UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the
Securities Exchange Act of 1934
Filed by the Registrant ☒
Filed by a Party other than the Registrant ☐
Check the appropriate box:
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material underPursuant to §240.14a-12
Enviva Partners, LPENVIVA INC.
(Name of Registrant as Specified in its Charter)
N/A
(Name of Person(s) Filing Proxy Statement, if other thanOther Than the Registrant)
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No fee required.required
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Fee paid previously with preliminary materials
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Fee computed on table belowin exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11.0-11
(1)
Title of each class of securities to which transaction applies:
(2)
Aggregate number of securities to which transaction applies:
(3)
Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):
(4)
Proposed maximum aggregate value of transaction:
(5)
Total fee paid:
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Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
(1)
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CORPORATE CONVERSION PROPOSED — YOUR VOTE IS VERY IMPORTANTNOTICE OF ANNUAL MEETING OF STOCKHOLDERS
To Be Held on June 15, 2023
at 10:00 a.m. Eastern TimeDear UnitholdersStockholder:
You are cordially invited to attend the 2023 Annual Meeting of Enviva Partners, LP:
The board of directorsStockholders (the “GP Board”“Annual Meeting”) of Enviva Partners GP, LLC (the “General Partner”)Inc., which is the general partner of Enviva Partners, LP (the “Partnership”), unanimously approved a Plan of Conversion (the “Plan of Conversion”) on November 3, 2021, that provides for and sets forth matters related to the conversion of the Partnership from a Delaware limited partnership to a Delaware corporation named “Enviva Inc.” (the “Corporation”(the “Company”). The Conversion isThis year’s Annual Meeting will be held in a virtual-meeting format only via live webcast on June 15, 2023, at 10:00 a.m. Eastern Time. You may attend the Annual Meeting virtually via the Internet by accessing https://web.lumiagm.com/218783948, where you will find instructions on how to register, vote electronically, and submit questions. For additional instructions on how to attend the Annual Meeting, please review the accompanying proxy statement. Only stockholders of record on April 21, 2023 may vote at the Annual Meeting, including any adjournment or postponement thereof.
At the Annual Meeting, you will be accomplished through asked to consider and vote upon:
(1)
the filingelection of a Certificatethirteen director nominees to serve as directors until the 2024 annual meeting of Conversionstockholders and until their successors are duly elected and qualified, subject to their earlier resignation, removal, or death;
(2)
the approval of an amendment to the Company’s certificate of incorporation (the “Certificate“Current Certificate”) to reflect new Delaware law provisions regarding officer exculpation;
(3)
the approval of, Conversion”) andon an advisory (non-binding) basis, the Certificatefrequency of Incorporationfuture advisory votes to approve the compensation of our Named Executive Officers (as defined in the enclosed proxy statement);
(4)
the approval of, on an advisory (non-binding) basis, the compensation of our Named Executive Officers;
(5)
the ratification of the Corporation (the “Charter”) withappointment of Ernst & Young LLP as our independent registered public accounting firm for the Secretary of Statefiscal year ending December 31, 2023;
(6)
the approval, pursuant to Section 312.03 of the State of Delaware. The transactions contemplated by the Plan of Conversion, including the filingNew York Stock Exchange Listed Company Manual, of the Certificateissuance of Conversion and the adoptionshares of the Charter, are referred to collectively as the “Conversion.”
Pursuant to the Plan of Conversion, at the effective time of the Conversion, each outstanding common unit representing a limited partner interest in the Partnership (the “Units”) will be exchanged for one share ofour common stock, par value $0.001, upon the conversion of our Series A Preferred Stock, par value $0.001 per share, primarily to certain related parties of the CorporationCompany (the “Common Stock”“Issuance Proposal”). Holders; and
(7)
the transaction of Units (the “Unitholders”) will receive, in exchange for their Units, 100%such other business as may properly come before the meeting or at any and all adjournments or postponements thereof.
The accompanying proxy statement more fully describes the details of the Common Stock to be outstanding immediately following the Conversion. Upon consummation of the Conversion, the Corporation’s Common Stock is expected to be listed on the New York Stock Exchange under the symbol “EVA.”
After the consummation of the Conversion, the business currently conducted by the Partnership will continue to be conducted at the Annual Meeting. Proposal 1 relates solely to the election of the thirteen directors nominated by the Corporation with substantially the same operating management, but without involvement by the General Partner or the GP Board.
If the proposal for Conversion is approved by Unitholders at the special meeting, it is expected that the Conversion will be consummated asBoard of December 30, 2021.
The GP Board believes that the Conversion will facilitate the future successDirectors of the Partnership. Specifically,Company (the “Board”) and does not include any other matters relating to the GPelection of directors, including, without limitation, the election of directors nominated by any stockholder of the Company. After careful consideration, our Board, believes that the Partnership is no longer best suited for the yield-based master limited partnership sector, and the Conversion will enable enhanced growth potential. The GP Board also believes that the transition to a C Corporation (a “C-Corp”) will benefit stockholders with enhanced protections and rights and better align the corporate structure with the Partnership’s environmental, social and governance objectives. In addition, the GP Board believes that the Conversion will increase the Partnership’s access to, and lower the cost of, capital through an expanded field of investors, as many investors are unwilling or unable to invest in pass-through entities. For further discussion of certain material factors considered with respect to the Conversion, see “The PlanIssuance Proposal, upon the recommendation of Conversion — Backgroundan independent committee of the Conversion” beginning on page 23Board, has unanimously approved the proposals and “The Plan of Conversion — Recommendationrecommends that you vote FOR the thirteen director nominees, FOR the approval of the GP Board and Reasonsamendment to the Current Certificate to reflect new Delaware law provisions regarding officer exculpation, for the Conversion” beginning on page 24.The Partnership is holding a special meeting of the Unitholders on December 17, 2021 (the “special meeting”). At the special meeting, Unitholders are being askedfuture advisory votes to approve the Plancompensation of Conversion, which will constituteour Named Executive Officers to be held EVERY YEAR, FOR the approval of, on an advisory (non-binding) basis, the Conversion. Information about the special meeting and the Plancompensation of Conversion is contained in the accompanying proxy statement. We encourage you to read the entire proxy statement, including the annexes, carefully. In particular, you should read the “Risk Factors” section beginning on page 11 for a description of various risks you should consider in evaluating the proposed Conversion.The GP Board unanimously determined that the Conversion is advisable, fair to and in the best interests of the Partnership and the Unitholders and unanimously approved and adopted the Plan ofour Named Executive Officers,
Conversion on November 3, 2021. The GP Board unanimously recommends that the Unitholders vote FOR the approvalratification of the Planappointment of ConversionErnst & Young LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2023, and FOR the adjournmentIssuance Proposal. In accordance with Delaware law, a list of stockholders entitled to vote at the meeting will be accessible by appointment for ten days prior to the meeting by contacting our Investor Relations department at investor.relations@envivabiomass.com.
We are pleased to save costs by taking advantage of Securities and Exchange Commission (“SEC”) rules that allow us to provide our notice of annual meeting of stockholders, proxy statement, and our 2022 annual report to stockholders online, with paper copies available free of charge upon request. On or about May 1, 2023, we began mailing a Notice of Internet Availability of Proxy Materials (the “Notice of Internet Availability”), instead of a paper copy of our proxy materials. The Notice of Internet Availability contains instructions on how to access these documents and how to cast your vote via the Internet. The Notice of Internet Availability also contains instructions on how to request a paper copy of our proxy materials. All stockholders who have so requested will receive a paper copy of the special meeting if necessaryproxy materials by mail. We believe that this process allows us to permit further solicitationprovide our stockholders with the information they need on a more timely basis, while lowering the costs of proxies if thereprinting and distributing our proxy materials. This proxy statement and accompanying form of proxy are not sufficient votes at the time of the special meetingdated May 1, 2023 and are expected to approve the proposalbe first made available to approve the Plan of Conversion.stockholders on or about May 1, 2023.
EVERY VOTE IS IMPORTANT.Your vote is important. Whether or not you are able to attend the Annual Meeting, it is important that your shares be represented. To ensure your vote is recorded promptly, please vote as soon as possible, even if you plan to attend the special meeting, please take the time to voteAnnual Meeting, by following the instructions onsubmitting your proxy card as soon as possible. If your Units are held in “street name,” please instruct your broker or bank how to vote your Units.
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE SPECIAL MEETING TO BE HELD ON DECEMBER 17, 2021.
In accordance with rules promulgated by the U.S. Securities and Exchange Commission and in connection with the solicitation of proxies by the GP Board for the special meeting, we have made the Partnership’s proxy materials available to you free of charge on the Internet in addition to delivering paper versions of these materials to you by mail (including the attached Notice of Special Meeting of Unitholders, proxy statement and a form of proxy). Beginning on or about November 24, 2021, these proxy materials are being mailed to the Unitholders and are available onvia the Internet at http:https://astproxyportal.com/ast/20060.web.lumiagm.com/218783948 or by completing, signing, and dating the proxy card and returning it in the postage-prepaid envelope, if you have requested that a paper copy be mailed to you.
Thank you, and weWe look forward to seeingspeaking with you at the special meeting.
| | | | Sincerely, | |
| | | | | |
| | | | John K. Keppler
Chief Executive Officer and
Chairman of the Board of Directors of Enviva
Partners GP, LLC | |
NEITHER THE U.S. SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THE SECURITIES TO BE ISSUED IN CONNECTION WITH THE TRANSACTIONS DESCRIBED IN THE ACCOMPANYING PROXY STATEMENT, PASSED UPON THE MERITS OR FAIRNESS OF THE CONVERSION OR RELATED TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THE ACCOMPANYING PROXY STATEMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Annual Meeting.
Bethesda, Maryland
November 22, 2021
Enviva Partners, LP
7272 Wisconsin Ave., Suite 1800
Bethesda, Maryland 20814
NOTICE OF SPECIAL MEETING OF UNITHOLDERS
To the Unitholders of Enviva Partners, LP:
A special meeting (the “special meeting”) of the holders (the “Unitholders”) of common units (the “Units”) representing limited partner interests in Enviva Partners, LP (the “Partnership”) will be held on December 17, 2021, at 10:00 a.m., eastern time, via live webcast at the following address: https://web.lumiagm.com/218783948, for the following purposes:
•
to consider and vote upon a proposal to approve a Plan of Conversion (the “Plan of Conversion”), a copy of which is attached as Annex A to the accompanying proxy statement, that provides for and sets forth matters related to the conversion of Partnership from a Delaware limited partnership to a Delaware corporation named “Enviva Inc.” (the “Corporation”), the filing of a Certificate of Conversion and the Certificate of Incorporation of the Corporation with the Secretary of State of the State of Delaware (the transactions contemplated by the Plan of Conversion, the “Conversion,” and such proposal, the “Plan of Conversion Proposal”); and
•
to consider and vote upon a proposal to adjourn the special meeting to a later date or dates, if presented, to permit further solicitation of proxies if there are not sufficient votes at the time of the special meeting to approve the Plan of Conversion Proposal (the “Adjournment Proposal” and, collectively with the Plan of Conversion Proposal, the “Proposals”).
Approval of the Plan of Conversion Proposal, which constitutes approval of the Conversion, requires the affirmative vote of the holders of a majority of the outstanding Units. Approval of the Adjournment Proposal, if presented, requires the approval of a majority of the outstanding Units represented either virtually or by proxy at the special meeting and entitled to vote thereon. Abstentions will have the same effect as a vote “against” the Plan of Conversion Proposal and the Adjournment Proposal. Broker non-votes (if any) will have no effect on the outcome of the Adjournment Proposal, but will have the same effect as a vote “against” the Plan of Conversion Proposal. The votes on each Proposal are separate and apart from the votes on the other Proposal. Accordingly, you may vote to approve one of the Proposals and vote not to approve the other Proposal.
The directors and executive officers of the General Partner beneficially owned, in the aggregate, approximately 13.3% of the outstanding units as of the record date. The Partnership believes that the directors and executive officers of the General Partner will vote in favor of each of the Proposals. Pursuant to that certain Support Agreement (as amended to date, the “Support Agreement”), dated as of October 14, 2021, entered into by and among the Partnership (with its successors and permitted assigns (including the Corporation from and after the Conversion)) and the parties listed on Schedule I thereto (the “Supporting Unitholders,” which includes certain of the directors and executive officers of the General Partner), the Supporting Unitholders have agreed to vote or cause to be voted all units beneficially owned by such Supporting Unitholders in favor of the Plan of Conversion Proposal. The Supporting Unitholders beneficially own approximately 49% of the outstanding units as of the record date.
We cannot complete the Conversion without the approval of the Unitholders. Accordingly, your vote is very important regardless of the number of Units you own.
The GP Board approved the Plan of Conversion and determined that the Conversion is fair and reasonable to, and in the best interests of, the Partnership and the Unitholders on November 3, 2021. The GP Board recommends that the Unitholders vote FOR the Plan of Conversion Proposal and FOR the Adjournment Proposal.
For more information regarding the recommendation of the GP Board, including the obligations of the GP Board in making such determination under the Second Amended and Restated Agreement of Limited Partnership (the “Partnership Agreement”), see “The Plan of Conversion — Recommendation of the GP Board and Reasons for the Conversion.”
Only Unitholders of record at the close of business on November 19, 2021 are entitled to notice of and to vote at the special meeting. A list of Unitholders entitled to vote at the special meeting will be available for inspection at the Partnership’s office in Bethesda, Maryland for any purpose relevant to the special meeting during normal business hours for a period of 10 days before the special meeting, and at the special meeting.
YOUR VOTE IS IMPORTANT. WHETHER OR NOT YOU EXPECT TO ATTEND THE SPECIAL MEETING, PLEASE SUBMIT YOUR PROXY IN ONE OF THE FOLLOWING WAYS:
•
If you hold your Units in the name of a bank, broker or other nominee, you should follow the instructions provided by your bank, broker or other nominee when voting your Units.
•
If you hold your Units in your own name, you may submit your proxy by:
•
using the Internet website shown on the proxy card; or
•
marking, signing, dating and promptly returning the enclosed proxy card in the postage-paid envelope (it requires no postage if mailed in the United States).
The enclosed proxy statement provides a detailed description of the Plan of Conversion, the Conversion and the other matters being presented at the special meeting. You are urged to read the proxy statement and the annexes carefully and in their entirety. If you have any questions concerning the Plan of Conversion, the Conversion, any other matters being presented at the special meeting or the accompanying proxy statement, would like additional copies or need help voting your Units, please contact D.F. King & Co., Inc. (“DF King”), the Partnership’s proxy solicitor:
DF King Unitholders, Banks and Brokers
Call Toll-Free:John K. Keppler
Executive Chairman
May 1, (800) 431-9629
Email: enviva@dfking.com2023
| | | IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE SPECIAL
ANNUAL MEETING OF UNITHOLDERSSTOCKHOLDERS TO BE HELD ON DECEMBER 17, 2021June 15, 2023 | | |
| | | The NoticeOur notice of Special Meetingannual meeting of Unitholdersstockholders, proxy statement, form of proxy card, or voting instruction
form, and the Proxy Statementour 2022 annual report to stockholders are available on the internet at
http://www.astproxyportal.com/astproxyportal.com/ast/20060.20060. | | |
By order of the Board of Directors of
Enviva Partners GP, LLC
PROXY STATEMENT
TABLE OF CONTENTS
![[MISSING IMAGE: lg_enviva-4clr.jpg]](/files/DEF 14A/0001104659-23-053650/lg_enviva-4clr.jpg)
ENVIVA INC.
PROXY STATEMENT FOR
2023 ANNUAL MEETING OF CONTENTSSTOCKHOLDERS
TO BE HELD ON JUNE 15, 2023
at 10:00 a.m. Eastern TimeFREQUENTLY USED TERMSvia Live Webcast by Accessing
In thishttps://web.lumiagm.com/218783948
QUESTIONS AND ANSWERS ABOUT THE PROXY STATEMENT AND THE ANNUAL MEETING
1.
What are proxy statement, unless otherwise indicated or the context otherwise requires, references to “Enviva,” “we,” “us” or “our” refer to, prior to the consummation of the Conversion, Enviva Partners, LP, and as of and following the consummation of the Conversion, Enviva Inc.materials?
In addition, unless otherwise indicated, or unless the context otherwise requires, a reference in this
The proxy statement to:
“Adjournment Proposal” means a proposal to adjourn the special meeting to a later date or dates, if presented, to permit further solicitation of proxies if therematerials are not sufficient votes at the time of the special meeting to approve the Plan of Conversion Proposal.
“Bylaws” means the Bylaws of the Corporation, the form of which is attached to this proxy statement as Annex B, which will be adopted by the New Boardfurnished in connection with the Conversion.solicitation of proxies by the Board of Directors (the “Board” or “Board of Directors”) of Enviva Inc. (“Enviva,” the “Company,” “we,” or “us”) for use at the Company’s 2023 Annual Meeting of Stockholders (the “Annual Meeting”), to be held via live webcast on June 15, 2023, at 10:00 a.m. Eastern Time by accessing https://web.lumiagm.com/218783948. The proxy materials include the notice of annual meeting of stockholders, this proxy statement for the Annual Meeting, a 2022 annual report to stockholders, and the proxy card or, for shares held in street name (held for your account by a broker or other nominee), a voting instruction form, for the Annual Meeting. As a stockholder, you are invited to attend the Annual Meeting and are requested to vote on the items of business described in this proxy statement. This proxy statement includes information that we are required to provide to you under Securities and Exchange Commission (“SEC”) rules and is designed to assist you in voting your shares.
“CertificatePursuant to the “notice and access” rules adopted by the SEC, we have elected to provide access to our proxy materials to our stockholders via the Internet. Accordingly, on or about May 1, 2023, we began mailing a Notice of Conversion” means a CertificateInternet Availability to stockholders entitled to vote at the Annual Meeting containing instructions on how to access the proxy materials and how to vote online. Please follow the instructions on the Notice of Conversion thatInternet Availability for requesting paper or e-mail copies of our proxy materials. In addition, stockholders of record may request to receive proxy materials in printed form by mail or electronically by e-mail on an ongoing basis for future stockholder meetings. We believe electronic delivery will be filed withexpedite the Secretary of Statereceipt of the Statematerials and will help lower the costs of Delawareour proxy materials. Please note that, while our proxy materials are available at the website referenced in connection with the Conversion, as contemplatedNotice of Internet Availability and on our website, no other information contained on either website is incorporated by reference into or considered to be a part of this document.
2.
Who is entitled to vote at the PlanAnnual Meeting?
Only holders of Conversion.
“Charter” means the Certificaterecord of Incorporation of the Corporation, the form of which is attached to the Plan of Conversion, which will be filed with the Secretary of State of the State of Delaware in connection with the Conversion, as contemplated by the Plan of Conversion.
“Code” means the Internal Revenue Code of 1986, as amended.
“Common Stock” meansour common stock, par value $0.001 per share of the Corporation.
“Conversion” means, collectively, the transactions contemplated by the Plan of Conversion pursuant to which the Partnership will be converted from a Delaware limited partnership to a Delaware corporation, including the filing of the Certificate of Conversion and the adoption of the Charter.
“Corporation” means Enviva Inc.(our “Common Stock”), a Delaware corporation.
“Delaware LP Act” means the Delaware Revised Uniform Limited Partnership Act.
“DGCL” means the Delaware General Corporation Law.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“General Partner” means Enviva Partners GP, LLC, a Delaware limited liability company and the general partner of the Partnership.
“DF King” means D.F. King & Co., Inc., the Partnership’s proxy solicitor.
“GP Board” means the board of directors of the General Partner.
“IDRs” means incentive distribution rights.
“New Board” means the board of directors of the Corporation to be empaneled in connection with the consummation of the Conversion. See “Plan of Conversion — Board and Management Positions.”
“NYSE” means the New York Stock Exchange.
“Partnership” means Enviva Partners, LP, a Delaware limited partnership.
“Partnership Agreement” means the Second Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of October 14, 2021.
“Plan of Conversion” means the Plan of Conversion that provides for and sets forth matters related to the Conversion, a form of which is attached as Annex A to this proxy statement.
“Plan of Conversion Proposal” means the proposal to approve the Plan of Conversion that will be presented to the Unitholders at the special meeting, which, if approved, will constitute approval of the Conversion.
“Proposals” means, collectively, the Plan of Conversion Proposal and the Adjournment Proposal.
“record date” means November 19, 2021, the date upon which the Unitholders of record that will be entitled to notice of, and to vote at, the special meeting will be determined.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“special meeting” means the special meeting of Unitholders that is the subject of this proxy statement.
“Stockholders” means the holders of the Common Stock to be issued in connection with the Conversion.
“Unitholders” means the holders of Units.
“Units” means the common units representing limited partner interests in the Partnership.
QUESTIONS AND ANSWERS ABOUT THE PLAN OF CONVERSION
AND THE SPECIAL MEETING
The following are brief answers to some questions that you may have regarding the Plan of Conversion, the Conversion, and other matters being considered at the special meeting. You should read and consider carefully the remainder of this proxy statement, including the Risk Factors beginning on page 11 and the attached annexes, because the information in this section does not provide all of the information that might be important to you.Q:
Why am I receiving this proxy statement?
A:
This proxy statement is being used by the Partnership to solicit proxies to be used at the special meeting at which the Unitholders are being asked to consider and vote upon, among other things, a proposal to approve the Plan of Conversion that provides for and sets forth matters related to the conversion of the Partnership from a Delaware limited partnership to a Delaware corporation. You are receiving this proxy statement because the Conversion cannot be completed without approval by the Unitholders.
Q:
When and where will the special meeting be held?
A:
The special meeting will be held on December 17, 2021 at 10:00 a.m., eastern time, via live webcast at the following address: https://web.lumiagm.com/218783948. If you are a Unitholder of record as of the close of business on November 19, 2021April 21, 2023 (the ‘‘record date”“Record Date”), you should click on ‘‘I have a login,” enter the control number found on your proxy card or Notice of Internet Availability of Proxy Materials you previously received, and enter the password ‘‘Enviva2021” (the password is case sensitive).
Q:
What am I being asked to vote on?
A:
The Unitholders are being asked to consider and vote on and approve the Plan of Conversion that provides for and sets forth matters related to the conversion of the Partnership from a Delaware limited partnership to a Delaware corporation, to be accomplished through the filing of the Certificate of Conversion and the Certificate of Incorporation with the Secretary of State of the State of Delaware (the “Plan of Conversion Proposal”). Approval of the Plan of Conversion Proposal will constitute approval of the Conversion.
Unitholders are also being asked to consider and vote and approve the Adjournment Proposal, to adjourn the special meeting to a later date to solicit additional proxies in the event there are insufficient votes to approve the Plan of Conversion Proposal.
Q:
How do I vote?
A:
If you are a Unitholder of record as of the close of business on the record date, you may submit your proxy before the special meeting in one of the following ways:
•
Internet-visit the website shown on your proxy card to vote via the internet; or
•
Mail-complete, sign, date and return the enclosed proxy card in the enclosed postage-paid envelope.
If you are a Unitholder of record, you may also cast your vote virtually at the special meeting by following the instructions at https://web.lumiagm.com/218783948. If you decide to attend the special meeting virtually and vote at the meeting, your vote will revoke any proxy previously submitted.
If your Units are held in “street name” through a broker, bank or other nominee, that institution will send you separate instructions describing the procedure for voting your Units. If your Units are held in “street name” and you intend to vote at the special meeting, you may cast your vote virtually at the special meeting by following the instructions at https://web.lumiagm.com/218783948. Your vote at the special meeting will revoke any proxy previously submitted on your behalf by your broker, bank or other nominee.
The meeting will begin promptly at 10:00 a.m., eastern time, on December 17, 2021. The Partnership encourages its Unitholders to access the meeting prior to the start time leaving ample time for check-in. Please follow the instructions as outlined in this proxy statement.
Q:
Who may attend the special meeting?
A:
The special meeting will be held solely via live webcast, and you will not be able to attend the special meeting in person. Unitholders (or their authorized representatives) may participate in the virtual special meeting by using the 11-digit control number included on their proxy card. Unitholders will be able to log in beginning at 10:00 a.m., eastern time, on December 17, 2021.
Q:
What is the Conversion?
A.
The Conversion is the transaction that will occur if the necessary approval of the Unitholders is obtained for the Plan of Conversion proposal. The Partnership will file the Certificate of Conversion and the Charter with the Secretary of State of the State of Delaware resulting in the conversion of the Partnership from a Delaware limited partnership to a Delaware corporation.
Q:
Why is the Partnership proposing the Conversion?
A:
The Partnership believes that the Conversion will benefit the Unitholders. See “The Plan of Conversion — Recommendation of the GP Board and Reasons for the Conversion.”
Q:
What will Unitholders receive in the Conversion?
A:
If the Plan of Conversion Proposal is approved and the Conversion is implemented, each outstanding Unit will be exchanged for one share of Common Stock and, immediately following the Conversion, the former Unitholders will own 100% of the outstanding stock of the Corporation.
Q:
Where will my shares of Common Stock trade after the Conversion?
A:
The Common Stock is expected to be listed on the NYSE under the symbol “EVA.” The Units will no longer be publicly traded after the consummation of the Conversion.
Q:
Who is entitled to vote at the special meeting?
A:
The record date for the special meeting is November 19, 2021. Only Unitholders of record as of the close of business on the record date are entitled to notice of and to vote at the special meeting.
Q:
What constitutes a quorumAnnual Meeting. Each share of Common Stock is entitled to one vote on all matters to be voted upon at the special meeting?Annual Meeting. On the Record Date, 67,727,662 shares of Common Stock were issued and outstanding (constituting 67,727,662 votes). Holders of Common Stock do not have the right to cumulative voting in the election of directors. Shares of Common Stock that are present virtually during the Annual Meeting constitute shares of Common Stock represented “in person.”
If more than 50%
The presence, in person or by proxy, of the holders of a majority in voting power of the outstanding Unitsshares of Common Stock on the record date are present virtually or by proxyRecord Date (constituting 33,863,832 votes) entitled to vote at the special meeting, such UnitsAnnual Meeting will constitute a quorum and will permitfor the Partnership to conduct the proposedtransaction of business at the specialAnnual Meeting and any postponement or adjournment thereof, though the Board may fix a new record date for purposes of a postponed or adjourned meeting. Abstentions and broker non-votes, each discussed below, will be counted for the purpose of determining the presence or absence of a quorum.
You are a stockholder of record if your shares of our Common Stock are registered directly in your own name with our transfer agent, American Stock Transfer & Trust Company, LLC (“AST”). You are a beneficial owner of shares of our Common Stock if a brokerage firm, bank, or other agent, called a “nominee,” holds your stock. This is often called ownership in “street name” because your name does not appear in the records of AST. If you are a stockholder of record, you have the right to grant your proxy directly to the individuals listed on the proxy card or to vote in person at the Annual Meeting. If you hold any shares in street name, you have the right to direct your nominee how to vote your shares. Beneficial owners are also invited to attend the Annual Meeting. If you hold any shares of Common Stock in street name, you should receive a voting instruction form from your nominee.
3.
How do you vote your shares?
If you are a stockholder of record, there are three ways to vote:
•
Virtually During the Meeting. You may vote online during the virtual meeting through https://web.lumiagm.com/218783948. To be admitted to the Annual Meeting and vote your shares, you must go to https://web.lumiagm.com/218783948 on the day of the Annual Meeting, provide the control number located on the Notice of Internet Availability, proxy card, or voting instruction form and enter the password “enviva2023”.
•
Via the Internet. You may vote by proxy via the Internet at www.voteproxy.com by following the instructions provided on the Notice of Internet Availability or proxy card. You must have the control number that is on the Notice of Internet Availability, proxy card, or voting instruction form in order to vote.
•
By Mail. You may vote by completing, dating, and signing the proxy card and returning it in the postage-prepaid envelope provided.
If you are a beneficial owner of shares held in street name, there are three ways to provide voting instructions:
•
Virtually During the Meeting. You should follow the instructions provided by your nominee in order to vote during the virtual meeting at https://web.lumiagm.com/218783948. To be admitted to the Annual Meeting and vote your shares, you must obtain a legal proxy from your nominee giving you the legal right to vote the shares.
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Via the Internet. You may provide voting instructions via the Internet by following the instructions provided on the Notice of Internet Availability or your voting instruction form.
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By Mail. You may provide voting instructions by filling out the voting instruction form and returning it in the postage-prepaid envelope provided.
4.
What if you receive more than one proxy card or voting instruction form?
This means that you may have more than one account at AST, with a nominee, or both. Please vote all proxy cards and voting instruction forms that you receive so that all the shares that you own will be represented at the Annual Meeting.
5.
How may you revoke your proxy or voting instructions?
If you are a stockholder of record, you may revoke or amend your proxy at any time before it is voted at the Annual Meeting by writing to us directly “revoking” your earlier proxy, submitting a new proxy with a later date by mail or via the internet, or by attending the Annual Meeting virtually and voting online at the meeting. Your Unitslast dated proxy timely received prior to the Annual Meeting, or vote cast at the Annual
Meeting, will be counted. If you hold your shares in street name, you must follow the instructions on your voting instruction form to revoke or amend any prior voting instructions.
6.
What is discretionary authority?
If you are a stockholder of record and you properly submit your proxy without making any specific selections, your shares will be voted on each matter before the Annual Meeting in the manner recommended by the Board. If other matters not included in this proxy statement properly come before the Annual Meeting, the persons named on the proxy card, or otherwise designated, will have the authority to vote on those matters for you in their discretion. At this time, we are not aware of any matters that will come before the Annual Meeting other than those disclosed in this proxy statement. If you are a beneficial owner of shares held in street name, please see the discussion below regarding broker non-votes and the rules related to voting by nominees.
7.
What are abstentions, “withhold votes,” and “broker non-votes”?
Abstentions and “Withhold” Votes
If you are a stockholder of record and you vote “abstain” on the Exculpation Amendment (defined below), the resolution to approve the compensation of our Named Executive Officers, the ratification of the appointment of the independent registered public accounting firm, or the Issuance Proposal (as defined below), your shares will not be voted on that matter but will be counted as present atin person or by proxy and entitled to vote. Abstentions have the special meeting if you:same effect as a vote “against” the Exculpation Amendment, the resolution to approve the compensation of our Named Executive Officers, the ratification of the appointment of the independent registered public accounting firm, and the Issuance Proposal.
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If you are presenta stockholder of record and vote virtually atyou “abstain” from voting on the meeting; or
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have submitted a properly executed proxy.
Proxies received but marked as abstentionsfrequency of future advisory votes to approve the compensation of our Named Executive Officers, your shares will be counted as Unitspresent in person or by proxy and entitled to vote, but will have no effect on the outcome, because the frequency period that receives the most votes (every one, two, or three years) will be deemed to be the recommendation of the stockholders.
If you are a stockholder of record and you vote “withhold” in the election of a director, your shares will be counted as present in person or by proxy and entitled to vote, but will have no effect on the outcome, because the director nominees who receive the highest number of “for” votes are elected. Because the election is uncontested, this means that each director nominee will be elected provided there is a quorum and such director nominee receives at least one vote “for” such director nominee’s election.
In all cases, if you are a stockholder of record and you vote “withhold” or “abstain”, your shares will be counted for purposes of determining whether a quorum is present. If you are a beneficial owner holding shares through a nominee, you may instruct your nominee that you wish to abstain from voting on a proposal or withhold authority to vote for one or more nominees for directors, and your vote will have the same effect as described above.
“Broker Non-Votes”
If you are a beneficial owner holding shares through a nominee and you fail to instruct the nominee how your shares should be voted on a particular matter, then your broker nominee may submit a vote on your behalf on “routine” matters pursuant to the rules of the New York Stock Exchange (the “NYSE”). A broker nominee generally may not vote on “non-routine” matters without receiving your specific voting instructions. This is called a “broker non-vote.”
At the Annual Meeting, your broker nominee will not be able to submit a vote on any matter other than the ratification of the appointment of the independent registered public accounting firm, unless it receives your specific instructions. If your nominee does not receive your specific instructions for the remaining proposals, it will submit a broker non-vote.
Broker non-votes are counted as present and entitled to vote for quorum purposes, of determining the presence of a quorum. If an executed proxy is returned by a broker or other nominee holding Units in “street name” indicating that the broker or other nominee doesbut are not have discretionary authority as to certain Units to vote on the proposals, such Units will be considered present at the meeting for purposes of determining the presence of a quorum but will not be considered entitled to vote.
Q:
What isvote and have no effect on the vote required to approve each proposal?
A:
Approvaloutcome of the Planelection of Conversion Proposal requiresdirectors, the affirmative vote of the holders of a majority of the outstanding Units and, if approved, will constitute approval of the Conversion.
Approval of the Adjournment Proposal, if presented, requires the approval of a majority of the outstanding Units represented either virtually or by proxy at the special meeting and entitledresolution to vote thereon.
Abstentionsapprove the frequency of future advisory votes to approve the compensation of our Named Executive Officers, the resolution to approve the compensation of our Named Executive Officers, or the ratification of the appointment of the independent registered public accounting firm. However, because the Exculpation Amendment requires the affirmative vote of at least a majority of the voting power of the outstanding shares of our Common Stock, and the Issuance Proposal requires a vote of at least a majority of the votes cast, broker non-votes will have the same effect as a vote “against” these proposals.
The broker nominee, however, will be able to vote on the Planratification of Conversion Proposalthe appointment of our independent registered public accounting firm even if it does not receive your instructions, so we do not expect any broker non-votes will exist in connection with this proposal.
8.
What proposals will be voted on at the Annual Meeting, and what votes are required to approve each of the proposals?
The required vote for each of the proposals expected to be acted upon at the Annual Meeting and the Adjournment Proposal. Brokertreatment of abstentions and broker non-votes (if any)under each proposal are described below:
Proposal No. 1 — Election of directors. Directors are elected by a plurality of the votes validly cast by holders of the shares of the Company’s Common Stock that are present in person or represented by proxy and entitled to vote on the election of directors, with the nominees obtaining the most votes being elected. Because there is no minimum vote required, abstentions and broker non-votes will have no effect on the outcomeoutcome.
Proposal No. 2 — Approval of the Adjournment Proposal, but will have the same effect as a vote “against” the Plan of Conversion Proposal.
The votes on each Proposal are separate and apart from the votes on the other Proposal. Accordingly, you may vote to approve one of the Proposals and vote not to approve the other Proposal.
All of the directors and executive officers of the General Partner beneficially owned, in the aggregate, approximately 13.3% of the outstanding Units as of the record date. The Partnership believes that the directors and executive officers of the General Partner will vote in favor of each of the Proposals.
Pursuantamendment to the Support Agreement, the Supporting Unitholders have agreedCurrent Certificate to vote or cause to be voted all units beneficially owned by such Supporting Unitholders in favor of the Plan of Conversion Proposal. The Supporting Unitholders beneficially owned, in the aggregate, approximately 49% of the outstanding units as of the record date.
Q:
How do I vote my Units if I hold them in my own name?
A:
After you have read this proxy statement carefully, please respond by completing, signing and dating your proxy card and returning it in the enclosed postage-paid envelope, or by submitting your proxy on the Internet as soon as possible in accordance with the instructions provided under “The Special Meeting — Voting Procedure.”
Q:
If my Units are held in “street name” by my bank, broker or other nominee, will my bank, broker or other nominee vote them for me?
A:
As a general rule, absent specific instructions from you, your bank, broker or other nominee is not allowed to vote your Units on any proposal on which your bank, broker or other nominee does not have discretionary authority. The only proposals for consideration at the special meeting are the Plan of Conversion Proposal and the Adjournment Proposal, which are non-discretionary matters for which banks, brokers or other nominees do not have discretionary authority to vote. To instruct your bank, broker or other nominee how to vote, you should follow the directions that your bank, broker or other nominee provides to you.
Please note that you may not vote your Units held in “street name” by returning a proxy card directly to the Partnership or by voting virtually at the special meeting unless you provide a “legal proxy,” which you must obtain from your bank, broker or other nominee. If you do not instruct your bank, broker or other nominee on how to vote your Units, your bank, broker or other nominee cannot vote your Units. You should therefore provide your bank, broker or other nominee with instructions as to how to vote your Units.
Q:
When do you expect the Conversion to be consummated?
A:
The approval of the Plan of Conversion by the Unitholders must occur before the Partnership can complete the Conversion. Assuming the Plan of Conversion is approved by the Unitholders, we expect to consummate the Conversion as of December 30, 2021.
Q:
What if the proposed Conversion is not consummated?
A:
If the Conversion is not consummated, the Partnership will remain a publicly traded limited partnership. In addition, the failure to consummate the Conversion may adversely impact the Partnership’s business going forward. See “Risk Factors.” Whether or not the Conversion is consummated, the costs and expenses incurred in connection with the Conversion and the solicitation of proxies for use at the special meeting will be paid in full by the Partnership.
Q:
How does the GP Board recommend that the Unitholders vote?
A:
The GP Board recommends that Unitholders vote FOR the Plan of Conversion Proposal and FOR the Adjournment Proposal.
The GP Board determined that the Conversion is fair and reasonable to, and in the best interests of, the Partnership and the Unitholders, approved the Plan of Conversion, resolved to submit the Plan of Conversion to a vote of the Unitholders and recommend approval of the Plan of Conversion by the Unitholders on November 3, 2021. For more information regarding the recommendation of the GP Board, including the obligations of the GP Board in making such determination under the Partnership Agreement, see “The Plan of Conversion — Recommendation of the GP Board and Reasons for the Conversion.”
Q:
What are the expected U.S. federal income tax consequences to the Partnership as a result of the Conversion?
A:
For U.S. federal income tax purposes, the Conversion is treated as if (i) first, the Partnership transfers all of its assets and liabilities to the Corporation, which is treated as a corporation for U.S. federal income tax purposes, and receives in exchange for such transfer all of the Common Stock of the Corporation, and (ii) second, the Partnership then distributes such Common Stock to the Unitholders in complete liquidation of the Partnership. Generally, no gain or loss is expected to be recognized by the Partnership in connection with these deemed contributions and distributions resulting from the Conversion except to the extent the Partnership’s liabilities assumed by the Corporation in the deemed transfer exceed the Partnership’s tax basis in the assets transferred to the Corporation. If the liabilities assumed exceed the tax basis of the Partnership’s assets deemed transferred, the Partnership would recognize gain in the amount of such excess, which gain would be allocated to the Unitholders in accordance with their percentage interests in the Partnership. Based on analysis performed, the GP Board believes that the Partnership will not recognize a material amount of gain, if any, as a result of the Conversion. See “Material U.S. Federal Income Tax Consequences” for a more complete discussion of the expected material U.S. federal income tax consequences of the Conversion to the Partnership.
Q:
What are the expected U.S. federal income tax consequences to a Unitholder as a result of the Conversion?
A:
For U.S. holders (as defined in the section titled “Material U.S. Federal Income Tax Consequences”) the receipt of Common Stock in exchange for Units pursuant to the Conversion is intended to constitute a liquidating partnership distribution under Section 731 of the Code for U.S. federal income tax purposes. In general, U.S. holders are not expected to recognize gain or dividend income as a result of the Conversion except (i) to the extent the Unitholders are allocated a portion of any (a) gain recognized by the Partnership if the aggregate amount of the Partnership’s liabilities exceeds the aggregate amount of the Partnership’s adjusted tax basis in its assets or (b) dividend income recognized by the Partnership to the extent certain liabilities assumed by the Corporation in the Conversion are characterized as deemed dividends from our existing corporate subsidiaries, or (ii) to the extent that the Partnership’s liabilities allocated to a Unitholder for U.S. federal income tax purposes exceed such Unitholder’s tax basis in its Units. Based on analysis performed, the GP Board believes that (i) the Partnership will not recognize a material amount of gain or dividend income, if any, as a result of the Conversion, and (ii) most of the public Unitholders will not recognize taxable income as a result of being relieved of Partnership liabilities. In particular, it is expected that all Unitholders who purchased their Units at a price greater than or equal to $22 in 2015 or 2016, and all Unitholders who purchased their Units in 2017 or later, will not recognize taxable income with respect to such Units as a result of being relieved of Partnership liabilities in excess of their tax bases in such Units. Unitholders who purchased Units at a price below $22 in 2015 or 2016 may be relieved of Partnership liabilities in excess of their respective bases. All Unitholders are urged to consult their own tax advisors with respect to their specific circumstances. See “Material U.S. Federal Income Tax Consequences” for a more complete discussion of the expected material U.S. federal income tax consequences of the Conversion to the Unitholders.
Q:
What are the expected U.S. federal income tax consequences for a Unitholder of the ownership of Common Stock after the Conversion is completed?
A:
The Corporation will be classified as a corporation for U.S. federal income tax purposes and will be subject to U.S. federal income tax on its taxable income. As such, other than as described below with respect to tax reporting for the Partnership’s tax year ending on the date of the Conversion, Schedule K-1 tax reporting will no longer be required. Following the completion of the Conversion, future distributions of cash by the Corporation to a Stockholder who is a U.S. holder (as defined in the section titled “Material U.S. Federal Income Tax Consequences”) generally will be included in such U.S. holder’s income as ordinary dividend income to the extent of the Corporation’s current or accumulated “earnings and profits” as determined under U.S. federal income tax principles and will be reported to such holder on a Form 1099-DIV. A portion of cash distributed to a U.S. holder by the Corporation after the Conversion may exceed the Corporation’s current or accumulated earnings and profits. Distributions of cash in excess of the Corporation’s current or accumulated earnings and profits will be treated as a non-taxable return of capital reducing a U.S. holder’s adjusted tax basis in its Common Stock and, to the extent the distribution exceeds such U.S. holder’s adjusted tax basis, as capital gain from the sale or exchange of such Common Stock. See “Material U.S. Federal Income Tax Consequences” for a more complete discussion of the expected material U.S. federal income tax consequences of owning and disposing of Common Stock received in connection with the Conversion.
Q:
Will Unitholders continue to receive Schedule K-1s after the Conversion is completed?
A:
The Partnership will provide Schedule K-1s to the Unitholders to report their tax information with respect to their ownership of the Units for periods prior to the Conversion, including the Partnership’s short tax year ending on the date of the Conversion. The Partnership expects to deliver the Schedule K-1s for the short tax year by the end of March of the following year. As described above, distributions of cash following the Conversion by the Corporation to Stockholders who are U.S. holders will be reported to such holders on a Form 1099-DIV.
Q:
Are Unitholders entitled to appraisal rights or dissenters’ rights?
A:
No. The Unitholders are not entitled to appraisal rights or dissenters’ rights in connection with the Conversion under applicable law.
Q:
What if I do not vote or abstain?
A:
For purposes of the special meeting, an abstention occurs when a stockholder attends the special meeting virtually and does not vote or returns a proxy with an “abstain” instruction. If you do not vote or if a broker non-vote is made, it will be deemed to not be a vote cast with respect to any of the Proposals and will have no effect on the Adjournment Proposal, but it will have the same effect as a vote “against” the Plan of Conversion Proposal. If you vote “abstain” on your proxy card, it will be deemed to not be a vote cast with respect to the Proposals and will have the same effect as a vote “against” the Plan of Conversion Proposal and the Adjournment Proposal.
If you sign and return your proxy card but do not indicate how you want to vote, your proxy will be counted as a vote FOR the Plan of Conversion Proposal and FOR the Adjournment Proposal.
Q:
What will happen if I sign and submit my proxy card without indicating how I wish to vote?
A:
If you sign and return your proxy card but do not indicate how you want to vote, your proxy will be counted as a vote FOR the Conversion Proposal and FOR the Adjournment Proposal.
Q:
If I am planning to virtually attend the special meeting, should I still vote by proxy?
A:
Yes. Whether or not you plan to virtually attend the special meeting, you should vote by proxy. Your Units will not be voted if you do not vote by proxy or do not vote virtually at the special meeting, as applicable.
Q:
Can I change my vote after I have submitted my proxy?
A:
Yes. If you own your Units in your own name, you may revoke your proxy at any time prior to its exercise by:
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giving written notice of revocation to the Secretary of the General Partner before the special meeting;
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appearing and voting virtually at the special meeting; or
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properly completing and executing a later dated proxy and delivering it to the Secretary of the General Partner at or before the special meeting.
Your presence without voting at the special meeting will not automatically revoke your proxy, and any revocation during the meeting will not affect votes previously taken.
Q:
What should I do if I receive more than one set of voting materials for the special meeting?
A:
You may receive more than one set of voting materials for the special meeting, and the materials may include multiple proxy cards or voting instruction cards. For example, you will receive a separate voting instruction card for each brokerage account in which you hold Units. Additionally, if you are a holder of record registered in more than one name, you will receive more than one proxy card. Please complete, sign, date and return each proxy card and voting instruction card that you receive according to the instructions on it.
Q:
Whom do I call if I have further questions about voting, the special meeting, the Plan of Conversion, the Conversion or any other matters being considered at the special meeting?
A:
Any Unitholders who have questions about voting their Units, the Plan of Conversion, the Conversion or any other matters being considered at the special meeting or who desire additional copies of this proxy statement or additional proxy cards should contact:
DF King
Call Toll-Free: 1 (800) 431-9629
Email: enviva@dfking.com
or
Enviva Partners, LP
7272 Wisconsin Ave., Suite 1800
Bethesda, Maryland 20814 Attention: Vice President, Associate General Counsel and Secretary
Telephone: (301) 657-5560
Email: info@envivabiomass.com
RISK FACTORS
In addition to the other information included and incorporated by reference in this proxy statement, you should carefully consider the following risks before deciding whether to vote for the approval of the applicable Proposals described in this proxy statement. In addition, you should read and carefully consider the risks associated with the Partnership and its business. These risks can be found in the Partnership’s Annual Report on Form 10-K for the year ended December 31, 2020, which is filed with the SEC and incorporated by reference into this proxy statement. For further information regarding the documents incorporated into this proxy statement by reference, please see the section titled “Where You Can Find More Information” beginning on page 54 of this proxy statement. Realization of any of the risks described below or any of the risks or events described in the documents incorporated by reference could have a material adverse effect on the business, financial condition, cash flows and results of operations of the Partnership or, following the Conversion, the Corporation, and could result in a decline in the trading prices of the Units or the Common Stock.Risks Related to the Conversion
Failure to complete, or significant delays in completing, the Conversion could negatively affect the trading price of our Units and the future business and financial results of the Partnership.
