregoing share limits with respect to assumed awards.
The foregoing adjustments to the share limits of this Plan are subject to any applicable limitations under Section 162(m) of the Code with respect to awards intended as performance-based compensation thereunder.4.4No Fractional Shares; Minimum Issue. Unless otherwise expressly provided by the Administrator, no fractional shares shall be delivered under this Plan. The Administrator may pay cash in lieu of any fractional shares in settlements of awards under this Plan. The Administrator may from
time to time impose a limit (of not greater than 100 shares) on the minimum number of shares that may be purchased or exercised as to awards (or any particular award) granted under this Plan unless (as to any particular award) the total number purchased or exercised is the total number at the time available for purchase or exercise under the award.
5.
5.1Type and Form of Awards. The Administrator shall determine the type or types of award(s) to be made to each selected Eligible Person. Awards may be granted singly, in combination or in tandem. Awards also may be made in combination or in tandem with, in replacement of, as alternatives to, or as the payment form for grants or rights under any other employee or compensation plan of the Corporation or one of its Subsidiaries. The types of awards that may be granted under this Plan are (subject, in each case, to the no repricing provisions of Section 3.2): (a)
Stock Options. A stock option is the grant of a right to purchase a specified number of shares of Common Stock during a specified period as determined by the Administrator. An option may be intended as an incentive stock option within the meaning of Section 422 of the Code (an "“ISO"”) or a nonqualified stock option (an option not intended to be an ISO). The award agreement for an option will indicate if the option is intended as an ISO; otherwise it will be deemed to be a nonqualified stock option. The maximum term of each option (ISO or nonqualified) shall be ten (10) years. The per share exercise price for each option shall be not less than 100% of the fair market value of a share of Common Stock on the date of grant of the option. When an option is exercised, the exercise price for the shares to be purchased shall be paid in full in cash or such other method permitted by the Administrator consistent with Section 5.5.5.1.25.4.
(b)
Additional Rules Applicable to ISOs. To the extent that the aggregate fair market value (determined at the time of grant of the applicable option) of stock with respect to which ISOs first become exercisable by a participant in any calendar year exceeds $100,000, taking into account both Common Stock subject to ISOs under this Plan and stock subject to ISOs under all other plans of the Corporation or one of its Subsidiaries (or any parent or predecessor corporation to the extent required by and within the meaning of Section 422 of the Code and the regulations promulgated thereunder), such options shall be treated as nonqualified stock options. In reducing the number of options treated as ISOs to meet the $100,000 limit, the most recently granted options shall be reduced first. To the extent a reduction of simultaneously granted options is necessary to meet the $100,000 limit, the Administrator may, in the manner and to the extent permitted by law, designate which shares of Common Stock are to be treated as shares acquired pursuant to the exercise of an ISO. ISOs may only be granted to employees of the Corporation or one of its subsidiaries (for this purpose, the term "subsidiary"“subsidiary” is used as defined in Section 424(f)
of the Code, which generally requires an unbroken chain of ownership of at least 50% of the total combined voting power of all classes of stock of each subsidiary in the chain beginning with the Corporation and ending with the subsidiary in question). No ISO may be granted to any person who, at the time the option is granted, owns (or is deemed to own under Section 424(d) of the Code) shares of outstanding Common Stock possessing more than 10% of the total combined voting power of all classes of stock of the Corporation, unless the exercise price of such option is at least 110% of the fair market value of the stock subject to the option and such option by its terms is not exercisable after the expiration of five years from the date such option is granted. If an otherwise-intended ISO fails to meet the applicable requirements of Section 422 of the Code, the option shall be a nonqualified stock option.
(c)
5.1.3Stock Appreciation Rights. A stock appreciation right or "“SAR"” is a right to receive a payment, in cash and/or Common Stock, equal to the excess of the fair market value of a specified number of shares of Common Stock on the date the SAR is exercised over the "“base price"” of the award, which base price shall be set forth in the applicable award agreement and shall be not less than 100% of the fair market value of a share of Common Stock on the date of grant of the SAR. The maximum term of a SAR shall be ten (10) years.5.1.4
(d)
Other Awards; Dividend Equivalent Rights. The other types of awards that may be granted under this Plan include: (a) stock bonuses, restricted stock, performance stock, stock units, phantom stock or similar rights to purchase or acquire shares, whether at a fixed or variable price (or no price) or fixed or variable ratio related to the Common Stock, and any of which may vest upon the passage of time, the occurrence of one or more events, the satisfaction of performance criteria or other conditions, or any combination thereof; or (b) cash awards. The types of cash awards that may be granted under this Plan include the opportunity to receive a payment for the achievement of one or more goals established by the Administrator, on such terms as the Administrator may provide, as well as cash awards. Dividend equivalent rights may be granted as a separate award or in connection with another award under this Plan; provided, however, that dividend equivalent rights may not be granted as to a stock option or SAR granted under this Plan. In addition, any dividends and/or dividend equivalents as to the unvested portion of a restricted stock award that is subject to performance-based vesting requirements or the unvested portion of a stock unit award that is subject to performance-based vesting requirements will be subject to termination and forfeiture to the same extent as the corresponding portion of the award to which they relate in the event the applicable performance-based vesting requirements are not satisfied.5.2Section 162(m) Performance-Based Awards. Without limiting the generality of the foregoing, In addition, any of the types of awards listed in Section 5.1.4 above may be, and options and SARs granted to officers and employees also may be, granteddividends and/or dividend equivalents as awards intended to satisfy the requirements for "performance-based compensation" within the meaning of Section 162(m) of the Code. An Award (other than an option or SAR) intended by the Administrator to satisfy the requirements for "performance-based compensation" within the meaning of Section 162(m) of the Code is referred to as a "Qualified Performance-Based Award." An option or SAR intended to satisfy the requirements for "performance-based compensation" within the meaning of Section 162(m) of the Code is referred to as a "Qualifying Option or SAR." The grant, vesting, exercisability or payment of Qualified Performance-Based Awards may depend (or, in the case of Qualifying Option or SAR, may also depend) on the degree of achievement of one or more performance goals relative to a pre-established targeted level or levels using one or more of the Business Criteria set forth below (on an absolute or relative (including, without limitation, relative to the performanceportion of one or more other companies or upon comparisons of any of the indicators of performance relativean award that is subject to one or more other companies) basis) for the Corporation on a consolidated basis or for one or more of the Corporation's subsidiaries, segments, divisions or business units, or any combination of the foregoing. Any Qualified Performance-Based Award shallunsatisfied vesting requirements will be subject to all of the following provisions of this Section 5.2,termination and a Qualifying Option or SAR shall be subjectforfeiture to the following provisions of this Section 5.2 only to thesame extent expressly set forth below. Nothing in this Plan, however, requires the Administrator to qualify any award or compensation as "performance-based compensation" under Section 162(m) of the Code.