Completion of the Conversion is not assured and is subject to risks, including the risk that approval of the Plan of Conversion Proposal by the Unitholders is not obtained. If the Conversion is not completed, or if there are significant delays in completing the Conversion, the trading price of our Units and the future business and financial results of the Partnership could be negatively affected, including as a result of the following:
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negative reactions from the financial markets, including declines in the price of our Units due to the fact that current prices may reflect a market assumption that the Conversion will be completed; and
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a portion of the attention of the Partnership’s management will have been directed to the Conversion rather than the Partnership’s existing operations or other opportunities.
Stockholders may not receive any dividends or may not receive the anticipated level of dividends under the Corporation’s anticipated dividend policy.
The terms of any dividend policy that the New Board may adopt are not currently determined, and any dividend policy adopted may be amended, revoked or suspended at any time. Even while any dividend policy is in place, the actual amount of dividends paid by the Corporation on the Common Stock will depend on many factors, including the Corporation’s financial condition and results of operations, liquidity requirements, market opportunities, capital requirements and reserves, legal, regulatory and contractual constraints, tax laws and other factors.
Over time, the Corporation’s capital and other cash needs may change significantly from its current needs, which could affect whether the Corporation pays dividends and the amount of any dividends it may pay in the future. The level of indebtedness of the Corporation may also restrict it from paying cash dividends on its stock under certain circumstances. A decline in the market price or liquidity, or both, of the Common Stock could result if the New Board commits capital or establishes large reserves that reduce the amounts that could be paid as quarterly dividends or if the Corporation reduces or eliminates the payment of any dividends.
Risk Factors Relating to the Ownership of Enviva Inc. Common Stock
The price of Common Stock may be volatile, and Stockholders could lose a significant portion of their investments.
The market price of the Common Stock could be volatile, and Stockholders may not be able to resell their Common Stock at or above the price at which they acquired the corresponding Units due to fluctuations in the market price of the Common Stock, including changes in price caused by factors unrelated to the Corporation’s operating performance or prospects.
Specific factors that may have a significant effect on the market price for the Common Stock include:
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the volume and quality of products that we are able to produce or source and sell;
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the prices at which we are able to sell our products;
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our ability to successfully negotiate, complete and integrate acquisitions, including the associated contracts, or to realize the anticipated benefits of such acquisitions;
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announcements by the Corporation or its competitors of significant contracts, acquisitions, strategic partnerships, joint ventures, securities offerings or capital commitments;
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failure of our customers, vendors and shipping partners to pay or perform their contractual obligations to us;
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our inability to successfully execute our project development, expansion and construction activities on time and within budget;
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the creditworthiness of our contract counterparties;
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the amount of low-cost wood fiber that we are able to procure and process, which could be adversely affected by, among other things, disruptions in supply or operating or financial difficulties suffered by our suppliers;
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changes in prevailing economic and market conditions;
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fires, explosions or other accidents;
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changes in domestic and foreign laws and regulations (or the interpretation thereof) related to renewable or low-carbon energy, the forestry products industry, the international shipping industry or power, heat or combined heat and power generators;
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changes in domestic and foreign tax laws and regulations affecting the taxation of our business and investors;
•
changes in the regulatory treatment of biomass in core and emerging markets;
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our inability to acquire or maintain necessary permits or rights for our production, transportation or terminaling operations;
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risks related to our indebtedness, including the levels and maturity dates of such indebtedness;
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the possibility of cyber and malware attacks;
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our inability to borrow funds and access capital markets;
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viral contagions or pandemic diseases, such as COVID-19;
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the Corporation’s operating and financial performance and prospects and the trading price of the Common Stock;
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the Corporation’s dividend policy and the level of any dividends declared by the Corporation;
•
quarterly variations in the rate of growth of the Corporation’s financial indicators, such as net income and revenues;
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changes in estimates of the Corporation’s revenue or earnings or publication of research reports relating to the Corporation by analysts;
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speculation by the press or investment community relating to the Corporation;
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purchases or sales of Common Stock by Stockholders;
•
changes in accounting standards, policies, guidance, interpretations or principles; and
•
domestic and international economic, legal and regulatory factors related to the Corporation’s performance.
There may be future dilution of the Common Stock, which could adversely affect the market price of shares of Common Stock.
The Corporation is not restricted from issuing additional shares of Common Stock. In the future, the Corporation may issue shares of Common Stock to raise cash for future activities, acquisitions or other purposes. The Corporation may also issue securities convertible into, or exchangeable for, or that represent the right to receive, shares of Common Stock. Any of these events may dilute the ownership interests of Stockholders in the Corporation, reduce the Corporation’s earnings per share or have an adverse effect on the price of shares of Common Stock.
Sales of a substantial amount of shares of Common Stock in the public market could adversely affect the market price of shares of Common Stock.
Sales of a substantial amount of shares of Common Stock in the public market, or the perception that these sales may occur, could reduce the market price of shares of Common Stock. The Common Stock will be freely tradable without restriction or further registration under the Securities Act, unless the shares are held by any of the Corporation’s “affiliates” as such term is defined in Rule 144 under the Securities Act. The size of future issuances of Common Stock or securities convertible into Common Stock is unpredictable, as is the effect, if any, that future issuances and sales of shares of Common Stock will have on the market price of the Common Stock.
Upon receiving Common Stock as a result of the Conversion, the Stockholders will have different rights than the rights they currently have as Unitholders.
Following completion of the Conversion, the Unitholders will no longer hold Units, but will instead be Stockholders and hold Common Stock. The Corporation will be a corporation, whereas the Partnership is a limited partnership, and we expect the New Board will be comprised of certain additional or different directors than the GP. There are important differences between the rights of Unitholders and the rights of Stockholders. See “Comparison of the Rights of Stockholders and Unitholders” for a discussion of the different rights associated with the Units and the Common Stock.
The Corporation’s Charter and the Bylaws, as well asnew Delaware law will contain provisions that could discourage acquisition bids or merger proposals, which may adversely affect the market price of the Common Stock.
Certain provisions of the Charter and Bylaws could make it more difficult for a third party to acquire control of the Corporation, even if the change of control would be beneficial to Stockholders. Among other things, the Charter and Bylaws will:
•
provide advance notice procedures with regard to Stockholder nominations of candidates for election as directors or other Stockholder proposals to be brought before meetings of Stockholders, which may preclude Stockholders from bringing certain matters before the Stockholders at an annual or special meeting;
•
provide the New Board the ability to authorize issuance of preferred stock in one or more series, which makes it possible for the New Board to issue, without Stockholder approval, preferred stock with voting or other rights or preferences that could impede the success of any attempt to change control of the Corporation and which may have the effect of deterring hostile takeovers or delaying changes in control or management of the Corporation;
•
provide that the authorized number of directors may be changed only by resolution of the New Board;
•
provide that, subject to the rights of holders of any series of preferred stock to elect directors or fill vacancies in respect of such directors as specified in the related preferred stock designation, all vacancies, including newly created directorships, be filled by the affirmative vote of a majority of the directors then in office, even if less than a quorum, or by the sole remaining director, and will not be filled by Stockholders;
•
provide that, subject to the rights of the holders of any series of preferred stock to elect directors under specified circumstances, if any, any action required or permitted to be taken by the Stockholders
regarding officer exculpation. This proposal (the “Exculpation Amendment”) must be effected at a duly called annual or special meeting of stockholders and may not be effected by any consent in writing in lieu of a meeting of such Stockholders;
•
provide that, subject to the rights of the holders of shares of any series of preferred stock, if any, to remove directors elected by such series of preferred stock pursuant to the Charter (including any preferred stock designation thereunder), any director, or the entire New Board, may be removed from office at any time, with or without cause,approved by the affirmative vote of at least a majority of the voting power of the outstanding shares of stock outstanding andof the Company entitled to vote thereon;
•
provide that special meetings of Stockholders may only be called by the Chairman of the New Board or the New Board pursuant to a resolution adopted by a majority of the members of the New Board;
•
provide that the provisions of the Charter can only be amended or repealed by (a) the Corporationgenerally in the manner than prescribed by the lawselection of the State of Delaware or (b) the Stockholders upon the affirmative vote of a majority of the outstanding stock entitled to vote thereon; and
•
provide that the Bylaws can be adopted, amended or repealed by (a) the New Board or (b) the Stockholders upon the affirmative vote of at least a majority of the votes cast affirmatively or negatively, present in person or by proxy and entitled to vote thereon,directors, voting together as a single class.
Tax Risks Related to the Conversion and the Ownership of Common Stock Received in Connection with the Conversion
The Partnership could recognize gain or dividend income, which would be allocated to the Unitholders, as a result of the Conversion if the aggregate amount of the Partnership’s liabilities exceeds the aggregate amount of the Partnership’s adjusted tax basis in its assets or to the extent certain liabilities assumed by the Corporation in the Conversion are characterized as deemed dividends from our existing corporate subsidiaries.
For U.S. federal income tax purposes, the Conversion is treated as if (i) first, the Partnership transfers all of its assets and liabilities to the Corporation, which is treated as a corporation for U.S. federal income tax purposes, and receives in exchange for such transfer all of the Common Stock of the Corporation, and (ii) second, the Partnership then distributes such Common Stock to the Unitholders in complete liquidation of the Partnership. Generally, no gain, dividend income or loss is expected to be recognized by the Partnership in connection with these deemed contributions and distributions resulting from the Conversion except to the extent the Partnership’s liabilities assumed by the Corporation in the deemed transfer exceed the Partnership’s tax basis in the assets transferred to the Corporation or to the extent certain liabilities assumed by the Corporation in the Conversion are characterized as deemed dividend income from our existing corporate subsidiaries. If the liabilities assumed exceed the tax basis of the Partnership’s assets deemed transferred, the Partnership would recognize gain in the amount of such excess, which gain would be allocated to the Unitholders in accordance with their percentage interests in the Partnership. Although the GP Board believes that the Partnership will not recognize a material amount of gain or dividend income, if any, as a result of the Conversion, the analysis is based on estimates and projections for the Partnership’s aggregate amount of liabilities and adjusted tax basis in its assets, the computation of which are complex and may change before the Conversion. As a result, the Partnership may recognize more gain or dividend income than anticipated,abstentions and any such gain or dividend income would be allocated to the Unitholders. See “Material U.S. Federal Income Tax Consequences” for a more complete discussion of the expected material U.S. federal income tax consequences of the Conversion to the Partnership.
Certain Unitholders could recognize gain as a result of the Conversion if their allocation of Partnership liabilities exceeds such Unitholder’s tax basis in its Units.
For U.S. federal income tax purposes, the Conversion will result in the Unitholders exchanging Units for Common Stock in a liquidating distribution of the Partnership. In general, U.S. holders (as defined in the section titled “Material U.S. Federal Income Tax Consequences”) are not expected to recognize gain as a result of the liquidating partnership distribution except to the extent that the Partnership’s liabilities allocated to a Unitholder for U.S. federal income tax purposes exceed such Unitholder’s tax basis in its Units. Based on analysis performed, the GP Board believes that most of the public Unitholders will not recognize taxable income as a result of being relieved of Partnership liabilities. In particular, it is expected that all Unitholders
who purchased their Units at a price greater than or equal to $22 in 2015 or 2016, and all Unitholders who purchased their Units in 2017 or later, will not recognize taxable income with respect to such Units as a result of being relieved of Partnership liabilities in excess of their tax bases in such Units. Unitholders who purchased Units at a price below $22 in 2015 or 2016 may be relieved of Partnership liabilities in excess of their respective bases. All Unitholders are urged to consult their own tax advisors with respect to their specific circumstances. See “Material U.S. Federal Income Tax Consequences” for a more complete discussion of the expected material U.S. federal income tax consequences of the Conversion to the Unitholders.
The U.S. federal income tax treatment to Unitholders with respect to owning and disposing of any shares of Common Stock received in connection with the Conversion will be different than the U.S. federal income tax treatment to them with respect to owning and disposing of their Units.
The Partnership is classified as a partnership for U.S. federal income tax purposes and is not generally subject to entity-level U.S. federal income tax. Instead, each Unitholder is required to take into account such Unitholder’s share of items of income, gain, loss, and deduction of the Partnership in computing its U.S. federal income tax liability, regardless of whether cash distributions are made to such Unitholder by the Partnership. A distribution of cash by the Partnership to a Unitholder who is a U.S. holder (as defined in the section titled “Material U.S. Federal Income Tax Consequences”) is generally not taxable for U.S. federal income tax purposes unless the amount of cash distributed is in excess of the Unitholder’s adjusted tax basis in its Units. Gain or loss recognized by a Unitholder who is a U.S. holder in connection with the disposition of its Units will generally be capital gain or loss. However, a portion of such gain or loss, which portion could be substantial, is separately computed and taxed as ordinary income or loss under Section 751 of the Code to the extent attributable to assets giving rise to depreciation recapture or other “unrealized receivables” or to “inventory items” owned by the Partnership and its subsidiaries. Consequently, a Unitholder may recognize both ordinary income and capital loss in connection with a disposition of its Units.
In contrast, the Corporation will be classified as a corporation for U.S. federal income tax purposes, and thus the Corporation (and not its Stockholders) will be subject to U.S. federal income tax on its taxable income. Distributions with respect to Common Stock by the Corporation to a Stockholder who is a U.S. holder will generally be included in such U.S. holder’s income as dividend income to the extent paid from the Corporation’s current or accumulated “earnings and profits” as determined under U.S. federal income tax principles. To the extent that the amount of a distribution exceeds the Corporation’s current and accumulated earnings and profits, such distribution will first be treated as a non-taxable return of capital to the extent of (and reducing, but not below zero) the U.S. holder’s adjusted tax basis in its Common Stock and thereafter will be treated as capital gain from the sale or exchange of such Common Stock. A Stockholder who is a U.S. holder generally will recognize capital gain or loss on a disposition of its Common Stock.
Please read “Material U.S. Federal Income Tax Consequences” for a more complete discussion of the expected U.S. federal income tax consequences of owning and disposing of the Common Stock.
The tax treatment of the Corporation, or an investment in the Common Stock, could be subject to potential legislative, judicial or administrative changes or differing interpretations, possibly applied on a retroactive basis.
The present U.S. federal income tax treatment of corporations, or an investment in corporate stock, may be modified by administrative, legislative or judicial changes or differing interpretations at any time. The Biden Administration and members of Congress have proposed and considered substantive changes to the existing U.S. federal income tax laws affecting corporations, including proposals that would increase the tax rates applied to corporations and their shareholders.
Any modification to the U.S. federal income tax laws may be applied retroactively. We are unable to predict whether any of these changes or other proposals will ultimately be enacted. Any similar or future legislative changes could increase our entity-level tax burden and negatively impact the value of an investment in the Common Stock. You are urged to consult with your own tax advisor with respect to the status of regulatory or administrative developments and proposals and their potential effect on your investment in the Common Stock.
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
Certain statements and information in this proxy statement, may constitute “forward-looking statements.” The words “believe,” “expect,” “anticipate,” “plan,” “intend,” “foresee,” “should,” “would,” “could” or other similar expressions are intended to identify forward-looking statements, which are generally not historical in nature. These forward-looking statements are based on our current expectations and beliefs concerning future developments and their potential effect on us. Although management believes that these forward-looking statements are reasonable as and when made, there can be no assurance that future developments affecting us will be those that we anticipate. All comments concerning our expectations for future revenues and operating results are based on our forecasts for our existing operations and do not include the potential impact of any future acquisitions. Our forward-looking statements involve significant risks and uncertainties (some of which are beyond our control) and assumptions that could cause actual results to differ materially from our historical experience and our present expectations or projections. Factors that could cause our actual results to differ materially from the results contemplated by such forward-looking statements include those described under the “Risk Factors” section of this proxy statement and those set forth in any documents incorporated by reference into this proxy statement, and the following factors, among others:
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the potential corporate conversion transaction we are considering may not occur, and even if such transaction were to be completed we may fail to realize the anticipated benefits;
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the volume and quality of products that we are able to produce or source and sell;
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the prices at which we are able to sell our products;
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our ability to successfully negotiate, complete and integrate acquisitions, including the associated contracts, or to realize the anticipated benefits of such acquisitions;
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announcements by the Corporation or its competitors of significant contracts, acquisitions, strategic partnerships, joint ventures, securities offerings or capital commitments;
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failure of our customers, vendors and shipping partners to pay or perform their contractual obligations to us;
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our inability to successfully execute our project development, expansion and construction activities on time and within budget;
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the creditworthiness of our contract counterparties;
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the amount of low-cost wood fiber that we are able to procure and process, which could be adversely affected by, among other things, disruptions in supply or operating or financial difficulties suffered by our suppliers;
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changes in prevailing economic and market conditions;
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fires, explosions or other accidents;
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changes in domestic and foreign laws and regulations (or the interpretation thereof) related to renewable or low-carbon energy, the forestry products industry, the international shipping industry or power, heat or combined heat and power generators;
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changes in domestic and foreign tax laws and regulations affecting the taxation of our business and investors;
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changes in the regulatory treatment of biomass in core and emerging markets;
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our inability to acquire or maintain necessary permits or rights for our production, transportation or terminaling operations;
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risks related to our indebtedness, including the levels and maturity date of such indebtedness;
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the possibility of cyber and malware attacks;
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our inability to borrow funds and access capital markets;
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viral contagions or pandemic diseases, such as COVID-19;
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the Corporation’s operating and financial performance and prospects and the trading price of the Common Stock;
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the Corporation’s dividend policy and the level of any dividends declared by the Corporation;
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quarterly variations in the rate of growth of the Corporation’s financial indicators, such as net income and revenues;
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changes in estimates of the Corporation’s revenue or earnings or publication of research reports relating to the Corporation by analysts;
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speculation by the press or investment community relating to the Corporation;
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purchases or sales of Common Stock by Stockholders;
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changes in accounting standards, policies, guidance, interpretations or principles; and
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domestic and international economic, legal and regulatory factors related to the Corporation’s performance.
Please read the risks described in our Annual Report on Form 10-K for the year ended December 31, 2020 and the risk factors included herein. All forward-looking statements in this proxy statement are expressly qualified in their entirety by the foregoing cautionary statements.
Readers are cautioned not to place undue reliance on forward-looking statements and we undertake no obligation to update or revise any such statements after the date they are made, whether as a result of new information, future events or otherwise.
THE SPECIAL MEETING
Time, Place and Date
The special meeting will be held on December 17, 2021 at 10:00 a.m., eastern time, via live webcast at the following address: https://web.lumiagm.com/218783948. Unitholders of record may attend, vote and submit questions virtually at the special meeting by logging in at https://web.lumiagm.com/218783948. To log in, Unitholders (or their authorized representatives) will need the control number provided on their proxy card, voting instruction form or notice. The login password is “Enviva2021.”
Proposal 1: The Plan of Conversion Proposal
As discussed elsewhere in this proxy statement, the Unitholders are being asked to approve the Plan of Conversion, a copy of which is attached as Annex A to this proxy statement, that provides for and sets forth matters related to the conversion of the Partnership from a Delaware limited partnership to a Delaware corporation. Unitholders should carefully read this proxy statement, including the annexes, in its entirety for more detailed information concerning the Conversion. Approval of the Plan of Conversion Proposal will constitute approval of the Conversion.
The GP Board unanimously recommends that Unitholders vote FOR approval of the Plan of Conversion Proposal.
Proposal 2: The Adjournment Proposal
Unitholders are being asked to consider and vote on a proposal to adjourn the special meeting to a later date to solicit additional proxies in the event there are insufficient votes in favor of the Plan of Conversion Proposal.
The GP Board recommends that the Unitholders vote FOR approval of the Adjournment Proposal.
The Unitholders may also be asked to consider other matters as may properly come before the special meeting. At this time, the Partnership and the General Partner know of no other matters that will be presented for the consideration of the Unitholders at the special meeting.
Quorum
The holders of more than 50% of the outstanding Units on the record date, present virtually or by proxy at the special meeting, will constitute a quorum and will permit the Partnership to conduct the proposed business at the special meeting. Virtual attendance at the special meeting will constitute presence in person for the purpose of determining the presence of a quorum for the transaction of business at the special meeting.
Proxies received but marked as abstentions will be counted as Units that are present and entitled to vote for purposes of determining the presence of a quorum at the special meeting. If an executed proxy is returned by a broker or other nominee holding Units in “street name” indicating that the broker or other nominee does not have discretionary authority as to certain Units to vote on the Proposals, such Units will be considered present at the special meeting for purposes of determining the presence of a quorum but will not be considered entitled to vote.
Record Date
The Unitholder record date for the special meeting is the close of business on November 19, 2021. Unitholders may vote at the Special Meeting if they owned Units at the close of business on the record date. Unitholders may cast one vote for each Unit owned on the record date.
Votes Required
Approval of the Plan of Conversion Proposal requires the affirmative vote of the holders of a majority of the outstanding Units. Approval of the Adjournment Proposal, if presented, requires the approval of a
majority of the outstanding Units represented either virtually or by proxy at the special meeting and entitled to vote thereon. Abstentionsnon-votes will have the same effect as a vote “against” the Planproposal.
Proposal No. 3 — Approval of, Conversion Proposalon an advisory (non-binding) basis, the frequency of future advisory votes to approve the compensation of our Named Executive Officers. This advisory vote provides a choice among three frequency periods for future advisory votes to approve the compensation of our Named Executive Officers. The frequency period receiving a plurality of the votes validly cast by holders of the shares of the Company’s Common Stock that are present in person or represented by proxy at the meeting and entitled to vote on the Adjournment Proposal. Brokermatter will be the recommendation of the stockholders. Thus, the frequency period that receives the most votes (every one, two, or three years) will be deemed to be the recommendation of the stockholders. Because there is no minimum vote required, abstentions and broker non-votes (if any) will have no effect on the vote outcome.
Proposal No. 4 — Approval of, on an advisory (non-binding) basis, the compensation of our Named Executive Officers. Because this proposal asks for a non-binding, advisory vote, there is no “required vote” that would constitute approval of the compensation of our Named Executive Officers. We value the opinions expressed by our stockholders with respect to this advisory vote, and the compensation committee of our Board (the “Compensation Committee”), which is responsible for overseeing and administering our compensation programs, will consider the outcome of the Adjournment Proposal, butvote, including whether the votes cast “for” this proposal represent the affirmative vote of the majority of the voting power of the shares present in person or represented by proxy at the Annual Meeting and entitled to vote when designing our compensation programs and making future compensation decisions for our Named Executive Officers. We will consider this advisory proposal approved if it receives the affirmative vote of the majority of the voting power of the shares present in person or represented by proxy at the Annual Meeting and entitled to vote on the proposal. As a result, abstentions will have the same effect as a vote “against” the Plan of Conversion Proposal. The votes on each Proposal are separate and apart from the votesproposal. Broker non-votes will have no effect on the other Proposal. Accordingly, you may vote to approve certainoutcome.
Proposal No. 5 — Ratification of the Proposals and vote not to approve other Proposals.
Allappointment of the directors and executive officers of the General Partner beneficially owned, in the aggregate, approximately 13.3% of the outstanding Units as of the record date. The Partnership believes that the directors and executive officers of the General Partner will vote in favor of the Plan of Conversion Proposal and in favor of the Adjournment Proposal. Pursuant to the Support Agreement, the Supporting Unitholders have agreed to vote or cause toindependent registered public accounting firm. This proposal must be voted all units beneficially owned by such Supporting Unitholders in favor of the Plan of Conversion Proposal. The Supporting Unitholders beneficially own approximately 49% of the outstanding units, respectively, as of the record date.
Units Outstanding
As of November 19, 2021, the record date for the special meeting, there were 61,022,931 Units outstanding held by 17 holders of record. Each outstanding Unit entitles its holder of record to one vote on each matter considered at the special meeting. The Units are the only class of securities entitled to vote at the special meeting, and the Unitholders are entitled to vote on the Plan of Conversion Proposal and the Adjournment Proposal.
A complete list of registered Unitholders entitled to vote at the special meeting will be available for inspection during ordinary business hours at the principal place of business of Enviva Partners, LP, 7272 Wisconsin Ave., Suite 1800, Bethesda, Maryland 20814 for a period of at least 10 days before the special meeting and will be available during the virtual special meeting at https://web.lumiagm.com/218783948. If a Unitholder wants to inspect the unitholder list, such unitholder should call the corporate secretary at (301) 657-5560 to schedule an appointment or request access.
Adjournments
At the special meeting, in addition to asking the Unitholders to approve the Plan of Conversion Proposal, the Unitholders are also being asked to vote upon the Adjournment Proposal to adjourn the special meeting to a later date or dates, if necessary or appropriate, for the GP Board to solicit additional votes or proxies in favor of the Plan of Conversion Proposal if there are insufficient votes at the time of the special meeting to approve the Plan of Conversion Proposal. If it is deemed necessary or appropriate to adjourn the special meeting, no notice of the adjourned meeting is required to be given to Unitholders, other than an announcement at the special meeting of the time and place to which the meeting is adjourned, unless a new record date is fixed for the adjourned meeting, in which case notice of the place, date and time of the adjourned meeting shall be given to persons who are Unitholders as of the new record date.
The Partnership is asking its Unitholders to authorize the holder of any proxy solicited by the GP Board on a discretionary basis to vote in favor of adjourning the special meeting to another time and place for the purpose of soliciting additional proxies, including the solicitation of proxies from Unitholders who have previously voted.
Pursuant to the Partnership Agreement, in the absence of a quorum, the special meeting may be adjournedapproved by the affirmative vote of the Unitholders holding a majority of the Unitsshares present in person or represented by proxy at the Annual Meeting and entitled to vote aton the special meeting (including any Units deemed owned by the General Partner) represented either virtually or by proxy.
Upon an adjournment to a date within 45 days of the special meeting, notice need not be given of the adjourned meeting and a new record date need not be fixed, if the time and place thereof are announced at the special meeting. At the adjourned special meeting, the Partnership may transact any business that might have been transacted at the original special meeting. If the adjournment is for more than 45 days or if a new record date is fixed for the adjourned special meeting, a notice of the adjourned special meeting shall be given to all Unitholders as of the new record date.
Voting Procedure
Voting by Unitholders. If you are a Unitholder who holds Units in your own name, you may submit your proxy using any of the following methods:
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go to the Internet website listed on your proxy card and follow the instructions provided; or
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complete, sign and mail your proxy card in the postage-paid envelope.
If you have timely and properly submitted your proxy, clearly indicated your vote and have not revoked your proxy, your Units will be voted as indicated. If you have timely and properly submitted your proxy but have not clearly indicated your vote, your Units will be voted FOR the Plan of Plan of Conversion Proposal and FOR the Adjournment Proposal.
Revocation. If you hold your Units in your own name, you may revoke your proxy at any time prior to its exercise by:
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giving written notice of revocation to the Secretary of the General Partner at or before the special meeting;
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appearing and voting virtually at the special meeting; or
•
properly completing and executing a later dated proxy and delivering it to the Secretary of the General Partner before the special meeting.
Your presence without voting at the special meeting will not automatically revoke your proxy, and any revocation during the special meeting will not affect votes previously taken.
Validity. The inspectors of election will determine all questions as to the validity, form, eligibility (including time of receipt) and acceptance of proxies. Their determination will be final and binding. The GP Board has the right to waive any irregularities or conditions as to the manner of voting. The Partnership may accept your proxy by any form of communication permitted by applicable law so long as the Partnership is reasonably assured that the communication is authorized by you.
Solicitation of Proxies. The Partnership is furnishing this proxy statement and the accompanying proxy to you to solicit your proxy for the special meeting. The expenses of preparing, printing and mailing the proxy and materials used in the solicitation will be borne by the Partnership.
DF King has been retained by the Partnership to aid in the solicitation of proxies for an initial fee of $10,500 and the reimbursement of out-of-pocket expenses. The Partnership has also agreed to indemnify DF King against various liabilities and expenses that relate to or arise out of its solicitation of proxies (subject to certain exceptions). In addition to the mailing of this proxy statement, proxies may also be solicited from Unitholders by personal interview, telephone, fax or other electronic means by directors and officers of the General Partner and employees of affiliates of the Partnership who provide services to the Partnership, who will not receive additional compensation for performing that service. Arrangements also will be made with brokerage houses and other custodians, nominees and fiduciaries for the forwarding of proxy materials to the beneficial owners of Units held by those persons, and the Partnership will reimburse them for any reasonable expenses that they incur.
Units Held in “Street Name”. If you hold Units in the name of a bank, broker or other nominee, you should follow the instructions provided by your bank, broker or other nominee when voting your Units or when granting or revoking a proxy.
proposal. As a general rule, absent specific instructions from you, your bank, broker or other nominee is not allowed to vote your Units on any Proposal on which your bank, broker or other nominee does not have discretionary authority. The only proposals for consideration at the special meeting are the Plan of Conversion Proposal and the Adjournment Proposal, which are non-discretionary matters for which banks, brokers and other nominees do not have discretionary authority to vote. To instruct your bank, broker or other nominee how to vote, you should follow the directions that your bank, broker or other nominee provides to you.
Please note that you may not vote your Units held in “street name” by returning a proxy card directly to the Partnership or by voting virtually at the special meeting unless you provide a “legal proxy,” which you must obtain from your bank, broker or other nominee. If you do not instruct your bank, broker or other nominee on how to vote your Units, your bank, broker or other nominee may not vote your Units, it will be deemed to not be a vote cast with respect to any of the Proposals and will have no effect on the Adjournment Proposal, but itresult, abstentions will have the same effect as a vote “against” the Planproposal. As discussed above, we do not expect any broker non-votes with respect to this proposal.
Proposal No. 6 — The Issuance Proposal. The proposal to approve the issuance of Conversion Proposal. You should therefore provide your bank, brokerour Common Stock upon the conversion of our Series A Preferred Stock, par value $0.001 per share (the “Preferred Shares,” and such proposal, the “Issuance Proposal”) must be approved by the affirmative vote of a majority of the votes cast in person or other nominee with instructions as to how to vote your Units.
No Appraisal Rights
The Unitholders are notrepresented by proxy at the Annual Meeting and entitled to appraisal rights in connection withvote. As a result, abstentions and broker non-votes will have the Conversion.same effect as a vote “against” the Issuance Proposal.
Representatives9.
How many shares of Common Stock are issuable upon conversion of the Principal Accountants atPreferred Shares?
As each Preferred Share is convertible into one share of Common Stock, upon conversion of all of the Special MeetingPreferred Shares, the Company would issue approximately 6,605,671 shares of Common Stock, subject to adjustment for any stock dividends, splits, combinations, and similar events, representing approximately 9.75% of the total outstanding shares of Common Stock as of the Record Date.
Representatives10.
How does the Board recommend you vote on the proposals?
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“FOR” the election of each director nominee.
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“FOR” the approval of the amendment to the Current Certificate to reflect new Delaware law provisions regarding officer exculpation.
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To hold future advisory votes to approve the compensation of our Named Executive Officers EVERY YEAR.
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“FOR” the approval of, on an advisory (non-binding) basis, the compensation of our Named Executive Officers.
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“FOR” the ratification of the appointment of Ernst & Young LLP are expected to be present virtually atas our independent registered public accounting firm for the special meeting. The representatives of Ernst & Young LLP will havefiscal year ending December 31, 2023.
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“FOR” the opportunity to make a statement virtually at the special meeting if they desireIssuance Proposal.
11.
What do you need to do soto attend the Annual Meeting?
The Annual Meeting will be a completely virtual meeting. There will be no physical meeting location. The meeting will only be conducted via live webcast. This virtual-meeting format uses technology designed to increase stockholder access and provide stockholders rights and opportunities to participate in the meeting similar to what they would have at an in-person meeting.
In order to attend, you must register in advance at https://web.lumiagm.com/218783948. As part of the registration process, you must enter the control number located in your Notice of Internet Availability, proxy card, or voting instruction form and the password “enviva2023”. Please be sure to follow the instructions found on your Notice of Internet Availability, proxy card, or voting instruction form. If you are a beneficial owner of shares registered in the name of a broker, bank, or other nominee, you will also need to provide the registered name on your account and the name of your broker, bank, or other nominee as part of the registration process.
On the day of the Annual Meeting, June 15, 2023, stockholders may begin to log in to the virtual-only Annual Meeting one hour prior to the Annual Meeting. The Annual Meeting will begin promptly at 10:00 a.m. Eastern Time. Please allow ample time for online registration and login procedures.
12.
Will I be able to ask questions and participate in the Annual Meeting?
We are aware of concerns that virtual meetings may diminish stockholder voices or reduce accountability and are expectedtaking steps to address these concerns. For example, our virtual meeting format enhances, rather than constrains, stockholder access, participation, and communication because the online format allows stockholders to communicate with us during the Annual Meeting so they can ask questions to our Board, management, and a representative from our independent registered public accounting firm.
Stockholders may submit questions during the Annual Meeting by visiting the virtual meeting login page at https://web.lumiagm.com/218783948 and entering their control number located on their Notice of Internet Availability, proxy card, or voting instruction form and the password (enviva2023). We will answer stockholder questions as they come in, as time permits. We are committed to answering each question
received following the Annual Meeting, with the exception of any questions that are irrelevant to the purpose of the Annual Meeting or our business or that contain inappropriate or derogatory references. If we receive substantially similar questions, we may group such questions together and provide a single response to avoid repetition. If there are questions pertinent to matters properly before the Annual Meeting that cannot be answered during the Annual Meeting due to time constraints, we will post answers to a representative set of such questions under the “Investor Relations” tab on our website at www.envivabiomass.com. The questions and answers will be available to respond to appropriate questions.as soon as practicable after the Annual Meeting and will remain available until we file our proxy statement for 2024.
Householding13.
You share an address with another stockholder. Why did you receive only one copy of Proxy Statementthe proxy materials, and how may you obtain an additional copy of the proxy materials?
The SEC has adopted rules that permit companies and intermediaries, such as brokers, to satisfy the delivery requirements for the proxy statements and annual reportsmaterials with respect to two or more Unitholdersstockholders sharing the same address by delivering a single set of the proxy statement or annual report, as applicable,materials addressed to those Unitholders. As permitted by the Exchange Act, only one copy of this proxy statement is being delivered to Unitholders residing at the same address, unless the Unitholders have notified the Partnership whose Units they hold of their desire to receive multiple copies of this proxy statement.stockholders. This process, which is commonly referred to in this proxy statement as “householding,” potentially providesis intended to provide extra convenience for Unitholdersstockholders and cost savings forto the companies.
A number of brokers with account holders who are stockholders may be “householding” our proxy materials. A single set of proxy materials will be delivered to multiple stockholders sharing an address unless contrary instructions have been received from the affected stockholders. If you have received notice from your broker that it will be “householding” communications to your address, “householding” will continue until you are notified otherwise, or until you revoke your consent. If, at any time, you no longer wish to participate in householding“householding” and would prefer to receive a separate copyset of materials, please notify your broker or the Company at Enviva Inc., 7272 Wisconsin Ave. Suite 1800, Bethesda, Maryland 20814, Attention: Secretary or (301) 657-5560, and the Company will promptly deliver such additional materials to you. Stockholders who have multiple accounts in their names or who share an address with other stockholders can request “householding” and authorize your broker to discontinue mailings of multiple annual reports and proxy statements by contacting your broker or the Company at Enviva Inc., 7272 Wisconsin Ave. Suite 1800, Bethesda, Maryland 20814, Attention: Secretary or (301) 657-5560.
14.
How will the results of voting be announced?
We expect to announce the preliminary voting results at the Annual Meeting. The final voting results will be tallied by the inspector of elections and published in a Current Report on Form 8-K, which we are required to file with the SEC within four business days after the Annual Meeting.
15.
Who pays the costs of solicitation?
The Company will pay all of the costs of soliciting proxies. We will provide copies of our proxy materials to brokerage firms, fiduciaries, and custodians for forwarding to beneficial owners who request printed copies of these materials and will reimburse these persons for their costs of forwarding these materials. Our directors, officers, and employees may also solicit proxies by facsimile or personal solicitation; however, we will not pay these individuals additional compensation for any of these services.
PROPOSAL NO. 1 — ELECTION OF DIRECTORS
1.
Background
The Board has nominated Thomas Meth, John K. Keppler, Ralph Alexander, John C. Bumgarner, Jr., Martin N. Davidson, Jim H. Derryberry, Gerrit L. Lansing, Jr., Pierre F. Lapeyre, Jr., David M. Leuschen, Jeffrey W. Ubben, Gary L. Whitlock, Janet S. Wong, and Eva T. Zlotnicka (collectively, the “Director Nominees”) for election at the Annual Meeting and each has indicated their willingness to serve if elected. You may not vote by proxy or virtually at the Annual Meeting for a greater number of persons than the thirteen Director Nominees.
2.
Nomination of Directors
The nominating and corporate governance committee of our Board (the “Nominating and Corporate Governance Committee”) identifies, evaluates, and recommends to the Board potential nominees for election to the Board. In reviewing potential nominees, the Nominating and Corporate Governance Committee considers the qualifications of each potential nominee with the qualification standards set forth in its Committee Charter and in our Corporate Governance Guidelines. Specifically, the Nominating and Corporate Governance Committee considers, among other things, each potential nominee’s experience, knowledge, skills, expertise, integrity, diversity (including diversity of gender and race/ethnicity), ability to make independent analytical inquiries, understanding of the Company’s business environment, and willingness to devote adequate time and effort to Board responsibilities. The Board membership criteria are set forth in our Corporate Governance Guidelines and Nominating and Corporate Governance Committee Charter, copies of which are available under “Investor Relations > Governance > Governance Documents” on our website at www.envivabiomass.com. After reviewing the qualifications of potential Board candidates, the Nominating and Corporate Governance Committee presents its recommendations to the Board, which selects the final director nominees. Upon the recommendation of the Nominating and Corporate Governance Committee, the Board nominated the Director Nominees for election as directors. The Company did not pay any fees to any third parties to identify or assist in identifying or evaluating nominees for the Annual Meeting. The Nominating and Corporate Governance Committee considers stockholder nominees using the same criteria set forth above. Stockholders who wish to present a potential nominee to the Nominating and Corporate Governance Committee for consideration for election at a future annual meeting of stockholders must provide the Nominating and Corporate Governance Committee with notice of the recommendation and certain information regarding the candidate as described in our bylaws (the “Bylaws”) and within the time periods set forth under the caption “Notice of Stockholder Business and Nominations.”
3.
Nominees
The Nominating and Corporate Governance Committee has recommended, and the Board has nominated, the Director Nominees to be elected as directors at the Annual Meeting. The following table sets forth the following information for the Director Nominees: their respective ages as of the Record Date, the positions currently held with the Company, and the year each was first elected or appointed a director of the Company.
| Nominee/Director Name | | | Age | | | Position | | | Director Since | |
| Thomas Meth | | | 50 | | | President, Chief Executive Officer, and Director | | | 2022 | |
| John K. Keppler | | | 52 | | | Executive Chairman of the Board and Director | | | 2023 | |
| Ralph Alexander | | | 68 | | | Lead Independent Director | | | 2013 | |
| John C. Bumgarner, Jr. | | | 80 | | | Director | | | 2015 | |
| Martin N. Davidson | | | 61 | | | Director | | | 2021 | |
| Jim H. Derryberry | | | 78 | | | Director | | | 2018 | |
| Gerrit L. Lansing, Jr. | | | 50 | | | Director | | | 2020 | |
| Pierre F. Lapeyre, Jr. | | | 60 | | | Director | | | 2021 | |
| David M. Leuschen | | | 72 | | | Director | | | 2021 | |
| Jeffrey W. Ubben | | | 61 | | | Director | | | 2020 | |
| Gary L. Whitlock | | | 73 | | | Director | | | 2016 | |
| Janet S. Wong | | | 64 | | | Director | | | 2015 | |
| Eva T. Zlotnicka | | | 40 | | | Director | | | 2021 | |
Board Matrix
The following matrix provides information regarding each Director Nominee, including certain types of experiences and skills that the Board of Directors has determined are important. The matrix does not encompass all of the experiences and skills of our directors, and the fact that a particular experience or skill is not listed does not mean that a director does not possess it. Additional details on each director nominee’s experiences, qualifications, skills, and attributes are set forth in their biographies.
| | | | Meth | | | Keppler | | | Alexander | | | Bumgarner | | | Davidson | | | Derryberry | | | Lansing | | | Lapeyre | | | Leuschen | | | Ubben | | | Whitlock | | | Wong | | | Zlotnicka | |
| Experiences and Skills | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Accounting/Audit Experience | | | | | | | | | | | X | | | | | | X | | | | | | X | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | X | | | | | | X | | | | | | | | |
| Environmental and/or Climate Change-Related Experience | | | | | X | | | | | | X | | | | | | X | | | | | | | | | | | | | | | | | | | | | | | | X | | | | | | | | | | | | X | | | | | | | | | | | | X | | | | | | | | | | | | X | | |
| Executive Leadership Experience | | | | | X | | | | | | X | | | | | | X | | | | | | X | | | | | | | | | | | | X | | | | | | X | | | | | | X | | | | | | X | | | | | | X | | | | | | X | | | | | | X | | | | | | X | | |
| Financial Experience | | | | | | | | | | | X | | | | | | X | | | | | | X | | | | | | | | | | | | X | | | | | | | | | | | | X | | | | | | X | | | | | | X | | | | | | X | | | | | | X | | | | | | X | | |
| Governmental Affairs and/or Regulatory Experience | | | | | X | | | | | | X | | | | | | X | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Human Resources Management Experience | | | | | X | | | | | | X | | | | | | X | | | | | | | | | | | | X | | | | | | X | | | | | | X | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | X | | | | | | | | |
| Industry Experience | | | | | X | | | | | | X | | | | | | X | | | | | | | | | | | | X | | | | | | X | | | | | | X | | | | | | X | | | | | | | | | | | | | | | | | | X | | | | | | X | | | | | | X | | |
| Operations Experience | | | | | X | | | | | | X | | | | | | X | | | | | | X | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Risk Management Experience | | | | | | | | | | | X | | | | | | X | | | | | | | | | | | | | | | | | | X | | | | | | X | | | | | | | | | | | | X | | | | | | | | | | | | X | | | | | | X | | | | | | X | | |
| Demographic Background | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| African American or Black | | | | | | | | | | | | | | | | | | | | | | | | | | | | | X | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Alaskan Native, American Indian, or Indigenous | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Asian | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | X | | | | | | | | |
| Hispanic or Latinx | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Native Hawaiian or Pacific Islander | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| White | | | | | X | | | | | | X | | | | | | | | | | | | X | | | | | | | | | | | | X | | | | | | X | | | | | | X | | | | | | X | | | | | | X | | | | | | X | | | | | | | | | | | | | | |
| Two or More Races or Ethnicities | | | | | | | | | | | | | | | | | X | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
The following matrix provides demographic information regarding each Director Nominee.
| | | | Gender | | | Race or Ethnicity | |
| | | | Man | | | Woman | | | Did Not
Disclose
Gender | | | African
American
or Black | | | Asian | | | White | | | Two or
More Races
or
Ethnicities | | | Did Not
Disclose
Race | |
| Demographic Background | | | | | 11 | | | | | | 2 | | | | | | 0 | | | | | | 1 | | | | | | 1 | | | | | | 9 | | | | | | 1 | | | | | | 1 | | |
4.
Directors Nominated for Election
Thomas Meth. Mr. Meth was appointed to serve as the President and Chief Executive Officer of the Company and a director of the Board in November 2022. Prior to that, beginning in November 2013, Mr. Meth served as Executive Vice President, Sales and Marketing of the general partner of Enviva Partners, LP and later continued to serve as Executive Vice President and Chief Commercial Officer of Enviva Inc. where he was responsible for our commercial customer relations as well as our market development,
international government relations, sustainability, customer fulfillment, and commercial and shipping services until his appointment as President in June 2022. He also co-founded Intrinergy, the predecessor to the Company’s former sponsor, in 2004 and served as Executive Vice President, Sales and Marketing. Mr. Meth led the Company to grow to become the largest wood pellet supplier in the world and is widely regarded as one of the key industry experts globally. Mr. Meth serves as the Chairman of the US Industrial Pellet Association, the leading United States trade association in the biomass sector. Mr. Meth holds a Bachelor of Commerce from Vienna University of Economics and Business Administration in Austria as well as an MBA from The Darden Graduate School of Business Administration at The University of Virginia. In light of Mr. Meth’s experience and long-standing service to the Company, we believe that he has the requisite set of skills to serve as a director, as well as President and Chief Executive Officer.
John K. Keppler. Mr. Keppler has served as the Company’s Executive Chairman of the Board of Directors since April 2023 and previously served as the Company’s Chairman and Chief Executive Officer from 2004 until November 2022, having co-founded Intrinergy with Mr. Meth in 2004. Mr. Keppler led Enviva Partners, LP (NYSE: EVA) to its initial public offering on the New York Stock Exchange on April 29, 2015, making it the first publicly traded company in the industry and also led the Company’s acquisition of its former sponsor in 2021 and conversion of the Company from a master limited partnership to a Delaware corporation. He serves on the board of directors of the Sustainable Biomass Program (SBP), a non-profit standard-setting organization that manages a voluntary certification system designed for woody biomass used in energy production. Mr. Keppler is also an Advisor to Red Sea Farms, a sustainable agriculture company. In 2021, Mr. Keppler was named an Entrepreneur Of The Year® 2021 National Award winner by Ernst & Young LLP (EY US). He holds a Bachelor of Arts in Political Economy from the University of California, Berkeley, as well as a Master of Business Administration from the Darden Graduate School of Business Administration at the University of Virginia. In light of Mr. Keppler’s experience and long-standing service to the Company, we believe that he has the requisite set of skills to serve as Executive Chairman of the Board.
Ralph Alexander. Mr. Alexander joined the Board of Directors of the general partner of Enviva Partners, LP in November 2013 and has continued to serve as a member of the Board of Directors of Enviva Inc. Mr. Alexander has also served as our Lead Independent Director since April 2023. He has served as Executive Chairman of Talen Energy since November 2021, where he previously served as Chairman and CEO from December 2016. Mr. Alexander was affiliated with Riverstone Holdings LLC from September 2007 to December 2016. For nearly 25 years, he served in various positions with subsidiaries and affiliates of BP plc, one of the world’s largest oil and gas companies. From June 2004 until December 2006, Mr. Alexander served as Chief Executive Officer of Innovene, BP’s $20 billion olefins and derivatives subsidiary. From 2001 until June 2004, he served as Chief Executive Officer of BP’s Gas, Power and Renewables and Solar segment and was a member of the BP group executive committee. Prior to that, Mr. Alexander served as a Group Vice President in BP’s Exploration and Production segment and BP’s Refinery and Marketing segment. He held responsibilities for various regions of the world, including North America, Russia, the Caspian, Africa, and Latin America. Prior to these positions, Mr. Alexander held various positions in the upstream, downstream, and finance groups of BP. Mr. Alexander has served on the board of Talen Energy Corporation since June 2015. From December 2014 through December 2016, Mr. Alexander served on the board of EP Energy Corporation. He has previously served on the boards of Foster Wheeler, Stein Mart, Inc., Amyris, and Anglo-American plc. Mr. Alexander holds an M.S. in Nuclear Engineering from Brooklyn Polytech (now NYU School of Engineering) and an M.S. in Management Science from Stanford University. We believe that Mr. Alexander’s energy and power expertise, experience in international markets, and prior public company directorships enable him to provide critical insight and guidance to our management team and Board of Directors.
John C. Bumgarner, Jr. Mr. Bumgarner joined the Board of Directors of the general partner of Enviva Partners, LP in April 2015 and has continued to serve as a member of the board of directors of Enviva Inc. Mr. Bumgarner has been engaged in private investment since November 2002, and currently assists in operating a family owned, multi-faceted real estate company. Mr. Bumgarner previously served as Co-Chief Operating Officer and President of Strategic Investments for Williams Communications Group, Inc., a high technology company, from May 2001 to November 2002. Mr. Bumgarner joined The Williams Companies, Inc., in 1977 and, prior to working at Williams Communications Group, Inc., served as Senior Vice President of Williams Companies Corporate Development and Planning, President of Williams
International Company, and President of Williams Real Estate Company. He most recently served as a director of Energy Partners, Ltd., an oil and natural gas exploration and production company, from January 2000 to February 2009, and at Market Planning Solutions Inc. from February 1982 until April 2011. Mr. Bumgarner holds a B.S. from the University of Kansas and an M.B.A. from Stanford University. Mr. Bumgarner’s substantial experience as an executive at a conglomerate and as a director on boards of public and private companies engaged in a variety of industries provide him with unique insight that is particularly helpful and valuable to the Board of Directors of our Company.
Martin N. Davidson, Ph.D. Dr. Davidson joined the Board of Directors of Enviva Inc. in December 2021. He is the Johnson & Higgins Professor of Business Administration at the University of Virginia’s Darden School of Business. Dr. Davidson currently serves as senior associate dean and global chief diversity officer for the school. He teaches, conducts research, and consults with global leaders to help them use diversity strategically to drive high performance. His thought leadership has changed how many executives approach inclusion and diversity in their organizations. His book, The End of Diversity as We Know It: Why Diversity Efforts Fail and How Leveraging Difference Can Succeed, co-authored with Heather Wishik, introduces a research-driven roadmap to help leaders more effectively create and capitalize on diversity in organizations. Dr. Davidson has consulted with leaders of a host of global firms, government agencies, and social profit organizations, including Bank of America, The World Health Organization, The Walt Disney Company, Credit Suisse Group, The Nature Conservancy, and the U.S. Navy SEALs. Dr. Davidson has been featured in numerous media outlets, including The New York Times, Bloomberg BusinessWeek, The Wall Street Journal, The Washington Post, National Public Radio, and CNN. He has been a member of the Darden faculty since 1998. Previously, he was a member of the Amos Tuck School of Business faculty at Dartmouth College. He earned his A.B. from Harvard University and his Ph.D. from Stanford University. Dr. Davidson’s academic research, writing, and consulting on a variety of topics, with a specific emphasis on diversity, equity, and inclusion, will provide immense value to the Board of Directors.
Jim H. Derryberry. Mr. Derryberry joined the Board of Directors of the general partner of Enviva Partners, LP in July 2018 and has continued to serve as a member of the Board of Directors of Enviva Inc. Mr. Derryberry served as a director of USA Compression GP, LLC from January 2013 to April 2018. He is currently a special advisor for Riverstone Holdings LLC where he held the office of Chief Operating Officer and Chief Financial Officer until 2006. Prior to joining Riverstone, Mr. Derryberry was a managing director of J.P. Morgan where he was head of the Natural Resources and Power Group. He had previously served in the Goldman Sachs Global Energy and Power Group where he was responsible for mergers and acquisitions, capital markets financing, and the management of relationships with major energy companies. He also served on the Board of Directors of Magellan GP, LLC, the general partner of Magellan Midstream Partners, L.P, from 2005-2006. Mr. Derryberry has been a member of the Board of Overseers for the Hoover Institution at Stanford University and is a member of the Engineering Advisory Board at the University of Texas at Austin. He received his B.S. and M.S. degrees in engineering from the University of Texas at Austin and earned an M.B.A. from Stanford University. Mr. Derryberry’s substantial experience in the energy and power industries and his operations expertise make him uniquely suited to provide the Board of Directors with invaluable insight and guidance.
Gerrit (“Gerrity”) L. Lansing, Jr. Mr. Lansing joined the Board of Directors of the general partner of Enviva Partners, LP in October 2020 and has continued to serve as a member of the Board of Directors of Enviva Inc. Mr. Lansing has served as the Managing Director and Partner of BTG Pactual and Head of BTG Pactual Tangible Assets Group, which includes BTG Pactual Timberland Investment Group (“TIG”), since 2013. TIG is one of the world’s largest timberland investment managers with nearly $6 billion under management and investments including more than 3 million acres across four continents. Mr. Lansing leads a management team at TIG with more than 800 years of combined experience and which operates in accordance with the UN Principles for Responsible Investment and with first-class sustainable forestry practices including those set forth by the Forest Stewardship Council and Programme for the Endorsement of Forest Certification, as validated by extensive independent audits. Prior to his current role, he was a Founder and Chief Executive Officer of Equator, LLC and its Brazilian subsidiary, TTG Brasil Investimentos Florestais Ltda, which was acquired by BTG Pactual in 2012. Prior to this, as Chief Executive Officer, Mr. Lansing spent nearly a decade building Madison Trading, LLC and Chatham Energy Partners, LLC (acquired by The Intercontinental Exchange). He is on the board of directors of the Nasher Museum of Art at Duke University, the Buckley School in New York City, the National Alliance of Forest Owners, La
Fundación de la Universidad del Valle de Guatemala, and TIG portfolio companies Lumin, Vista Hermosa, and Caddo Sustainable Timberlands. Mr. Lansing received his B.A. from Duke University. Mr. Lansing brings proven leadership and significant knowledge and expertise to the Board of Directors from his years of experience with socially responsible investing in the timberland industry, where he gained insight into sustainable forestry practices and maintained productive, respectful relationships with a broad range of stakeholders.
Pierre F. Lapeyre, Jr. Mr. Lapeyre joined the Board of Directors of the general partner of Enviva Partners, LP in March 2021 and has continued to serve as a member of the Board of Directors of Enviva Inc. Mr. Lapeyre is a co-founder and senior managing director of Riverstone Holdings LLC. Prior to co-founding Riverstone in 2000, Mr. Lapeyre was a managing director of Goldman Sachs in its Global Energy & Power Group. Mr. Lapeyre joined Goldman Sachs in 1986 and spent his 14-year investment banking career focused on energy and power and leading client coverage and execution of a wide variety of M&A, IPO, strategic advisory, and capital markets financings for clients across all sectors of the industry. Mr. Lapeyre received his B.S. in Finance/Economics from the University of Kentucky and his M.B.A. from the University of North Carolina at Chapel Hill. Mr. Lapeyre serves on the boards of directors or equivalent bodies of a number of public and private Riverstone portfolio companies and their affiliates, and has previously served on the boards of directors of Centennial Resource Development, Inc. from October 2016 to September 2022, Riverstone Energy Limited from May 2013 to October 2020, Decarbonization Plus Acquisition Corporation (predecessor to Hyzon Motors, Inc.) from October 2020 to July 2021, Decarbonization Plus Acquisition Corporation IV (predecessor to Hammerhead Energy Inc.) from August 2021 to February 2023, Decarbonization Plus Acquisition Corporation II (predecessor to Tritium DCFC Limited) from February 2021 to January 2022, and Decarbonization Plus Acquisition Corporation III (predecessor to Solid Power, Inc.) from March 2021 to December 2021. In addition to his duties at Riverstone, Mr. Lapeyre serves on the Executive Committee of the Board of Visitors of the MD Anderson Cancer Center and is a Trustee and Treasurer of The Convent of the Sacred Heart. We believe that Mr. Lapeyre’s considerable energy, private equity, and investment banking experience bring important and valuable skills to our Board of Directors.
David M. Leuschen. Mr. Leuschen joined the Board of Directors of the general partner of Enviva Partners, LP in April 2021 and has continued to serve as a member of the Board of Directors of Enviva Inc. Mr. Leuschen is the Co-Founder and Senior Managing Director of Riverstone. He sits on the Investment Committees of all the various Riverstone investment vehicles. Prior to co-founding Riverstone in 2000, Mr. Leuschen was a Partner and Managing Director at Goldman Sachs and founder and head of the Goldman Sachs Global Energy and Power Group. Mr. Leuschen was responsible for building the Goldman Sachs energy and power investment banking practice into one of the leading franchises in the global energy and power industry. Mr. Leuschen additionally served as Chairman of the Goldman Sachs Energy Investment Committee, where he was responsible for screening potential direct investments by Goldman Sachs in the energy and power industry. Mr. Leuschen serves on the boards of directors or equivalent bodies of a number of public and private Riverstone portfolio companies and their affiliates, and has previously served on the boards of directors of Centennial Resource Development, Inc. from October 2016 to September 2022, Riverstone Energy Limited from May 2013 to October 2020, Decarbonization Plus Acquisition Corporation (predecessor to Hyzon Motors, Inc.) from October 2020 to July 2021, Decarbonization Plus Acquisition Corporation II (predecessor to Tritium DCFC Limited) from February 2021 to January 2022, Decarbonization Plus Acquisition Corporation III (predecessor to Solid Power, Inc.) from March 2021 to December 2021, and Decarbonization Plus Acquisition Corporation IV (predecessor to Hammerhead Energy Inc.) from August 2021 to February 2023. He has also served as the president and sole owner of Switchback Ranch LLC and on the Advisory Board of Big Sky Investment Holdings LLC since 2015. Mr. Leuschen serves on a number of nonprofit boards of directors, including as a Trustee of United States Olympic Committee Foundation, a Director of Conservation International, a Director of the Peterson Institute for International Economics, a Founding Member of the Peterson Institute’s Economic Leadership Council, a Director of the Wyoming Stock Growers Association, and a Director of the Montana Land Reliance. Mr. Leuschen received his A.B. from Dartmouth and his M.B.A. from Dartmouth’s Amos Tuck School of Business. We believe that Mr. Leuschen’s considerable energy, private equity, and investment banking experience bring important and valuable skills to our Board of Directors.
Jeffrey W. Ubben. Mr. Ubben joined the Board of Directors of the general partner of Enviva Partners, LP in June 2020 and has continued to serve as a member of the Board of Directors of Enviva Inc. Mr. Ubben is a Founder, Managing Partner, member of the Management Committee, Chief Investment Officer, and Portfolio Manager of Inclusive Capital Partners, a San Francisco-based investment firm which partners with companies that enable solutions to address environmental and social problems. Mr. Ubben is a retired Founder of ValueAct Capital, where, prior to founding Inclusive Capital Partners in 2020, he was Chief Executive Officer, member of the Management Committee, Chief Investment Officer, and Portfolio Manager. Mr. Ubben is also a Founder and served as Portfolio Manager of the ValueAct Spring Fund (now known as the Inclusive Capital Partners Spring Fund). Prior to founding ValueAct Capital in 2000, Mr. Ubben was a Managing Partner at Blum Capital Partners for more than five years. Mr. Ubben has served a director of The ExxonMobil Corporation since March 2021 and Vistry Group PLC since March 2023, and also serves on the Bayer AG Sustainability Council. He formerly served as a director of The AES Corporation from January 2018 to March 2021, AppHarvest, Inc. from May 2019 to March 2022, Nikola Corporation from June 2020 to February 2022, Fertiglobe Plc from November 2021 to March 2023, and Twenty-First Century Fox Inc. from November 2015 to April 2018. Prior to 2018, Mr. Ubben was the former chairman and director of Martha Stewart Living Omnimedia, Inc. and a former director of Catalina Marketing Corp., Gartner Group, Inc., Mentor Corporation, Misys plc, Sara Lee Corp., Valeant Pharmaceuticals International, Willis Towers Watson plc, and several other public and private companies. In addition, Mr. Ubben serves on the boards of Duke University, The World Wildlife Fund, The Redford Center, and the E.O. Wilson Biodiversity Foundation, and formerly served as Chair of the National Board of the Posse Foundation for nine years. He has a B.A. from Duke University and an M.B.A. from the Kellogg School of Management at Northwestern University. Mr. Ubben’s experience in capital allocation across different industries and strategic thinking will be invaluable to Enviva as the Company seeks to increase shareholder value by enhancing its environmental, social, and governance credentials while playing a leadership role in the energy transition.
Gary L. Whitlock. Mr. Whitlock joined the Board of Directors of the general partner of Enviva Partners, LP in April 2016 and has continued to serve as a member of the Board of Directors of Enviva Inc. Mr. Whitlock served as Executive Vice President and Chief Financial Officer of CenterPoint Energy, Inc. (“CenterPoint”) from September 2002 until April 2015. From April 2015 until his retirement on October 1, 2015, he served as Special Advisor to the Chief Executive Officer of CenterPoint. While at CenterPoint, Mr. Whitlock was responsible for accounting, treasury, risk management, tax, strategic planning, business development, emerging businesses, and investor relations. From July 2001 to September 2002, Mr. Whitlock served as Executive Vice President and Chief Financial Officer of the Delivery Group of Reliant Energy, Incorporated (“Reliant”). Prior to joining Reliant, Mr. Whitlock served as Vice President of Finance and Chief Financial Officer of Dow AgroSciences LLC, a subsidiary of The Dow Chemical Company (“Dow”), from 1998 to 2001. He began his career with Dow in 1972, where he held a number of financial leadership positions, both in the United States and globally. While at Dow, Mr. Whitlock served on the boards of directors of various Dow entities. Mr. Whitlock is a Certified Public Accountant and received a BBA in accounting from Sam Houston State University in 1972. He has previously served on the board of directors of Texas Genco Holdings, Inc., the board of directors of the general partner of Enable Midstream Partners, LP from March 2013 to August 2015, the board of directors of KiOR, Inc. from December 2010 to June 2015, the board of directors of CHI St. Luke’s Health System, The Woodlands, and the Leadership Cabinet of Texas Children’s Hospital. Mr. Whitlock brings extensive experience in public company financial management and reporting to the Board of Directors of our Company.
Janet S. Wong. Ms. Wong joined the Board of Directors of the general partner of Enviva Partners, LP in April 2015 and has continued to serve as a member of the Board of Directors of Enviva Inc. She is a licensed Certified Public Accountant and has more than 30 years of public accounting experience. She is a partner (retired) with KPMG, an international professional services firm, where she gained extensive industry experience in technology, manufacturing, energy, financial services, and consumer products. Ms. Wong has served on the board of Lucid Group, Inc., a technology manufacturer of electric vehicles and energy storage, since July 2021, where she is Chair of the Audit Committee, Lumentum Holdings Inc., a high technology manufacturer of optical and photonics products, since September 2020, where she is a member of the Audit Committee, and Shine Technologies, a private company focused on nuclear technology and clean energy, since April 2022, where she is Chair of the Audit Committee. Previously, she served on the board of Allegiance Bancshares, Inc., a financial services company, from April 2020 to September 2022
upon its completion of a merger. In addition, she serves on the following non-profit boards: Board of Trustees for the Computer History Museum, the Board of the Louisiana Tech University Foundation, and the Board of the Tri-Cities Chapter of the National Association of Corporate Directors. She holds a Master of Professional Accountancy from Louisiana Tech University and a Master of Taxation from Golden Gate University. She is a NACD (National Association of Corporate Directors) Certified® Director. We believe Ms. Wong’s audit and financial expertise as well as her leadership and governance experience qualify her to serve on our Board, enabling her to provide essential guidance to the Board of Directors of our Company and our management team.
Eva T. Zlotnicka. Ms. Zlotnicka joined the Board of Directors of Enviva Inc. in December 2021. She is a Founder, Managing Partner, President, and member of the Management Committee of Inclusive Capital Partners, a San Francisco-based investment firm that partners with companies that enable solutions to address environmental and social problems. Just prior to founding Inclusive Capital Partners in July 2020, she was a Founder and Managing Director of the ValueAct Spring Fund (now known as Inclusive Capital Partners Spring Fund) and Head of Stewardship at ValueAct Capital. Prior to joining ValueAct Capital in February 2018, Ms. Zlotnicka spent more than 10 years on the sell side. Most recently, she was US lead Sustainability and Environmental, Social and Governance (ESG) equity research analyst at Morgan Stanley from January 2015 to January 2018. Ms. Zlotnicka is currently a director of Unifi, Inc. since August 2018 and Arcadia Power since July 2018 (voting member since December 2020). Ms. Zlotnicka was previously a director of Hawaiian Electric Industries from February 2020 to May 2021. Ms. Zlotnicka also serves as a member of the Investor Advisory Group for the International Sustainability Standards Board (ISSB) since December 2019, is a member of the Advisory Board of the Institute for Corporate Governance and Finance at NYU Law, and is a director of the Sustainable Ocean Alliance and Aircela Inc. Ms. Zlotnicka also co-founded Women Investing for a Sustainable Economy (WISE), a global professional community. She has two B.S.c. degrees from the University of Pennsylvania, including one from the Wharton School, and an M.B.A. and a Master of Environmental Science degree from Yale University. We believe that Ms. Zlotnicka’s experience in sustainable investing and deep background in environmental and social issues will serve as a valuable resource to the Board of Directors.
5.
Vote Required
The nominees who receive the greatest number of votes will be elected as directors, to hold office until the 2024 Annual Meeting of Stockholders and until their successors are elected and qualified, unless they resign or their seats become vacant due to removal or death. Abstentions and broker non-votes will not affect the election of directors.
Holders of proxies solicited by this proxy statement will vote the proxies received by them as directed on the proxy card or, if you are receiving multiple copiesno direction is given, then FOR the election of the nominees named in this proxy statementstatement.
THE BOARD RECOMMENDS A VOTE “FOR” THE THIRTEEN DIRECTOR NOMINEES IDENTIFIED ABOVE.
PROPOSAL NO. 2 — APPROVAL OF THE AMENDMENT TO THE COMPANY’S CERTIFICATE OF INCORPORATION TO REFLECT NEW DELAWARE LAW PROVISIONS REGARDING OFFICER EXCULPATION
1.
Background
The Delaware General Corporation Law (“DGCL”) permits Delaware corporations to limit the personal liability of directors for monetary damages associated with breaches of the duty of care in limited circumstances, and wishthe Current Certificate has always included those limitations. That protection did not extend to receivecorporate officers under the DGCL or the Current Certificate. Consequently, stockholder plaintiffs in recent years have persuaded courts to impose the same fiduciary duties on officers that directors have, thereby exploiting the absence of the same protections for officers in order to prolong litigation and extract larger settlements from defendant corporations. This has resulted in increased litigation and insurance costs for companies, which harms stockholders. Effective August 1, 2022, the Delaware legislature amended the DGCL to correct this inconsistent treatment between directors and officers. The DGCL now allows Delaware corporations to amend their certificates of incorporation, subject to stockholder approval, to limit the personal liability of certain officers for monetary damages associated with breaches of the fiduciary duty of care (but not the fiduciary duty of loyalty) in limited circumstances.
As provided in the new Delaware legislation, if our Exculpation Amendment is adopted, our certificate of incorporation will permit officer exculpation only one, please follow these instructions:
•
Iffor direct claims brought by stockholders for breach of an officer’s fiduciary duty of care, including class actions, but would not eliminate officers’ monetary liability for breach of fiduciary duty claims brought by the Units are registeredCompany itself or for derivative claims brought by stockholders in the name of the Unitholder, please contactCompany. The Exculpation Amendment would not apply to breaches of the Partnershipduty of loyalty, acts, or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, or any transaction in which the officer derived an improper personal benefit. These limitations are similar to those already in the Current Certificate for directors.
The primary reason to adopt the Exculpation Amendment is to strike a balance between stockholders’ interest in officer accountability and stockholders’ interest in the Company being able to reduce litigation and insurance costs associated with lawsuits and heightened insurance premiums and attract and retain quality officers to work on its behalf.
The Board has unanimously approved the Exculpation Amendment, subject to stockholder approval. The Board has unanimously determined that the Exculpation Amendment is advisable and in the best interests of the Company and our stockholders, and, in accordance with the DGCL, hereby seeks approval of the Exculpation Amendment by our stockholders.
2.
Reasons for the Exculpation Amendment
The Nominating and Corporate Governance Committee believes that:
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there is a need for directors and officers to be protected from the risk of financial ruin as a result of an unintentional misstep;
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the Exculpation Amendment is carefully drafted, consistent with the new Delaware law, to protect officers without limiting their liability for claims by the Company or for breaches of their duty of loyalty;
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the Exculpation Amendment would help the Company to attract and retain the most qualified officers;
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the Exculpation Amendment would not materially and negatively impact stockholder rights; and
•
the Exculpation Amendment would reduce potential litigation and insurance costs associated with lawsuits (that may be frivolous) and heightened premiums.
Thus, the Nominating and Corporate Governance Committee recommended to the Board, and the Board recommended to the Company’s stockholders, the adoption of the Exculpation Amendment.
Directors and officers must often make decisions in response to time-sensitive opportunities and challenges. The current legal and regulatory environment can create substantial risk of investigations, claims, actions, suits, or proceedings seeking to impose liability on the Company and its directors and officers, regardless of ultimate merit. Limiting concerns about personal risk for ordinary failures of care (but not loyalty) empowers both directors and officers to best exercise their business judgment in furtherance of stockholder interests. Because the Company expects many or most of its peers to adopt exculpation clauses that limit the personal liability of officers in their governing documents, the Company’s ability to recruit and retain exceptional officer candidates could be adversely affected if the Company does not adopt the Exculpation Amendment because those candidates and officers may conclude that the higher exposure to personal liabilities at the Company is not as attractive as working at a company that provides those protections. It is also possible that insurance premiums for director and officer insurance could be increased for corporations that do not adopt exculpation clauses that limit the personal liability of officers in their governing documents, which could adversely affect the Company, and thereby adversely affect our stockholders.
The Board believes that adopting the Exculpation Amendment would potentially reduce litigation and insurance costs associated with lawsuits (many of which may be frivolous) and heightened premiums, better position the Company to attract top officer candidates and retain our current officers, and enable our officers to exercise their business judgment in furtherance of the interests of the stockholders without the potential for distraction posed by the risk of personal liability. This Exculpation Amendment will also better align the protections available to our officers with those already available to our directors. In view of the above considerations, our Board has unanimously determined to provide for the exculpation of officers as proposed.
3.
Proposed Exculpation Amendment
The Board is asking our stockholders to approve the amendment to Article IX of our Current Certificate. The text of the Exculpation Amendment is attached hereto as Appendix A, with additions marked with bold, underlined text and deletions indicated by strike-out text.
4.
Effectiveness of the Exculpation Amendment
If the Exculpation Amendment is approved by our stockholders, the Exculpation Amendment will become effective upon the filing of a Certificate of Amendment with the Delaware Secretary of State, which filing is expected to occur as soon as reasonably practicable after the Annual Meeting. If the Exculpation Amendment is not approved by our stockholders, the Current Certificate will not be amended, and no exculpation will be provided for our officers.
5.
Vote Required
Approval of the Exculpation Amendment requires the affirmative vote of a majority of the voting power of the outstanding shares of stock of the Company entitled to vote generally in the election of directors, voting together as a single class. As a result, abstentions and broker non-votes will have the same effect as a vote “against” this proposal.
Holders of proxies solicited by this proxy statement will vote the proxies received by them as directed on the proxy card or, if no direction is given, then FOR the approval of the Exculpation Amendment. The Company’s officers will nevertheless retain their existing rights under indemnification agreements and insurance policies.
THE BOARD RECOMMENDS A VOTE “FOR” THE APPROVAL OF THE PROPOSED AMENDMENT TO THE CERTIFICATE OF INCORPORATION TO REFLECT NEW DELAWARE LAW PROVISIONS REGARDING OFFICER EXCULPATION.
PROPOSAL NO. 3 — APPROVAL OF, ON AN ADVISORY (NON-BINDING) BASIS, THE FREQUENCY OF FUTURE ADVISORY VOTES TO APPROVE THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS
1.
Background
We are required by Section 14A of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to provide stockholders with a separate advisory (non-binding) vote for the purpose of asking stockholders to express their preference for the frequency of future advisory votes to approve the compensation of our Named Executive Officers. Stockholders may indicate whether they would prefer an advisory vote to approve the compensation of our Named Executive Officers every one, two, or three years (or may abstain from voting). We are required to solicit stockholder votes on the frequency of future advisory votes to approve the compensation of our Named Executive Officers at least once every six years, although we may seek stockholder input more frequently.
The frequency period that receives the most votes (every one, two, or three years) will be deemed to be the recommendation of the stockholders. However, because this vote is advisory and not binding on the Board or the Compensation Committee, the Board may decide that it is in the best interest of our stockholders and the Company to hold an advisory vote to approve the compensation of our Named Executive Officers more or less frequently than the option selected by a plurality of our stockholders. The Board will, however, carefully consider the outcome of this vote when considering the frequency of future advisory votes to approve the compensation of our Named Executive Officers.
The Board believes there is a reasonable basis for holding the advisory vote to approve the compensation of our Named Executive Officers every year, every two years, or every three years; less frequent votes encourage a more long-term analysis of the Company’s executive compensation programs and would avoid the burden that annual votes would impose on stockholders required to evaluate the executive compensation program each year, but more frequent votes provide stockholders with the opportunity to react to emerging trends in compensation and give the Board and the Compensation Committee the opportunity to evaluate the compensation program each year in light of timely input from stockholders. The Board believes it is best practice to hold the advisory vote to approve the compensation of our Named Executive Officers every year.
Therefore, the Board recommends that the stockholders vote to hold the advisory vote to approve the compensation of our Named Executive Officers every year. Stockholders are not voting, however, to approve or disapprove of this particular recommendation. The proxy card provides four choices, and stockholders are entitled to vote on whether the advisory vote to approve the compensation of our Named Executive Officers shall be held every one, two, or three years or to abstain from voting.
2.
Vote Required
The frequency period that receives the most votes (every one, two, or three years) will be deemed to be the recommendation of the stockholders. You may also abstain from voting. Abstentions and broker non-votes will have no effect on the vote outcome.
Holders of proxies solicited by this proxy statement will vote the proxies received by them as directed on the proxy card or, if no direction is given, then the holders of the proxies will vote for a frequency period of EVERY YEAR.
THE BOARD RECOMMENDS A VOTE TO HOLD FUTURE ADVISORY VOTES TO APPROVE THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS EVERY YEAR.
PROPOSAL NO. 4 — APPROVAL OF, ON AN ADVISORY (NON-BINDING) BASIS, THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS
1.
Background
Our Board is committed to excellence in governance. As part of this commitment, in accordance with Section 14A and as required by Rule 14a-21 of the Exchange Act, our Board is providing our stockholders with an opportunity to cast an advisory (non-binding) vote on a resolution to approve the compensation of our Named Executive Officers.
As described below under “Executive Compensation — Compensation Discussion and Analysis,” we have developed a compensation program that is designed to attract, retain, and motivate key executives responsible for our success, to provide incentives that reward achievement of performance goals that directly correlate to the enhancement of stockholder value and to align our executives’ interests with those of our stockholders by rewarding short-term and long-term performance and tying a significant portion of our executive officers’ compensation to increases in stockholder value. We believe our executive compensation program strikes an appropriate balance between the implementation of responsible, measured compensation practices and the effective provision of incentives for our Named Executive Officers to exert their best efforts for our success.
We are asking for stockholder approval, on a non-binding, advisory basis, of the compensation of our Named Executive Officers as disclosed in this proxy statement pursuant to Item 402 of Regulation S-K, which includes the disclosures in the “Executive Compensation — Compensation Discussion and Analysis” section below, the compensation tables, the narrative discussion and any related material disclosed in this proxy statement. This vote is not intended to address any specific item of compensation, but rather the overall compensation of our Named Executive Officers and the policies and practices described in this proxy statement. For the reasons discussed above, our Board unanimously recommends that our stockholders vote in favor of the following resolution:
“RESOLVED, that the Company’s stockholders hereby approve, on a non-binding, advisory basis, the compensation of the Named Executive Officers, as disclosed in the Company’s proxy statement for the 2023 Annual Meeting of Stockholders pursuant to Item 402 of Regulation S-K, including the Compensation Discussion and Analysis, the compensation tables, narrative discussion, and any related material disclosed in the proxy statement.”
As this vote is advisory, it will not be binding on our Board or our Compensation Committee, and neither our Board nor our Compensation Committee will be required to take any action as a result of the outcome of the vote. However, our Compensation Committee will carefully consider the outcome of this vote when considering future executive compensation policies and decisions.
2.
Vote Required
Approval of the resolution to approve, on a non-binding, advisory basis, the compensation of our Named Executive Officers requires the affirmative vote of a majority of the voting power of the shares present in person or represented by proxy at the Annual Meeting and entitled to vote on the proposal. As a result, abstentions will have the same effect as a vote “against” this proposal and broker non-votes will have no effect on the vote outcome.
Holders of proxies solicited by this proxy statement will vote the proxies received by them as directed on the proxy card or, if no direction is given, then FOR the approval of the resolution to approve the compensation of our Named Executive Officers.
THE BOARD RECOMMENDS A VOTE “FOR” THE APPROVAL OF, ON AN ADVISORY (NON-BINDING) BASIS, THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS.
PROPOSAL NO. 5 — RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
1.
Background
The audit committee of our Board (the “Audit Committee”) has appointed Ernst & Young LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2023 and has further recommended to the Board that we submit the selection of Ernst & Young LLP for ratification by our stockholders at the Annual Meeting.
We are not required to submit the appointment of our independent registered public accounting firm for stockholder approval, but we are submitting the appointment of Ernst & Young LLP for stockholder ratification as a matter of good corporate governance. If the stockholders do not ratify this appointment, the Audit Committee will reconsider its appointment of Ernst & Young LLP. Even if the appointment is ratified, our Audit Committee may direct the appointment of a different independent registered public accounting firm at any time during the year if the Audit Committee determines that the change would be in the best interests of the Company.
The Audit Committee reviews and pre-approves all audit and non-audit services performed by its independent registered public accounting firm, except to the extent the Chairperson of the Audit Committee exercises his delegated authority to pre-approve audit and non-audit services. The Audit Committee pre-approved all services described below rendered by Ernst & Young LLP in the fiscal year ended December 31, 2022, in accordance with these policies.
In its pre-approval review of non-audit services, the Audit Committee considers, among other things, the possible impact of the performance of such services on the independent registered public accounting firm’s independence. Additional information concerning the Audit Committee and its activities can be found in the following sections of this proxy statement: “Board of Directors and Committees” and “Report of the Audit Committee.”
Ernst & Young LLP has audited our financial statements since 2019. Representatives of Ernst & Young LLP are expected to be present at the Annual Meeting, will have the opportunity to make a statement if they desire to do so, and will be available to respond to appropriate stockholder questions.
2.
Fees for Independent Registered Public Accounting Firm
The following is a summary of the aggregate fees billed to the Company for the audit and other services rendered by Ernst & Young LLP, our independent registered public accounting firm, for the fiscal years ended December 31, 2021 and 2022.
| | | | Year Ended December 31, | |
| | | | 2022 | | | 2021 | |
| | | | (in thousands) | |
Audit fees(1) | | | | $ | 4,099 | | | | | $ | 3,100 | | |
Audit related fees(2) | | | | | 760 | | | | | | 125 | | |
Tax fees(3) | | | | | — | | | | | | — | | |
All other fees(4) | | | | | 5 | | | | | | 5 | | |
| Total | | | | $ | 4,864 | | | | | $ | 3,230 | | |
(1)
Fees for financial statement audit and review services customary under generally accepted auditing standards or for the purpose of rendering an opinion or review on the financial statements related to the fiscal year then ended.
(2)
Fees for assurance and related services traditionally performed by independent accountants, including internal control reviews, due diligence related to mergers and acquisitions, accounting consultations, and
audits in connection with acquisitions, audits in which we engaged related to an acquisition, and to a less-than-wholly owned subsidiary, and work performed in connection with a registration statement or issuance of a comfort letter.
(3)
Fees and related expenses billed for permitted tax services, including tax compliance, tax advice, and tax planning and preparation.
(4)
Fees for use of the EY global accounting and financial reporting research tool.
3.
Vote Required
Ratification of the appointment of the independent registered public accounting firm requires the affirmative vote of a majority of the voting power of the shares present in person or represented by proxy at the Annual Meeting and entitled to vote on the proposal. As a result, abstentions will have the same effect as a vote “against” this proposal and broker non-votes will have no effect on the vote outcome.
Holders of proxies solicited by this proxy statement will vote the proxies received by them as directed on the proxy card or, if no direction is given, then FOR the ratification of the appointment of Ernst & Young LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2023.
THE BOARD RECOMMENDS A VOTE “FOR” THE RATIFICATION OF APPOINTMENT OF THE COMPANY’S INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM.
PROPOSAL NO. 6 — THE ISSUANCE PROPOSAL
1.
Background
On February 28, 2023, the Company entered into subscription agreements (the “Subscription Agreements”) with certain accredited investors (the “Investors”) to sell its Series A Preferred Stock, par value $0.001 per share (the “Preferred Shares”), having the terms as set forth in the Company’s Certificate of Designations for Preferred Shares (the “Certificate of Designations”), in a private placement for gross proceeds of $249.1 million (the “Private Placement”). The Private Placement priced at the official closing price of the NYSE on March 1, 2023, which was $37.71 (the “Price Per Share”). On March 20, 2023, the Company issued 6,605,671 Preferred Shares to the Investors pursuant to the Subscription Agreements. Each Preferred Share is convertible into one share of our common stock, par value $0.001 per share (our “Common Stock”), subject to adjustment for any stock dividends, splits, combinations, and similar events. The holders of the Preferred Shares will be entitled to participate equally and ratably with the holders of the Common Stock in all dividends or other distributions on the shares of Common Stock. The Preferred Shares rank senior in preference and priority to all classes or series of Common Stock with respect to dividend rights and rights upon liquidation, dissolution, or winding up of the Company. The Company intends to use the net proceeds of the Private Placement to fund its growth capital program. In the interim, the Company used the net proceeds to repay borrowings under its revolving credit facility. The terms of the Private Placement were approved by an independent and disinterested committee of the Board.
Upon conversion of all of the Preferred Shares, the Company would issue 6,605,671 shares of Common Stock, representing approximately 9.75% of the total outstanding shares of Common Stock as of the Record Date. After giving effect to the conversion of such Preferred Shares, the Investors would own 56.39% of the total outstanding shares of Common Stock.
Because the Company’s Common Stock is listed on the NYSE, the Company is subject to the NYSE’s rules and regulations. Section 312.03 of the NYSE Listed Company Manual (“NYSE Rule 312.03”) requires us, subject to certain exceptions, to obtain stockholder approval prior to the issuance of shares of our Common Stock in the following situations:
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in connection with the adoption of an equity compensation plan;
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in any transaction or series of related transactions where the number of shares of Common Stock to be issued, or if the number of shares of Common Stock into which the securities may be convertible or exercisable, exceeds either 1% of the number of shares of Common Stock or 1% of the voting power outstanding before the issuance, to:
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a director, officer, or substantial security holder of the company (each a “Related Party”);
•
a subsidiary, affiliate, or other closely related person of a Related Party; or
•
any company or entity in which a Related Party has a substantial direct or indirect interest;
•
if the Common Stock issued will have voting power equal to or in excess of 20% of the voting power outstanding before the issuance of such stock;
•
if the number of shares of Common Stock will be upon issuance, equal to or in excess of 20% of the number of shares of Common Stock outstanding before the issuance; and
•
if such issuance of Common Stock will result in a change of control of the issuer.
Under NYSE Rule 312.03, the Company is not authorized to issue shares of Common Stock to Related Parties that would receive Common Stock equal to more than one percent of our Common Stock without shareholder approval. Pursuant to the conversion terms set forth in the Certificate of Designations, if the Company obtains stockholder approval at the Annual Meeting, the Preferred Shares will automatically convert into Common Stock.
At the Annual Meeting, in accordance with NYSE Rule 312.03, you will be asked to consider and vote on the Issuance Proposal. Each Investor agreed, pursuant to a voting agreement by and between the Investors, to vote the shares of Common Stock held by them in favor of the Issuance Proposal. As of the Record
Date, the Investors collectively beneficially owned approximately 52.13% of the Company’s outstanding Common Stock. As a result, the Issuance Proposal is expected to be approved by the holders of Common Stock at the Annual Meeting.
The Investors include direct or indirect subsidiaries of Riverstone Holdings LLC (“Riverstone”), Inclusive Capital Partners, L.P. (“In-Cap”), and BTG Pactual. Certain directors and officers of the Company also are Investors, including John K. Keppler (Executive Chairman of the Board), Ralph Alexander (Lead Independent Director of the Board), John C. Bumgarner, Jr. (a director of the Company), Gary L. Whitlock (a director of the Company), and Thomas Meth (a director of the Company and the Company’s President and Chief Executive Officer).
As part of the Board’s ongoing efforts to meet the liquidity and financial needs of the Company, the Board and management regularly monitor opportunities for raising capital. In January 2023, the Board and management began to explore several avenues by which to offer equity to meet the Company’s capital needs. In mid-February 2023, the Board and management, in coordination with external advisors, determined to pursue opportunities for both a public equity offering and a private placement with certain investors. In coordination with its external financial advisors, the Board and management determined in late-February 2023 that the financial markets were not conducive at that time for a public equity offering. Conducting the equity raise as a private placement was further seen by the Board and management as an opportunity to avoid a discount — the offering priced at the Common Stock closing price on March 1, 2023 — and to avoid incurring underwriter fees. At or about the same time, the Board and management moved forward with the private placement.
On February 27, 2023, the Board unanimously approved resolutions recognizing certain potential conflicts of interest existed between the Company and the members of the Board who intended to be Investors in the Private Placement and determined to establish an independent committee of the Board, consisting only of disinterested members of the Board, to review, approve, and establish the terms of the Private Placement. On February 28, 2023, such independent committee reviewed, approved, and established the terms by which the Preferred Shares would be issued to the Investors pursuant to the Subscription Agreements.
2.
Reasons for the Issuance Proposal
Given the scale and pace at which the Company is expanding and investing in new wood pellet production, terminaling, and other assets, against a backdrop of continued inflation and rising interest rates, the Company evaluated several growth capital financing alternatives and concluded the optimal path forward was to proceed with the Private Placement with the Investors, all who have a deep understanding of Enviva’s business and are convicted in the tremendous potential for stockholder value creation ahead for the Company. The capital raise was viewed by the Board as an important step forward in terms of strengthening Enviva’s balance sheet by increasing liquidity and maintaining leverage consistent with the Company’s financial targets and policies.
3.
Description of the Subscription Agreements and the Registration Rights Agreement
The Private Placement was consummated in accordance with the terms of the Subscription Agreements. The Subscription Agreements contain customary representations, warranties, and covenants of the Company and the Investors, including an agreement by the Company to seek shareholder approval of the issuance of Common Stock to the Investors.
Additionally, pursuant to the terms of the Subscription Agreements, the Company agreed to enter into a registration rights agreement (the “PIPE Registration Rights Agreement”) with the Investors in connection with the closing of the Private Placement, pursuant to which the Company agreed to file and maintain a registration statement with respect to the resale of the Common Stock issuable upon conversion of the Preferred Shares on the terms set forth therein. The PIPE Registration Rights Agreement also provides certain Investors with customary piggyback registration rights.
The foregoing description of the Subscription Agreements and the PIPE Registration Rights Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of the form of
Subscription Agreement, which is filed as Exhibit 1.1 to the Company’s Current Report on Form 8-K filed with the SEC on March 2, 2023 and the PIPE Registration Rights Agreement, which is filed as Exhibit 4.2 to the Company’s Current Report on Form 8-K filed with the SEC on March 24, 2023.
4.
Description of the Preferred Shares
The following is a summary of the principal terms of the Preferred Shares.
Dividends Rights and Rights Upon Liquidation, Dissolution, or Winding Up of the Company
The Preferred Shares rank senior in preference and priority to all classes or series of Common Stock with respect to dividend rights and rights upon liquidation, dissolution, or winding up of the Company.
Voting Rights
Except as set forth in the Certificate of Designations or the DGCL, the Preferred Shares will vote as a separate class only on matters adversely affecting the Preferred Shares. The Preferred Shares will not have any right to vote together with the Common Stock on any matters. In all cases where the holders of Preferred Shares have the right to vote separately as a class as provided by the Certificate of Designations or otherwise by the DGCL, each holder of Preferred Shares shall be entitled to one vote for each Preferred Share held by such holder.
Mandatory Conversion of Preferred Shares
Upon approval of the Issuance Proposal at the Annual Meeting, the Preferred Shares will automatically, without any action of the Company or the holders of the Preferred Shares, convert into an equal number of shares of Common Stock, subject to adjustment for any stock dividends, splits, combinations, and similar events. No holder may convert their Preferred Shares other than as described in the foregoing sentence.
5.
Dilutive Impact of the Issuance Proposal
The issuance of the shares of Common Stock which are the subject of the Issuance Proposal, will result in an increase in the number of shares of Common Stock outstanding. This will result in a decrease to the respective ownership percentage and voting percentage interests of stockholders prior to such issuance, except for those stockholders converting their Preferred Shares. Prior to the issuance of the shares of the Common Stock issuable upon conversion of the Preferred Shares, the Investors owned approximately 52.13% of the Company’s Common Stock as of the Record Date. After such issuance, the Investors will own approximately 56.39% of the Company’s Common Stock.
6.
Vote Required
Approval of the Issuance Proposal requires the affirmative vote of a majority of the votes cast entitled to vote thereon. As a result, abstentions and broker non-votes will have the same effect as a vote “against” the Issuance Proposal.
Holders of proxies solicited by this proxy statement will vote the proxies received by them as directed on the proxy card or, if no direction is given, then FOR the approval of the Issuance Proposal.
THE BOARD, UPON THE RECOMMENDATION OF AN INDEPENDENT COMMITTEE OF THE BOARD, RECOMMENDS A VOTE “FOR” THE ISSUANCE PROPOSAL.
CORPORATE GOVERNANCE
1.
Director Independence
Our Board currently consists of thirteen members. Under the listing requirements and rules of the NYSE, independent directors must constitute a majority of our Board of Directors. In addition, the rules of the NYSE require that, subject to specified exceptions, each member of a listed company’s audit, compensation, and nominating and corporate governance committees must be independent. Under the rules of the NYSE, a director will qualify as an “independent director” only if, in the affirmative opinion of that company’s Board of Directors, that person has no material relationship with the company, either directly or as an officer, partner, or stockholder of a company that has a relationship with the company. In addition, such director must meet the bright-line test for independence set forth by the NYSE rules.
Additionally, compensation committee members must not have a relationship with us that is material to the director’s ability to be independent from management in connection with the duties of a compensation committee member.
Audit committee members must also satisfy the independence criteria set forth in Rule 10A-3 under the Exchange Act. To be considered independent for purposes of Rule 10A-3 of the Exchange Act, a member of an audit committee of a listed company may not, other than in his or her capacity as a member of the audit committee, the board of directors, or any other board committee: (1) accept, directly or indirectly, any consulting, advisory, or other compensatory fee from the listed company or any of its subsidiaries; or (2) be an affiliated person of the listed company or any of its subsidiaries.
Our Board has undertaken a review of its composition, the composition of its committees, and the independence of each director. Based upon information requested from and provided by each director concerning his or her background, employment, and affiliations, including family relationships, our Board has affirmatively determined that all members of our Board, except Messrs. Meth and Keppler, do not have any material relationships with the Company and that each of these directors is “independent” as that term is defined under the applicable rules and regulations of the SEC and the listing requirements of the NYSE. Our Board of Directors also determined that John C. Bumgarner, Jr., Gary L. Whitlock, and Janet S. Wong, who constitute our Audit Committee, John C. Bumgarner, Jr., Pierre F. Lapeyre, Jr., and Jeffrey W. Ubben, who constitute our Compensation Committee, and Ralph Alexander, Janet S. Wong, and Eva T. Zlotnicka, who constitute our Nominating and Corporate Governance Committee, satisfy the respective independence standards for those committees established by applicable rules and regulations of the SEC and the listing requirements of the NYSE. In making this determination, our Board considered the current and prior relationships that each non-employee director has with the Company and all other facts and circumstances our Board deemed relevant in determining their independence, including the beneficial ownership of our capital stock by each non-employee director and the transactions involving each non-employee director, if any, described in “Certain Relationships and Related Party Transactions.”
2.