5.2.1Class; Administrator. The eligible class of persons for Qualified Performance-Based Awards under this Section 5.2, as well as for a Qualifying Option or SAR, shall be officers and employees of the Corporation or one of its Subsidiaries. To qualify awards as performance-based under Section 162(m), the Administrator approving Qualified Performance-Based Awards or a Qualifying Option or SAR, or making any certification required pursuant to Section 5.2.4, must constitute a committee consisting solely of two or more outside directors (as this requirement is applied under Section 162(m) of the Code).
5.2.2Performance Goals. The specific performance goals for Qualified Performance-Based Awards shall be, on an absolute or relative basis, established based on one or more of the
following business criteria ("Business Criteria") as selected by the Administrator in its sole discretion: earnings per share, cash flow (which means cash and cash equivalents derived from either net cash flow from operations or net cash flow from operations, financing and investing activities), stock price, total stockholder return, gross revenue, revenue growth, operating income (before or after taxes), net earnings (before or after interest, taxes, depreciation and/or amortization), return on equity or on assets or on net investment, cost containment or reduction, or any combination thereof. To qualify awards as performance-based under Section 162(m), the applicable Business Criterion (or Business Criteria, as the case may be) and specific performance formula, goal or goals ("targets") must be established and approved by the Administrator during the first 90 days of the performance period (and, in the case of performance periods of less than one year, in no event after 25% or more of the performance period has elapsed) and while performance relating to such target(s) remains substantially uncertain within the meaning of Section 162(m) of the Code. The terms of the Qualified Performance-Based Awards may specify the manner, if any, in which performance targets shall be adjusted to mitigate the unbudgeted impact of material, unusual or nonrecurring gains and losses, accounting changes or other items specified by the Administrator at the time of establishing the targets. The applicable performance measurement period may not be less than three months nor more than 10 years.
5.2.3Form of Payment; Maximum Qualified Performance-Based Award. Grants or awards under this Section 5.2 may be paid in cash or shares of Common Stock or any combination thereof. Qualifying Option or SAR awards granted to any one participant in any one calendar year shall be subject to the limit set forth in Section 4.2(b). The maximum number of shares of Common Stock which may be subject to Qualified Performance-Based Awards (including Qualified Performance-Based Awards payable in shares of Common Stock and Qualified Performance-Based Awards payable in cash where the amount of cash payable upon or following vestingcorresponding portion of the award is determined with reference to the fair market value of a share of Common Stock at such time) that are granted to any one participant in any one calendar year shall not exceed 2,000,000 shares (counting such shares on a one-for-one basis for this purpose), either individually orwhich they relate in the aggregate, subject to adjustment as provided in Section 7.1. The aggregate amount of compensation to be paid to any one participant in respect of all Qualified Performance-Based Awards payable only in cash (excluding cash awards covered byevent the preceding sentence where the cash payment is determined with reference to the fair market value of a share of Common Stock upon or following theapplicable vesting of the award) and granted torequirements are not satisfied. This ensures that participant in any one calendar year shall not exceed $3,000,000. Awards that are cancelled during the year shall be counted against these limits to the extent required by Section 162(m) of the Code.
5.2.4Certification of Payment. Before any Qualified Performance-Based Award is paid and to the extent applicable to qualify the award as performance-based compensation within the meaning of Section 162(m) of the Code, the Administrator must certify in writing that the performance target(s) and any other material terms of the Qualified Performance-Based Award were in fact timely satisfied.
5.2.5Reservation of Discretion. The Administrator will have the discretion to determine the restrictions or other limitations of the individual awards granted under this Section 5.2 including the authority to reduce awards, payouts or vesting or to pay no awards, in its sole discretion, if the Administrator preserves such authority atunderlying unvested award is forfeited, the time of grant by language to this effect in its authorizing resolutions dividends and/or otherwise.
5.2.6Expiration of Grant Authority. As required pursuant to Section 162(m) ofdividend equivalents on the Code and the regulations promulgated thereunder, the Administrator's authority to grant newunvested awards that are intended to qualify as performance-based compensation within the meaning of Section 162(m) of the Code (other than a Qualifying Option or SAR) shall terminate upon the first meeting of the Corporation's stockholders that occurs in the fifth year following the year in
which the Corporation's stockholders first approve this Plan, subject to any subsequent extension that maywill also be approved by stockholders.
5.3forfeited.