Code of Business Conduct and Ethics and Corporate Governance Guidelines
We have adopted a Code of Business Conduct and Ethics (the “Code”) that applies to our directors, officers, and employees, as well as to affiliates that perform work for us. The Code also serves as the financial code of ethics for our Chief Executive Officer, Chief Financial Officer, controller, and other senior financial officers. Any waiver of the Code may be made only by the Board or a committee thereof and will be promptly disclosed if and as required by law, the rules and regulations of the SEC, and the listing requirements of the NYSE. Any amendment to the Code may be made only by the Board. If an amendment is so made, appropriate disclosure will be made in accordance with legal requirements (including the rules and regulations of the SEC) and the listing requirements of the NYSE.
We have also adopted Corporate Governance Guidelines that outline the important policies and practices regarding our governance. Our Corporate Governance Guidelines should be interpreted in accordance with any requirements imposed by federal or state laws or regulations, the NYSE, and our governing organizational documents. Although our Corporate Governance Guidelines have been approved by the Board, it is expected that these Corporate Governance Guidelines will evolve over time as customary practice and legal requirements change. In particular, guidelines that encompass legal, regulatory, or stock exchange requirements as they currently exist will be deemed to be modified as and to the extent such legal,
regulatory, or stock exchange requirements are modified. In addition, the Nominating and Corporate Governance Committee periodically will review and reassess the adequacy of the Corporate Governance Guidelines and recommend any proposed changes to the Board for approval.
We make available free of charge, within the “Investor Relations” section of our website at www.envivabiomass.com and in print to any interested party who so requests, our Code, Corporate Governance Guidelines, Audit Committee Charter, Compensation Committee Charter, HSSE Committee (as defined below) Charter, and Nominating and Corporate Governance Committee Charter. Requests for print copies may be directed to Investor Relations, Enviva Inc., 7272 Wisconsin Ave., Suite 1800, Bethesda, Maryland 20814, or by telephone at (301) 657-5560. We will post on our website all waivers to informor amendments of the PartnershipCode, which are required to be disclosed by applicable law and the listing requirements of his or her request; orthe NYSE.
3.
Hedging Transactions
•
Pursuant to the Company’s Insider Trading Policy, all directors, officers, and other employees of the Company, as well as outside consultants that receive or are aware of material, non-public information regarding the Company or its business partners (“Insiders”), are prohibited from making any short sales of any securities of the Company and from engaging in transactions involving Company-based derivative securities. This prohibition includes, but is not limited to, trading in Company-based option contracts, transacting in straddles or collars, hedging (generally purchasing any financial instrument or engaging in any transactions that hedge or offset, or are designed to hedge or offset, any decrease in the market value of the Company’s securities), and writing puts or calls. In addition, pursuant to the Company’s Insider Trading Policy, Insiders are prohibited from holding the Company’s securities in a margin account or pledging securities of the Company as collateral for a loan unless approval is first obtained from the Company’s general counsel. Pledging of the company securities in conjunction with hedging transactions is prohibited.
If a bank, broker4.
Stockholder Communications
A stockholder or other nominee holdsinterested party who wishes to communicate with any director may do so by sending communications to the Units,Board, any committee of the Unitholder should contactBoard, the bank, brokerExecutive Chairman of the Board, or any other nominee directly.director to:
General Counsel
Enviva Inc.
7272 Wisconsin Avenue, Suite 1800
Bethesda, Maryland 20814
and marking the envelope containing each communication as “Stockholder Communication with Directors” and clearly identifying the intended recipient(s) of the communication. Comments or complaints relating to the Company’s accounting, internal accounting controls, or auditing matters will also be referred to members of the Audit Committee.
5.
Environmental, Social, and Governance Matters
Our priorities, strategy, and approach with respect to environmental, social, and governance (“ESG”) matters are informed by internal and external stakeholders and determined by senior leadership. Our full Board (including our Health, Safety, Sustainability, and Environmental Committee (the “HSSE Committee”), the Nominating and Corporate Governance Committee, and the Audit Committee) generally oversees the Company’s environmental, social, and governance (ESG) goals and objectives, and, together with the Company’s management, including the President and Chief Executive Officer and the Company’s Chief Sustainability Officer, supports the implementation of the Company’s ESG priorities. The Company continues to monitor its response and oversight of ESG programs, practices, and policies to maximize benefit to the Company, its stockholders, employees, and customers, and the communities it impacts. Below, find additional details regarding our ESG oversight, priorities, and ongoing efforts.
Environment
Consistent with our mission to displace fossil fuels, grow more trees, and fight climate change, the Company’s core products and services are designed to help our customers around the world reduce the
environmental impact of energy generation and defossilize hard-to-abate industries like steel, lime, and cement, moving toward biomethanol, biodiesel, and sustainable aviation. In addition to manufacturing and transporting a critical, sustainable, renewable alternative to coal and other fossil fuels to our customers, we have announced our intention to reduce, eliminate, or offset our Scope 1 greenhouse gas (“GHG”) emissions and to source 100% renewable energy (Scope 2 GHG emissions) by 2030. The product we manufacture helps reduce the lifecycle GHG emissions of our customers, but we believe we must also do our part within our operations to mitigate the impacts of climate change. We seek to accomplish neutrality with respect to our Scope 1 GHG emissions (i.e., direct emissions from our manufacturing) by improving energy efficiency and adopting lower-carbon processes, as well as through investment in carbon offsets. We also seek to neutralize our Scope 2 GHG emissions (i.e., indirect emissions from energy we purchase) by using 100% renewable energy by 2030 through the purchase of renewable electricity and/or onsite generation where practicable. Moreover, we aim to proactively engage with our suppliers, transportation partners, and other stakeholders to drive innovative improvements in our supply chain to reduce our Scope 3 GHG emissions (i.e., indirect emissions in our value chain). We intend to report our Scopes 1, 2, and 3 emissions annually. Although it is difficult to project the incremental cost to our operations in 2030, we do not expect any material impact to our financial performance as a result of our efforts to achieve “net-zero” in Scope 1 and Scope 2 GHG emissions from our operations.
Social
The Board and its HSSE Committee and Compensation Committee oversee and review matters related to human capital management, including the Company’s goals with respect to health and safety, diversity, equity, and inclusion, human capital management, compensation and benefits, and other matters related to the Company’s workforce on an as needed basis.
Our employees are our greatest resource and keeping them safe is considered a moral obligation for all of us. We have been unrelenting in our commitment to our health and safety standards and processes. Our HSSE Committee, as set forth in its Committee Charter, reviews and oversees our health and safety policies, programs, issues, and initiatives. Moreover, we continue to build and foster social equity, diversity, and inclusion among our employees and other stakeholders and making a long-lasting, positive impact in the communities in which we operate. As a company, we value keeping promises, acting with integrity, the determination to make a difference, and the qualities of openness, humility, and respect.
Our Board and management believe that attracting, developing, and retaining talent is important to our continued success. Through our human resources practices, we focus on attracting, developing, and retaining talent to help enable our growth consistent with our values. In addition, we apply a talent framework to support our human resources objectives of recruiting and nurturing top talent, strengthening our succession planning to develop a pipeline of future leaders for key roles, and driving a culture of accountability through a robust performance-management process. We regularly evaluate our human capital management processes in light of our long-term strategy and goals.
We had 1,390 employees as of April 10, 2023. None of our employees are represented by a labor union. We have not experienced any employment-related work stoppages, and we consider relations with our employees to be positive.
We maintain daily 24/7 operations and to do so, we bring Enviva’s best minds, systems, processes, and team back-up culture, together. Enviva finished 2022 with a total recordable incident rate of 0.76 compared to an industry average of 3.9. This incident rate is the second lowest in the company’s history.
We focus on attracting, developing, and retaining a team of highly talented and motivated employees. We offer our employees competitive pay and benefits including paid time off and multiple healthcare and insurance coverage options, including premium free offerings, paid company holidays, and a 401(k) retirement plan. Employee performance is measured in part based on goals that are aligned with our annual objectives, and we recognize that our success is based on the talents and dedication of those we employ. Additionally, we look to support our employees both on and off the job site by offering benefits such as paid parental leave, a wellness reimbursement program, FSA dependent care, paid disability (short term/long term), and educational assistance. All of our full-time employees are bonus eligible and 20% of our employees are
THE PLAN OF CONVERSIONcurrently eligible for equity-based awards under the Enviva Inc. Long-Term Incentive Plan (the “LTIP”). We evaluate these programs annually to ensure our employees are compensated fairly and competitively.
OverviewIn 2022, our commitment to career growth and development led us to deploy various in-person and online courses and presentations to give employees the opportunity to learn new skills, hone existing ones, and deepen their understanding of our business as well as expose them to new ideas that challenge their way of thinking. We offered 20 technical skill trainings for our operators in our plants. We hosted our annual program called Enviva Days which is a development initiative focused on driving career development and employee engagement. In 2022, this event included 15 learning sessions over the course of one week. More than 500 Enviva employees participated.
To achieve operational discipline in our hiring efforts, it is our policy to follow a consistent hiring process across the organization. We recognize the need to fill roles and strive for a time-to-fill rate that aligns with internal benchmarks. Our current hiring process includes a pre-screen interview and cross-functional panel interview. Following recruitment, our onboarding program provides our new hires with the tools and information needed to succeed. These processes helped us maintain a total voluntary turnover rate of 31% against a very challenging labor market.
We are an equal opportunity employer with a commitment to diversity and inclusion. We believe in a workplace that promotes equality, transparency, and accountability. Our policies and procedures seek to foster these values through regular trainings and employee engagement, such as annual trainings for 100% of our employees on workplace conduct and non-discrimination.
We have a dedicated community relations team whose goal is to build meaningful relationships in communities in which we operate and engage with local leaders. We also strive to engage with the local communities where our operations are based so that we can locate and support a diverse talent pool.
Additional information regarding our human resources initiatives can be found under the “People” section of our 2021 Corporate Sustainability Report which can be found on our website in the Sustainability section and is not incorporated by reference herein.
Governance
Currently, our environmental and social initiatives are driven by our management team, especially our President and Chief Executive Officer and our Chief Sustainability Officer, and overseen by our Board, particularly the HSSE, the Nominating and Corporate Governance, and the Audit Committees. The principal effectsmanagement team meets weekly on executive priorities with standing agenda items for topics relating to the Company’s performance in occupational health and safety, environmental, sustainability, and human resources, including risks relating to these issues. Our HSSE Committee, as outlined in its Committee Charter and further described in the “Board of Directors and Committees” section below, is responsible for assisting the Board in fulfilling its oversight responsibilities relating to the Company’s occupational health, safety, sustainability, and environmental issues, including risks relating to such issues. Our Audit Committee, as outlined in its Committee Charter, is responsible for discussing and addressing business risks with the Company’s management team. This also includes material environmental risks, including those that relate to regulation and physical climate change risks. Our Nominating and Corporate Governance Committee, as outlined in its Committee Charter, is responsible for identifying, screening, and reviewing individuals qualified to serve as members of the Conversion will be that:
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The affairsCompany’s Board, including with respect to independence and diversity. Furthermore, as of December 31, 2021, we increased the Partnership will ceasesize of our Board to be governed by the Delaware LP Actadd new directors to enhance our experience in, among other things, ESG and following the Conversion, will become subject to the DGCL.
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The Corporation will continue with all of the rights, privileges and powers of the Partnership, will possess all of the properties of the Partnership and will continue with all of the debts, liabilities and obligations of the Partnership, as more fully described below.
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When the Conversion becomes effective, each outstanding Unit will be exchanged for one share of Common Stock, and each outstanding option or right to acquire Units will be an option or right to acquire, on the same terms, shares of Common Stock.
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The Partnership will convert from an entity treated as a partnership for U.S. federal income tax purposes to an entity treated as a corporation for U.S. federal income tax purposes. As a result, the Corporation will be subject to U.S. federal income tax on its taxable income, and the Stockholders will be subject to simplified tax reporting obligations for U.S. federal income tax purposes. See “Material U.S. Federal Income Tax Consequences.” for a more complete discussion of the expected material U.S. federal income tax consequences of the Conversion.
The Partnership will effect the Conversion by entering into the Plan of Conversion, a copy of which is attached as Annex A. Approval of the Plan of Conversion Proposal will constitute approval of the Conversion. At the effective time of the Conversion, the Partnership will file with the Secretary of State of the State of Delaware the Certificate of Conversion and the Charter that would govern Enviva Inc. as a Delaware corporation, copies of which are attached to the Plan of Conversion. In addition, the New Board will adopt the Bylaws for the Corporation, a copy of which is attached as Annex B.
Although it will be governed by the Charter, the Bylaws and the DGCL, the Corporation will continue with all of the rights, privileges and powers of the Partnership, it will possess all of the properties of the Partnership and it will continue with all of the debts, liabilities and obligations of the Partnership.
After the Conversion, the Partnershipdiversity. We will continue to be a publicly held entityevaluate opportunities for our management team and the sharesBoard of Common Stock will be traded, without interruption,Directors to offer additional leadership and oversight on the NYSE under the symbol “EVA.” The Corporation will continue to file periodic reports and other documents with the SEC and provide to its Stockholders the same type of information that it has previously filed and provided by the Partnership. The Unitholders who own Units that are freely tradable prior to the Conversion will hold shares of Common Stock that will continue to be freely tradable, and Unitholders holding restricted Units immediately prior to the Conversion will hold shares of Common Stock that continue to be subject to the same restrictions on transfer to which their Units were subject. In summary, the Conversion will not change the respective positions under federal securities laws of the Partnership or the Unitholders.
The Partnership
The Partnership was formed on November 12, 2013 to aggregate a natural resource, wood fiber and process it into a transportable form, wood pellets. The Partnership sells a significant majority of its wood pellets through long-term, take-or-pay off-take contracts with creditworthy customers in the United Kingdom, Europe and increasingly in Japan. The Partnership owns and operates ten plants (collectively, “the plants”) with a combined production capacity of approximately 6.2 million metric tons (“MT”) of wood pellets per year (“MTPY”) in Virginia, North Carolina, South Carolina, Georgia, Florida and Mississippi, the production of which is fully contracted through 2025. The Partnership exports wood pellets through its deep-water marine terminals at the Port of Chesapeake, Virginia (the “Chesapeake terminal”) and Port of Pascagoula, Mississippi (the “Pascagoula terminal), and terminal assets at the Port of Wilmington, North Carolina (the “Wilmington terminal”) and from third-party deep-water marine terminals in Savannah, Georgia (the “Savannah terminal”), Mobile, Alabama (the “Mobile terminal”) and Panama City, Florida (the “Panama City terminal”). All of its facilities are located in geographic regions with low input costs and favorable transportation logistics. Owning these cost-advantaged assets, the output from which is fullyESG-related matters.
contracted through 2025,BOARD OF DIRECTORS AND COMMITTEES
During the fiscal year ended December 31, 2022, our Board met nine times. Each director attended at least 75% of the aggregate of the total number of meetings of the Board and meetings of the committees of which he or she was a member in our last fiscal year. The Board encourages all directors to attend the annual meeting of stockholders, if practicable. The Board has a rapidly expanding industry providesstanding Audit Committee, Compensation Committee, Nominating and Corporate Governance Committee, and HSSE Committee. All members of such committees are non-employee directors whom the PartnershipBoard has determined are independent under the applicable independence standards.
1.
Board Leadership Structure
The Company’s governing documents allow the roles of Executive Chairman of the Board and Chief Executive Officer to be filled by the same or different individuals. This approach allows the Board flexibility to determine whether the two roles should be separate or combined based upon the Company’s needs from time to time. Currently, Mr. Keppler serves as the Executive Chairman of the Board. Mr. Keppler does not qualify as an independent director under the applicable criteria for independence set forth in the listing standards of the NYSE. Because our Executive Chairman is not independent, in accordance with the Company’s Corporate Governance Guidelines, the independent Board members have designated Mr. Alexander, one of our independent directors, to serve as our Lead Independent Director. Pursuant to the Company’s Corporate Governance Guidelines, the duties and functions of the Lead Independent Director include the following:
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presiding over executive sessions of the non-management directors;
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presiding over executive sessions of the directors who qualify as independent directors (the “NYSE Independent Directors”) at any time the non-management members of the Board include directors who are not NYSE Independent Directors;
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consulting with the Executive Chairman and the Chief Executive Officer concerning the Board’s agendas;
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coordinating the activities of the non-management directors and NYSE Independent Directors, as applicable, and the agenda for executive sessions;
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communicating feedback to the Executive Chairman and Chief Executive Officer following executive sessions of the NYSE Independent Directors;
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fostering an environment of open dialogue and constructive feedback among the NYSE Independent Directors;
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calling meetings of the NYSE Independent Directors;
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serving as a platformliaison, along with Board committee chairpersons, between the NYSE Independent Directors and the Executive Chairman; provided that this does not in any way diminish the Chief Executive Officer’s accountability to generate stablethe Board in its entirety or the ability of any individual Board member and growing cash flows. The Partnership’s plants are sitedthe Chief Executive Officer to communicate directly with each other;
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being available to the Chief Executive Officer for consultation on issues of corporate importance that may involve Board action, and in robust fiber baskets providing stable pricinggeneral serving as a resource to the Chief Executive Officer on an as-needed basis;
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at the standing invitation of the Board’s committees, attending meetings of Board committees on which the Lead Independent Director does not already serve;
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assisting the Nominating and Corporate Governance Committee with its oversight of the annual evaluation of the Board and its committees and communicating results of any individual director assessments to individual Board members;
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consulting with the Nominating and Corporate Governance Committee with respect to recommendations for the low-grade fiber usednomination of Board members to produce wood pellets. the Board’s committees;
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subject to the Company’s policies regarding public communications, when deemed appropriate, representing the NYSE Independent Directors in engaging with stockholders; and
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performing such other duties as the Board may determine from time to time.
The Partnership’s raw materials are byproductsBoard believes all of traditional timber harvesting, principally low-value wood materials,the foregoing factors provide an appropriate balance between effective and efficient Company leadership and sufficient oversight by the non-employee directors. The Board regularly considers its leadership structure to ensure that the structure is appropriate in light of the needs of the Company’s business, and the Board is open to different structures as circumstances may warrant.
2.
Risk Oversight
The Board has overall responsibility for the oversight of the Company’s risk management process, which is designed to support the achievement of organizational objectives, including strategic objectives, improve long-term organizational performance, and enhance stockholder value. Risk management includes not only understanding Company-specific risks and the steps management implements to manage those risks, but also what level of risk is acceptable and appropriate for the Company. Management is responsible for establishing our business strategy, identifying and assessing the related short-, medium-, and long-term risks, and implementing appropriate risk management practices. The Board periodically reviews our business strategy and management’s assessment of the risk environment and related risks and discusses with management the appropriate level of risk for the Company. Each of our Board committees also oversees the management of risks that fall within the committee’s areas of responsibility. In performing this function, each committee has full access to management, as well as the ability to engage advisors.
The Audit Committee oversees the Company’s compliance with legal and regulatory requirements and assists the Board in fulfilling its oversight responsibilities with respect to risk management in the areas of internal control over financial reporting and disclosure controls and procedures, and legal and regulatory compliance, and discusses with management the Company’s guidelines and policies with respect to risk assessment and risk management. In connection with its risk management role, our Audit Committee meets periodically, both in open session and privately, with representatives from our independent registered public accounting firm and with our Chief Financial Officer. The Audit Committee receives regular reports on, and assessments of, the Company’s internal controls from members of management responsible for financial controls. In addition, the Audit Committee receives the independent registered public accounting firm’s assessment of the Company’s internal controls and financial risks, which includes the independent registered public accounting firm’s report on its procedures for identifying fraud and addressing any risk of management override. The Audit Committee also receives management reports regarding specific areas of financial risk and discusses strategies to mitigate risk.
The HSSE Committee oversees the Company’s plans, programs, and processes to evaluate and manage health, safety, sustainability, and environmental risks to the Company’s business, operations, employees, products, and reputation and to the public, including climate risks. Climate risks subject to the oversight of the HSSE Committee include those that may result from increasing concentrations of GHGs in the earth’s atmosphere and potentially have significant physical effects, such as trees generally not suited for sawmilling orsea-level rise and increased frequency and severity of storms, floods, and other manufacturedclimatic events, including forest products,fires. Furthermore, the HSSE Committee reviews and tree topsdiscusses such risks with management and limbs, understory, brushhelps management to design and slash that are generated in a harvest.implement policies and procedures to properly manage such risks.
The Partnership’s strategy is to fully contractNominating and Corporate Governance Committee assists the wood pellet production from its plants under long-term, take-or-pay off-take contracts with a diversified and creditworthy customer base. The Partnership’s long-term off-take contracts typically provide for fixed-price deliveries that may include provisions that escalateBoard in shaping the price over time and provide for other margin protection.
Backgroundcorporate governance of the Conversion
Periodically overCompany. The Nominating and Corporate Governance Committee receives updates and advice from management and outside advisors regarding the last few years, a number of external factors contributedCompany’s procedures for complying with corporate governance regulations, as well as with respect to the PartnershipCompany’s governance structure and protections. The Nominating and Corporate Governance Committee also develops and annually reviews and recommends to the Board a set of Corporate Governance Guidelines to be adopted for the Company to further the goal of providing effective governance.
The Compensation Committee assists the Board with its oversight of the compensation of the Company’s employee compensation policies and practices, including determining and approving the compensation of the Company’s directors, Chief Executive Officer, and other executive officers. The Compensation Committee receives updates and advice on the ongoing advisability of the Company’s compensation practices both from management and from the Compensation Committee’s independent consultant.
3.
Board Committees
The Board has four standing committees: an Audit Committee, a Compensation Committee, a Nominating and Corporate Governance Committee, and an HSSE Committee.
Audit Committee
Responsibilities of the Audit Committee, which are set forth in the Audit Committee Charter posted on the Company’s website, include, among other duties, assisting the Board in fulfilling its oversight responsibilities regarding:
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the integrity of our financial statements,
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compliance with legal and regulatory requirements and corporate policies and controls,
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qualifications, independence, and performance of our independent registered public accounting firm engaged for the purpose of preparing or issuing an audit report or performing other audit, review, or attest services for the Company, and
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effectiveness and performance of the Company’s internal audit function.
The members of the Audit Committee are Mr. Bumgarner, Mr. Whitlock, and Ms. Wong, with Ms. Wong serving as the Chairperson. In addition, the Board believes Ms. Wong satisfies the definition of “audit committee financial expert.”
The Audit Committee met eight times during 2022.
Compensation Committee
Responsibilities of the Compensation Committee, which are set forth in the Compensation Committee Charter that is posted on the Company’s website, include, among other duties, the responsibility to:
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review, evaluate, and approve the agreements, plans, policies, and programs of the Company to compensate the Company’s directors and executive officers,
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review and discuss with the Company’s management the Compensation Discussion and Analysis required by SEC regulations, and
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otherwise discharge the Board’s responsibilities relating to compensation of the Company’s directors and executive officers.
The Compensation Committee is delegated all authority of the Board as may be required or advisable to fulfill its purposes. The Compensation Committee may delegate to any one of its members or any subcommittee it may form, the responsibility and authority for any particular matter, as it deems appropriate from time to time evaluating potential transactions that would further its strategic objectives. under the circumstances.
The most influential were certain market forces,Compensation Committee may retain and determine funding for legal counsel, compensation consultants, as well as other experts and advisors (collectively, “Committee Advisors”), including the steadily changing landscape for publicly traded partnerships (“MLPs”) since 2017,authority to retain, approve the abilityfees payable to, amend the engagement with, and terminate any Committee Advisor, as it deems necessary or appropriate to fulfill its responsibilities. The Compensation Committee assesses the independence of any Committee Advisor prior to retaining such Committee Advisor, and on an annual basis thereafter.
The members of the Partnership to access a largerCompensation Committee are Mr. Bumgarner, Mr. Lapeyre, and more diverse investor baseMr. Ubben, with Mr. Bumgarner serving as the Chairperson.
The Compensation Committee met six times during 2022.
Nominating and the growth of ESG and development value.Corporate Governance Committee
More broadly, the landscape for MLPs has changed considerably since 2017. The drop in the values of MLPs over that time period, combined with the effects of growing cash flows and distributions, has increased the cost of capital burden of IDRs to many MLPs, making it difficult for MLPs to buy or develop assets that are accretive to their cash flow. Additionally, the Tax Cuts and Jobs Act of 2017 lowered the U.S. federal corporate income tax rate from 35% to 21%, which reduced the overall tax burden on cash flows distributed from an entity treated as a corporation for U.S. federal income tax purposes. These trends have contributed to a significant number of MLPs eliminating their IDRs, directly or through mergers with the entities holding their IDRs, converting to corporations (for U.S. federal income tax and state law purposes) or both.
In light of these circumstances, at a meetingResponsibilities of the GP Board on July 29, 2021, the GP Board empaneled a ConflictsNominating and Corporate Governance Committee, of the Partnership consisting of four independent directors, represented by the law firm of Baker Botts LLP, to evaluate the viability and potential benefits of the Partnership streamlining its capital structure, converting to a corporation and related matters. Following the meeting, the GP Board continued to evaluate courses of action available to align the Partnership’s capital and organizational structure with its long-term objectives. The GP Board reviewed presentations and written materials prepared by Evercore Inc. (“Evercore”), financial advisor to the Conflicts Committee, detailing the risks and benefits of a conversion and various alternatives for precedent transactions necessary for a conversion. Based on this extensive evaluation process and related consultations with Vinson & Elkins L.L.P. and Evercore, the GP Board determined that eliminating the IDRs and consummating the merger by and among the Partnership, Enviva Holdings, LP (“Holdings”), Enviva Partners Merger Sub, LLC, and the limited partners of Holdingswhich are set forth in the agreementNominating and plan of merger (the “Drop Merger Agreement”), pursuantCorporate Governance Committee Charter that is posted on the Company’s website, include, among other duties, the responsibility to:
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advise the Board, make recommendations regarding appropriate corporate governance practices, and assist the Board in implementing those practices,
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identify individuals qualified to which (a) the Partnership acquired (i) allbecome members of the limited partner interests in HoldingsBoard, consistent with the criteria approved by the Board,
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select and (ii) allrecommend to the Board for approval director nominees for election at the annual meetings of stockholders or for appointment to fill vacancies, and
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oversee the evaluation of the limited liability company interests in Enviva Holdings GP, LLCBoard and (b)management.
The members of the IDRs directly held by Enviva MLP Holdco, LLC were cancelledNominating and eliminated (collectively, the “Drop Merger”),Corporate Governance Committee are Mr. Alexander, Ms. Wong, and Ms. Zlotnicka, with Mr. Alexander serving as the first steps in pursuing conversion to a corporation would beChairperson.
The Nominating and Corporate Governance Committee met five times during 2022.
Health, Safety, Sustainability, and Environmental Committee
Responsibilities of the HSSE Committee, which are set forth in the best interestsHealth, Safety, Sustainability, and Environmental Committee Charter that is posted on the Company’s website, include, among other duties, assisting the Board in fulfilling its oversight responsibilities with respect to the Board’s and our continuing commitment to:
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ensuring the safety of our employees and the public and assuring that our businesses and facilities are operated and maintained in a safe and environmentally sound manner,
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sustainability, including sustainable forestry practices,
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delivering environmental benefits to our customers, the forests from which we source our wood fiber, and the communities in which we operate, and
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minimizing the impact of our operations on the environment.
The HSSE Committee reviews and oversees our health, safety, sustainability, and environmental policies, programs, issues, and initiatives, reviews associated risks that affect or could affect us, our employees, and the public, and ensures proper management of those risks and reports to the Board on health, safety, sustainability, and environmental matters affecting us, our employees, and the public.
The members of the PartnershipHSSE Committee are Mr. Davidson, Mr. Lansing, and its future growth.Ms. Zlotnicka, with Ms. Zlotnicka serving as the Chairperson.
From September 10, 2021 through October 13, 2021,The HSSE Committee met four times during 2022.
4.
Executive Sessions
In accordance with applicable NYSE listing requirements, the Partnership, represented byBoard holds regular executive sessions in which the Conflictsnon-management directors meet without any members of management present. The purpose of these executive sessions is to promote open and candid discussion among the non-management directors. In the event that the non-management directors include directors who are not independent under the listing requirements of the NYSE, then at least once a year, there will be an executive session including only independent directors. Since his appointment as Lead Independent Director on April 1, 2023, Mr. Alexander presides at these meetings.
5.
Compensation Committee Interlocks and Insider Participation
No member of the Compensation Committee is currently, or has been during the last fiscal year, one of our employees. No executive officer currently serves, or has served during the last fiscal year, as a member of the board of directors or Compensation Committee of the GPany entity that has one or more executive officers serving as a member of our Board negotiated with Holdings and ultimately reached terms of the agreements facilitating a proposed transaction. On October 14, 2021, the Partnership, Enviva Partners Merger Sub, LLC, Holdings, the Riverstone Echo Funds and the other parties thereto entered into the Drop Merger Agreement.
On October 14, 2021, the Partnership issued a press release announcing its entry into the Drop Merger Agreement and its intention to undertake additional strategic steps in its progress towards becoming a corporation. Having consummated the transactions contemplated by the Drop Merger Agreement, a necessary step in the path to conversion to corporate form, the Partnership determined to pursue the final steps towards that objective.Directors or Compensation Committee.
RecommendationEXECUTIVE OFFICERS
Our current executive officers and their respective ages and positions as of the GP BoardRecord Date are set forth in the following table. Biographical information regarding Mark A. Coscio, Shai S. Even, Roxanne B. Klein, Yanina A. Kravtsova, Jason E. Paral, E. Royal Smith, and ReasonsJohn-Paul D. Taylor is set forth following the table. Biographical information for John K. Keppler and Thomas Meth is set forth above under “Proposal No. 1 — Election of Directors.”
| Name | | | Age | | | Position | |
| Thomas Meth | | | 50 | | | President, Chief Executive Officer, and Director | |
| John K. Keppler | | | 52 | | | Executive Chairman of the Board and Director | |
| Mark A. Coscio | | | 48 | | | Executive Vice President and Chief Development Officer | |
| Shai S. Even | | | 54 | | | Executive Vice President and Chief Financial Officer | |
| Roxanne B. Klein | | | 46 | | | Executive Vice President and Chief Administrative and People Officer | |
| Yanina A. Kravtsova | | | 46 | | | Executive Vice President, International Market Development and Public Affairs | |
| E. Royal Smith | | | 50 | | | Executive Vice President, Operations | |
| Jason E. Paral | | | 40 | | | Senior Vice President, General Counsel, and Secretary | |
| John-Paul D. Taylor | | | 42 | | | Senior Vice President and Chief Commercial Officer | |
Mark A. Coscio. Mr. Coscio has served as Executive Vice President and Chief Development Officer since September 2022. In this role, he leads Enviva’s corporate development and construction functions. Mr. Coscio has an extensive background managing global engineering, procurement, and construction projects within the energy sector as well as hands-on experience on projects from the proposal phase through execution and commissioning. Most recently, he served as Senior Vice President, North, Central & South America at McDermott International, Ltd, after joining the company as Vice President, Petrochemical/Refining Operations in 2018. Prior to that, he held progressively increasing leadership roles at Chicago Bridge & Iron Company from 1998 to 2018. Mr. Coscio has a Bachelor’s Degree in civil engineering with a project management specialty from Texas A&M University. He holds a Master of Business Administration from the Kenan-Flagler Business School at the University of North Carolina, Chapel Hill.
Shai S. Even. Mr. Even began serving as Executive Vice President and Chief Financial Officer of the general partner of Enviva Partners, LP in June 2018 and has continued to serve as Executive Vice President and Chief Financial Officer of Enviva Inc. In this role, Mr. Even leads Enviva’s finance, accounting, and information technology organizations and provides strategic leadership on finance matters. He has over 25 years of experience with operational and strategic finance, including in senior financial and management roles at master limited partnerships. Most recently, Mr. Even served as Senior Vice President and Chief Financial Officer of Alon USA Energy, Inc. and served as President and Chief Financial Officer of Alon USA Partners, LP. While at Alon, Mr. Even led Alon’s parent company’s successful IPO on the NYSE in 2005 and the successful IPO of Alon’s master limited partnership in 2012. During his tenure at Alon, he led the company’s two major acquisitions and scaled its finance organization to complement the growth of the company. Prior to joining Alon, Mr. Even served as the Chief Financial Officer of DCL Group in Tel Aviv, Israel, and as an auditor with KPMG. Mr. Even holds a bachelor’s degree in Economics and Accounting from Bar-Ilan University and is a certified public accountant.
Roxanne B. Klein. Ms. Klein began serving as Executive Vice President and Chief Human Resources Officer of the general partner of Enviva Partners, LP in December 2021 and continues to serve as Executive Vice President and Chief Administrative and People Officer of Enviva Inc. With years of Human Resources leadership experience in the manufacturing industry, Roxanne has an extensive and proven background building successful talent acquisition and development teams and driving best practices in people management and social impact. Prior to joining Enviva, Ms. Klein spent six years as Senior Vice President and Chief Human Resources Officer for Knoll, Inc., one of the world’s leading global manufacturers of office and other furniture, where she was responsible for all human resources activities for the Conversion
In reaching its determinations and recommendations described above, the GP Board consulted with the Partnership’s senior management, outside legal counsel and financial and tax advisors. These consultations included discussions regarding the Partnership’s strategic business plan, the Partnership’s past and current business operations and financial condition and performance, the Partnership’s future prospects, other potential strategic alternativescompany worldwide. Prior to that, may be availableshe held progressively increasing leadership roles at Knoll from 2007 to the Partnership, and the potential Conversion. The GP Board considered a number of substantive factors, both positive and negative, and potential benefits and detriments of the Conversion to the Partnership and the Unitholders. In view of the wide variety of factors considered in connection with the Conversion, the GP Board did not consider it practicable to assign relative weights to the specific material factors it considered in reaching its decision. Certain material factors considered by the GP Board, in addition to the matters described above under “— Background of the Conversion,” are summarized below (which are not listed in any relative order of importance).
Expected Benefits of the Conversion
In determining that the Conversion is advisable, fair to and in the best interests of the Partnership and the Unitholders, and in reaching its decision to approve the Plan of Conversion, the GP Board considered a variety of factors that it believed weighed favorably toward the Conversion, including the following material factors:
Expansion of Investor Base and Improved Access to Capital Markets. Immediately following the Conversion, the GP Board expects that the Corporation will benefit from a simpler, more readily understandable capital structure that is not burdened by incentive distribution rights, does not require equity holders to file a tax return based on their receipt of a Schedule K-1, and has a majority-independent board of directors. The global investor base for environmental, social and governance investing is rapidly expanding, and the GP Board expects that the Conversion will expand the Corporation’s potential investor base to a broader array of investors, including those increasingly focused on climate actions and sustainability (e.g., pension plans, mutual funds, other institutional investors and foreign investors) that have a preference for traditional C Corporation (a “C-Corp”) structures and governance. In addition, the GP Board anticipates that the Common Stock (as compared to the Units) should receive broadened investor interest2015 as a result of increased review and evaluation by investment research analysts. The GP Board believes that the Corporation’s structure will significantly increase the potential, over time, for the Corporation to be eligible for inclusion in a broader base of indices, which would further expand its universe of potential investors and enhance its market capitalization and financial valuation relative to the Partnership today. Finally, the GP Board believes the C-Corp structure will result in greater trading liquidity for Stockholders, which the GP Board expects will be attractive to investors that require certain thresholds of trading activity. The GP Board anticipates that these factors could enable the Corporation to benefit from a lower cost of capital to fund future growth in addition to an improved credit profile.
Improved Return on Invested Capital. The GP Board believes that current industry conditions provide opportunities for Enviva to grow through the development and expansion of assets at attractive investment multiples. The GP Board anticipates that the Corporation will be able to construct new assets, including wood pellet production plants and deep-water marine terminals, at lower investment multiples than the Partnership has historically acquired, or would in the future be able to acquire, from Holdings, thereby enabling the Corporation to achieve a better return on invested capital.
In certain cases, Enviva may seek to issue equity securities to fund its growth, and the GP Board believes that in certain circumstances equity interests in a corporation will be a more attractive acquisition currency to prospective investors than the Units.
Streamlines Corporate Governance and Benefits Stockholders. The complexities of the status quo organizational structure of the Partnership and its subsidiaries will be meaningfully reducedwell as a result of the Conversion, thereby streamlining corporate governance matters. For example, in connection with the Conversion, the Corporation will have a customary corporate governance model, with the Corporation’s directors and officers subject to corporate fiduciary duties. In general, the traditional C-Corp structure of the Corporation will also provide valuable governance protections and enhanced stockholder rights for the
Stockholders that are not currently available to Unitholders. See “Comparisonadditional Human Resources leadership roles at Praxair, Inc. and Danaher Corporation. Ms. Klein holds a B.B.A. from Temple University and an M.B.A. from DeSales University.
Yanina A. Kravtsova. Ms. Kravtsova began serving as Executive Vice President, Communications, Public & Environmental Affairs of the Rightsgeneral partner of StockholdersEnviva Partners, LP, in December 2019 and, Unitholders”prior to that, as Vice President, Environmental Affairs and “DescriptionChief Compliance Officer in October 2018, and continues to serve as Executive Vice President, International Market Development, and Public Affairs of Enviva Inc.’s Capital Stock.”
Corporate Sector Presents a Superior Environment In her current role, Ms. Kravtsova leads the teams responsible for the Future of Enviva. The GP Board believes investor confidence in the MLP sector has erodedmedia, governmental and that the Partnership’s assets and growth development plan are no longer best suited for the yield-based MLP sector. The number of publicly traded MLPs has decreased over time from over 135 in 2015 to less than 70 as of June 30, 2021 due to consolidations and corporate conversions. In contrast, the GP Board views the corporate sector as providing a healthier and more supportive environment for Enviva to attain future growth and execute its long-term business plans. The GP Board also believes the Conversion allows for better valuation comparability by investors of Enviva and its direct public peers.
Reduces Burdens of Tax Reporting. The GP Board believes that the complexities of tax reporting associated with entities treated as partnerships for U.S. federal income tax purposes, including the Schedule K-1 reporting requirement, are regarded as unduly burdensome by many institutional and retail Unitholders. In addition to U.S. federal income tax reporting requirements, Unitholders are generally required to file foreign, state and local income tax returns and pay foreign, state and local income taxes in some or all of the jurisdictions in which the Partnership conducts business or owns property, even if they do not live in any of those jurisdictions. The ownership of Common Stock, as opposed to Units, would greatly simplify the U.S. federal and state income tax reporting requirements with respect to an investment in Enviva in future years and might eliminate the requirement of multi-state income tax filings for certain Unitholders.
Favorable Circumstances Exist for Conversion. The Partnership currently is treated as a partnership for federal income tax purposes. The GP Board believes that it is advantageous for the Partnership to convert to a corporation now because: (i) the Conversion can generally be effected in a nonrecognition transaction under current U.S. federal income tax law (except as otherwise described herein) and (ii) the Conversion is facilitated by the Partnership’s financial performance, improving equity market conditions generally and other factors set forth below.
Accordingly, the GP Board believes that it is advantageous to convert to corporate form at the present time and that any potential benefit derived from maintaining the Partnership’s current form is outweighed by the (i) long-term benefits to be derived from the Conversion and (ii) the risk that postponing such a conversion until a later date could result in the Partnership’s inability to consummate such a transaction in an orderly manner under favorable circumstances.
Enhances Enviva’s Ability to Attract and Retain Directors. The GP Board believes that conversion to corporate form will enhance Enviva’s ability to attract and retain directors. Many candidates for the board of directors are already familiar with Delaware corporate law, including provisions relating to director indemnification, from their past business experience. Not only is Delaware corporate law most familiar to directors, but Delaware corporate law also provides greater predictability and responsiveness to corporate needs and more certainty regarding indemnification and limitation of liability of directors, all of which could enable the directors to act in the best interests of the Corporation. As a result, the GP Board believes that Enviva will be able to more effectively retain its current directors or attract and retain new directors.
The DGCL Improves Predictability and Responsiveness. The DGCL is generally acknowledged to be the most advanced corporate law in the United States. The Delaware General Assembly annually considers and adopts statutory amendments that the Corporation Law Section of the Delaware State Bar Association proposes in an effort to ensure that the corporate law continues to be responsive to the changing needs of businesses. Delaware’s well-established body of case law construing Delaware corporate law has evolved over the last century and provides businesses with greater predictability than the Delaware LP Act. The abundance of Delaware corporate case law serves to enhance the relative clarity and predictability of many areas of corporate law, which the GP Board believes will offer added advantages to the Corporation by allowing the New Board and management to make corporate decisions and take corporate actions with greater assurance as to the validity and consequences of those decisions and actions.
Other Material Factors Considered
The GP Board weighed the advantages and opportunities described above and elsewhere in this proxy statement against a number of other factors identified in its deliberations weighing negatively against the Conversion, including:
•
the possible disruption to the Partnership’s business that may result from the Conversion and the resulting distraction of the attention of the Partnership’s management,community relations, as well as environmental permitting of our facilities. Ms. Kravtsova brings to Enviva over 20 years of leadership and senior management experience in the costsrenewable energy and expenses associated with completing the Conversion;power sector. Prior to joining Enviva, Ms. Kravtsova served as Senior Vice President, General Counsel, and Secretary of Terraform Global, Inc. from February 2015. Ms. Kravtsova was also Legal Head of Renewable Energy Investments at Google Inc. from August 2011 to January 2015. Ms. Kravtsova practiced law at Clifford Chance U.S. LLP, Latham & Watkins LLP, and The World Bank Group, handling international project finance, regulatory, and corporate matters for energy projects.
•
the risksE. Royal Smith. Mr. Smith began serving as Executive Vice President, Operations of the typegeneral partner of Enviva Partners, LP in August 2016 and nature described under “Risk Factors”prior to that as Vice President, Operations in April 2014, and the matters described under “Cautionary Statement Regarding Forward-Looking Statements.”
After consideration of these material factors, the GP Board determined that these risks could be mitigated or managed by the Partnership or, following the Conversion, by the Corporation, and were reasonably acceptable under the circumstances or, in light of the anticipated benefits overall, were significantly outweighed by the potential benefits of the Conversion.
This discussion of the information and factors considered by the GP Board in making its decision is not intendedcontinues to be exhaustive but rather reflects certain material factors considered by the GP Board. In view of the wide variety of factors considered in connection with its respective evaluation of the Conversion and the complexity of these matters, the GP Board did not find it useful to, and did not attempt to, quantify, rank or otherwise assign relative weights to these factors. In addition, individual members of the GP Board may have given different weight to different factors.
The GP Board realized that there can be no assurance about future results, including results considered or expectedserve as described in the factors listed above. It should be noted that this explanation of the reasoning of the GP Board and all other information presented in this section are forward-looking in nature and, therefore, should be read in light of the factors discussed under the heading “Cautionary Statement Regarding Forward-Looking Statements.”
The GP Board has unanimously recommended that the Unitholders vote FOR the Plan of Conversion Proposal.
No Appraisal Rights
The Unitholders are not entitled to appraisal rights in connection with the Conversion.
Antitrust and Regulatory Matters
The Partnership has determined that the Conversion is not subject to the requirements of the HSR Act, and no other governmental consents are required.
ListingExecutive Vice President, Operations of Enviva Inc. Common StockPreviously, he served as Director of Operations, NAA Division of Guilford Performance Textiles, a global textile manufacturing company, from March 2012 to July 2014. From August 2010 to March 2012, Mr. Smith also served as Director of Quality, NAA Division. Prior to joining Guilford, Mr. Smith worked as a Plant Manager at Pactiv, a food packaging manufacturer, from May 2009 to August 2010. Mr. Smith served as General Manager of a facility operated by United Plastics Group International from December 2005 to May 2009, after serving in other roles at the company from April 2002. From January 1999 to September 1999, he served as Production Supervisor of The General Motors Corporation, before serving as Mechanical Device/Tool and Die Supervisor from September 1999 to August 2000. Mr. Smith holds a B.S. in Mechanical Engineering from GMI Engineering and Management Institute.
The Common Stock issuableJason E. Paral. Mr. Paral has served as Senior Vice President, General Counsel, and Secretary since January 2023, and also serves as Chief Compliance Officer. Prior to January 2023, he held a series of positions with the general partner of Enviva Partners, LP, first as Assistant General Counsel beginning in June 2015, then as Vice President, Associate General Counsel, and Secretary beginning in February 2018. Most recently, he served as Senior Vice President, Deputy General Counsel, and Secretary of Enviva Inc. from March 2022. Prior to joining Enviva, Mr. Paral practiced law at Vinson & Elkins LLP, where, from February 2008 to June 2015, he represented borrowers, developers, sponsors, and investors in the Conversion is expectedrenewable and traditional energy industries across a broad range of complex project development and project finance transactions, as well as mergers, acquisitions, and other corporate transactions. Mr. Paral holds a B.A. in Political Science from Western Illinois University and a J.D. from The George Washington University Law School.
John-Paul D. Taylor. Mr. Taylor currently serves as Senior Vice President and Chief Commercial Officer, and prior to be approved for listingthat, served as Senior Vice President, Sales & Fulfillment beginning in June 2022 and trade on the NYSE under the symbol “EVA.”
Deregistrationas Senior Vice President, Optimization and DelistingOrigination beginning in March 2020. He joined Enviva as Vice President, Optimization and Origination in February 2014. He has been an integral part of the Units
The Units are currently traded onsales and marketing team, spending the NYSE underlast several years developing new markets in Asia, mostly significantly in Japan, and now leads Enviva’s Asia Pacific team. Mr. Taylor is responsible for sales processes as they relate to managing existing Enviva customer contracts and executing new long-term wood pellet offtakes and related freight contracts, leading Enviva’s contract fulfillment process from inception to fulfillment. He also analyzes the ticker symbol “EVA.” Upon consummationbroader market at large in order to deploy customized logistical solutions for customers to improve the Enviva value chain. Prior to joining Enviva, Mr. Taylor served as Vice President of Biomass Brokerage as Evolution Markets, where he developed and grew the Conversion,company’s biomass business. He holds a B.A. in Commerce and an M.A. in International Economics and Finance from Ryerson University in Toronto and graduated from the Units will cease to be listed onCarbon Finance & Analytics Programme at the NYSE and will be subsequently deregistered under the Exchange Act. The former Unitholders will become Stockholders of the Corporation and their rights as Stockholders will be governed by Delaware law and by the Charter and Bylaws that will be in effect upon consummation of the Conversion. The Partnership intends to cease filing periodic reports pursuant to the Exchange Act with the SEC following deregistration of its Units, pursuant to securities laws requirements, with the Corporation becoming the successor registrant.
Board and Management Positions
Following the consummation of the Conversion, the New Board will consist of the persons listed below, other than as may be publicly announced by the Corporation in the normal course of business.London Business School.
EXECUTIVE COMPENSATION
Compensation Discussion & Analysis
Background and Business Highlights for 2022
This Compensation Discussion and Analysis (“CD&A”) explains the 2022 executive compensation program for the Named Executive Officers (the “NEOs”) identified below. Please read this CD&A together with the tables and related narrative about executive compensation that follow.
The table below lists our NEOs in 2022 whose compensation is described in this CD&A:
| Executive | | | Title | |
| Thomas Meth | | | President and Chief Executive Officer | |
| John K. Keppler | | | Former Chairman and Chief Executive Officer | |
| Shai S. Even | | | Executive Vice President and Chief Financial Officer | |
| William H. Schmidt, Jr. | | | Executive Vice President, Chief Development Officer, and General Counsel | |
| E. Royal Smith | | | Executive Vice President, Operations | |
| Yanina A. Kravtsova | | | Executive Vice President, International Market Development and Public Affairs | |
Highlights
2022 was a transitional year for us, in terms of our business and the structure of our executive leadership team.
2022 Transition. 2022 was our first year operating as a corporation following our acquisition of our former sponsor and conversion from a limited partnership, which was completed on December 31, 2021 (the “Conversion”). Under this new structure, we internalized a number of business activities formerly performed by our sponsor, including development, construction, and commissioning of new plant and port infrastructure, while we continued to operate our growing portfolio of fully contracted wood pellet facilities and deep-water marine terminals while managing the impact of COVID-19, the Ukraine war, inflation, supply chain constraints, etc. on labor, safety, and supply chains and maintaining our role as a leader in sustainability in pursuit of our mission to displace fossil fuels, grow more trees, and fight climate change.
Key 2022 Business Achievements. During the year, we commenced construction of our fully contracted wood pellet production plant in Epes, Alabama which is designed and permitted to produce more than one million metric tons per year (“MTPY”) of wood pellets. We also commenced the development of a wood pellet production plant in Bond, Mississippi which is designed to produce one million MTPY of wood pellets. In addition, we added approximately $4 billion to our fully contracted sales volumes such that as of January 1, 2023, our backlog of long-term, take-or-pay off-take contracts is close to $24 billion with a weighted-average remaining term of approximately 14 years, as well as a $50+ billion customer contract pipeline, providing for substantial potential growth for the Company across an increasingly diverse set of customer geographies and use cases for our product. We also returned $3.62 per share to holders of our common shares in distributions and dividends while maintaining robust liquidity and financial leverage well within the covenants of our debt agreements. After accounting for the approximately 5 million shares of primary equity issued during the course of 2022 (excluding shares issued pursuant to the LTIP), which expanded our total shares outstanding by approximately 8%, we closed the year with a -20.7% total shareholder return (“TSR”), compared to a -18.1% TSR for the S&P 500 Index.
Successful Leadership Transition. We successfully completed a significant leadership transition in 2022. On November 14, 2022, Mr. Keppler stepped down as Chairman of the Board and Chief Executive Officer of Enviva Inc. to pursue medical and surgical treatment to address a cardiac valve issue. Simultaneous with Mr. Keppler’s separation from the Company, our Board of Directors appointed Thomas Meth as Chief Executive Officer, and Mr. Meth retained his title as President. Mr. Meth co-founded the Company and was appointed President in June 2022.
2023 Transitions. The identity of our NEOs is determined for 2022 based solely on our executive officers’ status in 2022. Therefore, any officer transitions that occur following December 31, 2022 do not impact the NEOs that are described in detail in this section. However, as of the time of this filing, certain additional executive officer changes have taken place. On January 17, 2023, Mr. Schmidt transitioned out of his executive officer role into a non-executive advisory role. Due to the resignation of our previous chief accounting officer, Mr. Even assumed the role of Chief Accounting Officer as part of his existing role as Chief Financial Officer. Lastly, Mr. Keppler returned to the Company in the role of Executive Chairman of the Board, effective April 1, 2023.
Track Record of Strong Performance
We believe that the combination of the three primary components of our executive compensation program (annual base salary, annual cash incentive under the Enviva Inc. Annual Incentive Compensation Plan (“AICP”), and long-term equity incentive under the LTIP), coupled with aggressive goal setting and a pay-for-performance culture, has enabled the Company to deliver strong long-term results. We expect to continue this trend into the future.
In our safety-first culture, our industry leading total recordable incident rate (“TRIR”) trends well below the industry average of 3.9, as shown in the chart below. We have consistently delivered year-over-year adjusted EBITDA growth, with a 20% 3-year CAGR, as shown in the chart below. We have grown our fully contracted backlog year-over-year, as shown in the chart below. We also grew our cash distributed to shareholders with a 32% 3-year CAGR. Further, our TSR has strongly outperformed the S&P 500 Index over the long term.
*
Adjusted EBITDA for 2021 and prior years is presented on a non-recast basis
**
Adjusted EBITDA for 2022 excludes the impact of the Deferred Gross Margin Transactions described in the Company’s previous Form 10-K disclosures
***
Cash distributions include cash dividends and, prior to the Company’s simplification and conversion to a corporation, distributions to unitholders and to incentive distribution rights holders
*
Contracted backlog includes firm and contingent off-take contracts.
Enviva Performance Highlights
(1)
TSR includes share price appreciation and distributions paid.
Executive Compensation Elements Support Our Philosophy and Strategy
Our executive compensation philosophy seeks to tie compensation to our financial and operating performance goals. Specifically, the 2022 executive compensation program included various performance metrics for our NEOs that were closely aligned with financial returns to our shareholders and were designed to result in annual and long-term value creation. The performance goals established in the NEOs’ compensation plans were aggressive, and potential awards were intended to provide them an opportunity to earn above-median rewards in return for achieving such aggressive goals.
Our executive compensation program was designed to attract, retain, reward, and motivate high-performing executive leadership whose talent and expertise enable us to create long-term shareholder value, not only on an absolute basis, but also relative to our peers. Furthermore, given that we sit at the forefront of a relatively new and rapidly evolving industry, our success depends in large part on retaining the unique skill sets that our NEOs have developed during their tenure with the Company. Against that backdrop, our executive compensation program consists of three primary components, described below, that contained a substantial portion of at-risk, performance-based compensation, incorporated our financial and operational results, and aligned our NEOs’ interests with those of our shareholders with the ultimate objective of increasing long-term shareholder value.
Competitive compensation opportunities
•
Providing competitive compensation opportunities was a key factor in allowing us to attract and retain the caliber of executives we needed to deliver on the aggressive performance goals established under the incentive compensation arrangements in which our NEOs participated.
•
Among other factors, each NEO’s 2022 target total direct compensation was determined with reference to market data reflecting executive pay levels among our peer companies and survey data taken from the broader market.
NEO compensation designed to drive and reward long-term growth in shareholder value
•
All NEOs’ 2022 compensation included a significant equity compensation component under the LTIP.
•
50% of each NEO’s equity compensation was designed to be earned based on achievement of challenging total shareholder return targets which require our three-year shareholder return to be at the 60th percentile of companies in the S&P 500 Index.
•
Shareholder alignment was further supported by robust ownership guidelines that encouraged a long-term ownership culture among our NEOs.
•
Equity-based awards have a 4-year cliff vesting schedule, underscoring our commitment to long-term performance and alignment with shareholders.
Aggressive performance goals
•
Our 2022 performance goals for incentive-based compensation required exceptional organizational and individual performance, which is the kind of performance we expected from our NEOs.
•
Performance at or above these goals is designed to produce aggregate NEO compensation in the top quartile when compared to the competitive market.
•
As evidence of the difficulty of meeting our aggressive goals, our NEOs have received, on average, a 58.3% payout against target compensation under the AICP during the last three years, even as the Partnership’s TSR significantly outperformed that of the Alerian and S&P 500 Indices (the Alerian Index being applicable during our time as a partnership).
Commitment to best practices
•
Significant At-Risk, Variable Compensation: A significant percentage of annual compensation is at-risk, variable, and performance-based, such as AICP awards and certain LTIP awards.
•
No Guaranteed Bonuses: We did not have in place any annual or multi-year bonus or incentive guarantees for the NEOs.
•
No Gross-Ups: No tax gross-ups upon a change in control or with respect to Code Section 409A matters.
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No Individual Supplemental Executive Retirement Plans: There are no executive retirement plans that were different from the ones offered to the broader employee population.
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No Excessive Perquisites: We did not offer excessive perquisites to our NEOs.
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No Hedging: Our Insider Trading Policy prohibits, among other things, hedging transactions relating to our common stock.
•
Independent Compensation Consultant: The Compensation Committee engaged Meridian Compensation Partners, LLC, an independent compensation consultant (the “Compensation Consultant”), to assist with its regular review of our executive compensation program.
2022 NEO Compensation
Role of Compensation Consultant
For 2022, the Compensation Committee engaged the Compensation Consultant to advise on matters related to executive and non-employee director compensation.
The scope of the Compensation Consultant’s engagement included a review of our peer group and an executive compensation analysis based on said peer group. The Compensation Consultant did not have authority to make decisions regarding compensation and served solely in an advisory role.
Peer Group and Market Data
Neither peer group data nor broader employment market survey data is a prescription for program design or individual pay levels for the Compensation Committee. Peer data, in combination with broader market survey data, provides a reference point for competitive pay rates and program design for our NEOs. For 2022, in cooperation with the Compensation Consultant, we reviewed the peer group used for the prior year and determined what modifications, if any, would be appropriate for the upcoming year. Factors considered in selecting peers included operations in related industry sectors, comparable market capitalization and revenues, similarity of business strategy, and availability and clarity of publicly filed compensation data. We also considered companies identified as peers of ours by the investment community, although these companies may or may not ultimately have been included in our peer group for presentation herein. In the peer group review process, we also considered the impact of simplifications or other corporate-level transactions that had occurred during the past year. As a result of this review, and upon the recommendation of the Compensation Consultant, the Compensation Committee approved a revised peer group for the 2022 year in November 2022 including the additions of the eight companies designated in green in the below table. We believe the peer group as revised better reflects the Company’s status as a corporation, its growth profile, the evolution away from midstream oil and gas as a basis for comparison, and other factors.
2022 Peer Group
| | | | | | | | | | | | | | | |
John K. Keppler
Ralph Alexander*
John C. Bumgarner, Jr.*
Martin N. Davidson*
Jim H. Derryberry*
Fauzul Lakhani*
Gerrit (“Gerrity”) L. Lansing, Jr. *
Pierre F. Lapeyre, Jr. *
David M. Leuschen*
Jeffrey W. Ubben*
Gary L. Whitlock*
Janet S. Wong*
| | | | | Ameresco, Inc. | | | | Ingevity Corporation | | | | | |
| | | | | | Atlantica Sustainable Infrastructure plc | | | | Ingredion Incorporated | | | | | |
| | | | | | Brookfield Renewable Corporation | | | | Innergex Renewable Energy Inc. | | | | | |
| | | | | | Cheniere Energy, Inc. | | | | Mercer International Inc. | | | | | |
| | | | | | Clearway Energy, Inc. | | | | PotlachDeltic Corporation | | | | | |
| | | | | | Darling Ingredients, Inc. | | | | Rayonier Advanced Materials Inc. | | | | | |
| | | | | | Green Plains Inc. | | | | Rayonier Inc. | | | | | |
| | | | | | Hannon Armstrong | | | | | | | | | |
Key Elements of the Executive Compensation Program
The following discussion provides details regarding the three primary elements of the 2022 compensation program set for our NEOs: base salary, AICP awards, and LTIP awards. Our NEOs also received certain customary health, welfare, and retirement plan benefits that are briefly described below.
Base Salary
Each NEO’s base salary was a fixed component of annual compensation and was set out in such NEO’s employment agreement with our wholly owned subsidiary Enviva Management Company, LLC (“Enviva Management Company”). We made all final decisions regarding the NEOs’ salaries based on a review of the specific job duties and functions, individual NEO expertise, and the relative competitiveness of each NEO’s compensation compared to our peers and to the market survey data. We increased the base salaries for each NEO from 2021 to 2022 by the percentages shown in the table below. The size of the increases reflects a desire to align more closely with the median of the competitive market, and to recognize the increasing scope of certain roles, particularly Mr. Meth’s:
| Name | | | 2022 Annual Base Salary | | | 2021 Annual Base Salary | | | Change | |
| Thomas Meth | | | | $ | 750,000 | | | | | $ | 425,000 | | | | | | 76.5% | | |
| John K. Keppler | | | | $ | 1,000,000 | | | | | $ | 800,000 | | | | | | 25.0% | | |
| Shai S. Even | | | | $ | 490,000 | | | | | $ | 464,000 | | | | | | 5.6% | | |
| William H. Schmidt, Jr. | | | | $ | 525,000 | | | | | $ | 445,000 | | | | | | 18.0% | | |
| E. Royal Smith | | | | $ | 392,000 | | | | | $ | 370,000 | | | | | | 6.0% | | |
| Yanina A. Kravtsova | | | | $ | 380,000 | | | | | $ | 360,400 | | | | | | 5.4% | | |
Short-Term Cash Incentive Compensation
Each NEO participated in the AICP with respect to the 2022 calendar year.
With respect to the 2022 year, the Compensation Committee established an aggregate Company bonus pool that was calculated based on performance relative to a single adjusted EBITDA financial target. We generally set aggressive performance metrics at levels that are designed to be extremely challenging to achieve. A threshold level was set at which the bonus pool could become funded at 50%, and then a stretch target level was determined that could fund the pool at 100% for all target awards. The threshold for 2022 was set at $275 million adjusted EBITDA and the target was set at $300 million adjusted EBITDA. Additional metrics included in a performance scorecard were considered for safety, sustainability, and growth. Following the determination of the overall AICP bonus pool, individual NEO awards are determined by the Compensation Committee based on individual performance goals linked to certain safety, operating, financial, growth, and other targets. The AICP generally determines bonuses based on the following formula: target award amount (based on a percentage of salary), multiplied by Company performance factor(s), and adjusted by individual performance factors.
Adjusted EBITDA represents a non-GAAP financial measure. We define adjusted EBITDA as net income (loss) excluding depreciation and amortization, interest expense, income tax expense (benefit), early
Indicates independent for NYSE purposes.38
retirement of debt obligation, non-cash equity-based compensation and other expense, loss on disposal of assets and impairment of assets, changes in unrealized derivative instruments related to hedged items, acquisition and integration costs and other, effects of COVID-19 and the war in Ukraine, Support Payments, and Executive separation. Adjusted EBITDA is a supplemental measure used by our management and other users of our financial statements, such as investors, commercial banks, and research analysts, to assess the financial performance of our assets without regard to financing methods or capital structure.
Following the consummationclose of the 2022 calendar year, it was determined that the threshold level for Company performance under the AICP was not achieved. As a result, no cash payments under the AICP were made to the NEOs with respect to the 2022 year.
Target bonus percentages (as compared to base salary amounts) were set in the most recent employment agreements at the following levels, although the agreements did set a specific value for 2022 target bonus amounts, also noted below. As described above, none of the NEOs received an AICP payment with respect to the 2022 year. However, the Compensation Committee determined instead to create a discretionary award pool of $10.5 million, which equated to an award which ranged from 50% to 72% of the target payout under the 2022 AICP, and these discretionary awards were awarded in 2023 through additional grants of equity-based awards under the LTIP, whether as common stock or as time-based restricted stock units subject to a one-year vesting schedule. This discretionary pool was created to reward adjusted EBITDA within the revised guidance range for 2022, excluding the impact of certain accretive sales transactions in forth-quarter 2022 which required different accounting treatment as compared to our guidance assumptions, as well as adjusted EBITDA growth year-over-year. The additional scorecard results in Safety (lower TRIR rate), Sustainability (Track and Trace® Compliance), and growth (Increased Backlog) were all positive trends and recognized in the discretionary awards.
| Name | | | Target Bonus (As a
Percentage of Base Salary) | | | 2022 Target Bonus
Amount | | | 2022 Actual AICP
Amount | | | 2022 Equity Bonus
Amount Paid in
2023 | |
| Thomas Meth | | | | | 150% | | | | | $ | 731,771 | | | | | | — | | | | | $ | 439,078 | | |
| John K. Keppler | | | | | 150% | | | | | $ | 1,361,583 | | | | | | — | | | | | $ | 816,934 | | |
| Shai S. Even | | | | | 125% | | | | | $ | 612,500 | | | | | | — | | | | | $ | 367,528 | | |
| William H. Schmidt, Jr. | | | | | 125% | | | | | $ | 625,000 | | | | | | — | | | | | $ | 375,029 | | |
| E. Royal Smith | | | | | 125% | | | | | $ | 490,250 | | | | | | — | | | | | $ | 245,163 | | |
| Yanina A. Kravtsova | | | | | 100% | | | | | $ | 370,200 | | | | | | — | | | | | $ | 266,565 | | |
Long-Term Equity Incentive Compensation
The LTIP is intended to promote our long-term success and increase long-term shareholder value by attracting, motivating, and aligning the interests of our NEOs with those of our shareholders. Our LTIP provides for the grant of a variety of awards, but we determined that restricted stock unit awards would most appropriately incentivize and reward our NEOs. Each NEO received a long-term equity incentive award with respect to the 2022 calendar year under the LTIP in the form of restricted stock units. The terms of our NEOs’ LTIP awards were determined by the Compensation Committee.
The 2022 restricted stock unit grants to our NEOs were divided into 50% time-based restricted stock units and 50% performance-based restricted stock units:
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Time-based restricted stock units vest at the end of a four-year period based on continued service following the grant date.
•
Performance-based restricted stock units vest upon the achievement of a TSR percentile over a four-year period. The performance-based restricted stock units may vest between 0% and 200% of the target amount granted to each NEO based upon performance relative to pre-established criteria. For 2022 awards, performance was based upon TSR relative to the companies in the S&P 500 Index.
Each grant of restricted stock units (time-based and performance-based) included the right to receive dividend equivalent rights (“DERs”). DERs on performance-based units are paid to the holder in cash within 60 days following the vesting of the associated award (if any) and are forfeited if the underlying award
was forfeited for any reason. The DERs associated with the time-based restricted stock units are paid to the holder of the award within the 60-day period immediately following any cash distribution made with respect to our common stock. Restricted stock units could be settled in cash or in common stock, at the discretion of our Compensation Committee.
The target value of LTIP awards that each NEO receives annually is set forth in such NEO’s employment agreement as a percentage of base salary. In determining the value of LTIP awards granted to the NEOs on February 1, 2022, our Compensation Committee considered these target LTIP values, our performance, and the performance of the individual NEOs for 2021. The grant date fair value of the restricted stock units awarded on February 1, 2022 is disclosed in the Summary Compensation Table under the Stock Awards column.
The number of restricted stock units granted to the NEOs in February 2022 is set forth below:
| Name | | | Target LTIP Value
(Percentage of Salary) | | | Number of Time-based
Restricted stock Units
Granted in 2022 | | | Target Number of Performance-based
Restricted stock Units Granted in 2022 | |
| Thomas Meth | | | | | 250% | | | | | | 8,672 | | | | | | 8,672 | | |
| John K. Keppler | | | | | 340% | | | | | | 23,588 | | | | | | 23,588 | | |
| Shai S. Even | | | | | 250% | | | | | | 8,499 | | | | | | 8,499 | | |
| William H. Schmidt, Jr. | | | | | 250% | | | | | | 8,239 | | | | | | 8,239 | | |
| E. Royal Smith | | | | | 200% | | | | | | 5,442 | | | | | | 5,442 | | |
| Yanina A. Kravtsova | | | | | 200% | | | | | | 5,001 | | | | | | 5,001 | | |
Each of the NEOs received a grant of performance-based restricted stock units in February 2022 pursuant to the LTIP. The performance-based restricted stock units vest at the end of a four-year performance period based on the percentile ranking of the Company relative to the companies in the S&P 500 Index on the basis of total shareholder return for the performance period (the “TSR Factor”). The Compensation Committee selected relative TSR because it recognizes our broader competition for investor capital, provides an observable and objective metric from a large group of comparable companies to which we aspire, and aligns the incentives of our NEOs with our investors’ expectations of shareholder value creation.
The payouts for performance-based restricted stock units are determined as follows (using linear interpolation for payouts between threshold and target or target and maximum):
| | | | Below Threshold | | | Threshold | | | Target | | | Maximum | |
| TSR Factor | | | <30th percentile | | | 30th percentile | | | 60th percentile | | | ≥90th percentile | |
| Payout Multiplier | | | 0% | | | 50% | | | 100% | | | 200% | |
Other Elements of 2022 Compensation
Retirement and Health and Welfare Plans
We generally offered the same types of retirement, health, and welfare benefits to the NEOs as part of our total executive compensation package as we did to other eligible employees, although our NEOs also received the following: a supplemental individual term life insurance policy and a comprehensive annual physical with customized wellness coaching.
Our NEOs currently participate in a 401(k) plan maintained by Enviva Management Company. The 401(k) plan permits all eligible employees, including our NEOs, to make voluntary pre-tax contributions and/or Roth after-tax contributions to the plan. In addition, Enviva Management Company is permitted to make discretionary matching contributions under the plan. All matching contributions made under the plan during the first three years of an individual’s employment vest following the satisfaction of an initial three-year cliff vesting schedule; thereafter, all matching contributions vest immediately. All contributions under the plan are subject to certain annual dollar limitations, which are periodically adjusted as required by law.
Security Ownership Requirements
We maintain the Enviva Inc. Stock Ownership and Retention Policy (the “Retention Policy”), which provides that officers who are required to file ownership reports under Section 16 of the Securities Exchange Act of 1934 (the “Exchange Act”) and certain other officers, as designated from time-to-time by our Board or the Compensation Committee, retain at least 50% (and where the individual has not met certain holding requirements by specific timelines, 100%) of common equity awarded under the LTIP (net of any equity withheld or sold to cover tax liabilities upon vesting) until certain ownership requirements are met. The requirements for our NEOs are set forth in the table below:
| Name | | | Multiple of Annualized Base Salary | |
| CEO | | | | | 5x | | |
| Other NEOs | | | | | 3x | | |
Stock that counts towards the satisfaction of the retention requirements of the Retention Policy includes stock held directly by each NEO, stock owned indirectly by such NEO (e.g., by a spouse or other immediate family member residing in the same household or a trust for the benefit of such NEO or the NEO’s family), and time-based restricted stock units granted under the LTIP. As of the date of this filing, each of our NEOs was in compliance with the policy.
Incentive Compensation Recoupment Policy
The LTIP and the AICP provide that any award granted pursuant to the applicable plan will be subject to any claw-back or recoupment policies required by law, securities exchange rules, or otherwise, as determined to be appropriate by our Board. We are aware of recent clawback rules that have been issued and will be reviewing our clawback policy to ensure continued compliance with all applicable rules.
Employment Agreements and Individual Agreements
Each of the NEOs was party to an employment agreement with Enviva Management Company during the 2022 year. Our Board determined that we should maintain employment agreements with our NEOs in order to ensure that they will perform their roles for an extended period of time. Certain provisions contained within these employment agreements, such as potential severance benefits (including change in control benefits for certain individuals) and restrictive covenants, are also essential to retaining our talented management team and protecting the interests of our stockholders.
In December 2021, each NEO’s employment agreement was amended and restated. The December 2021 amendments clarified that, following the Conversion, references to the “Partnership” or the “General Partner” would be replaced with “Enviva Inc.,” and references to the “General Partner’s board of directors” would be replaced with references to our “Board.” The December 2021 amendments to the employment agreements set the level of compensation that would be applicable to the NEOs with respect to 2022 compensation levels. The agreements set base salaries, target bonus percentages under the AICP, and target LTIP award values for the NEOs, each as described above.
The agreements generally had a one-year term that may be extended and renewed for successive one-year periods if neither party has delivered a written notice of non-renewal within the sixty (60) day period prior to the expiration of the term.
In November 2022, the Company announced that Mr. Keppler stepped down from his responsibilities as Chairman and Chief Executive Officer to pursue medical and surgical treatment to address a cardiac valve issue, effective November 14, 2022. Simultaneous with Mr. Keppler’s separation, the Board appointed Mr. Meth as Chief Executive Officer, effective November 14, 2022, and Mr. Meth retained his title as President. In connection with Mr. Meth’s appointment, the Compensation Committee entered into an amended and restated employment agreement (“A&R Employment Agreement”) with Mr. Meth and approved the following amendments to it, effective as of November 14, 2022: (i) a base salary of $750,000, (ii) an annual incentive cash compensation target bonus of 150% of his base salary, (iii) subject to approval of the Compensation Committee at a later date and pursuant to the Company’s 2022 LTIP, a 2023 annual equity grant in the expected amount of 300% of his base salary, which was approved by the Compensation
Committee on January 31, 2023. For details regarding Mr. Keppler’s separation payments and the impact to his compensation arrangements, and the remaining amendments to Mr. Meth’s employment agreement, please see the section titled “— Potential Payments upon Termination and Change in Control”.
As noted above, the employment agreements also contain potential severance benefits and, with respect to certain NEOs, change in control benefits, as well as certain restrictive covenants. Those potential benefits are described in more detail and quantified within the section titled “Potential Payments upon Termination and Change in Control.” A description of the treatment of Mr. Keppler’s outstanding awards in connection with his separation on November 14, 2022 is also discussed in the section titled “Potential Payments upon Termination and Change in Control.”
Hedging/ Insider Trading Policy: Under the Company’s Insider Trading Policy, all directors, officers, and employees, including the named executive officers, are prohibited from hedging, buying or selling options, engaging in short sales, or trading prepaid variable forwards, equity swaps, exchange funds, forward-sale contracts, collars or other derivatives or monetizations on Company securities.
Compensation Risk Assessment
In accordance with the requirements of Item 402(s) of Regulation S-K, to the extent that risks may arise from our compensation policies and practices for our employees that are reasonably likely to have a material adverse effect on us, we are required to discuss our policies and practices for compensating our employees (including our employees that are not NEOs) as they relate to our risk management practices and risk-taking incentives. We have determined that our compensation policies and practices for our employees, including our NEOs, do not encourage excessive risk-taking and are not reasonably likely to have a material adverse effect on us. Our Compensation Committee routinely assesses our compensation policies and practices and takes this consideration into account as part of its review.
Report of the Compensation Committee
The Compensation Committee has reviewed and discussed the Compensation Discussion and Analysis required by Item 402(b) of Regulation S-K with management. Based on the reviews and discussions referred to in the foregoing sentence, the Compensation Committee recommended to the Board that the Compensation Discussion and Analysis be included in this Proxy Statement and incorporated by reference into our Annual Report on Form 10-K.
John C. Bumgarner, Jr.
Pierre F. Lapeyre, Jr.
Jeffrey W. Ubben
NOTE REGARDING EXECUTIVE AND DIRECTOR COMPENSATION TABLES
All outstanding time-based and performance-based phantom units were converted to restricted stock units upon the Conversion, and all outstanding equity awards held by our NEOs and our directors as of the date of the Conversion and which were granted during the current2022 year are now in the form of restricted stock units. However, prior to the conversion those awards were in the form of phantom units, therefore the tables below may still contain certain references to phantom unit awards rather than restricted stock units when referencing historical awards.
SUMMARY COMPENSATION TABLE
The table below sets forth the annual compensation for our NEOs for the fiscal years ended December 31, 2022, December 31, 2021, and December 31, 2020, to the extent the individual was a “named executive officersofficer” for that year. The compensation disclosed below with respect to the 2020 calendar year is the compensation for which we were responsible for partially reimbursing Enviva Management Company pursuant to the previous management service agreements (the “MSAs,” which have been described in previous Form 10-K disclosures for the Company), therefore it only reflects a portion of the General Partner are expectedcompensation that the NEOs received for those years. The compensation disclosed below with respect to continue in their current positions, other than asthe 2021 and 2022 calendar year is the compensation for the full amount paid to each NEO, irrespective of any allocation that may be publicly announced byoccurred during the Corporation2021 year prior to the Conversion.
| Name and Principal Position | | | Year | | | Salary | | | Bonus(1) | | | Stock
Awards(2) | | | Non-Equity
Incentive Plan
Compensation(1) | | | All Other
Compensation(3) | | | Total | |
Thomas Meth
(President and Chief
Executive Officer) | | | | | 2022 | | | | | | 588,669 | | | | | | — | | | | | | 1,249,984 | | | | | | — | | | | | | 9,150 | | | | | | 1,847,803 | | |
| | | | 2021 | | | | | | 431,370 | | | | | | — | | | | | | 850,012 | | | | | | 514,250 | | | | | | 8,700 | | | | | | 1,804,332 | | |
| | | | 2020 | | | | | | 97,097 | | | | | | 75,000 | | | | | | 385,029 | | | | | | 109,381 | | | | | | 2,138 | | | | | | 668,645 | | |
John K. Keppler
(Former Chairman and Chief
Executive Officer)(4) | | | | | 2022 | | | | | | 871,233 | | | | | | — | | | | | | 3,399,976 | | | | | | — | | | | | | 59,150 | | | | | | 4,330,359 | | |
| | | | 2021 | | | | | | 816,986 | | | | | | 1,200,000 | | | | | | 3,400,044 | | | | | | 780,000 | | | | | | 8,700 | | | | | | 6,205,730 | | |
| | | | 2020 | | | | | | 182,838 | | | | | | 600,000 | | | | | | 1,631,253 | | | | | | 343,297 | | | | | | 2,138 | | | | | | 2,759,526 | | |
Shai S. Even
(Executive Vice President
and Chief Financial Officer) | | | | | 2022 | | | | | | 490,000 | | | | | | | | | | | | 1,225,046 | | | | | | | | | | | | 9,150 | | | | | | 1,724,196 | | |
| | | | 2021 | | | | | | 466,208 | | | | | | 556,800 | | | | | | 1,159,968 | | | | | | — | | | | | | 8,700 | | | | | | 2,191,676 | | |
| | | | 2020 | | | | | | 112,796 | | | | | | 350,000 | | | | | | 562,518 | | | | | | 170,465 | | | | | | 2,138 | | | | | | 1,197,917 | | |
William H. Schmidt, Jr.
(Executive Vice President,
Corporate Development and
General Counsel) | | | | | 2022 | | | | | | 503,904 | | | | | | — | | | | | | 1,187,570 | | | | | | — | | | | | | 9,150 | | | | | | 1,700,624 | | |
| | | | 2021 | | | | | | 447,548 | | | | | | 534,000 | | | | | | 1,112,498 | | | | | | — | | | | | | 8,700 | | | | | | 2,102,746 | | |
| | | | 2020 | | | | | | 85,339 | | | | | | 350,000 | | | | | | 425,002 | | | | | | 107,330 | | | | | | 1,710 | | | | | | 969,381 | | |
E. Royal Smith
(Executive Vice President,
Operations) | | | | | 2022 | | | | | | 392,200 | | | | | | — | | | | | | 784,410 | | | | | | — | | | | | | 9,150 | | | | | | 1,185,760 | | |
| | | | 2021 | | | | | | 371,885 | | | | | | — | | | | | | 739,990 | | | | | | 305,250 | | | | | | 8,700 | | | | | | 1,425,825 | | |
| | | | 2020 | | | | | | 249,389 | | | | | | — | | | | | | 994,046 | | | | | | 282,403 | | | | | | 5,985 | | | | | | 1,531,823 | | |
Yanina A. Kravtsova
(Executive Vice President,
International Market
Development and Public
Affairs) | | | | | 2022 | | | | | | 371,730 | | | | | | — | | | | | | 720,846 | | | | | | — | | | | | | 9,150 | | | | | | 1,101,726 | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
(1)
The AICP awards for the 2020 and 2021 years were deemed to operate as performance-based incentive awards and are reported within the Non-Equity Incentive Plan Compensation column. Amounts in the normal course“Bonus” column with respect to the 2020 and 2021 years relate to the transaction-based bonuses received by certain NEOs for the 2020 year, and the bonuses provided to Messrs. Keppler, Even and Schmidt relating to the Simplification Transaction and the Conversion in 2021, as applicable.
(2)
The amounts reflected in this column represent the aggregate grant date fair value of business.time-based and performance-based phantom units or restricted stock units, as applicable (which include tandem DERs) granted to the NEOs pursuant to the LTIP, computed in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standard Codification Topic 718, disregarding the estimate of forfeitures. The grant date fair value for time-based restricted stock unit awards issued in 2022 is based on the closing price of our shares of common stock on the date of grant, which was $72.07 per share for awards granted on February 1, 2022. The grant date fair value of performance-based restricted stock unit awards is reported based on the probable outcome of the performance conditions on the date of grant. See Note 16, Equity-Based Awards, to our consolidated financial statements for additional detail regarding assumptions underlying the value of these awards. If the maximum amount, rather than the probable amount, were reported in the table with respect to the performance-based restricted stock units, the values associated with the 4-year performance-based grants would be as follows: Mr. Meth, $1,249,982; Mr. Even, $1,225,046; Mr. Schmidt, $1,187,569; Mr. Smith, $784,410; and Ms. Kravtsova, $720,844.
Indemnification; Directors’
(3)
Amounts reported in the “All Other Compensation” column reflect employer contributions to the NEOs’ accounts under the 401(k) plan in which the NEOs participate. With respect to Mr. Keppler, the amounts reported in this column also reflect the consulting fees paid pursuant to the consulting agreement executed on November 14, 2022.
(4)
Mr. Keppler stepped down as Chairman and Officers’ InsuranceChief Executive Officer effective as of November 14, 2022 and his 2022 compensation reflects that shortened year and the amounts paid to him in connection with his consulting arrangement.
2022 GRANTS OF PLAN-BASED AWARDS
| | | | | | | | | | Estimated Possible Payouts Under Non-Equity
Incentive Plan Awards(1) | | | Estimated Possible Payouts Under Equity
Incentive Plan Awards(2) | | | All Other
Equity
Awards
(#)(3) | | | Grant Date
Fair Value
($)(4) | |
| Name | | | Grant Date | | | Threshold
($) | | | Target
($) | | | Maximum
($) | | | Threshold
(#) | | | Target
(#) | | | Maximum
(#) | |
| Thomas Meth | | | | | | | | | | | 365,885 | | | | | | 731,770 | | | | | | — | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | 2/1/2022 | | | | | | | | | | | | | | | | | | | | | | | | 4,336 | | | | | | 8,672 | | | | | | 17,344 | | | | | | | | | | | | 624,991 | | |
| | | | 2/1/2022 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 8,672 | | | | | | 624,991 | | |
| John K. Keppler | | | | | | | | | | | 750,000 | | | | | | 1,500,000 | | | | | | — | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | 2/1/2022 | | | | | | | | | | | | | | | | | | | | | | | | 11,794 | | | | | | 23,588 | | | | | | 47,176 | | | | | | | | | | | | 1,699,987 | | |
| | | | 2/1/2022 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 23,588 | | | | | | 1,699,987 | | |
| Shai S. Even | | | | | | | | | | | 306,250 | | | | | | 612,500 | | | | | | — | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | 2/1/2022 | | | | | | | | | | | | | | | | | | | | | | | | 4,250 | | | | | | 8,499 | | | | | | 16,998 | | | | | | | | | | | | 612,523 | | |
| | | | 2/1/2022 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 8,499 | | | | | | 612,523 | | |
| William H. Schmidt, Jr | | | | | | | | | | | 312,500 | | | | | | 625,000 | | | | | | — | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | 2/1/2022 | | | | | | | | | | | | | | | | | | | | | | | | 4,120 | | | | | | 8,239 | | | | | | 16,478 | | | | | | | | | | | | 593,785 | | |
| | | | 2/1/2022 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 8,239 | | | | | | 593,785 | | |
| E. Royal Smith | | | | | | | | | | | 245,125 | | | | | | 490,250 | | | | | | — | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | 2/1/2022 | | | | | | | | | | | | | | | | | | | | | | | | 2,721 | | | | | | 5,442 | | | | | | 10,884 | | | | | | | | | | | | 392,205 | | |
| | | | 2/1/2022 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 5,442 | | | | | | 392,205 | | |
| Yanina A. Kravtsova | | | | | | | | | | | 185,100 | | | | | | 370,200 | | | | | | — | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | 2/1/2022 | | | | | | | | | | | | | | | | | | | | | | | | 2,501 | | | | | | 5,001 | | | | | | 10,002 | | | | | | | | | | | | 360,422 | | |
| | | | 2/1/2022 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 5,001 | | | | | | 360,422 | | |
(1)
The values within these columns reflect the threshold and target values of the AICP awards for the 2022 calendar year, as determined on the grant date of the potential award.
(2)
These columns reflect the performance-based restricted stock units granted to our NEOs during the 2022 calendar year.
(3)
This column reflects the time-based restricted stock units granted to our NEOs during the 2022 calendar year.
(4)
As further described in Footnote (2) to the Summary Compensation Table, the values in the “Grant Date Fair Value” column are determined by multiplying (a) the number of restricted stock units granted (with the probable grant date value for performance-based restricted stock units to be at target levels) by (b) $72.07, the closing price of our common stock on the date of grant.
NARRATIVE DISCLOSURE TO THE SUMMARY COMPENSATION TABLE
AND GRANTS OF PLAN-BASED AWARDS TABLE
Management Services Agreements
The amounts set forth in the table above for the 2020 year reflects only the portion of compensation that was allocable to us pursuant to the MSAs. Following the simplification reorganization that we completed in the 2021 year (the “Simplification Transaction”), we were responsible for the full amount of compensation paid to our NEOs. In order to provide a fulsome picture of NEO compensation in 2021, we presented the full amount of compensation paid to our NEOs in 2021 notwithstanding the partial allocation of that amount during the Pre-Simplification Period to Enviva Management Company.
Restricted Stock Unit Awards
We granted time-based and performance-based restricted stock unit awards to our NEOs pursuant to the LTIP in 2022. In 2020 and the beginning of the 2021 year, we granted phantom unit awards, which were more suited to our partnership structure at the time of the grants. In connection with the Conversion, all phantom unit awards were converted to restricted stock unit awards, subject to the Corporation will enter into indemnification agreements withsame terms and conditions immediately prior to the Conversion except that for performance-based phantom unit awards granted in the 2020 and 2021 calendar years, the performance criteria were modified to reflect the aggregate impact of the Simplification Transaction and Conversion; consequently, all of its named executive officers and directors (collectively, “indemnitees”). These agreements will provideDCF-related performance metrics were eliminated, such that the indemnitees will be protected as promised insole performance criterion applicable to such performance-based phantom unit awards became the Bylaws (regardless of, among other things, any amendment to or revocationTSR Factor. The expected value of the Bylaws, any change inperformance-based phantom unit awards was similar immediately before and after the composition of the New Board or any acquisition transactionmodification. The potential acceleration and forfeiture events relating to the Corporation)restricted stock unit awards (as of December 31, 2022) are described in greater detail under “— Potential Payments Upon Termination or a Change in Control” below.
OUTSTANDING EQUITY AWARDS AT 2022 FISCAL YEAR-END
The following table reflects information regarding outstanding equity-based awards held by our NEOs as of December 31, 2022.
| | | | Stock Awards | |
| Name | | | Number of Shares of
Stock That Have
Not Vested(1) | | | Market Value of Shares
of Stock That Have Not
Vested(2) | | | Equity Incentive Plan
Awards: Number of
Unearned Shares of
Stock That Have Not
Vested(3)(4) | | | Equity Incentive Plan
Awards: Market Value
of Unearned Shares of
Stock That Have Not
Vested(2) | |
| Thomas Meth | | | | | 56,585 | | | | | | 2,997,307 | | | | | | 27,599 | | | | | $ | 1,461,919 | | |
| John K. Keppler | | | | | 326,196 | | | | | $ | 17,278,602 | | | | | | — | | | | | | — | | |
| Shai S. Even | | | | | 77,652 | | | | | | 4,113,226 | | | | | | 35,304 | | | | | | 1,870,053 | | |
| William H. Schmidt, Jr. | | | | | 73,724 | | | | | | 3,905,160 | | | | | | 33,730 | | | | | | 1,786.678 | | |
| E. Royal Smith | | | | | 49,168 | | | | | | 2,604,429 | | | | | | 22,441 | | | | | | 1,188,700 | | |
| Yanina A. Kravtsova | | | | | 31,283 | | | | | | 1,657,061 | | | | | | 18,550 | | | | | | 982,594 | | |
(1)
The amounts in this column reflect outstanding time-based restricted stock unit awards and advanced expensesperformance-based restricted stock units for which the performance period was completed as of December 31,
2022 but which were subject to certification by the fullest extentCompensation Committee of the lawperformance criteria and, therefore, are treated as outstanding, each of which vest as set forth in the indemnification agreements. Thesetable within footnote 4 below, so long as the applicable NEO remains continuously employed by us or one of our affiliates from the grant date through each vesting date. Performance-based restricted stock units that had a performance period ending on December 31, 2022 were moved to this column using an assumption of performance achievement of 186% of target. See the section below titled “— Potential Payments Upon Termination or Change in Control” for a description of potential acceleration and forfeiture provisions.
(2)
The amounts reflected in this column represent the market value of the common stock underlying the restricted stock unit awards granted to the NEOs as set forth in the preceding column, computed based on the closing price of our common stock on December 30, 2022, which was $52.97 per unit.
(3)
The amounts in this column reflect the target number of stock issuable upon settlement of outstanding performance-based awards granted in 2020, 2021, and 2022 which vest based on achievement of performance metrics with respect to the three- or four-year period applicable to that award, so long as the applicable NEO remains continuously employed by us or one of our affiliates from the grant date through the end of each performance period. See the section below titled “— Potential Payments Upon Termination or Change in Control” for a description of potential acceleration and forfeiture provisions.
(4)
The following sub-table reflects the regularly scheduled vesting date for each award that is disclosed as outstanding within the main table above:
| Name | | | Vesting Date or Last
Date of Performance
Period | | | Number of Time-based
Restricted Stock
Units to Vest | | | Number of
Performance-based
Restricted Stock
Units to Vest | |
| Thomas Meth | | | December 31, 2022 | | | | | 18,851 | | | | | | | | |
| | January 29, 2023 | | | | | 10,135 | | | | | | | | |
| | December 31, 2023 | | | | | | | | | | | 10,135 | | |
| | January 29, 2024 | | | | | 10,135 | | | | | | | | |
| | December 31, 2024 | | | | | | | | | | | 8,792 | | |
| | January 27, 2025 | | | | | 8,792 | | | | | | | | |
| | December 31, 2025 | | | | | | | | | | | 8,672 | | |
| | February 1, 2026 | | | | | 8,672 | | | | | | | | |
| John K. Keppler | | | November 14, 2022 | | | | | 246,329 | | | | | | — | | |
| | December 31, 2022 | | | | | 79,867 | | | | | | | | |
| Shai S. Even | | | December 31, 2022 | | | | | 27,541 | | | | | | | | |
| | January 29, 2023 | | | | | 14,807 | | | | | | | | |
| | December 31, 2023 | | | | | | | | | | | 14,807 | | |
| | January 29, 2024 | | | | | 14,807 | | | | | | | | |
| | December 31, 2024 | | | | | | | | | | | 11,998 | | |
| | January 27, 2025 | | | | | 11,998 | | | | | | | | |
| | December 31, 2025 | | | | | | | | | | | 8,499 | | |
| | February 1, 2026 | | | | | 8,499 | | | | | | | | |
| Name | | | Vesting Date or Last
Date of Performance
Period | | | Number of Time-based
Restricted Stock
Units to Vest | | | Number of
Performance-based
Restricted Stock
Units to Vest | |
| William H. Schmidt, Jr. | | | December 31, 2022 | | | | | 26,010 | | | | | | | | |
| | January 29, 2023 | | | | | 13,984 | | | | | | | | |
| | December 31, 2023 | | | | | | | | | | | 13,984 | | |
| | January 29, 2024 | | | | | 13,984 | | | | | | | | |
| | December 31, 2024 | | | | | | | | | | | 11,507 | | |
| | January 27, 2025 | | | | | 11,507 | | | | | | | | |
| | December 31, 2025 | | | | | | | | | | | 8,239 | | |
| | February 1, 2026 | | | | | 8,239 | | | | | | | | |
| E. Royal Smith | | | December 31, 2022 | | | | | 17,382 | | | | | | | | |
| | January 29, 2023 | | | | | 9,345 | | | | | | | | |
| | December 31, 2023 | | | | | | | | | | | 9,345 | | |
| | January 29, 2024 | | | | | 9,345 | | | | | | | | |
| | December 31, 2024 | | | | | | | | | | | 7,654 | | |
| | January 27, 2025 | | | | | 7,654 | | | | | | | | |
| | December 31, 2025 | | | | | | | | | | | 5,442 | | |
| | February 1, 2026 | | | | | 5,442 | | | | | | | | |
| Yanina A. Kravtsova | | | December 31, 2022 | | | | | 6,218 | | | | | | | | |
| | January 29, 2023 | | | | | 6,515 | | | | | | | | |
| | December 31, 2023 | | | | | | | | | | | 6,515 | | |
| | January 29, 2024 | | | | | 6,515 | | | | | | | | |
| | December 31, 2024 | | | | | | | | | | | 7,034 | | |
| | January 27, 2025 | | | | | 7,034 | | | | | | | | |
| | December 31, 2025 | | | | | | | | | | | 5,001 | | |
| | February 1, 2026 | | | | | 5,001 | | | | | | | | |
STOCK VESTED IN 2022
The following table provides information on the vesting of restricted stock units held by the NEOs in 2022. None of the NEOs held stock options in 2022. The value realized from the vesting of restricted stock unit awards is equal to the closing price of our common stock on the vesting date or the performance certification date for performance awards, as applicable, multiplied by the number of shares acquired. The value is calculated before payment of any applicable withholding or other income taxes.
| Name | | | Number of Units
Acquired Upon
Vesting (#) | | | Value Realized
Upon
Vesting ($) | |
| Thomas Meth | | | | | 41,022 | | | | | $ | 2,833,159 | | |
| John K. Keppler | | | | | 116,796 | | | | | $ | 8,082,985 | | |
| Shai S. Even | | | | | 51,889 | | | | | $ | 3,614,635 | | |
| William H. Schmidt, Jr. | | | | | 50,012 | | | | | $ | 3,456,740 | | |
| E. Royal Smith | | | | | 34,438 | | | | | $ | 2,389,152 | | |
| Yanina A. Kravtsova | | | | | 8,892 | | | | | $ | 619,425 | | |
PENSION BENEFITS AND NON-QUALIFIED DEFERRED COMPENSATION
We have not maintained, and do not currently maintain, a defined benefit pension plan or a nonqualified deferred compensation plan providing for retirement benefits.