5.2Award Agreements. Each award shall be evidenced by a written or electronic award agreement or notice in a form approved by the Administrator (an "award agreement"“award agreement”), and, in each case and if required by the Administrator, executed or otherwise electronically accepted by the recipient of the award in such form and manner as the Administrator may require.5.4
5.3Deferrals and Settlements. Payment of awards may be in the form of cash, Common Stock, other awards or combinations thereof as the Administrator shall determine, and with such restrictions (if any) as it may impose. The Administrator may also require or permit participants to elect to defer the issuance of shares or the settlement of awards in cash under such rules and procedures as it may establish under this Plan. The Administrator may also provide that deferred settlements include the payment or crediting of interest or other earnings on the deferral amounts, or the payment or crediting of dividend equivalents where the deferred amounts are denominated in shares.5.5
5.4Consideration for Common Stock or Awards. The purchase price (if any) for any award granted under this Plan or the Common Stock to be delivered pursuant to an award, as applicable, may be paid by means of any lawful consideration as determined by the Administrator, including, without limitation, one or a combination of the following methods:
(a)
services rendered by the recipient of such award;
•
(b)
cash, check payable to the order of the Corporation, or electronic funds transfer;
•
(c)
notice and third partythird-party payment in such manner as may be authorized by the Administrator;
•
(d)
the delivery of previously owned shares of Common Stock;
•
(e)
by a reduction in the number of shares otherwise deliverable pursuant to the award; or
•
(f)
subject to such procedures as the Administrator may adopt, pursuant to a
"cashless exercise"“cashless exercise” with a third party who provides financing for the purposes of (or who otherwise facilitates) the purchase or exercise of awards.
In no event shall any shares newly-issued by the Corporation be issued for less than the minimum lawful consideration for such shares or for consideration other than consideration permitted by applicable state law. The Corporation will not be obligated to deliver any shares unless and until it receives full payment of the exercise or purchase price therefor and any related withholding obligations under Section 8.5 and any other conditions to exercise or purchase have been satisfied. Unless otherwise expressly provided in the applicable award agreement, the Administrator may at any time eliminate or limit a
participant'sparticipant’s ability to pay any purchase or exercise price of any award or shares by any method other than cash payment to the Corporation.
5.6
5.5Definition of Fair Market Value. For purposes of this Plan, "fair“fair market value"value” shall mean, unless otherwise determined or provided by the Administrator in the circumstances, the closing price (in regular trading) for a share of Common Stock on the NASDAQ Stock Market (the "“Market"”) for the date in question or, if no sales of Common Stock were reported on the Market on that date, the closing price (in regular trading) for a share of Common Stock on the Market for the next preceding day on which sales of Common Stock were reported on the Market. The Administrator may, however, provide with respect to one or more awards that the fair market value shall equal the closing price (in regular trading) for a share of Common Stock on the Market on the last trading day preceding the date in question or the average of the high and low trading prices of a share of Common Stock on the Market for the date in question or the most recent trading day. If the Common Stock is no longer listed or is no longer actively traded on the Market as of the applicable date, the fair market value of the Common Stock shall be the value as reasonably determined by the Administrator for purposes of
the award in the circumstances. The Administrator also may adopt a different methodology for determining fair market value with respect to one or more awards if a different methodology is necessary or advisable to secure any intended favorable tax, legal or other treatment for the particular award(s) (for example, and without limitation, the Administrator may provide that fair market value for purposes of one or more awards will be based on an average of closing prices (or the average of high and low daily trading prices) for a specified period preceding the relevant date).
5.7
5.6Transfer Restrictions. (a)
Limitations on Exercise and Transfer. Unless otherwise expressly provided in (or pursuant to) this Section 5.75.6 or required by applicable law: (a) all awards are non-transferable and shall not be subject in any manner to sale, transfer, anticipation, alienation, assignment, pledge, encumbrance or charge; (b) awards shall be exercised only by the participant; and (c) amounts payable or shares issuable pursuant to any award shall be delivered only to (or for the account of) the participant.5.7.2
(b)
Exceptions. The Administrator may permit awards to be exercised by and paid to, or otherwise transferred to, other persons or entities pursuant to such conditions and procedures, including limitations on subsequent transfers, as the Administrator may, in its sole discretion, establish in writing.writing, and any transfer made in accordance with the Corporation’s Award Transfer Policy shall be expressly permitted without further Administrator approval to the same extent as if any award was granted under the 2016 Plan. Any permitted transfer shall be subject to compliance with applicable federal and state securities laws and shall not be for value (other than nominal consideration, settlement of marital property rights, or for interests in an entity in which more than 50% of the voting interests are held by the Eligible Person or by the Eligible Person'sPerson’s family members).5.7.3
(c)
Further Exceptions to Limits on Transfer. The exercise and transfer restrictions in Section 5.7.15.6(a) shall not apply to:
(i)
transfers to the Corporation (for example, in connection with the expiration or termination of the award),
(b)
(ii)
the designation of a beneficiary to receive benefits in the event of the participant'sparticipant’s death or, if the participant has died, transfers to or exercise by the participant'sparticipant’s beneficiary, or, in the absence of a validly designated beneficiary, transfers by will or the laws of descent and distribution,
(c)
(iii)
subject to any applicable limitations on ISOs, transfers to a family member (or former family member) pursuant to a domestic relations order if received by the Administrator,
(d)
(iv)
if the participant has suffered a disability, permitted transfers or exercises on behalf of the participant by his or her legal representative, or
(e)
(v)
the authorization by the Administrator of
"cashless exercise"“cashless exercise” procedures with third parties who provide financing for the purpose of (or who otherwise facilitate) the exercise of awards consistent with applicable laws and any limitations imposed by the Administrator.
5.8
5.7International Awards. One or more awards may be granted to Eligible Persons who provide services to the Corporation or one of its Subsidiaries outside of the United States. Any awards granted to such persons may be granted pursuant to the terms and conditions of any applicable sub-plans, if any, appended to this Plan and approved by the Administrator from time to time. The awards so granted need not comply with other specific terms of this Plan, provided that stockholder approval of any deviation from the specific terms of this Plan is not required by applicable law or any applicable listing agency.