POTENTIAL PAYMENTS UPON TERMINATION AND CHANGE IN CONTROL
Each of our NEOs is party to an employment agreement with us that provides for severance compensation or accelerated vesting of equity awards in the event of certain terminations of employment, including in connection with a change in control. None of the employment agreements contain any tax reimbursement provisions in the event an NEO receives potential parachute payments under Section 280G of the Code. The outstanding equity awards held by each of the NEOs also contain certain severance and change in control benefits, but as of December 31, 2022, the treatment in the employment agreements and the outstanding equity awards are the same; as a result, there is not a separate description for equity award agreement provisions.
In November 2022, the Company announced that Mr. Keppler stepped down from his responsibilities as Chairman and Chief Executive Officer to pursue medical and surgical treatment to address a cardiac valve issue, effective November 14, 2022. In connection with Mr. Keppler’s separation from the Company, the Compensation Committee of the Board approved the following separation payments for Mr. Keppler, effective on November 14, 2022: (i) the bonus he would have been entitled to for the year ended December 31, 2022, pro-rated based on 2022 service through November 14, 2022, and paid with respect to targeted individual performance of Mr. Keppler and actual performance of the Company at the same time bonuses are paid to executives generally in 2023, (ii) all earned, unpaid base salary, (iii) reimbursement for all incurred but unreimbursed expenses for which Mr. Keppler is entitled to reimbursement, (iv) benefits to which Mr. Keppler was entitled pursuant to the terms of any applicable Company benefit plan or policy, (v) an amount equal to the product of (A) 1.5; and (B) the sum of Mr. Keppler’s base salary as in effect on November 14, 2022 and Mr. Keppler’s target annual bonus as of the separation date, (vi) full vesting of outstanding awards under the LTIP (which vesting for awards that include a performance requirement (other than continued service) will alsobe based on: (a) actual performance if such termination occurs within the six-month period preceding the expiration of the performance period, or (b) target performance if such termination occurs at any other time during the performance period), and (vii) reimbursement for continued medical coverage of applicable group health plans for a period of 18 months following the date of the separation. As noted above, we did not provide a 2022 AICP award to any of our NEOs for the 2022 year, therefore in February 2023 the Company revisited the separation arrangement that it had previously negotiated with Mr. Keppler. The Company determined to provide Mr. Keppler with a discretionary award consisting of Common Stock pursuant to our LTIP. The value of the bonus stock award that Mr. Keppler received in 2023 approximated the amount that the Company would have paid to Mr. Keppler using a 60% achievement of the Company-based adjusted EBITDA metric plus his target individual performance goals. The Company determined that this adjustment to the previously negotiated payments was an appropriate settlement of the separation benefits that we intended to provide to Mr. Keppler during his separation negotiations.
The Company entered into a mutual separation agreement and release with Mr. Keppler, as well as a consulting agreement with respect to his ongoing service as a strategic advisor to the extent insuranceCompany during the 2022 year. That consulting agreement provided for compensation to Mr. Keppler in the amount of $25,000 per month, with a term that was scheduled to end on March 31, 2023, but would have been automatically extended each month until terminated by either party. However, following the 2022 year and as previously noted, Mr. Keppler returned to the Company in an Executive Chairman role. In connection with that 2023 appointment to Executive Chairman, we terminated the consulting agreement effective March 31, 2023. At this time, Mr. Keppler is maintained,not subject to any employment agreement nor severance or change in control benefits.
Simultaneous with Mr. Keppler’s separation, the Board appointed Mr. Meth as Chief Executive Officer, effective November 14, 2022, and Mr. Meth retained his title as President. Mr. Meth’s employment agreement provides that, upon termination of Mr. Meth’s employment other than for Cause (as defined below), he will be entitled to receive: (i) an amount equal to the product of (A) 1.5 (or if such termination occurs within 12 months following a change in control (as defined in the A&R Employment Agreement), 2.0), and (B) the sum of Mr. Meth’s base salary and target bonus, (ii) benefit continuation under the Company’s
group health plan at active employee rates for 18 months, (iii) accelerated vesting of outstanding equity awards with performance awards vesting at deemed target performance (unless the termination occurs within the six months preceding the expiration of the applicable performance period, in which case the award would vest based on actual performance), and (iv) any unpaid bonus with respect to the year preceding the year of Mr. Meth’s termination and a pro-rated bonus with respect to the year in which his employment was terminated. Mr. Meth will continue to be subject to the Company’s previously disclosed form of indemnification agreement and he will be eligible for the same benefits, plans, policies, and programs offered that are generally made available to other executive-level employees of the Company at any given time.
Additionally, in January 2023 Mr. Schmidt stepped down from his position as Executive Vice President, Chief Development Officer and General Counsel and continues to be employed by the Company as a Senior Advisor at the same pay rate that was in effect as of December 31, 2022 for his applicable transition period. We are currently negotiating a new service agreement with Mr. Schmidt to reflect his continuing transitional services.
Employment Agreements
The employment agreements provide that, if the NEO terminates employment for good reason or if an NEO’s employment is terminated without cause, or for death or disability (each applicable term as defined below), the NEO shall be entitled to (i) all earned, unpaid base salary, (ii) reimbursement for all incurred but unreimbursed expenses, and (iii) benefits to which the NEO was entitled pursuant to the terms of any applicable Company benefit plan or policy. In addition, and subject to the NEO executing a satisfactory release within the time period specified in such NEO’s employment agreement, the NEO will be entitled to receive the following severance payments (other than with respect to Mr. Meth’s A&R Employment Agreement as described above):
•
an amount equal to a multiple (the “severance multiplier”) of: (i) the NEO’s base salary in effect on the termination date, plus (ii) the NEO’s target annual bonus as of the termination date. The severance multiplier is 1.0 for Messrs. Even, Schmidt, and Smith and Ms. Kravtsova. The severance multiplier is increased to and 1.5 for Messrs. Even and Schmidt if such termination occurs within 12 months following a change in control (as defined below) (a “Change in Control Termination”);
•
full vesting of all outstanding awards under the LTIP (which vesting for awards that include a performance requirement (other than continued service) will be based on: (i) actual performance if such termination occurs within the six-month period preceding the expiration of the performance period, or (ii) target performance if such termination occurs at any other time during the performance period); and
•
reimbursement for continued medical coverage of applicable group health plans. The reimbursement coverage is 12 months for Messrs. Even, Schmidt, and Smith and Ms. Kravtsova. The reimbursement coverage is increased to 18 months for Messrs. Even and Schmidt if such termination occurs within 12 months following a change in control.
Definitions. The following definitions are used in the indemniteesemployment agreements as follows:
“Cause” is defined as:
•
a material breach of any applicable policy pertaining to health and safety;
•
engaging in acts of disloyalty, including fraud, embezzlement, theft, commission of a felony or proven dishonestly; or
•
willful misconduct in the performance of, or willful failure to perform a material function of the NEO’s duties under the Corporation’semployment agreement.
“Good reason” is defined as, without the consent of the NEO:
•
a material diminution in the NEO’s authority, duties, title, or responsibilities;
•
a material diminution in the NEO’s base salary, target annual bonus, or target annual LTIP award;
•
the relocation of the geographic location of the NEO’s principal place of employment by more than 100 miles; or
•
delivery of a written notice of non-renewal of the NEO’s employment agreement.
A “disability” shall exist if the NEO is unable to perform the essential functions of his position, with reasonable accommodation (if applicable), due to an illness or physical or mental impairment or other incapacity that continues for a period in excess of 90 days, whether consecutive or not, in any period of 365 consecutive days.
Under the employment agreements for Messrs. Meth, Even, and Schmidt, a “Change in Control” is defined as:
•
the sale or disposal of all or substantially all of the assets of Enviva Inc. to any person other than an affiliate;
•
the merger or consolidation of Enviva Inc. with or into another partnership, corporation, or other entity, other than a simplification or consolidation in which the equityholders of Enviva Inc. immediately prior to such transaction retain greater than 50% equity interest in the surviving entity; or
•
the acquisition by any person or group of the beneficial ownership of more than 50% of the equity of Enviva Inc. entitled to vote in the election of our Board.
Release Obligations and Restrictive Covenants
Payments and benefits under the employment agreements are conditioned on the execution of a general release of claims by the NEO in favor of us. The employment agreements also contain certain restrictive covenants pursuant to which our NEOs have recognized an obligation to comply with, among other things, certain confidentiality covenants as well as covenants not to compete in a defined market area with us or solicit our employees during the term of the agreement and for a period of one year thereafter.
Quantification of Benefits
The following table summarizes the compensation and other benefits that would have become payable to each NEO assuming his employment terminated on December 31, 2022, given the NEO’s base salary as of that date, and, if applicable, the closing price of our common stock on December 30, 2022, which was $52.97. The payments and benefits provided to Mr. Keppler upon his retirement prior to the end of the year have been described above. The target annual bonus for the 2022 was the amount set forth in each NEO’s employment agreement in effect on December 31, 2022. In addition, the following table summarizes the compensation that would become payable to Messrs. Meth, Even, and Schmidt and Ms. Kravtsova assuming a qualifying termination and a change in control occurred on December 31, 2022. Each of the values below reflects our best estimate of the amounts and benefits that could be payable upon a termination scenario, but amounts cannot be known with certainty until or unless such an event were to occur.
| Benefits and Payments | | | Change in Control
Termination | | | Termination
Without Cause,
for Good Reason or
Death or Disability | |
| Thomas Meth | | | | | | | | | | | | | |
| Cash Severance | | | | $ | 3,750,000 | | | | | $ | 2,812,500 | | |
| Accelerated Equity Awards | | | | | 4,534,391 | | | | | | 4,534,391 | | |
| Health Benefits | | | | | 33,166 | | | | | | 33,166 | | |
| Total | | | | $ | 8,317,557 | | | | | $ | 7,380,057 | | |
| Benefits and Payments | | | Change in Control
Termination | | | Termination
Without Cause,
for Good Reason or
Death or Disability | |
| Shai S. Even | | | | | | | | | | | | | |
| Cash Severance | | | | $ | 1,653,750 | | | | | $ | 1,102,500 | | |
| Accelerated Equity Awards | | | | | 6,093,086 | | | | | | 6,093,086 | | |
| Health Benefits | | | | | 38,463 | | | | | | 25,642 | | |
| Total | | | | $ | 7,785,299 | | | | | $ | 7,221,228 | | |
| William H. Schmidt, Jr. | | | | | | | | | | | | | |
| Cash Severance | | | | $ | 1,771,875 | | | | | $ | 1,181,250 | | |
| Accelerated Equity Awards | | | | | 5,795,554 | | | | | | 5,795,554 | | |
| Health Benefits | | | | | 38,463 | | | | | | 25,642 | | |
| Total | | | | $ | 7,605,892 | | | | | $ | 7,002,446 | | |
| E. Royal Smith | | | | | | | | | | | | | |
| Cash Severance | | | | $ | 882,450 | | | | | $ | 882,450 | | |
| Accelerated Equity Awards | | | | | 3,862,413 | | | | | | 3,862,413 | | |
| Health Benefits | | | | | 22,110 | | | | | | 22,110 | | |
| Total | | | | $ | 4,766,973 | | | | | $ | 4,766,973 | | |
| Yanina A. Kravtsova | | | | | | | | | | | | | |
| Cash Severance | | | | $ | 760,000 | | | | | $ | 760,000 | | |
| Accelerated Equity Awards | | | | | 2,639,654 | | | | | | 2,639,654 | | |
| Health Benefits | | | | | 22,060 | | | | | | 22,060 | | |
| Total | | | | $ | 3,421,714 | | | | | $ | 3,421,714 | | |
| |
DIRECTOR COMPENSATION
For the year ended December 31, 2022, the members of our Board, other than Messrs. Meth and Keppler, received compensation for their services on our Board and committees thereof consisting of the items below:
•
an annual retainer of $125,000,
•
an additional annual retainer of $20,000 for services as the chair of the audit committee,
•
an additional annual retainer of $17,500 for service as the chair of the compensation committee,
•
an additional annual retainer of $15,000 for service as the chair of the health, safety, sustainability and environmental committee (the “HSSE committee”) and of the nominating and corporate governance committee.
Additionally, for the year ended December 31, 2022, directors of our Board, other than Mr. Keppler and certain directors who are also officers or employees of Riverstone Holdings LLC or its affiliates (excluding the Company and its subsidiaries) (the “Riverstone Directors”), received an annual grant under the LTIP with a grant date fair value of approximately $115,000.
Coincident with Mr. Keppler’s appointment as Executive Chairman of the Board and effective as of April 1, 2023, Mr. Alexander transitioned to the newly created role of Lead Independent Director. As Lead Independent Director, the Compensation Committee approved an annual retainer of $150,000. This amount will be reflected in our annual disclosure for the fiscal year ending December 31, 2023.
Until the earlier of (i) four years after a director qualifying as an “independent director” under the rules of the NYSE is appointed to the Board, or (ii) the date on which such independent director first holds an amount of our common stock with an aggregate value equal to at least $250,000, one-half of all annual retainers are paid to such independent director in the form of common stock pursuant to the LTIP and the remainder is paid in cash. Martin N. Davidson, Jim H. Derryberry, Gerrit L. Lansing, Jr., and Eva T. Zlotnicka had not met such conditions in 2022 and, as such, received one-half of their annual retainers in the form of common stock pursuant to the LTIP. All other directors had met the above conditions and 100% of their annual retainers were paid in cash. Each director is reimbursed for out-of-pocket expenses incurred in connection with attending Board and committee meetings and each director will be fully indemnified by us for actions associated with serving as a director to the fullest extent permitted under Delaware law.
Compensation of the Riverstone Directors for their service as a director is paid directly to Riverstone/Carlyle Management LP. With respect to Mr. Ubben and Ms. Zlotnicka, their cash compensation is paid directly to Inclusive Capital Partners, L.P.
The following table provides information concerning the compensation of our directors, other than Mr. Keppler (whose compensation has been reported within the Summary Compensation Table), for the fiscal year ended December 31, 2022, regardless of whether they were serving on our Board as of December 31, 2022:
| Name | | | Fees Earned in Cash | | | Unit Awards(1) | | | Total | |
| Ralph Alexander | | | | $ | 140,000 | | | | | $ | 157,417 | | | | | $ | 297,417 | | |
| John C. Bumgarner, Jr. | | | | | 106,875 | | | | | | 157,417 | | | | | | 264,292 | | |
| Martin N. Davidson | | | | | 62,500 | | | | | | 204,443 | | | | | | 266,943 | | |
Jim H. Derryberry(3) | | | | | 62,500 | | | | | | 173,093 | | | | | | 235,593 | | |
Fauzul Lakhani(3) | | | | | 31,250 | | | | | | — | | | | | | 31,250 | | |
| Gerrit (“Gerrity”) L. Lansing, Jr. | | | | | 46,875 | | | | | | 220,878 | | | | | | 267,753 | | |
Pierre F. Lapeyre, Jr.(3) | | | | | 125,000 | | | | | | — | | | | | | 125,000 | | |
David M. Leuschen(3) | | | | | 125,000 | | | | | | — | | | | | | 125,000 | | |
Jeffrey W. Ubben(2) | | | | | 93,750 | | | | | | 157,417 | | | | | | 251,167 | | |
| Gary L. Whitlock | | | | | 125,000 | | | | | | 157,417 | | | | | | 282,417 | | |
| Janet S. Wong | | | | | 145,000 | | | | | | 157,417 | | | | | | 302,417 | | |
Eva T. Zlotnicka(2) | | | | | 52,500 | | | | | | 210,035 | | | | | | 262,535 | | |
(1)
Amounts included in this column reflect the aggregate grant date fair value of restricted stock units (which include tandem DERs) granted to the independent directors, computed in accordance with FASB ASC Topic 718, disregarding the estimate of forfeitures, in each case pursuant to the LTIP. See Note 16, Equity-Based Awards, for additional detail regarding assumptions underlying the value of these equity awards. The grant date fair value for time-based restricted stock unit awards issued in 2022 is based on the closing price of our common stock on the date of grant, which was $72.07 per unit for awards granted on February 1, 2022. As of December 31, 2022, Messrs. Alexander, Bumgarner, Davidson, Derryberry, Lansing, Ubben, and Whitlock, and Mses. Wong and Zlotnicka each held 2,081 unvested restricted stock units. Our non-management directors that are not independent do not receive LTIP awards, therefore they do not hold outstanding awards as of December 31, 2022. Amounts in this column also reflect the aggregate grant date fair value of common stock granted to the independent directors. The grant date fair value for common stock awards issued in 2022 is based on the closing price of our common stock as of the end of the calendar quarter in respect of which the common stock was granted, which was $70.42 per share of common stock for awards granted on February 23, 2022, $79.15 per share of common stock for awards granted on May 4, 2022, $57.22 per share of common stock for awards granted on August 2, 2022, and $60.06 per share of common stock for awards granted on November 1, 2022.
(2)
Mr. Ubben’s and Ms. Zlotnicka’s cash compensation was paid directly to Inclusive Capital Partners, L.P., although each received such director’s LTIP grant directly.
(3)
Compensation of the Riverstone Directors and Mr. Derryberry, for a portion of the year, for their service on the Board is paid directly to Riverstone/Carlyle Management LP.
Pay Ratio
As required by Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, and Item 402(u) of Regulation S-K, we are providing the following information about the relationship of the annual total compensation of our employees and the annual total compensation of Mr. Meth, our Chief Executive Officer. As both Mr. Keppler and Mr. Meth served in the role of Chief Executive Officer, we have elected to utilize the compensation of Mr. Meth as permitted in accordance with Instruction 10 to Item 402(u) of Regulation S-K.
For 2022, our last completed fiscal year:
•
The median of the annual total compensation of all employees of our Company (other than Mr. Meth) was $63,834; and
•
The annual total compensation of Mr. Meth, as reported in the Summary Compensation Table included above, was $1,847,833.
•
Based on this information, for 2022 the ratio of the annual total compensation of Mr. Meth to the median of the annual total compensation of all employees was reasonably estimated to be 29 to 1.
To identity the median of the annual total compensation of all our employees, as well as to determine the annual total compensation of our median employee and our CEO, we took the following steps:
•
We determined that, as of December 31, 2022, our employee population consisted of approximately 1,367 individuals with all of these individuals located in the United States. This population consisted of our full-time, part-time, and temporary employees.
•
We used a consistently applied compensation measure to identify our median employee by comparing the Total Gross Earnings as reflected in our payroll records for 2022, which included, amount of salary or wages, bonuses, compensation received from equity award vesting and distributions (DERs), value of life insurance premiums and gym memberships.
•
We identified our median employee by consistently applying this compensation measure to all of our employees included in our analysis. Since all of our employees, including our CEO, are located in the United States, we did not make any cost-of-living adjustments in identifying the median employee.
•
With respect to the annual total compensation of Mr. Meth, we used the amount reported in the “Total” column of our 2022 Summary Compensation Table above.
Pay Versus Performance Table
As required by Item 402(v) of Regulation S-K, we are providing the following information regarding the relationship between executive compensation and our financial performance for each of the three years in the period ended December 31, 2022. In determining the “compensation actually paid” to our NEOs pursuant to the applicable SEC rules, we are required to make certain adjustments to the executive compensation amounts that were previously reported within the Summary Compensation Table. Pursuant to SEC rules, “compensation actually paid” (or “CAP”) includes payments made to executives during the applicable year such as salary, bonuses, and various benefits. However, the SEC’s valuation methods for this section emphasize the changes in fair value of equity awards under applicable financial accounting standards, and as such, references to “compensation actually paid” below reflects the change in equity award values on the applicable calculation dates and does not necessarily reflect what our NEOs received year-to-year. The following information and data deviates from the previously filed Preliminary Proxy Statement due to revised calculations.
| Year | | | Summary
Compensation
Table Total
for
John K.
Keppler(1) | | | Compensation
Actually
Paid to
John K.
Keppler(1)(4) | | | Summary
Compensation
Table Total
for
Thomas
Meth(1) | | | Compensation
Actually
Paid to
Thomas
Meth(1)(4) | | | Average
Summary
Compensation
Table Total
for
Non-PEO
NEOs(1) | | | Average
Compensation
Actually
Paid to
Non-PEO
NEOs(1)(4) | | | Value of Initial
Fixed $100
Investment
Based On: | | | |
| | TSR(2) | | | Peer Group
TSR(2) | | | Net
Income | | | Adjusted
EBITDA(3) | |
| (a) | | | (b) | | | (c) | | | (b) | | | (c) | | | (d) | | | (e) | | | (f) | | | (g) | | | (h) | | | (i) | |
| 2022 | | | | | 4,330,359 | | | | | | (1,409,891) | | | | | | 1,847,803 | | | | | | (221,954) | | | | | | 1,536,860 | | | | | | (694,090) | | | | | | 79 | | | | | | 93 | | | | | | (168,307) | | | | | | 155 | | |
| 2021 | | | | | 6,205,730 | | | | | | 26,610,304 | | | | | | | | | | | | | | | | | | 1,881,145 | | | | | | 7,437,571 | | | | | | 130 | | | | | | 113 | | | | | | (122,069) | | | | | | 117 | | |
| 2020 | | | | | 2,759,526 | | | | | | 9,980,839 | | | | | | | | | | | | | | | | | | 1,091,942 | | | | | | 3,236,522 | | | | | | 171 | | | | | | 124 | | | | | | (86,290) | | | | | | 82 | | |
(1)
The principal executive officers (“PEO”) and the non-PEO NEOs for each year are as follows:
| Year | | | PEO #1 | | | PEO #2 | | | Non-PEO NEOs | |
| 2022 | | | John K. Keppler
(January 1, 2022 – November 14, 2022) | | | Thomas Meth
(November 14, 2022 – December 31, 2022) | | | Shai S. Even
William H. Schmidt, Jr.
E. Royal Smith | |
| 2021 & 2020 | | | John K. Keppler | | | | | | Shai S. Even
Thomas Meth
William H. Schmidt, Jr.
E. Royal Smith | |
(2)
For each year, the total shareholder return for the Company and the peer group was calculated in accordance with Item 201(e) and Item 402(v) of Regulation S-K. For purposes of this disclosure, our peer group is the Dow Jones Industrial Average.
(3)
Adjusted EBITDA represents a non-GAAP financial measure. We define Adjusted EBITDA as net income (loss) excluding depreciation and amortization, interest expense, income tax expense (benefit), early retirement of debt obligation, non-cash equity-based compensation and other expense, loss on disposal of assets and impairment of assets, changes in unrealized derivative instruments related to hedged items, acquisition and integration costs and other, effects of COVID-19 and the wear in Ukraine, Support Payments, and Executive separation. Adjusted EBITDA is a supplemental measure used by our management and other users of our financial statements, such as investors, commercial banks, and research analysts, to assess the financial performance of our assets without regard to financing methods or capital structure.
(4)
CAP Adjustments
The two tables below reflect the adjustments that were made to each applicable NEO’s compensation previously reported in the Summary Compensation Table in order to arrive at the revised CAP values in accordance with SEC rules:
| | | | 2022
John K.
Keppler | | | 2022
Thomas
Meth | | | 2021
John K.
Keppler | | | 2020
John K.
Keppler | |
| PEO SUMMARY COMPENSATION TABLE TOTALS | | | $4,330,359 | | | $1,847,803 | | | $6,205,730 | | | $2,759,526 | |
| Add (Subtract): | | | | | | | | | | | | | |
| Fair value of equity awards granted during the year from the Summary Compensation Table | | | (3,399,976) | | | (1,249,984) | | | (3,400,044) | | | (1,631,253) | |
| Fair value at year end of equity awards granted during the year | | | 2,522,737 | | | 927,470 | | | 6,204,339 | | | 7,801,158 | |
| Change in fair value of equity awards granted in prior years that were unvested as of the end of the year | | | (7,872,176) | | | (2,744,266) | | | 16,269,144 | | | 375,830 | |
| Change in fair value of equity awards granted in prior years that vested during the year | | | 1,896,301 | | | 660,224 | | | 333,015 | | | 32,090 | |
| Equity awards granted in prior years that were forfeited during the year | | | — | | | — | | | — | | | — | |
| Dividends or other earnings paid on equity awards during the year | | | 1,112,864 | | | 336,800 | | | 998,120 | | | 643,489 | |
| Total Equity Award Related Adjustments | | | (5,740,250) | | | (2,069,757) | | | 20,404,574 | | | 7,221,313 | |
| COMPENSATION ACTUALLY PAID TOTALS | | | $(1,409,891) | | | $(221,954) | | | $26,610,304 | | | $9,980,839 | |
| | | | 2022 | | | 2021 | | | 2020 | |
| NON-PEO NEOS SUMMARY COMPENSATION TABLE TOTALS | | | $1,536,860 | | | $1,881,145 | | | $1,091,942 | |
| Add (Subtract): | | | | | | | | | | |
| Fair value of equity awards granted during the year from the Summary Compensation Table | | | (1,065,675) | | | (965,617) | | | (591,649) | |
| Fair value at year end of equity awards granted during the year | | | 790,717 | | | 1,762,039 | | | 2,192,469 | |
| Change in fair value of equity awards granted in prior years that were unvested as of the end of the year | | | (3,099,071) | | | 4,274,095 | | | 303,948 | |
| Change in fair value of equity awards granted in prior years that vested during the year | | | 746,217 | | | 138,041 | | | 10,435 | |
| Equity awards granted in prior years that were forfeited during the year | | | — | | | — | | | — | |
| Dividends or other earnings paid on equity awards during the year | | | 396,862 | | | 347,868 | | | 229,378 | |
| Total Equity Award Related Adjustments | | | (2,230,950) | | | 5,556,426 | | | 2,144,581 | |
| AVERAGE COMPENSATION ACTUALLY PAID TOTALS | | | $(694,090) | | | $7,437,571 | | | $3,236,522 | |
Description of Pay Versus Performance Relationships
NEO compensation is heavily dependent upon stock price performance (absolute and relative to the S&P 500 Index), and adjusted EBITDA, which drives payouts under the AICP. The following graphical comparisons below describe the relationship between “compensation actually paid” to our NEOs for each of 2022, 2021, 2020 and (i) net income, (ii) adjusted EBITDA, and (iii) our TSR and the TSR of our peer group over the same time period.
Disclosure of Most Important Performance Measures for Fiscal Year 2022
Most Important Performance Measures
Adjusted EBITDA
Relative TSR
Distributable Cash Flow “DCF”
Total Recordable Incident Rate “TRIR”
Track and Trace® Compliance
Backlog Growth, year-over-year
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
In addition to the director and officer insurance policies. The indemnification agreements,executive compensation arrangements discussed above, this section describes transactions since January 1, 2022, to which we have been or will be a participant, in which the amount involved exceeded or will exceed $120,000, and in which any of our directors, executive officers, or holders of more than 5% of our voting stock, or any member of the immediate family of, or person sharing the household with, any of these individuals, had or will have a direct or indirect material interest.
Agreements with Affiliates
Payments to Riverstone for Affiliated Director Services
We pay Riverstone/Carlyle Management LP compensation for the services of certain officers or employees of Riverstone or its affiliates who serve as directors on our Board. During the year ended December 31, 2022, total compensation related to such expense was $0.3 million.
Payments to In-Cap for Affiliated Director Services
We pay In-Cap compensation for the services of the officers or employees of In-Cap or its affiliates who served as directors on our Board. During the year ended December 31, 2022, total compensation related to such expense was $0.2 million.
Registration Rights Agreement
In connection with Enviva Partners, LP’s acquisition of Enviva Holdings, LP (our “former sponsor”) and Enviva Partners GP, LLC (our “former General Partner”) and the cancellation and elimination of the incentive distribution rights held by our former sponsor in exchange for 16.0 million common units, which were distributed to the owners of our former sponsor (collectively, the “Simplification Transaction”), the Company entered into a registration rights agreement (the “Simplification Registration Rights Agreement”) on October 14, 2021 with certain initial holders of shares of Common Stock, including certain funds affiliated with Riverstone and certain of our officers and directors pursuant to which, among other things and subject to certain limitations, will indemnify and hold harmlessrestrictions, the indemnitees against any and all reasonable expenses, including fees and expenses of counsel, and any and all liability and loss, including judgments, fines, ERISA, excise taxes or penalties and amounts paid orCompany agreed to be paid in settlement, incurred or paid by the indemnitees in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether or not by or in the right of the corporation or otherwise, in which the indemnitees are, were or at any time become parties, or are threatened to be made parties or are involved by reason of the fact that the indemnitees are or were the Corporation’s directors or officers or are or were serving at its request as directors, officers, employees, trustees or representatives of another corporation or enterprise.
Treatment of the Partnership Equity Awards
At the effective time of the Conversion, the Enviva Partners, LP Long Term Incentive Plan (the “Partnership LTIP”) will be amended and restated to reflect the Conversion and to make other immaterial modifications and will thereafter be referred to as the Enviva Inc. Amended and Restated Long Term Incentive Plan (the “Corporation LTIP”). All outstanding time-based and performance-based phantom unit award outstanding under the Partnership LTIP will also be converted and appropriately adjusted to reflect the impact of the Conversion, and will be governed by the Corporation LTIP following the Conversion.
Quantification of Potential Payments to Named Executive Officers in Connectionfile with the Conversion
None of the named executive officers or directors of the General Partner will be entitled to any paymentsSEC a registration statement on Form S-3 registering for resale certain securities received by such Holdings Limited Partners in connection with the Simplification Transaction. The Simplification Registration Rights Agreement also provides the Holdings Limited Partners with customary demand and piggyback registration rights.
Support Agreement
In connection with the Simplification Transaction on October 14, 2021, the Company entered into a support agreement (the “Support Agreement”) by and among the Company, the Holdings Limited Partners party thereto, and certain other persons thereto pursuant to which, among other things, (a) certain of our former sponsor’s (or its subsidiaries’) obligations to provide financial support to us were consolidated, fixed, and novated into fixed payment amounts to be paid solely out of dividends on certain shares of Common Stock held by certain Holdings Limited Partners, (b) each Holdings Limited Partner party thereto agreed to reinvest all regular quarterly dividends in respect of a portion of the Common Stock issued to such Holdings Limited Partner in the Simplification Transaction, for each calendar quarter from the calendar quarter ending September 30, 2021, through and including the calendar quarter ending December 31, 2024, and (c) each Holdings Limited Partner party thereto made certain voting commitments in connection with the Company’s conversion to a Delaware corporation (the “Conversion”) and agreed not to transfer any common units held by such partner until the completion of the unitholder vote regarding the Conversion or the Company’s determination to abandon or terminate the Conversion.
Stockholders Agreement
In connection with the Simplification Transaction, the Company entered into a stockholders’ agreement (the “Stockholders Agreement”) with Riverstone Echo Continuation Holdings, L.P., Riverstone Echo Rollover Holdings, L.P., and their respective affiliates (collectively, the “Riverstone Stockholders”). The Stockholders Agreement provided for the composition of the Company’s initial post-Conversion Board. In
Security Ownershipaddition, for so long as the Riverstone Stockholders hold at least 30% of the Company’s Common Stock, the Company agreed that it would not, without the approval of the Riverstone Stockholders, undertake certain specified actions set forth in the Stockholders Agreement.
Subscription Agreements
On February 28, 2023, the Company entered into the Subscription Agreements with the Investors to sell Preferred Shares, having the terms set forth in the Company’s Certificate of Designations for Preferred Shares, in a private placement for gross proceeds of $249.1 million. The Investors include direct or indirect subsidiaries of Riverstone, In-Cap, among other others. Certain Beneficial Ownersdirectors and Managementofficers of the Company also are Investors, including Ralph Alexander, John C. Bumgarner, Jr., Gary L. Whitlock, Thomas Meth, and John K. Keppler.
The conversion of the Preferred Shares to shares of Common Stock is the subject of the Issuance Proposal to be voted upon at the Annual Meeting. Please see the section titled “Proposal No. 6 — The Issuance Proposal” for further information.
PIPE Registration Rights Agreement
Pursuant to the Subscription Agreements, the Company entered into a registration rights agreement (the “PIPE Registration Rights Agreement”) as of March 20, 2023 with the Investors pursuant to which, among other things and subject to certain restrictions, the Company agreed to file with the SEC a registration statement on Form S-3 registering for resale the shares of Common Stock issuable upon conversion of the Preferred Shares. The PIPE Registration Rights Agreement also provides the Investors with customary demand and piggyback registration rights.
Procedures for Review, Approval, and Ratification of Transactions with Related Unitholder MattersPersons
Our Board has adopted a written Code of Business Conduct and Ethics, pursuant to which certain conflicts or potential conflicts of interest that may arise between Enviva, on the one hand, and any director, officer, or employee of Enviva (each, a “Covered Person”), on the other, must be brought to the attention of the Board if the Covered Person has (i) a direct interest in any such conflict where the amount involved exceeds $120,000 or (ii) a material indirect interest in any such conflict. The resolution of any such conflict or potential conflict should, at the discretion of the Board in light of the circumstances, be determined by a majority of the disinterested directors.
Under the provisions of our Code of Business Conduct and Ethics, any executive officer must avoid conflicts of interest unless approved by our Board of Directors.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth the beneficial ownership of (i) Units issued and outstanding as of November 19, 2021 and (ii) shares of Common Stock to be issued and outstanding immediately following the Conversion, in each case for:Preferred Shares of Enviva Inc. as of April 21, 2023 held by:
•
the General Partner;
•
beneficial owners of 5% or more of Units;
•
each director and namedNEO;
•
all of our directors and executive officer of the General Partner;officers as a group; and
•
alleach person, or group of affiliated persons, known by us to beneficially own more than 5% of our standing shares of Common Stock or Preferred Shares.
Beneficial ownership is determined in accordance with the rules of the General Partner’sSEC and generally includes any shares over which a person exercises sole or shared voting or investment power. Shares of Common Stock issuable under options or warrants that are exercisable within 60 days after April 21, 2023 are deemed beneficially owned and such shares are used in computing the percentage ownership of the person holding the options or warrants but are not deemed outstanding for the purpose of computing the percentage ownership of any other person. The information contained in the following table is not necessarily indicative of beneficial ownership for any other purpose, and the inclusion of any shares in the table does not constitute an admission of beneficial ownership of those shares.
Unless otherwise indicated below, to our knowledge, and subject to applicable community property laws, all persons named in the table have sole voting and dispositive power with respect to their shares of common stock, except to the extent authority is shared by spouses under community property laws.
Our calculation of the percentage of beneficial ownership is based on 67,727,662 shares of our Common Stock outstanding as of April 21, 2023.
Unless otherwise noted, the address for each beneficial owner listed below is 7272 Wisconsin Ave., Suite 1800, Bethesda, MD 20814.
| | | | Shares Beneficially Owned | | | Projected Beneficial
Ownership Upon
Approval of the
Issuance Proposal
Common Stock(1)(3) | |
| | | | Common Stock(1) | | | | | | | | | Preferred Shares(2) | |
| Name of Beneficial Owner | | | Shares | | | % | | | Voting
Power(2) | | | Shares | | | % | | | Shares | | | % | |
| Greater than 5% Owner | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Investment Funds Affiliated with Riverstone Holdings, LLC(4) | | | | | 28,438,697 | | | | | | 42.0% | | | | | | 42.0% | | | | | | 3,977,723 | | | | | | 60.2% | | | | | | 32,416,420 | | | | | | 43.6% | | |
Investment Funds Affiliated with Inclusive Capital Partners,
L.P.(5) | | | | | 5,750,457 | | | | | | 8.5% | | | | | | 8.5% | | | | | | 1,856,271 | | | | | | 28.1% | | | | | | 7,606,728 | | | | | | 10.2% | | |
Named Executive Officers, Directors,
and Director Nominees | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Ralph Alexander(6) | | | | | 9,165 | | | | | | * | | | | | | * | | | | | | 2,651 | | | | | | * | | | | | | 11,816 | | | | | | * | | |
John C. Bumgarner, Jr.(7) | | | | | 259,951 | | | | | | * | | | | | | * | | | | | | 53,036 | | | | | | * | | | | | | 312,987 | | | | | | * | | |
| Martin N. Davidson | | | | | 3,156 | | | | | | * | | | | | | * | | | | | | — | | | | | | — | | | | | | 3,156 | | | | | | * | | |
| Jim H. Derryberry | | | | | 2,684 | | | | | | * | | | | | | * | | | | | | — | | | | | | — | | | | | | 2,684 | | | | | | * | | |
| Shai S. Even | | | | | 398,790 | | | | | | * | | | | | | * | | | | | | — | | | | | | — | | | | | | 398,790 | | | | | | * | | |
John K. Keppler(8) | | | | | 352,444 | | | | | | * | | | | | | * | | | | | | 13,259 | | | | | | * | | | | | | 365,703 | | | | | | * | | |
| Yanina A. Kravtsova | | | | | 102,804 | | | | | | * | | | | | | * | | | | | | — | | | | | | — | | | | | | 102,804 | | | | | | * | | |
| Roxanne B. Klein | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
| Gerrit (“Gerrity”) L. Lansing, Jr. | | | | | 8,477 | | | | | | * | | | | | | * | | | | | | — | | | | | | * | | | | | | 8,477 | | | | | | * | | |
Pierre F. Lapeyre, Jr.(4) | | | | | 28,438,697 | | | | | | 42.0% | | | | | | 42.0% | | | | | | 3,977,723 | | | | | | 60.2% | | | | | | 32,416,420 | | | | | | 43.6% | | |
| | | | Shares Beneficially Owned | | | Projected Beneficial
Ownership Upon
Approval of the
Issuance Proposal
Common Stock(1)(3) | |
| | | | Common Stock(1) | | | | | | | | | Preferred Shares(2) | |
| Name of Beneficial Owner | | | Shares | | | % | | | Voting
Power(2) | | | Shares | | | % | | | Shares | | | % | |
David M. Leuschen(4) | | | | | 28,438,697 | | | | | | 42.0% | | | | | | 42.0% | | | | | | 3,977,723 | | | | | | 60.2% | | | | | | 32,416,420 | | | | | | 43.6% | | |
| Thomas Meth | | | | | 459,909 | | | | | | * | | | | | | * | | | | | | 13,259 | | | | | | * | | | | | | 473,168 | | | | | | * | | |
William H. Schmidt, Jr.(9) | | | | | 428,798 | | | | | | * | | | | | | * | | | | | | — | | | | | | — | | | | | | 428,798 | | | | | | * | | |
| E. Royal Smith | | | | | 288,043 | | | | | | * | | | | | | * | | | | | | — | | | | | | — | | | | | | 288,043 | | | | | | * | | |
Jeffrey W. Ubben(5) | | | | | 5,750,457 | | | | | | 8.5% | | | | | | 8.5% | | | | | | 1,856,271 | | | | | | 28.1% | | | | | | 7,606,728 | | | | | | 10.2% | | |
| Gary L. Whitlock | | | | | 37,998 | | | | | | * | | | | | | * | | | | | | 26,518 | | | | | | * | | | | | | 64,516 | | | | | | * | | |
| Janet S. Wong | | | | | 35,022 | | | | | | * | | | | | | * | | | | | | — | | | | | | — | | | | | | 35,022 | | | | | | * | | |
| Eva T. Zlotnicka | | | | | 3,665 | | | | | | * | | | | | | * | | | | | | — | | | | | | — | | | | | | 3,665 | | | | | | * | | |
| All directors and executive officers as a group (21 persons) | | | | | 36,646,666 | | | | | | 54.1% | | | | | | 54.1% | | | | | | 5,942,717 | | | | | | 90.0% | | | | | | 42,589,383 | | | | | | 57.3% | | |
*
Less than 1% of Common Stock outstanding.
(1)
This column does not include restricted stock unit awards granted to our directors and officers as a group.
| Name of Beneficial Owner | | | Units
Beneficially
Owned(4) | | | Percentage
of Units
Beneficially
Owned
Prior to the
Conversion | | | Shares of Common
Stock Beneficially
Owned After the
Conversion | | | Percentage of
Common Stock
Beneficially
Owned After
the Conversion | |
Investment Funds affiliated with Riverstone Holdings LLC(1) | | | | | 27,690,475 | | | | | | 45.4% | | | | | | 27,690,475 | | | | | | 45.4% | | |
| Enviva Partners GP, LLC | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Inclusive Capital Partners, L.P.(2) | | | | | 5,713,987 | | | | | | 9.4% | | | | | | 5,713,987 | | | | | | 9.4% | | |
| John K. Keppler | | | | | 632,712 | | | | | | 1.0% | | | | | | 632,712 | | | | | | 1.0% | | |
| Shai S. Even | | | | | 322,371 | | | | | | * | | | | | | 322,371 | | | | | | * | | |
| Thomas Meth | | | | | 390,468 | | | | | | * | | | | | | 390,468 | | | | | | * | | |
| William H. Schmidt, Jr. | | | | | 360,694 | | | | | | * | | | | | | 360,694 | | | | | | * | | |
| E. Royal Smith | | | | | 239,313 | | | | | | * | | | | | | 239,313 | | | | | | * | | |
| Ralph Alexander | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
John C. Bumgarner, Jr.(3) | | | | | 222,825 | | | | | | * | | | | | | 222,825 | | | | | | * | | |
| Jim H. Derryberry | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
| Pierre F. Lapeyre, Jr. | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
| David M. Leuschen | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
| Gerrit (“Gerrity”) L. Lansing, Jr. | | | | | 451 | | | | | | * | | | | | | 222 | | | | | | * | | |
| William K. Reilly | | | | | 34,786 | | | | | | * | | | | | | 34,786 | | | | | | * | | |
Jeffrey W. Ubben(2) | | | | | 5,713,987 | | | | | | 9.4% | | | | | | 4,834,867 | | | | | | 7.9% | | |
| Gary L. Whitlock | | | | | 33,538 | | | | | | * | | | | | | 33,538 | | | | | | * | | |
| Janet S. Wong | | | | | 30,562 | | | | | | * | | | | | | 30,562 | | | | | | * | | |
| All directors and executive officers as a group (18 persons) | | | | | 8,119,420 | | | | | | 13.3% | | | | | | 8,119,420 | | | | | | 13.3% | | |
*
Percentage of Units beneficially owned does not exceed 1%.pursuant to the LTIP.
(1)
(2)
Includes 19,729,466 Units heldThe Preferred Shares may not be converted into shares of record by Riverstone Echo Continuation Holdings, L.P. (“Echo Continuation Holdings”), 1,953,555 Units heldCommon Stock until the Issuance Proposal has been approved. As a result, for the purposes of recordthe table above, voting power has been calculated based on the number of shares of Common Stock outstanding as of the Record Date without giving effect to the conversion of the Preferred Shares.
(3)
Assumes the conversion of all Preferred Shares outstanding as of June 15, 2023.
(4)
Based solely on information contained in a Schedule 13D/A filed with the SEC on March 3, 2023 by Riverstone Echo Rollover Holdings, L.P. (“Echo Rollover Holdings”). Riverstone Echo Continuation Holdings, L.P. (“Echo Continuation Holdings”) is the record holder of 13,733,914 shares of Common Stock and 6,007,454 Units heldPreferred Shares convertible into 1,969,002 shares of Common Stock. Echo Rollover Holdings is the record by Enviva Collateral PledgeCo, LLC (“PledgeCo”).holder of 2,562,241 shares of Common Stock and Preferred Shares convertible into 267,869 shares of Common Stock. Riverstone Echo PF Holdings, L.P. is the record holder of 12,142,542 shares of Common Stock and Preferred Shares convertible into 1,740,852 shares of Common Stock. David M. Leuschen and Pierre F. Lapeyre Jr. are the managing directors of Riverstone Management Group, L.L.C. (“Riverstone Management”), and have or share voting and investment discretion with respect to the securities beneficially owned by Riverstone Management, which is the general partner of Riverstone/Gower Mgmt Co Holdings, L.P., which is the sole member of Riverstone Holdings LLC, which is the sole member of Riverstone Echo GP, LLC, which is the general partner of Riverstone Echo Partners, L.P., which is the sole member of each of Riverstone ECF GP, LLC (“ECF GP”) and Riverstone Echo Rollover GP, LLC (“Echo Rollover GP”). ECF GP is the general partner of Echo Continuation Holdings. Echo Rollover GP is the general partner of Echo Rollover Holdings.
Riverstone Enviva Holdings GP, LLC (“Riverstone Enviva Holdings”) is managed by its members, Echo Continuation Holdings, and Echo Rollover Holdings. Echo ContinuationThe address for each of the Investment Funds affiliated with Riverstone Holdings, and Echo Rollover Holdings are the managing members of Enviva Cottondale Acquisition I, LLC which is the sole member of PledgeCo. Echo Continuation Holdings and Echo Rollover Holdings have or share voting and investment discretion with respect to the securities beneficially owned by PledgeCo.712 Fifth Avenue, 36th Floor, New York, NY 10019.