6.
6. EFFECT OF TERMINATION OF EMPLOYMENT OR SERVICE ON AWARDS
6.1General. The Administrator shall establish the effect (if any) of a termination of employment or service on the rights and benefits under each award under this Plan and in so doing may make distinctions based upon, inter alia, the cause of termination and type of award. If the participant is not an employee of the Corporation or one of its Subsidiaries, is not a member of the Board, and provides other services to the Corporation or one of its Subsidiaries, the Administrator shall be the sole judge for purposes of this Plan (unless a contract or the award otherwise provides) of whether the participant continues to render services to the Corporation or one of its Subsidiaries and the date, if any, upon which such services shall be deemed to have terminated. 6.2Events Not Deemed Terminations of Service. Unless the express policy of the Corporation or one of its Subsidiaries, or the Administrator, otherwise provides, or except as otherwise required by applicable law, the employment relationship shall not be considered terminated in the case of (a) sick leave, (b) military leave, or (c) any other leave of absence authorized by the Corporation or one of its Subsidiaries, or the Administrator; provided that, unless reemployment upon the expiration of such leave is guaranteed by contract or law or the Administrator otherwise provides, such leave is for a period of not more than three months. In the case of any employee of the Corporation or one of its Subsidiaries on an approved leave of absence, continued vesting of the award while on leave from the employ of the Corporation or one of its Subsidiaries may be suspended until the employee returns to service, unless the Administrator otherwise provides or applicable law otherwise requires. In no event shall an award be exercised after the expiration of any applicable maximum term of the award. 6.3Effect of Change of Subsidiary Status. For purposes of this Plan and any award, if an entity ceases to be a Subsidiary of the Corporation a termination of employment or service shall be deemed to have occurred with respect to each Eligible Person in respect of such Subsidiary who does not continue as an Eligible Person in respect of the Corporation or another Subsidiary that continues as such after giving effect to the transaction or other event giving rise to the change in status unless the Subsidiary that is sold, spun-off or otherwise divested (or its successor or a direct or indirect parent of such Subsidiary or successor) assumes the Eligible Person'sPerson’s award(s) in connection with such transaction.
7.
ADJUSTMENTS; ACCELERATION
7.1Adjustments.
(a)
Subject to Section 7.2, upon (or, as may be necessary to effect the adjustment, immediately prior to): any reclassification, recapitalization, stock split (including a stock split in the form of a stock dividend) or reverse stock split; any merger, combination, consolidation, conversion or other reorganization; any spin-off, split-up, or similar extraordinary dividend distribution in respect of the Common Stock; or any exchange of Common Stock or other securities of the Corporation, or any similar, unusual or extraordinary corporate transaction in respect of the Common Stock; then the Administrator shall equitably and proportionately adjust (1) the number and type of shares of Common Stock (or other securities) that thereafter may be made the subject of awards (including the specific share limits, maximums and numbers of shares set forth elsewhere in this Plan), (2) the number, amount and type of shares of Common Stock (or other securities or property) subject to any outstanding awards, (3) the grant, purchase, or exercise price (which term includes the base price of any SAR or similar right) of any outstanding awards, and/or (4) the securities, cash or other property deliverable upon exercise or payment of any outstanding awards, in each case to the extent necessary to preserve (but not increase) the level of incentives intended by this Plan and the then-outstanding awards.
(b)
Unless otherwise expressly provided in the applicable award agreement, upon (or, as may be necessary to effect the adjustment, immediately prior to) any event or transaction described in
the preceding paragraphSection 7.1(a) or a sale of all or substantially all of the business or assets of the Corporation as
an entirety, the Administrator shall equitably and proportionately adjust the performance standards applicable to any then-outstanding performance-based awards to the extent necessary to preserve (but not increase) the level of incentives intended by this Plan and the then-outstanding performance-based awards.
(c)
It is intended that, if possible, any adjustments contemplated by
the preceding two paragraphsSections 7.1(a) or (b) be made in a manner that satisfies applicable U.S. legal, tax (including, without limitation and as applicable in the circumstances, Section 424 of the Code as to ISOs, Section 409A of the Code as to awards intended to comply therewith and not be subject to taxation thereunder, and Section 162(m) of the Code as to any
Qualifying Option or SAR and as to Qualified Performance-Based Awards)performance based compensation) and accounting (so as to not trigger any unintended charge to earnings with respect to such adjustment) requirements.
(d)
Without limiting the generality of Section 3.3, any good faith determination by the Administrator as to whether an adjustment is required in the circumstances pursuant to this Section 7.1, and the extent and nature of any such adjustment, shall be conclusive and binding on all persons.
7.2Corporate Transactions—Transactions — Assumption and Termination of Awards.
(a)
Upon any event in which the Corporation does not survive, or does not survive as a public company in respect of its Common Stock (including, without limitation, a dissolution, merger, combination, consolidation, conversion, exchange of securities, or other reorganization, or a sale of all or substantially all of the business, stock or assets of the Corporation, in any case in connection with which the Corporation does not survive or does not survive as a public company in respect of its Common Stock), then the Administrator may make provision for a cash payment in settlement of, or for the termination, assumption, substitution or exchange of any or all outstanding awards or the cash, securities or property deliverable to the holder of any or all outstanding awards, based upon, to the extent relevant under the circumstances, the distribution or consideration payable to holders of the Common Stock upon or in respect of such event. Upon the occurrence of any event described in the preceding sentence in connection with which the Administrator has made provision for the award to be terminated (and the Administrator has not made a provision for the substitution, assumption, exchange or other continuation or settlement of the award): (1) unless otherwise provided in the applicable award agreement, each then-outstanding option and SAR shall become fully vested, all shares of restricted stock then outstanding shall fully vest free of restrictions, and each other award granted under this Plan that is then outstanding shall become payable to the holder of such award;award (provided that any awards subject to performance-vesting
requirements shall vest at the “target” performance level unless otherwise provided in the award agreement); and (2) each award shall terminate upon the related event; provided that the holder of an option or SAR shall be given reasonable advance notice of the impending termination and a reasonable opportunity to exercise his or her outstanding vested options and SARs (after giving effect to any accelerated vesting required in the circumstances) in accordance with their terms before the termination of such awards (except that in no case shall more than ten
days'days’ notice of the impending termination be required and any acceleration of vesting and any exercise of any portion of an award that is so accelerated may be made contingent upon the actual occurrence of the event).
(b)
Without limiting the preceding paragraph,Section 7.2(a), in connection with any event referred to in the preceding paragraphtherein or any change in control event defined in any applicable award agreement, the Administrator may, in its discretion, provide for the accelerated vesting of any award or awards as and to the extent determined by the Administrator in the circumstances.
(c)
For purposes of this Section 7.2, an award shall be deemed to have been "assumed"“assumed” if (without limiting other circumstances in which an award is assumed) the award continues after the applicable event, and/or is assumed and continued by the surviving entity following such event (including, without limitation, an entity that, as a result of such event, owns the Corporation or all or substantially all of the Corporation'sCorporation’s assets directly or through one or more subsidiaries (a "“Parent"”)), and confers the right to purchase or receive, as applicable and subject to vesting and the other terms and conditions of the award, for each share of Common Stock subject to the award immediately prior to the event, the consideration (whether cash, shares, or other securities or property) received in the event by the stockholders of the Corporation for each share of Common Stock sold or exchanged in such event (or the consideration received by a majority of the stockholders participating in such event if the stockholders were offered a choice of consideration); provided, however, that if the consideration offered for a share of Common Stock in the event is not solely the ordinary common stock of a successor corporation or a Parent, the Administrator may provide for the consideration to be received upon exercise or payment of the award, for each share subject to the award, to be solely ordinary common stock of the successor corporation or a Parent equal in fair market value to the per share consideration received by the stockholders participating in the event.
(d)
The Administrator may adopt such valuation methodologies for outstanding awards as it deems reasonable in the event of a cash or property settlement and, in the case of options, SARs or similar rights, but without limitation on other methodologies, may base such settlement solely upon the excess if any of the per share amount payable upon or in respect of such event over the exercise or base price of the award.
In the case of an option, SAR or similar right as to which the per share amount payable upon or in respect of such event is less than or equal to the exercise or base price of the award, the Administrator may terminate such award in connection with an event referred to in this Section 7.2 without any payment in respect of such award.
(e)
In any of the events referred to in this Section 7.2, the Administrator may take such action contemplated by this Section 7.2 prior to such event (as opposed to on the occurrence of such event) to the extent that the Administrator deems the action necessary to permit the participant to realize the benefits intended to be conveyed with respect to the underlying shares. Without limiting the generality of the foregoing, the Administrator may deem an acceleration and/or termination to occur immediately prior to the applicable event and, in such circumstances, will reinstate the original terms of the award if an event giving rise to an acceleration and/or termination does not occur.
(f)
Without limiting the generality of Section 3.3, any good faith determination by the Administrator pursuant to its authority under this Section 7.2 shall be conclusive and binding on all persons.
7.3Other Acceleration Rules. The Administrator may override the provisions of Section 7.2 by express provision in the award agreement and may accord any Eligible Person a right to refuse any acceleration, whether pursuant to the award agreement or otherwise, in such circumstances as the Administrator may approve. The portion of any ISO accelerated in connection with an event referred to in
Section 7.2 (or such other circumstances as may trigger accelerated vesting of the award) shall remain exercisable as an ISO only to the extent the applicable $100,000 limitation on ISOs is not exceeded. To the extent exceeded, the accelerated portion of the option shall be exercisable as a nonqualified stock option under the Code.
8.
8.1Compliance with Laws. This Plan, the granting and vesting of awards under this Plan, the offer, issuance and delivery of shares of Common Stock, and/or the payment of money under this Plan or under awards are subject to compliance with all applicable federal, state, local and foreign laws, rules and regulations (including but not limited to state and federal securities law and federal margin requirements) and to such approvals by any listing, regulatory or governmental authority as may, in the opinion of counsel for the Corporation, be necessary or advisable in connection therewith. The person acquiring any securities under this Plan will, if requested by the Corporation or one of its Subsidiaries, provide such assurances and representations to the Corporation or one of its Subsidiaries as the
Administrator may deem necessary or desirable to assure compliance with all applicable legal and accounting requirements.