(2)
As reported(5)
Based solely on information contained in a Schedule 13D13D/A filed with the SEC on June 10, 2021,March 2, 2023 by Inclusive Capital Partners, L.P. (“In-Cap”). In-Cap and Inclusive Capital Partners Spring Fund Manager, L.L.C. (“In-Cap Spring Fund Manager”) or Inclusive Capital Partners Spring Fund Manager II, L.L.C., a Delaware limited liability company (“In-Cap Spring Fund II Manager”), have been granted investment and voting discretion over the common unitsCommon Stock held by Inclusive Capital Partners Spring Master Fund, L.P. (f/k/a ValueAct Spring Master Fund, L.P.), a British Virgin Islands limited partnership (“In-Cap Spring Master Fund”certain funds (the “In-Cap Funds”). In-Cap acts as investment manager to the In-Cap Spring Master Fund.Funds. The managing member of In-Cap Spring Fund Manager and In-Cap Spring Fund II Manager is Inclusive Capital Partners Holdco, L.P., a Delaware limited partnership (“In-Cap Holdco”). In-Cap is the general partner of In-Cap Holdco. Inclusive Capital Partners, L.L.C., a Delaware limited liability company (“In-Cap LLC”), is the general partner of In-Cap. Mr. Ubben is the controlling member of the management committee of In-Cap LLC.
Mr. Ubben holds shares of Common Stock for the benefit of In-Cap and the In-Cap Funds. The address for each of the In-Cap Funds is 1170 Gorgas Avenue, San Francisco, CA 94129.
(6)
Of these 222,825 common units,9,165 shares of Common Stock, 5,464 are held by the RA Family 2012 Irrevocable Trust. Mr. Alexander has investment control over these shares.
(7)
Of these 259,951 shares of Common Stock, 165,928 are held by the Bumgarner Family Trust. Mr. Bumgarner has investment control over these units.shares.
(4)
(8)
This columnThe amount of securities beneficially owned by Mr. Keppler does not include phantom unit awards granted374,598 shares of Common Stock previously contributed by Mr. Keppler to our directorsa charitable remainder trust (the “Trust”) principally for estate planning and officers pursuantcharitable purposes, which include supporting several personal philanthropic initiatives. The amount of securities beneficially owned by Mr. Keppler also does not include 105,947 shares of Common Stock withheld for payment of taxes, in respect to the LTIP.vesting and settlement of 246,329 restricted stock units reported on Mr. Keppler’s Form 4 filed on November 16, 2022.
(9)
William H. Schmidt, Jr. is the former Executive Vice President, Corporate Development and General Counsel.
COMPARISON OF THE RIGHTS OF STOCKHOLDERS AND UNITHOLDERS
The rights of the Unitholders are currently governed by the Partnership Agreement and the Delaware LP Act. After the Conversion, the Unitholders will become Stockholders, and their rights will be governed by the DGCL and the Charter and the Bylaws that will be in effect upon consummation of the Conversion. See “Description of Enviva Inc. Capital Stock” for a summary of the terms of the Charter and Bylaws to be in effect upon consummation of the Conversion.
Set forth below are material differences among the rights of a holder of Common Stock under the Charter, the Bylaws and the DGCL, on the one hand, and the rights of a holder of Units under the Partnership Agreement and the Delaware LP Act, on the other hand. The identification of specific differences is not intended to indicate that other equally significant or more significant differences do not exist.
The following summary does not reflect any rules of the NYSE or any other national exchange that may apply to the Partnership or the Corporation in connection with the matters discussed. This summary does not purport to be a complete discussion of, and is qualified in its entirety by reference to, the Delaware LP Act, the DGCL, the Partnership Agreement, the Charter and the Bylaws.
The Stockholders Agreement (as defined herein), provides certain holders of Common Stock with additional rights. Please see “Description of Enviva Inc.’s Capital Stock — Stockholders Agreement.”
Purpose
| The Corporation | | | The Partnership | |
| The stated purpose of the Corporation will be to engage in any lawful act or activity for which corporations may be organized under the DGCL. | | | The Partnership’s purpose under the Partnership Agreement is limited to any business activity that is approved by the General Partner and that lawfully may be conducted by a limited partnership organized under Delaware law; provided that the General Partner shall not cause the Partnership to take any action that the General Partner determines would be reasonably likely to cause the Partnership to be treated as an association taxable as a corporation or otherwise taxable as an entity for U.S. federal income tax purposes. | |
Authorized Capital
| The Corporation | | | The Partnership | |
| The Corporation will be authorized to issue 700,000,000 shares of capital stock consisting of (i) 600,000,000 shares of Common Stock and (ii) 100,000,000 shares of preferred stock, $0.001 par value per share.
The New Board will be authorized to issue one or more series of preferred stock and to establish the terms of such series.
| | | The Partnership may issue additional partnership interests and derivative instruments for any purpose at any time and from time to time to such Persons for such consideration and on such terms and conditions as the General Partner shall determine, all without the approval of any limited partners. | |
Dividends / Distributions
| The Corporation | | | The Partnership | |
| The Corporation will be permitted to pay dividends on its outstanding shares of stock from lawfully available funds from time to time, which dividends may be paid in either cash, stock of the Corporation, or other property, subject to the provisions of the Charter and the DGCL. | | | The General Partner has adopted a cash distribution policy, which it may change from time to time without amendment to the Partnership Agreement. Distributions will be made as and when declared by the General Partner. All distributions required to be made under the Partnership Agreement or otherwise made by the Partnership shall be made subject to Delaware law. Each distribution in respect of a Partnership interest shall be paid by the Partnership, directly or through any transfer agent or through any other person or agent, only to the record holder of such Partnership interest as of the record date set for such distribution. Such payment shall constitute full payment and satisfaction of the Partnership’s liability in respect of such payment, regardless of any claim of any person who may have an interest in such payment by reason of an assignment or otherwise. | |
Business Combinations
| The Corporation | | | The Partnership | |
| Under the DGCL, the consummation of a merger or consolidation generally requires the adoption of a resolution approving an agreement of merger or consolidation and declaring its advisability by the board of directors of a corporation that is a constituent corporation in the merger or consolidation and requires that the agreement of merger or consolidation be adopted by the affirmative vote of holders of a majority of the outstanding stock of that corporation entitled to vote thereon. There are limited exceptions under the DGCL providing that a merger may be effected without stockholder approval, including that no vote of the stockholders of a constituent corporation is required where that constituent corporation is the surviving corporation and:
•
such corporation’s certificate of incorporation is not amended in the merger;
•
the stockholders of the surviving corporation whose shares were outstanding immediately before the effective date of the merger will hold the same number of shares, with identical designations, preferences, limitations and rights, immediately after the effective date of the merger; and
•
either no shares of common stock of the surviving corporation and no shares, securities or
| | | A merger, consolidation or conversion of the Partnership requires the prior consent of the General Partner. However, the General Partner may decline to consent to a merger or consolidation in its sole discretion.
In addition, the Partnership Agreement generally prohibits the General Partner, without the prior approval of the holders of a majority of the Units, voting as a single class (a “Unit Majority”), from causing the Partnership to sell, exchange or otherwise dispose of all or substantially all of the Partnership’s assets in a single transaction or a series of related transactions, including by way of merger, consolidation or other combination. The General Partner may, however, mortgage, pledge, hypothecate or grant a security interest in all or substantially all of the Partnership’s assets without such approval. The General Partner may also sell all or substantially all of the Partnership’s assets under a foreclosure or other realization upon those encumbrances without such approval. Finally, the General Partner may consummate any merger without the prior approval of Unitholders if the Partnership is the surviving entity in the transaction, the General Partner has received an opinion of counsel regarding limited liability and tax matters, the transaction would not result in a material amendment to the partnership agreement
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| The Corporation | | | The Partnership | |
| obligations convertible into such stock are to be issued or delivered under the plan of merger, or the authorized unissued shares or the treasury shares of common stock of the surviving corporation to be issued or delivered under the plan of merger plus those initially issuable upon conversion of any other shares, securities or obligations to be issued or delivered under such plan do not exceed 20% of the shares of common stock of such corporation outstanding immediately prior to the effective date of the merger.
The DGCL contains a business combination statute that protects domestic corporations subject to its provisions from hostile takeovers and from actions following such a takeover, by prohibiting some transactions once an acquirer has gained a significant holding in the corporation unless certain requirements are met. Section 203 of the DGCL generally prohibits “business combinations,” including mergers, sales and leases of assets, issuances of securities and similar transactions by a corporation or a subsidiary with an interested stockholder who beneficially owns 15% or more of a corporation’s voting stock, within three years after the person or entity becomes an interested stockholder, unless: (i) the board of directors of the target corporation has approved, before the acquisition date, either the business combination or the transaction that resulted in the person becoming an interested stockholder; (ii) upon consummation of the transaction that resulted in the person becoming an interested stockholder, the person owns at least 85% of the corporation’s voting stock (excluding shares owned by directors who are officers and shares owned by employee stock plans in which participants do not have the right to determine confidentially whether shares will be tendered in a tender or exchange offer); or (iii) after the person or entity becomes an interested stockholder, the business combination is approved by the board of directors and authorized at a meeting of stockholders by the vote of at least 66 2/3% of the outstanding voting stock not owned by the interested stockholder. Section 203 of the DGCL permits a Delaware corporation to elect not to be governed by the provisions of Section 203, and the Corporation has not made such an election. Therefore, the Corporation will be governed by the provisions of Section 203 of the DGCL.
Under Section 262 of the DGCL, a stockholder may dissent from, and receive payments in cash for,
| | | (other than an amendment that the General Partner could adopt Units that will be an identical unit of the Partnership following the transaction and the partnership securities to be issued do not exceed 20% of the Partnership’s outstanding partnership interests immediately prior to the transaction. If the conditions specified in the Partnership’s partnership agreement are satisfied, the General Partner may convert the Partnership or any of its subsidiaries into a new limited liability entity or merge the Partnership or any of the Partnership’s subsidiaries into, or convey all of the Partnership’s assets to, a newly formed entity, if the sole purpose of that conversion, merger or conveyance is to effect a mere change in the Partnership’s legal form into another limited liability entity, we have received an opinion of counsel regarding limited liability and tax matters and the governing instruments of the new entity provide its limited partners and the Partnership’s general partner with the same rights and obligations as contained in the Partnership’s partnership agreement. The Unitholders are not entitled to dissenters’ rights of appraisal under the Partnership Agreement or applicable Delaware law in the event of a conversion, merger or consolidation, a sale of substantially all of the Partnership’s assets or any other similar transaction or event. | |
| The Corporation | | | The Partnership | |
| the fair value of his or her shares as appraised by the Court of Chancery of the State of Delaware, referred to as appraisal rights, in connection with certain statutory mergers or consolidations if the stockholder has neither voted in favor of nor consented in writing to the merger or consolidation and has complied with the other requirements of Section 262.
However, no appraisal rights are available under Delaware law to holders of shares of any class of stock which is either (1) listed on a national securities exchange, or (2) held of record by more than 2,000 stockholders. Notwithstanding the foregoing, appraisal rights are available if stockholders are required by the terms of the merger to accept for their shares anything other than:
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shares of stock of the surviving corporation;
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shares of stock of another corporation that will either be listed on a national securities exchange or held of record by more than 2,000 holders;
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cash instead of fractional shares of such stock; or
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any combination of the above three bullets.
Appraisal rights are not available under Delaware law in the event of the sale of all or substantially all of a corporation’s assets or the adoption of an amendment to its certificate of incorporation, unless such rights are granted in the corporation’s certificate of incorporation. The Charter will not grant such rights.
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Management
| The Corporation | | | The Partnership | |
| In accordance with the DGCL, except as otherwise provided in the DGCL and the Charter, the Corporation’s business and affairs will be managed by or under the direction of the New Board. The Charter and the Bylaws will provide that the number of directors will be fixed by the New Board, subject to the terms of the Stockholders Agreement, as described herein. | | | The General Partner conducts, directs and manages all activities of the Partnership. Except as otherwise expressly provided in the Partnership Agreement, all management powers over the business and affairs of the Partnership is exclusively vested in the General Partner, and no limited partner has any management power over the business and affairs of the Partnership. Certain actions by the GP Board require approval of the members of the General Partner, as set forth in the GP LLC Agreement. | |
DELINQUENT SECTION 16(A) REPORTS
Under Section 16(a) of the Exchange Act and SEC rules, our directors, executive officers, and beneficial owners of more than 10% of our Common Stock are required to file periodic reports of their ownership, and changes in that ownership, with the SEC. Based on our review of the filed reports, we believe that all Section 16(a) filing requirements were complied with during the fiscal year ended December 31, 2022, except that, due to inadvertent oversights, (a) Ralph Alexander filed a late Form 4 reporting transactions that took place on March 3, 2022 and March 4, 2022, and (b) each of Martin N. Davidson, Gerrit L. Lansing, Jr., and Eva T. Zlotnicka filed a late Form 4 reporting transactions that took place on May 4, 2022. Additionally, Riverstone Holdings LLC, Riverstone Management Group, L.L.C., Riverstone/Gower Mgmt Co Holdings, L.P., David M. Leuschen, Pierre F. Lapeyre, Jr., Riverstone Echo GP, LLC, Riverstone Echo Partners, L.P., Riverstone ECF GP, LLC, Riverstone Echo Rollover GP, LLC, Riverstone Echo Rollover Holdings, L.P., Riverstone Echo Continuation Holdings, L.P., and Riverstone Echo PF Holdings, L.P. jointly filed a Form 5 on February 14, 2023 reporting certain acquisitions of Common Stock in connection with its participation in the Company’s dividend reinvestment program that took place on February 25, 2023, May 27, 2022, August 26, 2022, and November 25, 2022.
Nomination and Election of Directors
| The Corporation | | | The Partnership | |
| At any meeting of the Stockholders at which directors are to be elected, so long as a quorum is present, the directors shall be elected by a plurality of the votes validly cast in such election.
At a meeting of the Stockholders, only such nominations for the election of directors and such other matters may be considered as having been properly brought before the meeting. To be properly brought before an annual meeting, nominations and proposals of other business to be considered by the Stockholders must be brought: (1) pursuant to the Corporation’s notice of meeting, (2) by or at the direction of the New Board or any committee thereof or (3) by a Stockholder who is a Stockholder of record at the time such notice of meeting is given, who is entitled to vote at the meeting and who complies with any other procedures established by the Corporation.
| | | The Partnership’s directors are jointly appointed by the Riverstone Echo Funds. | |
Stockholder Proposals and Director Nominations; Proxy Access
| The Corporation | | | The Partnership | |
| The Bylaws will establish advance notice procedures for Stockholder proposals, including nominations and other business, to be properly brought at an annual meeting of Stockholders. In order for any matter to be “properly brought” before a meeting, a Stockholder will have to comply with advance notice requirements and provide the Corporation with a notice that includes specified information. For an annual meeting, that notice must be delivered to the Secretary of the Corporation at the Corporation’s principal executive offices not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual meeting (unless the date of the annual meeting is more than 30 days before or 60 days after such anniversary date, in which case such notice must be delivered no earlier than the close of business on the 150th day prior to such annual meeting or later than the close of business on the later of the 120th day prior to such annual meeting or the 10th day after the first public disclosure of the date of such meeting by the Corporation).
Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting by or at the direction of the New Board. For a notice of nomination to be timely in connection with a special meeting called by the Corporation for the purpose of electing directors,
| | | Neither the Partnership Agreement nor the GP LLC Agreement provides for Unitholders proposals, director nominations or proxy access procedures. | |
| The Corporation | | | The Partnership | |
| such notice must be delivered to the Secretary at the Corporation’s principal executive offices not earlier than the close of business on the 120th day prior to such specialREPORT OF THE AUDIT COMMITTEE The Audit Committee evaluates auditor performance, manages relations with the Company’s independent registered public accounting firm, and evaluates policies and procedures relating to internal control systems. The Audit Committee operates under a written Audit Committee Charter that has been adopted by the Board, a copy of which is available under “Investor Relations > Governance > Governance Documents” on our website at www.envivabiomass.com. All members of the Audit Committee currently meet the independence and qualification standards for audit committee membership set forth in the listing standards and rules of NYSE and the SEC. The functions of the members of the Audit Committee are not intended to duplicate or to certify the activities of management and the independent registered public accounting firm. The Audit Committee serves a Board-level oversight role in which it provides advice, counsel, and direction to management and the auditors on the basis of the information it receives, discussions with management and the auditors, and the experience of the Audit Committee’s members in business, financial, and accounting matters. The Audit Committee oversees the Company’s financial reporting process on behalf of the Board. The Company’s management has the primary responsibility for the financial statements and reporting process, including the Company’s system of internal controls over financial reporting. In fulfilling its oversight responsibilities, the Audit Committee reviewed with management the audited financial statements included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022. This review included a discussion of the quality and the acceptability of the Company’s financial reporting, including the nature and extent of disclosures in the financial statements and the accompanying notes. The Audit Committee also reviewed with the Company’s independent registered public accounting firm, which is responsible for expressing an opinion on the conformity of the audited financial statements with accounting principles generally accepted in the United States of America, their judgments as to the quality and the acceptability of the Company’s financial reporting and such other matters as are required to be discussed with the committee pursuant to the applicable requirements of the Public Company Accounting Oversight Board (the “PCAOB”) and the SEC. The Audit Committee has received the written disclosures and the letter from the independent registered public accounting firm required by the PCAOB regarding the independent registered public accounting firm’s communications with the Audit Committee concerning independence. The Audit Committee discussed with the independent registered public accounting firm their independence from management and the Company, including the matters required by the applicable rules of the PCAOB. The Audit Committee also discussed with the independent registered public accounting firm critical audit matters included in the firm’s audit opinion and discussed the firm’s opinion regarding the Company’s internal controls over financial reporting. In addition to the matters specified above, the Audit Committee discussed with the Company’s independent registered public accounting firm the overall scope, plans, and estimated costs of their audit. The Audit Committee met with the independent registered public accounting firm periodically to discuss the results of the independent registered public accounting firm’s examinations, the overall quality of the Company’s financial reporting, internal controls over financing reporting, and the independent registered public accounting firm’s reviews of the quarterly financial statements. In reliance on the reviews and discussions referred to above, the Audit Committee recommended to the Board that the Company’s audited financial statements should be included in the Company’s Form 10-K for the fiscal year ended December 31, 2022. The information contained in this report shall not be deemed to be (1) “soliciting material,” (2) “filed” with the SEC, (3) subject to Regulations 14A or 14C of the Exchange Act, or (4) subject to the liabilities of Section 18 of the Exchange Act. This report shall not be deemed incorporated by reference into any other filings under the Exchange Act or the Securities Act of 1933 except to the extent we specifically incorporate it by reference to such filing. Janet S. Wong, Committee Chair
John C. Bumgarner, Jr.
Gary L. Whitlock
OTHER BUSINESS We know of no other matters to be submitted to a vote of stockholders at the Annual Meeting. If any other matter is properly brought before the Annual Meeting or any adjournment thereof, it is the intention of the persons named in the enclosed proxy to vote the shares they represent in accordance with their judgment. In order for any stockholder to nominate a candidate or to submit a proposal for other business to be acted upon at a given annual meeting of stockholders, he or she must provide timely written notice to Secretary of the Company in the form prescribed by our Bylaws, as described under “Stockholder Proposals.”
STOCKHOLDER PROPOSALS Stockholder proposals intended to be included in the proxy materials for the 2024 Annual Meeting of Stockholders pursuant to Rule 14a-8 under the Exchange Act must be received by the Secretary of the Company no later than January 2, 2024, or otherwise as permitted by applicable law. The form and substance of these proposals must satisfy the requirements established by the Company’s Bylaws and the SEC. Additionally, stockholders seeking to recommend a director candidate or who intend to present a stockholder proposal at the 2024 Annual Meeting of Stockholders not intended to be included in the proxy materials must provide the Secretary of the Company with written notice of the proposal no earlier than 120 days before and no later than 90 days before the anniversary of the preceding year’s annual meeting of stockholders (provided, however, that if the date of the annual meeting of stockholders is more than 30 days before or more than 60 days after the anniversary of the preceding year’s annual meeting of stockholders, then written notice must be received by the Company not earlier than the close of business on the 150th day prior to the date of such annual meeting and not later than the close of business on the later of the 90th day prior to such special meeting or, if the first public announcement of the date of the special meeting is fewer than 100 days prior to the date of such special meeting, the 10th day after the first public announcement and the nominees proposed by the New Board to be elected at such meeting. | | | | |
Removal of Directors; Withdrawal or Removal of General Partner
| The Corporation | | | The Partnership | |
| The Charter and the Bylaws will provide that, subject to the rights of the holders of any series of preferred stock, any director, or the entire New Board, may be removed from office at any time, with or without case, by the affirmative vote of at least a majority of the voting power of the stock outstanding and entitled to vote thereon. | | | Notwithstanding anything in the GP LLC Agreement or applicable law to the contrary, any director may be removed at any time with or without cause upon the unanimous approval of the Riverstone Echo Funds.
Except as described below, the General Partner has agreed not to withdraw voluntarily as the general partner prior to March 31, 2025 without obtaining the approval of the holders of at least a majority of the outstanding Units, excluding Units held by the General Partner and its affiliates, and furnishing an opinion of counsel regarding limited liability and tax matters. On or after March 31, 2025, the General Partner may withdraw as general partner without first obtaining approval of any Unitholder by giving 90 days’ written notice, and that withdrawal will not constitute a violation of the Partnership Agreement.
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| | | | Notwithstanding the information above, the General Partner may withdraw without Unitholder approval upon 90 days’ notice to its limited partners if at least 50% of the outstanding Units are held or controlled by one person and its affiliates, other than the General Partner and its affiliates. In addition, the Partnership Agreement permits the General Partner, in some instances, to sell or otherwise transfer all of its general partner interest in the Partnership without the approval of the Unitholders. | |
| | | | Upon withdrawal of the General Partner under any circumstances, the holders of a Unit Majority may select a successor to that withdrawing general partner. If a successor is not elected, or is elected but an opinion of counsel regarding limited liability and tax matters cannot be obtained, the Partnership will be dissolved, wound up and liquidated, unless within a specified period after that withdrawal, the | |
| The Corporation | | | The Partnership | |
| | | | holders of a Unit Majority agree in writing to continue the Partnership’s business and to appoint a successor general partner. | |
| | | | The General Partner may not be removed unless that removal is approved by the vote of the holders of not less than 66 2/3% of the outstanding Units, voting together as a single class, including Units held by the General Partner and its affiliates and we receive an opinion of counsel regarding limited liability and tax matters. Any removal of the General Partner is also subject to the approval of a successor general partner by the vote of the holders of a majority of the outstanding Units, voting as a class. The ownership of more than 33 1/3% of the outstanding Units by the General Partner and its affiliates gives them the ability to prevent the General Partner’s removal. | |
| | | | In the event of the removal of the General Partner under circumstances where cause exists or withdrawal of the General Partner where that withdrawal violates the Partnership Agreement, a successor general partner will have the option to purchase the general partner interest of the departing general partner and its affiliates for a cash payment equal to the general partner interest for such fair market value of those interests. Under all other circumstances where the General Partner withdraws or is removed by its limited partners, the departing general partner will have the option to require the successor general partner to purchase the General Partner interest of the departing general partner and its affiliates for fair market value. In each case, this fair market value will be determined by agreement between the departing general partner and the successor general partner. If no agreement is reached, an independent investment banking firm or other independent expert selected by the departing general partner and the successor general partner will determine the fair market value. Or, if the departing general partner and the successor general partner cannot agree upon an expert, then an expert chosen by agreement of the experts selected by each of them will determine the fair market value. | |
| | | | If the option described above is not exercised by either the departing general partner or the successor general partner, the departing general partner’s general partner interest will automatically convert into Units equal to the fair market value of those interests as determined by an investment banking firm or other independent expert selected in the manner described in the preceding paragraph. | |
| The Corporation | | | The Partnership | |
| | | | In addition, the Partnership will be required to reimburse the departing general partner for all amounts due the departing general partner, including, without limitation, all employee-related liabilities, including severance liabilities, incurred as a result of the termination of any employees employed for the Partnership’s benefit by the departing general partner or its affiliates. | |
Filling Vacancies on the Board; Replacing the General Partner
| The Corporation | | | The Partnership | |
| The Charter will provide that, subject to the rights of the holders of any series of preferred stock, any vacancies on the New Board for any reason and any newly created directorships resulting by reason of any increase in the number of directors shall be filled solely by a majority of the total number of directors then in office, although less than a quorum. Any director so chosen, not resulting from an increase in the number of directors, shall hold office for the remaining term of his or her predecessor unless otherwise determined by the New Board. | | | Any vacancies may be filled jointly by the Riverstone Echo Funds. See also “— Removal of Directors; Withdrawal of General Partner.” | |
Change of Management and Anti-Takeover Provisions
| The Corporation | | | The Partnership | |
| Some provisions of Delaware law contain, and the Charter and the Bylaws will contain, provisions that could make the following transactions more difficult: acquisitions of the Corporation by means of a tender offer, a proxy contest or otherwise; or removal of the Corporation’s incumbent officers and directors. These provisions may also have the effect of preventing changes in the Corporation’s management. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that the Stockholders may otherwise consider to be in their best interest or in the Corporation’s best interests, including transactions that might result in a premium over the market price for the Common Stock.
The Corporation will not have a rights agreement or “poison pill” in place immediately following the consummation of the Conversion.
The Corporation has not elected to opt out of being governed by the provisions of Section 203 of the DGCL.
| | | The Partnership Agreement contains specific provisions that are intended to discourage a person or group from attempting to remove the General Partner or otherwise change Partnership’s management. If any person or group other than the General Partner and its affiliates acquires beneficial ownership of 20% or more of any class or series of Units, that person or group loses voting rights on all of its Units. This loss of voting rights does not apply to any person or group that acquires the Units from the General Partner or its affiliates and any transferees of that person or group approved by the General Partner, to any person or group who acquires the Units with the prior approval of the board of the General Partner. See also “— Removal of Directors; Withdrawal or Removal of General Partner.” | |
Preemptive Rights
| The Corporation | | | The Partnership | |
| None. | | | None. | |
Amendment of Governing Documents
| The Corporation | | | The Partnership | |
| The Charter will provide that the Corporation may generally amend, alter or repeal any provision in the Charter, and add or insert any other provisions authorized by the laws of the State of Delaware, in the manner then prescribed by the laws of the State of Delaware. Under the DGCL, the Charter may also be amended or repealed by the affirmative vote of at least a majority of the outstanding stock entitled to vote thereon.
The Bylaws will provide that the Bylaws may be amended, altered or repealed by (1) the New Board or (2) the Stockholders upon the affirmative vote of at least a majority of the voting power of the shares of stock entitled to vote thereon.
| | | General
Amendments to the Partnership Agreement may be proposed only by the General Partner. However, the General Partner will have no duty or obligation to propose any amendment and may decline to do so in its sole discretion. In order to adopt a proposed amendment, other than the amendments discussed below, the General Partner is required to seek written approval of the holders of the number of Units required to approve the amendment or to call a meeting of the limited partners to consider and vote upon the proposed amendment. Except as described below, an amendment must be approved by a Unit Majority.
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| | | | Prohibited Amendments | |
| | | | No amendment may be made that would: | |
| | | | •
enlarge the obligations of any limited partner without its consent, unless approved by at least a majority of the type or class of limited partner interests so affected; or
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| | | | •
enlarge the obligations of, restrict, change or modify in any way any action by or rights of, or reduce in any way the amounts distributable, reimbursable or otherwise payable by the Partnership to, the General Partner or any of its affiliates without the consent of the General Partner, which consent may be given or withheld in its sole discretion.
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| | | | The provision of the Partnership Agreement preventing the amendments having the effects described in the clauses above can be amended upon the approval of the holders of at least 90% of the outstanding Units, voting as a single class (including Units owned by the General Partner and its affiliates). | |
| | | | No Unitholder Approval | |
| | | | The General Partner may generally make amendments to the Partnership Agreement without the approval of any limited partner to reflect: | |
| | | | •
a change in the Partnership’s name, the location of the Partnership’s principal place of business, the Partnership’s registered agent or the
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| The Corporation | | | The Partnership | |
| | | | Partnership’s registered office; | |
| | | | •
the admission, substitution, withdrawal or removal of partners in accordance with the Partnership Agreement;
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| | | | •
a change that the General Partner determines to be necessary or appropriate to qualify or continue the Partnership’s qualification as a limited partnership or other entity in which its limited partners have limited liability under the laws of any state or to ensure that neither we nor any of the Partnership’s subsidiaries will be treated as an association taxable as a corporation or otherwise taxed as an entity for federal income tax purposes (to the extent not already so treated or taxed);
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| | | | •
an amendment that is necessary, in the opinion of the Partnership’s counsel, to prevent the Partnership or the General Partner or its directors, officers, agents or trustees from in any manner being subjected to the provisions of the Investment Company Act of 1940, as amended, the Investment Advisers Act of 1940, as amended, or “plan asset” regulations adopted under the Employee Retirement Income Security Act of 1974, as amended, whether or not substantially similar to plan asset regulations currently applied or proposed by the United States Department of Labor;
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| | | | •
an amendment that the General Partner determines to be necessary or appropriate in connection with the creation, authorization or issuance of additional partnership interests or the right to acquire partnership interests and derivative instruments;
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| | | | •
any amendment expressly permitted in the Partnership Agreement to be made by the General Partner acting alone;
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| | | | •
an amendment effected, necessitated or contemplated by a merger agreement that has been approved under the terms of the Partnership Agreement;
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| | | | •
any amendment that the General Partner determines to be necessary or appropriate for the formation by the Partnership of, or the Partnership’s investment in, any corporation, partnership, joint venture, limited liability company or other entity, as otherwise permitted by the Partnership Agreement;
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| | | | •
a change in the Partnership’s fiscal year or taxable year and related changes;
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| | | | •
conversions into, mergers with or conveyances to another limited liability entity that is newly
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| The Corporation | | | The Partnership | |
| | | | formed and has no assets, liabilities or operations at the time of the conversion, merger or conveyance other than those it receives by way of the conversion, merger or conveyance; or | |
| | | | •
any other amendments substantially similar to any of the matters described in the clauses above.
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| | | | In addition, the General Partner may make amendments to the Partnership Agreement, without the approval of any limited partner, if the General Partner determines that those amendments:
•
do not adversely affect the limited partners, considered as a whole, or any particular class of limited partners, in any material respect;
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are necessary or appropriate to satisfy any requirements, conditions or guidelines contained in any opinion, directive, order, ruling or regulation of any federal or state agency or judicial authority or contained in any federal or state statute;
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are necessary or appropriate to facilitate the trading of limited partner interests or to comply with any rule, regulation, guideline or requirement of any securities exchange on which the limited partner interests are or will be listed for trading;
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are necessary or appropriate for any action taken by the General Partner relating to splits or combinations of Units under the provisions of the Partnership Agreement;
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are necessary or appropriate in connection with the creation, authorization or issuance of any class or series of partnership securities; or
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are required to effect the intent expressed in this proxy statement or the intent of the provisions of the Partnership Agreement or are otherwise contemplated by the Partnership Agreement.
Any amendment that the General Partner determines adversely affects in any material respect one or more particular classes of limited partners will require the approval of at least a majority of the class or classes so affected, but no vote will be required by any class or classes of limited partners that the General Partner determines are not adversely affected in any material respect. Any amendment that would have a material adverse effect on the rights or preferences of any type or class of outstanding Units in relation to other classes of Units will require the approval of at least a majority of the type or class of Units so affected.
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| The Corporation | | | The Partnership | |
| | | | Any amendment that would reduce or increase the voting percentage required to take any action other than to remove the general partner or call a meeting of Unitholders is required to be approved by the affirmative vote of limited partners whose aggregate outstanding Units constitute not less than the voting requirement sought to be reduced or increased. Any amendment that would increase the percentage of Units required to remove the general partner or call a meeting of Unitholders must be approved by the affirmative vote of limited partners whose aggregate outstanding Units constitute not less than the percentage sought to be increased. For amendments of the type not requiring Unitholder approval, the General Partner will not be required to obtain an opinion of counsel that an amendment will neither result in a loss of limited liability to the limited partners nor result in the Partnership being treated as a taxable entity for federal income tax purposes in connection with any of the amendments. No other amendments to the Partnership Agreement will become effective without the approval of holders of at least 90% of the outstanding Units, voting as a single class, unless we first obtain an opinion of counsel to the effect that the amendment will not affect the limited liability under applicable law of any of the Partnership’s limited partners. | |
Voting Rights; Meetings; Action by Written Consent
| The Corporation | | | The Partnership | |
| The Charter will provide that every holder of Common Stock is entitled to one vote for each share of Common Stock standing in such holder’s name on the books of the Corporation.
The Charter and the Bylaws will provide that special meetings may be called at any time by the Chairman of the New Board or the New Board pursuant to a resolution adopted by a majority of the members of the New Board. Stockholders may not call special meetings.
The Charter will provide that any action required or permitted to be taken by the Stockholders may be taken only at a duly called annual or special meeting of Stockholders and may not be taken by any consent in writing by such Stockholders.
| | | The following is a summary of the Unitholder vote required for approval of the matters specified below.
In voting their Units, affiliates of the General Partner have no fiduciary duty or obligation whatsoever to the Partnership or its limited partners, including any duty to act in good faith or in the best interests of the Partnership or its limited partners.
•
Issuance of Additional Units — No Approval Right
•
Election of the GP Board — All directors on the GP Board are jointly appointed by the Riverstone Echo Funds.
•
Amendment of the Partnership Agreement — Certain amendments may be made by the General Partner without the approval of the Unitholders. Other amendments generally require the approval of a Unit Majority.
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| The Corporation | | | The Partnership | |
| | | | •
Merger of the Partnership or the sale of all or substantially all of the Partnership’s assets — Unit Majority in certain circumstances. See “Comparisons of the Rights of Stockholders and Unitholders — Business Combinations”
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| | | | •
Dissolution of the Partnership’s partnership — Unit Majority
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| | | | •
Continuation of the Partnership’s business upon dissolution — Unit Majority.
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| | | | •
Withdrawal of the General Partner — Under most circumstances, the approval of a majority of the Units, excluding Units held by the General Partner and its affiliates, is required for withdrawal of the General Partner prior to March 31, 2025 in a manner that would cause a dissolution of the Partnership.
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Removal of the General Partner — Not less than 66 2/3% of the outstanding Units, voting as a single class, including Units held by the General Partner and its affiliates.
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Transfer of the General Partner interest — No approval right
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Transfer of ownership interests in the General Partner — No approval right
If any person or group other than the General Partner and its affiliates acquires beneficial ownership of 20% or more of any class of Units, that person or group loses voting rights on all of its Units. This loss of voting rights does not apply to any person or group that acquires the Units from the General Partner or its affiliates and any transferees of that person or group approved by the General Partner or to any person or group who acquires the Units with the specific prior approval of the General Partner.
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Indemnification and Limitation on Liability
| The Corporation | | | The Partnership | |
| The DGCL authorizes corporations to limit or eliminate the personal liability of directors to corporations and their stockholders for monetary damages for breaches of directors’ fiduciary duties. The DGCL does not permit exculpation for liability:
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for breach of duty of loyalty;
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for acts or omissions not in good faith or involving intentional misconduct or knowing violation of law;
| | | Under the Partnership Agreement, in most circumstances, the Partnership will indemnify the following persons, to the fullest extent permitted by law, from and against all losses, claims, damages or similar events:
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the General Partner;
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any departing general partner;
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any person who is or was an affiliate of a general partner or any departing general partner;
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| The Corporation | | | The Partnership | |
| •
under Section 174 of the DGCL (which deals generally with unlawful payments of dividends, stock repurchases and redemptions); and
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for transactions from which the director derived improper personal benefit.
The Charter will eliminate the personal liability of directors for monetary damages for any breach of fiduciary duty, except to the extent such exemption is not permitted under the DGCL.
The Bylaws will provide that the Corporation shall, to the fullest extent permitted by law, indemnify any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding by reason of the fact such person is or was a director, officer or employee, of the Corporation or, while a director, officer or employee of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another entity, against all liability and loss suffered and expenses reasonably incurred.
The Bylaws will further provide that the Corporation shall advance expenses incurred in defending any such proceeding to any such indemnitees, provided, however, that, to the extent required by law, such advancement of expenses shall be made only upon receipt of an undertaking, by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined that such indemnitee is not entitled to be indemnified for such expenses under the Bylaws or otherwise.
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any person who is or was a manager, managing member, general partner, director, officer, fiduciary or trustee of the Partnership, its subsidiaries, the General Partner, any departing general partner or any of their affiliates;
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any person who is or was serving as a manager, managing member, general partner, director, officer, employee, agent, fiduciary or trustee of another person owing a fiduciary duty to the Partnership or the Partnership’s subsidiaries;
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any person who controls the General Partner or any departing general partner; and
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any person designated by the General Partner.
Any indemnification under these provisions will only be out of the Partnership’s assets. Unless it otherwise agrees, the General Partner will not be personally liable for, or have any obligation to contribute or lend funds or assets to the Partnership to enable it to effectuate, indemnification. The Partnership may purchase insurance against liabilities asserted against and expenses incurred by persons for the Partnership’s activities, regardless of whether the Partnership would have the power to indemnify the person against liabilities under the Partnership Agreement.
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Conflicts of Interest; Fiduciary Duties
| The Corporation | | | The Partnership | |
| Under the DGCL, a transaction or contract involving an interested officer or director is not void or voidable solely because of the officer’s or director’s interest if:
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the material facts of the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or known to the board of directors (or committee thereof) and a majority of the disinterested directors vote to authorize the transaction in good faith, even though the disinterested directors might be less than a quorum;
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the material facts of the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or known to the stockholders entitled to vote thereon and the
| | | To the extent that, at law or in equity, the General Partner or any other indemnitee would have duties (including fiduciary duties) to the Partnership, to another partner, to any person who acquires an interest in a Partnership interest or to any other person bound by the Partnership Agreement, all such duties (including fiduciary duties) are eliminated, to the fullest extent permitted by law, and replaced with the duties expressly set forth in the Partnership Agreement. The elimination of duties (including fiduciary duties) and replacement thereof with the duties expressly set forth in the Partnership Agreement are approved by the Partnership, each of the partners, each other person who acquires an interest in a Partnership interest and each other person bound by the Partnership Agreement. | |
| The Corporation | | | The Partnership | |
| transaction is specifically approved in good faith by vote of the stockholders; or
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the contract or transaction is fair to the corporation at the time it is authorized, approved or ratified by the board of directors (or committee thereof) or the stockholders.
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Taxation
| The Corporation | | | The Partnership | |
| The Corporation will be a Delaware corporation and will be treated as an association taxable as a corporation for U.S. federal income tax purposes. Each Stockholder will receive a Form 1099 with respect to distributions received on its Common Stock.
See “Material U.S. Federal Income Tax Consequences.”
| | | The Partnership is classified as a partnership for U.S. federal income tax purposes and is not generally subject to entity-level U.S. federal income taxes.
Each Unitholder receives a Schedule K-1 from the Partnership reflecting such Unitholder’s share of the Partnership’s items of income, gain, loss, and deduction for each taxable year.
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DESCRIPTION OF ENVIVA INC.’S CAPITAL STOCK
This section of the proxy statement summarizes the material terms of the Corporation’s capital stock that will be in effect if the Conversion is completed. For greater detail on the provisions that may be important to you, you are encouraged to read the Charter, a form of which is attached to the Plan of Conversion, and the Bylaws, a form of which is attached as Annex B to this proxy statement, each of which are hereby incorporated by reference, and the DGCL.
Authorized Capital Stock of the Corporation
The authorized capital stock of the Corporation will consist of 700,000,000 shares of capital stock consisting of 600,000,000 shares of Common Stock and 100,000,000 shares of preferred stock, $0.001 par value per share.
Common Stock
Except as provided by law or in a preferred stock designation, Stockholders will be entitled to one vote for each share held of record on all matters submitted to a vote of the Stockholders, will have the right to vote for the election of directors and will not have cumulative voting rights. Subject to preferences that may be applicable to any outstanding shares or series of preferred stock, Stockholders will be entitled to receive ratably such dividends (payable in cash, stock or other property), if any, as may be declared from time to time by the New Board out of funds legally available for dividend payments. All outstanding shares of Common Stock will be fully paid and non-assessable. The Stockholders will have no preemptive or preferential rights to acquire or subscribe for any shares of Common Stock. In the event of any liquidation, dissolution or winding-up of the Corporation’s affairs, Stockholders will be entitled to share ratably in the Corporation’s assets that are remaining for distribution to its Stockholders and after liquidation payments to holders of outstanding shares of preferred stock, if any. Following the consummation of the Conversion, there are expected to be approximately 61,022,931 shares of Common Stock outstanding.
Preferred Stock
The Charter will authorize the New Board, subject to any limitations prescribed by law, without further stockholder approval, to establish and to issue from time to time one or more series of preferred stock, par value $0.001 per share, covering up to an aggregate of 100,000,000 shares of preferred stock. Each series of preferred stock will cover the number of shares and will have the powers, preferences, privileges, rights, qualifications, limitations and restrictions determined by the New Board, which may include, among others, dividend rights, liquidation preferences, voting rights, whether subject to retirement or sinking funds, conversion rights, preemptive rights and redemption rights. Except as provided by law or in a preferred stock designation, the holders of preferred stock will not be entitled to vote at or receive notice of any meeting of stockholders.
Provisions of Enviva Inc.’s Certificate of Incorporation and Bylaws
Among other things, the Charter and the Bylaws:
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provide advance notice procedures with regard to stockholder nominations of candidates for election as directors or other stockholder proposals to be brought before meetings of Stockholders, which may preclude Stockholders from bringing certain matters before the Stockholders at an annual or special meeting;
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provide that notice of stockholder proposals must be timely given in writing to the Corporation’s secretary prior to the meeting at which the action is to be taken;
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provide that, generally, to be timely, notice must be delivered to the Secretary of the Corporation at the Corporation’s principal executive offices not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual meeting (unless the date of the annual meeting is more than 30 days before or after such anniversary date, in which case such notice must be delivered no earlier than the close of business on the 150th day prior to such annual meeting or later than the close of business on the later of the
120th day prior to such annual meeting or, if the first public announcement of the date of such annual meeting is fewer than 100 days prior to the date of such annual meeting, the 10th day after the first public disclosure of the date of such meeting by the Corporation);
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provide the New Board the ability to authorize issuance of preferred stock in one or more series, which makes it possible for the New Board to issue, without Stockholder approval, preferred stock with voting or other rights or preferences that could impede the success of any attempt to change control of the Corporation and which may have the effect of deterring hostile takeovers or delaying changes in control or management of the Corporation;
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provide that the authorized number of directors may be changed only by resolution of the New Board;
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provide that, subject to the rights of holders of any series of preferred stock to elect directors or fill vacancies in respect of such directors as specified in the related preferred stock designation, all vacancies, including newly created directorships, be filled by the affirmative vote of holders of a majority of directors then in office, even if less than a quorum, or by the sole remaining director, and will not be filled by Stockholders;
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provide that, subject to the rights of the holders of any series of preferred stock to elect directors under specified circumstances, if any, any action required or permitted to be taken by the Stockholders must be effected at a duly called annual or special meeting of stockholders and may not be effected by any consent in writing in lieu of a meeting of such Stockholders;
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provide that, subject to the rights of the holders of shares of any series of preferred stock, if any, to remove directors elected by such series of preferred stock pursuant to the Charter (including any preferred stock designation thereunder), any director, or the entire New Board, may be removed from office at any time, with or without cause, by the affirmative vote of at least a majority of the voting power of the stock outstanding and entitled to vote thereon;
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provide that special meetings of Stockholders may only be called by the Chairman of the New Board or the New Board pursuant to a resolution adopted by a majority of the members of the New Board;
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provide that the provisions of the Charter can only be amended or repealed by (a) the Corporation in the manner then prescribed by the laws of the State of Delaware or (b) the Stockholders upon the affirmative vote of a majority of the outstanding stock entitled to vote thereon; and
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provide that the Bylaws can be amended, altered or repealed by (a) the New Board or (b) the Stockholders upon the affirmative vote of at least a majority of the voting power of the shares of stock entitled to vote thereon.
Delaware Anti-Takeover Law
Section 203 of the DGCL provides that, subject to exceptions specified therein, a Delaware corporation may not engage in any “business combination,” including, among other things, certain mergers or consolidations with an “interested stockholder” for a three-year period following the time that such stockholder becomes an interested stockholder, unless:
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prior to such time, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;
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upon consummation of the transaction which resulted in the stockholder becoming an “interested stockholder,” the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced (excluding specified shares); or
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on or subsequent to such time, the business combination is approved by the board of directors of the corporation and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of holders of at least 66 2/3% of the outstanding voting stock not owned by the interested stockholder.
Except as otherwise specified in Section 203, an “interested stockholder” is defined to include:
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any person that is the owner of 15% or more of the outstanding voting stock of the corporation, or is an affiliate or associate of the corporation and was the owner of 15% or more of the outstanding voting stock of the corporation at any time within three years immediately prior to the date of determination; and
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the affiliates and associates of any such person.
Under some circumstances, Section 203 makes it more difficult for a person that is an interested stockholder to effect various business combinations for a three-year period. Section 203 of the DGCL permits a Delaware corporation to elect not to be governed by the provisions of Section 203. The Corporation has not elected to opt out of being governed by such provisions.