8.2No Rights to Award. No person shall have any claim or rights to be granted an award (or additional awards, as the case may be) under this Plan, subject to any express contractual rights (set forth in a document other than this Plan) to the contrary. 8.3No Employment/Service Contract. Nothing contained in this Plan (or in any other documents under this Plan or in any award) shall confer upon any Eligible Person or other participant any right to continue in the employ or other service of the Corporation or one of its Subsidiaries, constitute any contract or agreement of employment or other service or affect an employee'semployee’s status as an employee at will, nor shall interfere in any way with the right of the Corporation or one of its Subsidiaries to change a person'sperson’s compensation or other benefits, or to terminate his or her employment or other service, with or without cause. Nothing in this Section 8.3, however, is intended to adversely affect any express independent right of such person under a separate employment or service contract other than an award agreement. 8.4Plan Not Funded. Awards payable under this Plan shall be payable in shares or from the general assets of the Corporation, and no special or separate reserve, fund or deposit shall be made to assure payment of such awards. No participant, beneficiary or other person shall have any right, title or interest in any fund or in any specific asset (including shares of Common Stock, except as expressly otherwise provided) of the Corporation or one of its Subsidiaries by reason of any award hereunder. Neither the provisions of this Plan (or of any related documents), nor the creation or adoption of this Plan, nor any action taken pursuant to the provisions of this Plan shall create, or be construed to create, a trust of any kind or a fiduciary relationship between the Corporation or one of its Subsidiaries and any participant, beneficiary or other person. To the extent that a participant, beneficiary or other person acquires a right to receive payment pursuant to any award hereunder, such right shall be no greater than the right of any unsecured general creditor of the Corporation. 8.5Tax Withholding. Upon any exercise, vesting, or payment of any award, or upon the disposition of shares of Common Stock acquired pursuant to the exercise of an ISO prior to satisfaction of the holding period requirements of Section 422 of the Code, or upon any other tax withholding event with respect to any award, arrangements satisfactory to the Corporation shall be made to provide for any taxes the Corporation or any of its Subsidiaries may be required or permitted to withhold with respect to such award event or payment. Such arrangements may include (but are not limited to) any one of (or a combination of) the following: (a)
The Corporation or one of its Subsidiaries shall have the right to require the participant (or the participant'sparticipant’s personal representative or beneficiary, as the case may be) to pay or provide for payment of at least the minimum amount of any taxes which the Corporation or one of its Subsidiaries may be required or permitted to withhold with respect to such award event or payment.
(b)
The Corporation or one of its Subsidiaries shall have the right to deduct from any amount otherwise payable in cash (whether related to the award or otherwise) to the participant (or the participant'sparticipant’s personal representative or beneficiary, as the case may be) the minimum amount of any taxes
which the Corporation or one of its Subsidiaries may be required or permitted to withhold with respect to such award event or payment.
(c)
In any case where a tax is required to be withheld in connection with the delivery of shares of Common Stock under this Plan, the Administrator may in its sole discretion (subject to Section 8.1) require or grant (either at the time of the award or thereafter) to the participant the right to elect, pursuant to such rules and subject to such conditions as the Administrator may establish, that the Corporation reduce the number of shares to be delivered by (or otherwise reacquire) the appropriate number of shares, valued in a consistent manner at their
fair market value or at the sales price in accordance with authorized procedures for cashless exercises, necessary to satisfy the minimumany applicable withholding obligation on exercise, vesting or payment. In no event shall the shares withheld exceed the minimum whole number of shares required for tax withholding under applicable law.
8.6Effective Date, Termination and Suspension, Amendments. (a)
Effective Date. This Plan is effective as of February 16, 2016,March 27, 2024, the date of its approval by the Board (the "“Effective Date"”). This Plan shall be submitted for and subject to stockholder approval no later than twelve months after the Effective Date. Unless earlier terminated by the Board and subject to any extension that may be approved by stockholders, this Plan shall terminate at the close of business on the day before the tenth anniversary of the Effective Date. After the termination of this Plan either upon such stated termination date or its earlier termination by the Board, no additional awards may be granted under this Plan, but previously granted awards (and the authority of the Administrator with respect thereto, including the authority to amend such awards) shall remain outstanding in accordance with their applicable terms and conditions and the terms and conditions of this Plan.8.6.2
(b)
Board Authorization. The Board may, at any time, terminate or, from time to time, amend, modify or suspend this Plan, in whole or in part. No awards may be granted during any period that the Board suspends this Plan.8.6.3
(c)
Stockholder Approval. To the extent then required by applicable law or deemed necessary or advisable by the Board, any amendment to this Plan shall be subject to stockholder approval.8.6.4
(d)
Amendments to Awards. Without limiting any other express authority of the Administrator under (but subject to) the express limits of this Plan, the Administrator by agreement or resolution may waive conditions of or limitations on awards to participants that the Administrator in the prior exercise of its discretion has imposed, without the consent of a participant, and (subject to the requirements of Sections 3.2 and 8.6.5)8.6(e)) may make other changes to the terms and conditions of awards. Any amendment or other action that would constitute a repricing of an award is subject to the limitations set forth in Section 3.2.8.6.5
(e)
Limitations on Amendments to Plan and Awards. No amendment, suspension or termination of this Plan or amendment of any outstanding award agreement shall, without written consent of the participant, affect in any manner materially adverse to the participant any rights or benefits of the participant or obligations of the Corporation under any award granted under this Plan prior to the effective date of such change. Changes, settlements and other actions contemplated by Section 7 shall not be deemed to constitute changes or amendments for purposes of this Section 8.6.
8.7Privileges of Stock Ownership. Except as otherwise expressly authorized by the Administrator, a participant shall not be entitled to any privilege of stock ownership as to any shares of Common Stock not actually delivered to and held of record by the participant. Except as expressly required by Section 7.1 or otherwise expressly provided by the Administrator, no adjustment will be made for dividends or other rights as a stockholder for which a record date is prior to such date of delivery. 8.8
Governing Law; Construction; Severability.
(a)
Choice of Law. This Plan, the awards, all documents evidencing awards and all other related documents shall be governed by, and construed in accordance with the laws of the State of Delaware, notwithstanding any Delaware or other conflict of law provision to the contrary.8.8.2
(b)
Severability. If a court of competent jurisdiction holds any provision invalid and unenforceable, the remaining provisions of this Plan shall continue in effect.
8.9Captions. Captions and headings are given to the sections and subsections of this Plan solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of this Plan or any provision thereof. 8.10Stock-Based Awards in Substitution for Stock Options or Awards Granted by Other Corporation. Awards may be granted to Eligible Persons in substitution for or in connection with an assumption of employee stock options, SARs, restricted stock or other stock-based awards granted by other entities to persons who are or who will become Eligible Persons in respect of the Corporation or one of its Subsidiaries, in connection with a distribution, merger or other reorganization by or with the granting entity or an affiliated entity, or the acquisition by the Corporation or one of its Subsidiaries, directly or indirectly, of all or a substantial part of the stock or assets of the employing entity. The awards so granted need not comply with other specific terms of this Plan, provided that the awards shall reflect adjustments giving effect to the assumption or substitution consistent with any conversion applicable to the Common Stock (or the securities otherwise subject to the award) in the transaction and any change in the issuer of the security. Any shares that are delivered and any awards that are granted by, or become obligations of, the Corporation, as a result of the assumption by the Corporation of, or in substitution for, outstanding awards previously granted by an acquired company (or previously granted by a predecessor employer (or direct or indirect parent thereof) in the case of persons that become employed by the Corporation or one of its Subsidiaries in connection with a business or asset acquisition or similar transaction) shall not be counted against the Share Limit or other limits on the number of shares available for issuance under this Plan. 8.11Non-Exclusivity of Plan. Nothing in this Plan shall limit or be deemed to limit the authority of the Board or the Administrator to grant awards or authorize any other compensation, with or without reference to the Common Stock, under any other plan or authority. 8.12No Corporate Action Restriction. The existence of this Plan, the award agreements and the awards granted hereunder shall not limit, affect or restrict in any way the right or power of the Corporation or any Subsidiary (or any of their respective shareholders,stockholders boards of directors or committees thereof, as the case may be) to make or authorize: (a) any adjustment, recapitalization, reorganization or other change in the capital structure or business of the Corporation or any Subsidiary, (b) any merger, amalgamation, consolidation or change in the ownership of the Corporation or any Subsidiary, (c) any issue of bonds, debentures, capital, preferred or prior preference stock ahead of or affecting the capital stock (or the rights thereof) of the Corporation or any Subsidiary, (d) any dissolution or liquidation of the Corporation or any Subsidiary, (e) any sale or transfer of all or any part of the assets or business of the Corporation or any Subsidiary, (f) any other award, grant, or payment of incentives or other compensation under any other plan or authority (or any other action with respect to any benefit, incentive or compensation), or (g) any other corporate act or proceeding by the Corporation or any Subsidiary. No participant, beneficiary or any other person shall have any claim under any award or award agreement against any member of the Board or the Administrator, or the Corporation or any employees, officers or agents of the Corporation or any Subsidiary, as a result of any such action. Awards need not be structured so as to be deductible for tax purposes.
8.13Other Company Benefit and Compensation Programs. Payments and other benefits received by a participant under an award made pursuant to this Plan shall not be deemed a part of a participant'sparticipant’s compensation for purposes of the determination of benefits under any other employee welfare or benefit plans or arrangements, if any, provided by the Corporation or any Subsidiary, except where the Administrator expressly otherwise provides or authorizes in writing. Awards under this Plan may be made in addition to, in combination with, as alternatives to or in payment of grants, awards or commitments under any other plans, arrangements or authority of the Corporation or its Subsidiaries. 8.14Clawback Policy. The awards granted under this Plan are subject to the terms of the Corporation'sCorporation’s recoupment, clawback or similar policy as it may be in effect from time to time, as well
as any similar provisions of applicable law, any of which could in certain circumstances require repayment or forfeiture of awards or any shares of Common Stock or other cash or property received with respect to the awards (including any value received from a disposition of the shares acquired upon payment of the awards).
Clean Energy Fuels Corp.
4675 MacArthur Court, Suite 800
Newport Beach, CA 92660
| VOTE BY INTERNET - www.proxyvote.com
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Signature [PLEASE SIGN WITHIN BOX] Date Signature (Joint Owners) DateTO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: | KEEP THIS PORTION FOR YOUR RECORDS |
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THIS PORTION FOR YOUR RECORDSTHIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
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| | To withhold authority to vote for any individual nominee(s), mark “For All Except” and write the number(s) of the nominee(s) on the line below.
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| The Board of Directors recommends you vote
FOR ALL of the following director nominees:
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| 1.Election of Directors
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| 01 Andrew J. Littlefair
| 02 Warren I. Mitchell
| 03 John S. Herrington
| 04 James C. Miller III
| 05 James E. O’Connor
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| 06 Boone Pickens
| 07 Stephen A. Scully
| 08 Kenneth M. Socha
| 09 Vincent C. Taormina
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| 2Ratification of the appointment of KPMG LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2016.
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| | 3Approval of the Clean Energy Fuels Corp. 2016 Performance Incentive Plan.
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| NOTE: To transact any other business that may properly come before the Annual Meeting or any adjournment or postponement of the Annual Meeting.
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| Authorized Signatures. This section must be completed for your vote to be counted. Date and Sign Below. Please sign exactly as name(s) appear(s) hereon. Joint owners should each sign. When signing as attorney, executor, administrator, corporate officer, trustee, guardian, or custodian, please give full title.
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0000277527_1 R1.0.1.25
DETACH AND RETURN THIS PORTION ONLYV41062-P053063. To approve, on an advisory, non-binding basis, the compensation of our named executive officers.4. To approve the 2024 Performance Incentive Plan.The Board of Directors recommends you vote FOR proposals 2, 3 and 4.2. To ratify the appointment of KPMG LLP as our independent registered public accounting firm for our fiscal year ending December 31, 2024.NOTE: Such other business as may properly come before the meeting or any adjournment or postponement thereof.! ! !ForAllWithholdAllFor AllExceptFor Against Abstain! ! !! ! !CLEAN ENERGY FUELS CORP. To withhold authority to vote for any individualnominee(s), mark "For All Except" and write thenumber(s) of the nominee(s) on the line below.CLEAN ENERGY FUELS CORP.4675 MACARTHUR COURT, SUITE 800NEWPORT BEACH, CA 9266001) Andrew J. Littlefair02) Stephen A. Scully03) Lizabeth Ardisana04) Karine Boissy-Rousseau05) Patrick J. Ford06) James C. Miller III07) Kenneth M. Socha08) Mathieu Soulas09) Vincent C. Taormina1. To elect nine directors to the Board of DirectorsNominees:The Board of Directors recommends you vote FOR ALLthe director nominees:Authorized Signatures. This section must be completed for your vote to be counted. Date and Sign Below. Please sign exactly as name(s) appear(s) hereon.Joint owners should each sign. When signing as attorney, executor, administrator, corporate officer, trustee, guardian, or custodian, please give full title.! ! !VOTE BY INTERNETBefore The Meeting - Go to www.proxyvote.com or scan the QR Barcode aboveUse the Internet to transmit your voting instructions and for electronic delivery of information.Vote by 11:59 P.M. ET on May 15, 2024. Have your proxy card in hand when you accessthe web site and follow the instructions to obtain your records and to create an electronicvoting instruction form.During The Meeting - Go to www.virtualshareholdermeeting.com/CLNE2024You may attend the meeting via the Internet and vote during the meeting. Have the informationthat is printed in the box marked by the arrow available and follow the instructions.VOTE BY PHONE - 1-800-690-6903Use any touch-tone telephone to transmit your voting instructions. Vote by 11:59 P.M. ET onMay 15, 2024. Have your proxy card in hand when you call and then follow the instructions.VOTE BY MAILMark, sign and date your proxy card and return it in the postage-paid envelope wehave provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way,Edgewood, NY 11717.SCAN TOVIEW MATERIALS & VOTE
Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting: The Annual Report and Notice & Proxy Statement are available at www.proxyvote.com
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2016 Proxy-Clean Energy Fuels Corp.
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THISImportant Notice Regarding the Availability of Proxy Materials for the Annual Meeting:The Annual Report and Notice and Proxy Statement are available at www.proxyvote.comV41063-P05306THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTOR
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I hereby appoint Warren I. Mitchell and Andrew J. Littlefair, or either of them, as proxies, with power of substitution to each, to vote all shares of common stock that I am entitled to vote at the annual meeting of stockholders of Clean Energy Fuels Corp. to be held on Thursday, May 26, 2016 at 9:00 a.m. PST, or at any adjournment or postponement thereof, in accordance with the instructions on the reverse side of this card and with the same effect as though I were present in person and voting such shares. My appointed proxies are authorized in their discretion to vote upon such other business as may properly come before the annual meeting or any adjournment or postponement thereof.
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UNLESS A CONTRARY DIRECTION IS INDICATED, THIS PROXY WILL BE VOTED “FOR ALL” NOMINEES FOR DIRECTOR LISTED IN PROPOSAL 1 and “FOR” PROPOSALS 2 AND 3, AND IN THE DISCRETION OF THE APPOINTED PROXIES UPON SUCH OTHER BUSINESS AS MAY PROPERLY COME BEFORE THE ANNUAL MEETING. IF SPECIFIC INSTRUCTIONS ARE INDICATED, THIS PROXY WILL BE VOTED IN ACCORDANCE THEREWITH.
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If you vote by phone or Internet, please do not mail your proxy card.
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Thank You For Voting
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(CONTINUED, AND TO BE SIGNED AND DATED ON REVERSE SIDE)
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0000277527_2 R1.0.1.25
QuickLinks
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENTPROPOSAL NO. 1 ELECTION OF DIRECTORSPROPOSAL NO. 2 RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRMPROPOSAL NO. 3 APPROVAL OF THE BOARD OF DIRECTORSOF CLEAN ENERGY FUELS CORP. 2016 PERFORMANCE INCENTIVE PLANCORPORATE GOVERNANCEINFORMATION ABOUT OUR EXECUTIVE OFFICERSCOMPENSATION DISCUSSIONCORP.I hereby appoint Stephen A. Scully and Andrew J. Littlefair, or either of them, as proxies, with power of substitution to each, to vote all shares of common stock that I am entitled to vote at the Annual Meeting of Stockholders of Clean Energy Fuels Corp. to be held on Thursday, May 16, 2024 at 8:00 am PDT, or at any adjournment or postponement thereof, in accordance with the instructions on the reverse side of this card and with the same effect as though I were present in person and voting such shares. My appointed proxies are authorized in their discretion to vote upon such other business as may properly come before theAnnual Meeting or any adjournment or postponement thereof.UNLESS A CONTRARY DIRECTION IS INDICATED, THIS PROXY WILL BE VOTED "FOR ALL" NOMINEES FOR DIRECTOR LISTED IN PROPOSAL 1 AND ANALYSISCOMPENSATION OF EXECUTIVE OFFICERS"FOR" PROPOSALS 2, 3 AND DIRECTORSREPORT4, AND IN THE DISCRETION OF THE AUDIT COMMITTEE OFAPPOINTED PROXIES UPON SUCH OTHER BUSINESS AS MAY PROPERLY COME BEFORE THE BOARDCERTAIN RELATIONSHIPSANNUAL MEETING. IF SPECIFIC INSTRUCTIONS ARE INDICATED, THIS PROXY WILL BE VOTED IN ACCORDANCE THEREWITH.(CONTINUED, AND RELATED PARTY TRANSACTIONSOTHER MATTERSCLEAN ENERGY FUELS CORP. 2016 PERFORMANCE INCENTIVE PLANTO BE SIGNED AND DATED ON REVERSE SIDE)
0001368265 4 2023-01-01 2023-12-31
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