Stockholders’ Agreement
In connection with the Drop Merger, the Partnership entered into a stockholders’ agreement (the “Stockholders Agreement”), which will be effective upon consummation of the Conversion, with Riverstone Echo Continuation Holdings, L.P. and Riverstone Echo Rollover Holdings, L.P. and each of their respective affiliates that will own shares of Common Stock following the Conversion (collectively, the “Riverstone Stockholders”). The Stockholders Agreement provides for the composition of the New Board. In addition, for so long as the Riverstone Stockholders hold at least 30% of the Common Stock, the Partnership agreed that it would not, without the approval of the Riverstone Stockholders:
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amend the Corporation’s certificate of incorporation or bylaws;
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undertake any transaction involving a merger of the Corporation or that would otherwise constitute a change of control;
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commence any voluntary dissolution, reorganization, recapitalization or liquidation of the Corporation;
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make a voluntary filing of a petition for bankruptcy or receivership by the Corporation, or fail to oppose any other person’s petition filed against the Corporation in any such proceeding;
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adopt any “poison pill” or shareholder rights plan;
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make any acquisition or disposition of assets or equity interests, in any transaction or series or related transactions, for aggregate consideration in excess of (A) 25% of the fair market value of the Corporation’s total assets or (B) 25% of the market capitalization of the Corporation, each as determined at the time of the approval of the agreement to enter into any such transaction or series of related transactions; or
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enter into any agreement to undertake or effect any of the foregoing actions.
The Stockholders Agreement will terminate upon the later of (a) such time as the Riverstone Stockholders hold less than 30% of the Common Stock and (b) the earlier of (1) the time at which the Corporation holds an annual meeting of its stockholders in 2022, if held, and (2) December 31, 2022.
Transfer Agent and Registrar
The transfer agent and registrar for the shares of Common Stock will be American Stock Transfer & Trust Company, LLC.
Listing
The shares of Common Stock issued in connection with the Conversion will trade on the NYSE under the symbol “EVA.”
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES
The following is a general discussion of the material U.S. federal income tax consequences of (i) the Conversion to Unitholders that are U.S. holders (as defined below) and (ii) the ownership and disposition of Common Stock by such U.S. holders who receive Common Stock pursuant to the Conversion. This discussion is limited to U.S. holders who hold their Units, and, if applicable, will hold their Common Stock received in connection with the Conversion, as a “capital asset” within the meaning of Section 1221 of the Code (generally, property held for investment). No rulings have been or will be sought from the Internal Revenue Service (the “IRS”) with respect to any of the tax consequences discussed below. As a result, there can be no assurance that the IRS will not assert, or that a court would not sustain, a position contrary to any of the conclusions set forth below.
This discussion does not address the U.S. federal income tax consequences to Unitholders that are not U.S. holders. Non-U.S. holders should consult their tax advisors with respect to the U.S. federal income tax consequences of the Conversion and the ownership and disposition of any Common Stock received pursuant to the Conversion.
This discussion is based on the provisions of the Code, applicable U.S. Treasury regulations, administrative rulings and judicial decisions, all as in effect on the date hereof and all of which are subject to change, possibly with retroactive effect. Any such change could affect the accuracy of the statements and conclusions set forth in this discussion. This discussion does not address all aspects of U.S. federal income taxation that may be relevant to U.S. holders in light of their particular facts and circumstances. In addition, this discussion does not address any tax consequences under any U.S. federal laws other than those pertaining to income taxes, nor does it address any tax consequences arising under the Medicare tax on certain investment income or arising under the laws of any state, local, or non-U.S. jurisdiction. Furthermore, this discussion does not apply to U.S. holders that may be subject to special treatment under the U.S. federal income tax laws, including, without limitation:
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banks, insurance companies or other financial institutions;
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tax-exempt or governmental organizations;
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“qualified foreign pension funds” as defined in Section 897(l)(2) of the Code (or any entities all of the interests of which are held by a qualified foreign pension fund);
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dealers or brokers in stocks, securities, or non-U.S. currencies;
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persons whose functional currency is not the U.S. dollar;
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“controlled foreign corporations,” “passive foreign investment companies,” or corporations that accumulate earnings to avoid U.S. federal income tax;
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traders in securities that use the mark-to-market method of accounting for U.S. federal income tax purposes;
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persons subject to the alternative minimum tax;
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partnerships or other pass-through entities for U.S. federal income tax purposes or holders of interests therein;
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regulated investment companies or mutual funds;
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holders of Units that acquired such Units as compensation or through a tax-qualified retirement plan;
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holders of restricted Units or incentive Units granted under any benefit plan of the Partnership;
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certain former citizens or long-term residents of the United States; and
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holders of Units or, if applicable, Common Stock that hold such Units or Common Stock as part of a straddle, appreciated financial position, synthetic security, hedge, conversion transaction or other integrated investment or risk reduction transaction.
For purposes of this discussion, the term “U.S. holder” means a beneficial owner of Units or Common Stock, as applicable, that, for U.S. federal income tax purposes, is:
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an individual who is a citizen or resident of the United States;
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a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state thereof, or the District of Columbia;
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an estate the income of which is subject to U.S. federal income tax regardless of its source; or
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a trust (i) the administration of which is subject to the primary supervision of a U.S. court and which has one or more “United States persons” (as defined in Section 7701(a)(30) of the Code) who have the authority to control all substantial decisions of the trust or (ii) which has made a valid election under applicable U.S. Treasury regulations to be treated as a United States person.
If a partnership (including an entity or arrangement treated as a partnership for U.S. federal income tax purposes) holds Units or Common Stock, the tax treatment of a partner in such partnership generally will depend upon the status of the partner, the activities of the partnership, and upon certain determinations made at the partner level. Accordingly, partners in partnerships (including entities or arrangements treated as partnerships for U.S. federal income tax purposes) holding Units should consult their tax advisors regarding the U.S. federal income tax consequences of the Conversion and the ownership and disposition of Common Stock received in connection with the Conversion to them.
THIS DISCUSSION IS PROVIDED FOR GENERAL INFORMATION ONLY AND IS NOT A COMPLETE ANALYSIS OR DESCRIPTION OF ALL POTENTIAL U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE CONVERSION AND THE OWNERSHIP AND DISPOSITION OF COMMON STOCK RECEIVED IN CONNECTION WITH THE CONVERSION. EACH HOLDER OF UNITS IS STRONGLY URGED TO CONSULT WITH ITS OWN TAX ADVISOR AS TO THE APPLICATION OF THE U.S. FEDERAL, STATE, LOCAL, AND NON-U.S. TAX LAWS (INCLUDING ANY POTENTIAL FUTURE CHANGES THERETO) TO SUCH HOLDER’S PARTICULAR CIRCUMSTANCES.
Tax Consequences of the Conversion to U.S. Holders of Units
In General
For U.S. federal income tax purposes, the Conversion should be treated as follows. The Partnership should be deemed to have transferred all of its assets and liabilities to the Corporation, which is treated as a corporation for U.S. federal income tax purposes, and to have received in exchange for such transfer all of the Common Stock of the Corporation, which the Partnership then distributes to the Unitholders in complete liquidation of the Partnership.
If the Partnership’s tax basis in the assets transferred to the Corporation exceeds the amount of the Partnership’s liabilities assumed by the Corporation in the deemed transfer, no gain or loss should be recognized by the Partnership in connection with the Conversion. If the liabilities assumed exceed the tax basis of the Partnership’s assets deemed transferred, the Partnership would recognize gain in the amount of such excess, which gain would be allocated to the Unitholders in accordance with their percentage interests in the Partnership. If no gain or loss is recognized in connection with the Conversion, the tax basis of the assets transferred to the Corporation will not increase or decrease in connection with the Conversion. If gain is recognized by the Partnership, the amount of such gain would increase the basis of the assets transferred to the Corporation.
The foregoing description of the tax characterization of the Conversion is based on the assumption that the Unitholders will own, in the aggregate, at least 80% of the Corporation’s Common Stock outstanding immediately after the Conversion, excluding from the numerator any Common Stock received in connection with the Conversion that is sold after the Conversion pursuant to a plan or arrangement established before the Conversion (the “Control Assumption”). The Control Assumption should be correct unless, contrary to the knowledge of the Partnership, a group of Unitholders holding more than 20% of the Partnership’s Units agree prior to the Conversion to sell the Common Stock they receive in connection with the Conversion. If the Control Assumption is not correct, the Conversion should be treated as if the Partnership (i) sold all of its assets to the Corporation for an amount equal to the value of the Common
Stock received by the Partnership in the Conversion plus the amount of the Partnership’s liabilities assumed by the Corporation in the Conversion and (ii) distributed the Common Stock received in the Conversion to the Unitholders in complete liquidation of their interests in the Partnership. Accordingly, the Partnership would recognize gain (or loss) on the Conversion in an amount equal to the amount by which the value of the Common Stock received plus the amount of the Partnership’s liabilities assumed exceeds (or is less than) the tax basis of the assets transferred by the Partnership. Any such gain or loss would be allocated to the Unitholders in accordance with their percentage interests in the Partnership.
If the Control Assumption is not correct, the Corporation’s tax basis in the assets transferred by the Partnership would equal the value of the Common Stock deemed issued in connection with the Conversion plus the amount of the Partnership’s liabilities assumed, and the Corporation’s holding period in the assets would begin the day after the Conversion.
If the Control Assumption is correct and provided that the Partnership recognizes no gain or loss in connection with the Conversion, a Unitholder should not be allocated any gain or loss except to the extent that the Partnership’s liabilities allocated to such Unitholder for U.S. federal income tax purposes prior to the Conversion and assumed by the Corporation exceed such Unitholder’s tax basis in its Units. For U.S. federal income tax purposes, a Unitholder’s relief from such share of the Partnership’s liabilities is treated as if such Unitholder received a cash distribution from the Partnership in the amount of the liabilities deemed assumed by the Corporation. Based on (i) estimates and projections regarding the Partnership’s aggregate amount of liabilities and aggregate amount of adjusted tax basis in the assets of the Partnership, (ii) the purchase prices of the Units and (iii) the prior allocations of income, gain, loss, and deduction by the Partnership to the Unitholders, it is expected that (a) the Partnership will not recognize a material amount of gain, if any, as a result of the Conversion and (b) most of the public Unitholders will not will not recognize taxable income as a result of being relieved of Partnership liabilities. In particular, it is expected that all Unitholders who purchased their Units at a price greater than or equal to $22 in 2015 or 2016, and all Unitholders who purchased their Units in 2017 or later, will not recognize taxable income with respect to such Units as a result of being relieved of Partnership liabilities in excess of their tax bases in such Units. Unitholders who purchased Units at a price below $22 in 2015 or 2016 may be relieved of Partnership liabilities in excess of their respective bases, and such Unitholders are urged to consult their own tax advisors with respect to their specific circumstances.
In addition, in some circumstances the Partnership could recognize deemed dividend income from its existing corporate subsidiaries. The Partnership does not expect to recognize a material amount of such deemed dividend income, if any. However, any such dividend income recognized by the Partnership would be allocated to the Unitholders in accordance with their percentage interests in the Partnership.
Tax Basis and Holding Period in the Common Stock Received in Connection with the Conversion
The aggregate basis of the Common Stock received by a Unitholder in exchange for Units upon the deemed liquidation of the Partnership should equal the aggregate basis in the Units held by such Unitholder immediately before the Conversion (reduced by the amount of liabilities deemed assumed by the Corporation in connection with the Conversion) and increased by the gain, if any, that the Partnership recognizes in connection with the Conversion.
Unitholders will have a split holding period in the Common Stock received. To the extent that the value of Common Stock received is attributable to certain of the Partnership’s assets that would generate ordinary income when sold, the Common Stock received by a Unitholder in exchange for Units upon the deemed liquidation of the Partnership should have a holding period that begins on the day the Partnership converts to a corporation for U.S. federal income tax purposes. The remaining Common Stock will generally have a holding period that includes the period the assets were held by the Partnership prior to their deemed contribution to the Corporation.
Withholding
Under Section 1446(f) of the Code, a transferee of an interest in a partnership that is engaged in a U.S. trade or business is generally required to withhold 10% of the amount realized by the transferor unless the transferor certifies that it is not a foreign person. Although it is not entirely clear that the deemed transfers resulting from the Conversion should be treated as a disposition for purposes of Section 1446(f) of the
Code, Treasury regulations provide that withholding will not be imposed on a transfer of an interest in a publicly traded partnership that occurs prior to January 1, 2022, and administrative guidance from the IRS further provides that the applicability date the Section 1446(f) withholding obligation has been deferred until January 1, 2023. Accordingly, the deemed transfers resulting from the Conversion are not expected to result in withholding under Section 1446(f) of the Code.
Tax Consequences to U.S. Holders of Owning and Disposing of Common Stock Received in Connection with the Conversion
Distributions on the Common Stock
Distributions of cash or other property on the Common Stock will constitute dividends for U.S. federal income tax purposes to the extent paid from the Corporation’s current or accumulated “earnings and profits” as determined under U.S. federal income tax principles. To the extent the amount of distributions exceeds the Corporation’s current and accumulated earnings and profits, such distribution will first be treated as a non-taxable return of capital to the extent of (and reducing, but not below zero) the U.S. holder’s adjusted tax basis in its Common Stock and thereafter be treated as capital gain from the sale or exchange of such Common Stock.
Under current law, non-corporate U.S. holders that receive distributions on the Common Stock that are treated dividends for U.S. federal income tax purposes generally will be subject to U.S. federal income tax at the reduced long-term capital gains rate, provided certain holding period requirements are met.
If a distribution or portion of a distribution on the Common Stock fails to qualify as a dividend for U.S. federal income tax purposes, corporate U.S. holders will be unable to utilize the corporate dividends-received deduction with respect to such distribution or portion thereof.
Gain or Loss on Disposition of the Common Stock
A U.S. holder generally will recognize capital gain or loss on a sale, exchange, certain redemptions, or other taxable disposition of Common Stock in an amount equal to the difference, if any, between (i) the amount realized upon the disposition of such Common Stock and (ii) the U.S. holder’s adjusted tax basis in such Common Stock. A U.S. holder’s tax basis in its Common Stock generally will be equal to the amount paid for such stock reduced (but not below zero) by distributions received on such stock that are not treated as dividends for U.S. federal income tax purposes. Such capital gain or loss generally will be long-term capital gain or loss if the U.S. holder’s holding period for the Common Stock sold or disposed of is more than one year at the time of such taxable disposition. Under current law, long-term capital gains of individuals are generally subject to U.S. federal income tax at a reduced rate. The deductibility of capital losses is subject to limitations.
Information Reporting and Backup Withholding
Information returns may be required to be filed with the IRS in connection with distributions made on, or proceeds from the disposition of, Common Stock received in connection with the Conversion. A U.S. holder may be subject to U.S. backup withholding on distributions made on, or proceeds from the disposition of, Common Stock received in connection with the Conversion, unless such holder provides the applicable withholding agent with proof of its exemption from backup withholding or furnishes the applicable withholding agent with its taxpayer identification number, certified under penalties of perjury, and otherwise complies with all applicable requirements of the backup withholding rules. Backup withholding is not an additional tax. Any amounts withheld under the U.S. backup withholding rules will be allowed as a refund or credit against a U.S. holder’s U.S. federal income tax liability, if any, provided that certain required information is timely furnished to the IRS.
INVESTORS SHOULD CONSULT WITH THEIR OWN TAX ADVISORS REGARDING THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS (INCLUDING ANY POTENTIAL FUTURE CHANGES THERETO) TO THEIR PARTICULAR SITUATIONS AND THE APPLICABILITY AND EFFECT OF ANY OTHER TAX LAWS, INCLUDING U.S. FEDERAL ESTATE AND GIFT TAX LAWS AND ANY U.S. STATE OR LOCAL OR NON-U.S. TAX LAWS, AND TAX TREATIES.
UNITHOLDER PROPOSALS
Ownership of Units does not entitle the Unitholders to make proposals at the special meeting.
HOUSEHOLDING OF PROXY STATEMENT
The SEC has adopted rules that permit companies and intermediaries such as brokers to satisfy delivery requirements for proxy statements and annual reports with respect to two or more unitholders sharing the same address by delivering a single proxy statement or annual report, as applicable, addressed to those unitholders. As permitted by the Exchange Act, only one copy of this proxy statement is being delivered to Unitholders residing at the same address, unless the Unitholders have notified the Partnership of their desire to receive multiple copies of this proxy statement. This process, which is commonly referred to in this proxy statement as “householding,” potentially provides extra convenience for unitholders and cost savings for companies.
If, at any time, you no longer wish to participate in householding and would prefer to receive a separate copy of this proxy statement, or if you are receiving multiple copies of this proxy statement and wish to receive only one, please follow these instructions:
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If the Units are registered in the name of the Unitholder, please contact the Partnership at 7272 Wisconsin Ave., Suite 1800, Bethesda, Maryland 20814 to inform the Partnership of his or her request; or
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If a bank, broker or other nominee holds the Units, the Unitholder should contact the bank, broker or other nominee directly.
WHERE YOU CAN FIND MORE INFORMATION
The Partnership files annual, quarterly and current reports and other information with the SEC under the Exchange Act. The Partnership also makes available free of charge on its website, www.envivabiomass.com, its annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K, and any amendments to those reports, as soon as reasonably practicable after it electronically files such material with, or furnishes it to, the SEC. Information contained on the Partnership’s website is not part of this proxy statement.
Unitholders can obtain any documents attached as exhibits to this proxy statement from the SEC through its website listed above or from the Partnership without charge by requesting them in writing or by telephone at the following address:
Enviva Partners, LP
7272 Wisconsin Ave., Suite 1800
Bethesda, Maryland 20814
Telephone: (301) 657-5560
Attention: Vice President, Associate General Counsel and Secretary
Telephone: (301) 657-5560
Email: info@envivabiomass.com
INFORMATION INCORPORATED BY REFERENCE
We “incorporate by reference” information into this proxy statement, which means that we disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this proxy statement, except for any information superseded by information contained expressly in this proxy statement, and the information that we file later with the SEC will automatically supersede this information. You should not assume that (i) the information in this proxy statement is current as of any date other than the date on the front page of this proxy statement or (ii) any information we have incorporated by reference in this proxy statement is current as of any date other than the date of the document incorporated by reference.
We incorporate by reference the documents listed below and any documents filed by the Partnership with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding any information furnished and not filed with the SEC pursuant to Item 2.02 or 7.01 on any Current Report on Form 8-K, or corresponding information furnished under Item 9.01 or included as an exhibit), including all such documents the Partnership may file with the SEC between the date on which this proxy statement was initially filed with the SEC and the date on which the special meeting is held:
•
the Partnership’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020; the Partnership’s Current Reports on Form 8-K dated March 15, 2021, March 19, 2021, April 13, 2021, April 20, 2021 and October 15, 2021;
•
the Partnership’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2021, June 30, 2021 and September 30, 2021, as filed with the SEC on April 29, 2021, July 29, 2021 and November 4, 2021, respectively; and the description of the Units contained in the Partnership’s Registration Statement on Form 8-A filed with the SEC on April 28, 2015.
You may request a copy of any document incorporated by reference in this proxy statement and any exhibit specifically incorporated by reference in those documents, at no cost, by writing or telephoning the Partnership at the following address or telephone number:
Enviva Partners, LP
Attention: Investor Relations
7272 Wisconsin Ave., Suite 1800
Bethesda, Maryland 20814
Telephone: (301) 657-5560
Email: ir@envivabiomass.com
ANNEX A
FORM OF PLAN OF CONVERSION
This PLAN OF CONVERSION (this “Plan of Conversion”) sets forth certain terms of the conversion of Enviva Partners, LP, a Delaware limited partnership (the “Partnership”), to a Delaware corporation to be named “Enviva Inc.” (the “Corporation”) pursuant to the provisions of the Delaware Revised Uniform Limited Partnership Act (the “Partnership Act”) and the General Corporation Law of the State of Delaware (the “DGCL”).
W I T N E S S E T H
WHEREAS, the Partnership was formed as a limited partnership in accordance with the Partnership Act and is currently governed by the Second Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of October 14, 2021 (the “Partnership Agreement”);
WHEREAS, effective at least one day prior to the Effective Time (as defined below), the Partnership will file an Internal Revenue Service Form 8832 electing to be classified as a corporation for U.S. federal income tax purposes (the “Form 8832 Election”);
WHEREAS, upon the terms and subject to the conditions of this Plan of Conversion and in accordance with the Partnership Act and the DGCL, the Partnership will be converted to a Delaware corporation pursuant to and in accordance with Section 17-219 of the Partnership Act and Section 265 of the DGCL (the “Conversion”);
WHEREAS, in connection with the Conversion, all of the outstanding common units representing limited partner interests in the Partnership (each, a “Common Unit” and, collectively, the “Common Units”) will be converted into the right to receive shares of common stock of the Corporation and all of the outstanding general partner interests in the Partnership (the “GP Interests”) will be cancelled, retired and cease to exist, as provided in this Plan of Conversion; and
WHEREAS, capitalized terms used and not otherwise defined in this Plan of Conversion shall have the meanings given to them in the Partnership Agreement;
NOW, THEREFORE, upon the terms and subject to the conditions of this Plan of Conversion and in accordance with the Partnership Act and the DGCL, upon the filing and effectiveness of the Certificate of Conversion and the Certificate of Incorporation (each as defined below), the Partnership shall be converted to the Corporation.
ARTICLE I
THE CONVERSION
SECTION 1.01 Form 8832 Election. Effective at least one day prior to the Effective Time (as defined below), the Partnership shall make the Form 8832 Election.
SECTION 1.02 The Conversion. At the Effective Time (as defined below), the Partnership shall be converted to the Corporation and, for all purposes of the laws of the State of Delaware and otherwise, the Conversion shall be deemed a continuation of the existence of the Partnership in the form of a Delaware corporation. The Conversion shall not require the Partnership to wind up its affairs under Section 17-803 of the Partnership Act nor to pay its liabilities and distribute its assets under Section 17-804 of the Partnership Act, and the Conversion shall not constitute a dissolution of the Partnership. At the Effective Time, for all purposes of the laws of the State of Delaware and otherwise, all of the rights, privileges and powers of the Partnership, and all property, real, personal, and mixed, and all debts due to the Partnership, as well as all other things and causes of action belonging to the Partnership, shall remain vested in the Corporation and shall be the property of the Corporation, and the title to any real property vested by deed or otherwise in the Partnership shall not revert or be in any way impaired by reason of any provision of the Partnership Act, the DGCL, or otherwise; but all rights of creditors and all liens upon any property of the Partnership shall be preserved unimpaired, and all debts, liabilities, and duties of the Partnership shall remain attached to the
Corporation, and may be enforced against it to the same extent as if said debts, liabilities, and duties had originally been incurred or contracted by it in its capacity as a corporation. The rights, privileges, powers, and interests in property of the Partnership, as well as the debts, liabilities, and duties of the Partnership, shall not be deemed, as a consequence of the Conversion, to have been transferred to the Corporation for any purpose of the laws of the State of Delaware or otherwise.
SECTION 1.03 Effective Time. Upon the vote and approval of this Plan of Conversion by the Partnership’s unitholders, and at such time as specified in the Certificate of Conversion, Enviva Partners GP, LLC, a Delaware limited liability company and the general partner of the Partnership (the “General Partner”), shall file the Certificate of Conversion in the form attached hereto as Exhibit A (the “Certificate of Conversion”) and the Certificate of Incorporation of the Corporation in the form attached hereto as Exhibit B (the “Certificate of Incorporation”) with the Secretary of State of the State of Delaware pursuant to Section 265 of the DGCL. The Conversion shall become effective at the time specified in the Certificate of Conversion (such time of effectiveness, the “Effective Time”).
SECTION 1.04 Certificate of Incorporation and Bylaws of the Corporation. At and after the Effective Time, the Certificate of Incorporation of the Corporation shall be in the form attached hereto as Exhibit B (the “Charter”), until amended in accordance with its terms and the DGCL. Effective immediately after the Effective Time, the board of directors of the Corporation (the “Board”) shall ratify and approve the bylaws of the Corporation.
SECTION 1.05 Directors and Officers. At the Effective Time, the initial directors and officers of the Corporation shall be the individuals named to such positions by the board of directors of the General Partner at or prior to the Effective Time.
ARTICLE II
CONVERSION OF PARTNERSHIP INTERESTS; REGISTRATION OF SHARES;
GLOBAL STOCK CERTIFICATES
SECTION 2.01 Conversion of Partnership Interests. At the Effective Time, (i) each Common Unit outstanding immediately prior to the Effective Time shall be converted into one issued and outstanding, fully paid and nonassessable share of common stock, $0.001 par value per share, of the Corporation (“Common Stock”), and (ii) all of the GP Interests outstanding immediately prior to the Effective Time shall automatically be cancelled and extinguished and shall cease to exist without any conversion thereof, in each case without any action required on the part of the Partnership, the Corporation, the former holders of Common Units or the General Partner, as applicable.
SECTION 2.02 Registration in Book-Entry. Shares of Common Stock shall not be represented by certificates but shall instead be uncertificated shares, unless the Board shall provide by resolution or resolutions otherwise. Promptly after the Effective Time, the Corporation shall register, or cause to be registered, in book-entry form, the shares of Common Stock into which the outstanding Common Units shall have been converted as a result of the Conversion.
SECTION 2.03 No Further Rights in Common Units or GP Interests. The shares of Common Stock into which the outstanding Common Units shall have been converted as a result of the Conversion in accordance with the terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to such Common Units. The GP Interests shall be cancelled and extinguished and shall cease to exist as a result of the Conversion, and the General Partner shall cease to have any rights with respect thereto.
EXHIBIT A
Form of Certificate of Conversion
STATE OF DELAWARE
CERTIFICATE OF CONVERSION
FROM A LIMITED PARTNERSHIP TO A
CORPORATION PURSUANT TO SECTION 265 OF
THE DELAWARE GENERAL CORPORATION LAW
1.) The jurisdiction where the Limited Partnership first formed is Delaware.
2.) The jurisdiction immediately prior to filing this Certificate is Delaware.
3.) The date the Limited Partnership first formed is November 12, 2013.
4.) The name of the Limited Partnership immediately prior to filing this Certificate is Enviva Partners, LP.
5.) The name of the Corporation as set forth in the Certificate of Incorporation is Enviva Inc.
6.) This Certificate becomes effective at 4:01 p.m. Eastern Time on December 30, 2021.
IN WITNESS WHEREOF, the undersigned being duly authorized to sign on behalf of the converting Limited Partnership has executed this Certificate on the
day of , A.D.
By:
Name:
Title:
EXHIBIT B
Form of Certificate of Incorporation
FORM OF CERTIFICATE OF INCORPORATION OF
ENVIVA INC.
Enviva Inc. (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the “DGCL”), hereby certifies as follows:
ARTICLE III
SECTION 3.01 Name of the Corporation. The name of the Corporation is Enviva Inc.
ARTICLE IV
SECTION 4.01 Registered Office. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company. The registered office and registered agent of the Corporation may be changed from time to time by the board of directors of the Corporation (the “Board”) in the manner provided by applicable law.
ARTICLE V
SECTION 5.01 Purpose. The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL as it currently exists or may hereafter be amended.
ARTICLE VI
SECTION 6.01 Authorized Capital Stock. The total number of shares of stock that the Corporation shall have the authority to issue is 700,000,000 shares of stock, classified as (i) 100,000,000 shares of preferred stock, par value $0.001 per share (“Preferred Stock”) and (ii) 600,000,000 shares of common stock, par value $0.001 per share (“Common Stock”).
SECTION 6.02 Preferred Stock.
(a) Authority is hereby expressly granted to and vested in the Board to authorize the issuance of Preferred Stock from time to time in one or more classes or series, the shares of each class or series to have such designations and powers, preferences, privileges, rights, qualifications, limitations, and restrictions as are stated and expressed herein and in the resolutions providing for the issuance of each such class or series adopted by the Board and included in one or more certificates of designation (each, a “Preferred Stock Designation”), including the following:
(i) whether the class or series is to have voting rights, full, special, or limited, or is to be without voting rights, and whether such class or series is to be entitled to vote as a separate class or series either alone or together with the holders of one or more other classes or series of stock;
(ii) the number of shares to constitute the class or series and the designations thereof;
(iii) the powers, preferences, privileges, and relative, participating, optional, or other special rights, if any, and the qualifications, limitations, or restrictions thereof, if any, with respect to any class or series;
(iv) whether the shares of any class or series shall be redeemable at the option of the Corporation or the holders thereof or upon the happening of any specified event and, if redeemable, the redemption price or prices (which may be payable in the form of cash, notes, securities, or other property), the terms upon which and the times when such shares shall be redeemable, and the manner of redemption;
(v) whether the shares of any class or series shall be subject to the operation of retirement or sinking funds to be applied to the purchase or redemption of such shares for retirement and, if such retirement or sinking fund or funds are to be established, the annual amount thereof, and the terms relative to the operation thereof;
(vi) the dividend rate, whether dividends are payable in cash, stock of the Corporation, or other property, the terms upon which and the times when such dividends are payable, the preference to or the relation to the payment of dividends payable on any other class or classes or series of stock, whether such dividends shall be cumulative or noncumulative, and, if cumulative, the date or dates from which such dividends shall accumulate;
(vii) the preferences, if any, and the amounts thereof which the holders of any class or series thereof shall be entitled to receive upon the voluntary or involuntary liquidation, dissolution, or winding up of, or upon any distribution of the assets of, the Corporation;
(viii) whether the shares of any class or series, at the option of the Corporation or the holder thereof or upon the happening of any specified event, shall be convertible into or exchangeable for, the shares of any other class or classes or of any other series of the same or any other class or classes or series, of stock, securities, or other property of the Corporation and the conversion price or prices or ratio or ratios or the rate or rates at which such exchange may be made, with such adjustments, if any, as shall be stated and expressed or provided for in such resolutions; and
(ix) such other powers, privileges, preferences, rights, qualifications, limitations, and restrictions with respect to any class or series as the Board may deem advisable.
(b) The shares of each class or series of Preferred Stock may vary from the shares of any other class or series thereof in any or all of the foregoing respects.
SECTION 6.03 Common Stock.
(a) Except as may otherwise be provided in this Certificate of Incorporation (this “Certificate”), each share of Common Stock shall have identical rights and privileges in every respect. Common Stock shall be subject to the express terms of Preferred Stock and any class or series thereof. Except as may otherwise be provided in this Certificate, in a Preferred Stock Designation, or by applicable law, (i) the holders of shares of Common Stock shall be entitled to one vote for each such share upon all matters presented to the stockholders and have the exclusive right to vote for the election of directors and for all other purposes and (ii) the holders of Preferred Stock shall not be entitled to vote at or receive notice of any meeting of stockholders. Each holder of Common Stock shall be entitled to notice of any stockholders’ meeting in accordance with the bylaws of the Corporation (as in effect at the time in question, the “Bylaws”) and applicable law on all matters put to a vote of the stockholders of the Corporation. Except as otherwise required in this Certificate or by applicable law, the holders of Common Stock shall vote together as a single class on all matters (or, if any holders of Preferred Stock are entitled to vote together with the holders of Common Stock, the holders of Common Stock and the Preferred Stock shall vote together as a single class).
(b) Notwithstanding the foregoing, except as otherwise required by applicable law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate (including any Preferred Stock Designation) that relates solely to the terms of one or more outstanding classes or series of Preferred Stock if the holders of such affected classes or series are entitled, either separately or together with the holders of one or more other such classes or series, to vote thereon pursuant to this Certificate (including any Preferred Stock Designation) or pursuant to the DGCL.
(c) Subject to the prior rights and preferences, if any, applicable to shares of Preferred Stock or any class or series thereof, the holders of shares of Common Stock shall be entitled to receive ratably in proportion to the number of shares of Common Stock held by them such dividends and distributions (payable in cash, stock of the Corporation, or other property), if any, as may be declared thereon by the Board at any time and from time to time out of any funds of the Corporation legally available therefor.
(d) In the event of any voluntary or involuntary liquidation, dissolution, or winding-up of the Corporation, after distribution in full of the preferential amounts, if any, to be distributed to the holders of shares of Preferred Stock or any class or series thereof, the holders of shares of Common Stock shall be entitled to receive all the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of Common Stock held by them. A dissolution, liquidation, or winding-up of the Corporation, as such terms are used in this paragraph (d), shall not be deemed to be
occasioned by or to include any consolidation or merger of the Corporation with or into any other corporation or corporations or other entity or a sale, lease, exchange, or conveyance of all or a part of the assets of the Corporation.
(e) The number of authorized shares of Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the then-outstanding shares of stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of either Common Stock or Preferred Stock voting separately as a class shall be required therefor.
(f) No stockholder shall, by reason of the holding of shares of any class or series of capital stock of the Corporation, have any preemptive or preferential right to acquire or subscribe for any shares or securities of any class or series, whether now or hereafter authorized, which may at any time be issued, sold or offered for sale by the Corporation, unless specifically provided for in a Preferred Stock Designation.
ARTICLE VII
SECTION 7.01 Number, Election, and Vacancies of the Board. The business and affairs of the Corporation shall be managed by or under the direction of the Board. Subject to any rights of the holders of any class or series of Preferred Stock to elect additional directors under specified circumstances, the number of directors of the Corporation which shall constitute the entire Board shall be fixed from time to time in the manner provided in the Bylaws. Unless and except to the extent that the Bylaws so provide, the election of directors need not be by written ballot. There shall be no cumulative voting in the election of directors. Each director is to hold office until his or her successor shall have been duly elected and qualified or, if earlier, such director’s death, disability, resignation, disqualification, or removal. Subject to applicable law, the rights of the holders of any class or series of Preferred Stock specified in the related Preferred Stock Designation and any stockholders agreement as in effect at the time in question, any newly created directorship that results from an increase in the number of directors or any vacancy on the Board that results from the death, disability, resignation, disqualification, or removal of any director or from any other cause shall be filled solely by the affirmative vote of a majority of the total number of directors then in office, even if less than a quorum, or by a sole remaining director and shall not be filled by the stockholders. Any director elected to fill a vacancy not resulting from an increase in the number of directors shall hold office for the remaining term of his or her predecessor, unless otherwise determined by the Board. No decrease in the number of authorized directors constituting the Board shall shorten the term of any incumbent director.
SECTION 7.02 Removal. Except for such additional directors, if any, as are elected by the holders of any class or series of Preferred Stock as provided for or fixed pursuant to the provisions hereof (including any Preferred Stock Designation), any director, or the entire Board, may be removed, with or without cause, by the affirmative vote of at least a majority of the voting power of the then-outstanding shares of stock of the Corporation entitled to vote thereon.
ARTICLE VIII
SECTION 8.01 Stockholder Action. Subject to the rights of holders of any class or series of Preferred Stock with respect to such class or series of Preferred Stock, any action required or permitted to be taken by the stockholders of the Corporation must be taken at a duly held annual or special meeting of stockholders and may not be taken by any consent in writing of such stockholders.
ARTICLE IX
SECTION 9.01 Special Meetings. Except as otherwise required by law and subject to the rights of the holders of any class or series of Preferred Stock, special meetings of stockholders of the Corporation may be called only by the Chairman of the Board or the Board. Subject to the rights of holders of any class or series of Preferred Stock and the preceding proviso, the stockholders of the Corporation do not have the power to call a special meeting of stockholders of the Corporation.
ARTICLE X
SECTION 10.01 Amendment of Bylaws. In furtherance of, and not in limitation of, the powers conferred by the laws of the State of Delaware, the Board is expressly authorized to adopt, amend, or repeal the Bylaws without any action on the part of the stockholders of the Corporation. Notwithstanding the preceding sentence, any bylaw, and any powers thereby conferred, may be amended, altered, or repealed by the stockholders of the Corporation by the affirmative vote of at least a majority of the voting power of the then-outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class. No bylaws hereafter made or adopted, nor any repeal of or amendment thereto, shall invalidate any prior act of the Board that was valid at the time it was taken.
ARTICLE XI
SECTION 11.01 No Personal Liability. No director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as it now exists. In addition to the circumstances in which a director of the Corporation is not personally liable as set forth in the preceding sentence, a director of the Corporation shall not be liable to the fullest extent permitted by any amendment to the DGCL hereafter enacted that further limits the liability of a director.
SECTION 11.02 Indemnification. The Corporation shall have the power to indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative, or investigative, by reason of the fact that he/she, his/her testator, or intestate is or was a director, officer, employee, agent, or trustee of the Corporation, any predecessor of the Corporation or any subsidiary or affiliate of the Corporation, or serves or served at any other enterprise as a director, officer, employee, agent, or trustee at the request of the Corporation or any predecessor to the Corporation.
SECTION 11.03 Amendment, Repeal, or Modification. Any amendment, repeal, or modification of this Article IX shall be prospective only and shall not affect any limitation on liability of a director for acts or omissions occurring prior to the date of such amendment, repeal, or modification.
ARTICLE XII
SECTION 12.01 Amendment of Certificate. The Corporation shall have the right, subject to any express provisions or restrictions contained in this Certificate or Bylaws, from time to time, to amend this Certificate or any provision hereof in any manner now or hereafter provided by applicable law, and all rights and powers of any kind conferred upon a director or stockholder of the Corporation by this Certificate or any amendment hereof are subject to such right of the Corporation.
SECTION 12.02 Vote Required. Notwithstanding any other provision of this Certificate or the Bylaws (and in addition to any other vote that may be required by applicable law, this Certificate or the Bylaws, the affirmative vote of at least a majority of the voting power of the then-outstanding shares of stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter, or repeal any provision of this Certificate.
ARTICLE XIII
SECTION 13.01 Forum for Adjudication of Disputes. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by applicable law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee, agent, or trustee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation arising pursuant to any provision of the DGCL, this Certificate or the Corporation’s Bylaws, or (iv) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation governed by the internal affairs doctrine, in each such case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants
therein. Unless the Corporation consents in writing to the selection of an alternative forum, to the fullest extent permitted by law, the federal district courts of the United States will be the exclusive forum for resolving any complaint asserting a cause of action arising under the federal securities laws of the United States. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article XI.
ARTICLE XIV
SECTION 14.01Certain Definitions. For purposes of this Article XII, the term:
(a) the “Sponsor-Affiliates” means the Riverstone Echo Funds and each of their respective Affiliates.
(b) the “Riverstone Echo Funds” means, collectively, Riverstone Echo Continuation Holdings, L.P. and Riverstone Echo Rollover Holdings, L.P.
(c) “Affiliates” means any principal, member, director, partner, manager, shareholder, subsidiary, officer, employee, or other representative of any person that, directly or indirectly, is controlled by such person, controls such person, or is under common control with such person (with respect to the Sponsor-Affiliates, other than the Corporation and any entity controlled by the Corporation) or any person that, directly or indirectly, is controlled by such person, controls such person, or is under common control with such person.
SECTION 14.02 Certain Activities. In anticipation of the benefits to be derived by the Corporation through its continued contractual, corporate and business relationships with the Sponsor-Affiliates and in anticipation and recognition that (i) certain directors, principals, officers, employees, and/or other representatives of the Sponsor-Affiliates may serve as directors or officers of the Corporation, (ii) the Sponsor-Affiliates may now engage and may continue to engage in the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, and (iii) members of the Board who are not employees of the Corporation (“Non-Employee Directors”) and their respective Affiliates may now engage and may continue to engage in the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, the provisions of this Article XII are set forth to define the circumstances in which any duties of the Non-Employee Directors and the Sponsor-Affiliates to the Corporation or its stockholders would not be breached even if certain classes or categories of business opportunities are alleged to have been usurped by one or more of the Sponsor-Affiliates, the Non-Employee Directors, or their respective Affiliates.
SECTION 14.03 Certain Transactions. None of (i) any Sponsor-Affiliate or (ii) any Non-Employee Director or his or her Affiliates (any such person identified in clause (i) or (ii), an “Identified Person”) shall be in breach of any duty to the Corporation or its stockholders for directly or indirectly (A) engaging in a corporate opportunity in the same or similar business activities or lines of business in which the Corporation or any of the Affiliated persons has a reasonable expectancy interest or property right or (B) otherwise competing with the Corporation. For the avoidance of doubt, subject to the Corporation’s insider trading policies, to the extent that any purchase, sale, or other transaction by any Identified Person involving any securities or indebtedness of the Corporation or any of its Affiliates (or involving any hedge, swap, derivative, or other instrument relating to or in respect of any of the foregoing securities or indebtedness) may be deemed to be a corporate opportunity or to be in competition with the Corporation, the Identified Persons shall be fully protected by the foregoing provisions of this Article XII in pursuing such purchase, sale, or other transaction or in taking any other action in respect of or affecting such securities, indebtedness, or other instrument. The Corporation hereby renounces any reasonable expectancy interest or property right in any business opportunity which may be a corporate opportunity for both an Identified Person and the Corporation or any of its Affiliates, except as provided in Section 12.4 of this Article XII. In the event that any Identified Person acquires knowledge of a potential transaction or other business opportunity which may be a corporate opportunity for itself, himself or herself and the Corporation or any of its Affiliates, such Identified Person would not be in breach of any applicable duty to the Corporation or its stockholders for failing to
communicate or offer such transaction or other business opportunity to the Corporation or any of its Affiliates. To the fullest extent permitted by law, no Identified Person can be held personally liable to the Corporation or its stockholders or creditors for any damages as a result of engaging in any of activities permitted pursuant to this Section 12.3 or which are stated in this Section 12.3 to constitute a breach of its, his or her duties to the Corporation or its stockholders if engaged in by such Identified Person.
SECTION 14.04 Usurping Certain Corporate Opportunities Are Breaches of Duty to the Corporation or its Stockholders. The Corporation does not renounce its expectancy interest or property right in, and the provisions of Section 12.3 of this Article XII shall not apply to, any corporate opportunity that is (i) presented to any Non-Employee Director solely in such capacity and with respect to which no Sponsor-Affiliate of such Non-Employee Director independently receives notice or otherwise identifies such corporate opportunity, or (ii) is identified by any Non-Employee Director solely through disclosure by or on behalf of the Corporation.
SECTION 14.05 Exclusion. In addition to and without limiting the foregoing provisions of this Article XII, a corporate opportunity shall not be deemed to be a potential corporate opportunity for the Corporation if the Corporation is not financially capable or contractually permitted or legally able to undertake it, or such opportunity is, from its nature, not in the line of the Corporation’s business or is of no practical advantage to it or such opportunity is one in which the Corporation has no reasonable expectancy interest or property right.
SECTION 14.06 Amendment of this Article. Any amendment, repeal, or modification of this Article XII shall be prospective only and shall not affect any limitation on liability of a director for acts or omissions occurring prior to the date of such amendment, repeal, or modification.
ARTICLE XV
SECTION 15.01 Severability. If any provision of this Certificate becomes or is declared on any ground by a court of competent jurisdiction to be illegal, unenforceable, or void, portions of such provision, or such provision in its entirety, to the extent necessary, shall be severed from this Certificate, and the court will replace such illegal, void, or unenforceable provision of this Certificate with a valid and enforceable provision that most accurately reflects the Corporation’s intent, in order to achieve, to the maximum extent possible, the same economic, business, and other purposes of the illegal, void, or unenforceable provision. The balance of this Certificate shall be enforceable in accordance with its terms.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of this day of , 2021.
Enviva Inc.
By:
Name:
Title:
ANNEX B
FORM OF BYLAWS OF
ENVIVA INC.
Incorporated under the Laws of the State of Delaware
ARTICLE I
OFFICES AND RECORDS
Section 1.1. Registered Office. The registered office and agent of Enviva Inc. (the “Corporation”) in the State of Delaware shall be fixed in the Certificate of Incorporation of the Corporation, as it may be amended from time to time, including by any preferred stock designation (the “Certificate of Incorporation”). The registered office and registered agent of the Corporation may be changed from time to time by the board of directors of the Corporation (the “Board”) in the manner provided by applicable law.
Section 1.2. Other Offices. The Corporation may have such other offices, either within or without the State of Delaware, as the Board may designate or as the business of the Corporation may from time to time require.
Section 1.3. Books and Records. The books and records of the Corporation may be kept outside the State of Delaware at such place or places as may from time to time be designated by the Board.
ARTICLE II
STOCKHOLDERS
Section 2.1. Annual Meeting. If required by applicable law, an annual meeting of stockholders of the Corporation shall be held at such date, time, and place, if any, either within or without the State of Delaware, as may be fixed by resolution of the Board. Any proper business may be transacted at the annual meeting. The Board may postpone, reschedule, or cancel any annual meeting of stockholders previously scheduled by the Board.
Section 2.2. Special Meetings. Except as otherwise required by law and subject to the rights of the holders of any class or series of preferred stock of the Corporation (“Preferred Stock”), special meetings of stockholders of the Corporation may be called only by the Chairman of the Board or the Board pursuant to a resolution adopted by the affirmative vote of a majority of the Board. Subject to the rights of holders of any class or series of Preferred Stock and the preceding proviso, the stockholders of the Corporation do not have the power to call a special meeting of stockholders of the Corporation. The Board may postpone, reschedule, or cancel any special meeting of stockholders previously scheduled by the Board.
Section 2.3. Record Date.
(a) In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall, unless otherwise required by applicable law, not be greater than 60 nor fewer than ten days before the date of such meeting. If the Board so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting, unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such
adjourned meeting the same date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion, or exchange of stock, or for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall not be greater than 60 days prior to such action. If no such record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.
(c) Unless otherwise restricted by the Certificate of Incorporation, in order that the Corporation may determine the stockholders entitled to express consent to corporate action in writing without a meeting, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the Board. If no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting is fixed by the Board, (i) when no prior action of the Board is required by applicable law, the record date for such purpose shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law, and (ii) if prior action by the Board is required by applicable law, the record date for such purpose shall be at the close of business on the day on which the Board adopts the resolution taking such prior action.
Section 2.4. Stockholder List. The Corporation shall prepare, at least ten days before every meeting of stockholders, a complete list of stockholders entitled to vote at the meeting of stockholders (provided, however, if the record date for determining the stockholders entitled to vote is fewer than ten days before the date of the 2024 Annual Meeting of Stockholders is first publicly announced by the Company). A stockholder nomination or written notice of a stockholder proposal at the 2024 Annual Meeting of Stockholders not intended to be included in the proxy materials must be provided no earlier than February 16, 2024 and no later than March 17, 2024. Notice must be tendered in the proper form prescribed by our Bylaws. Proposals not meeting the list shall reflect the stockholders entitled to vote as of the 10th day before the meeting date), arrangedrequirements set forth in alphabetical order for each class or series of stock and showing the address of each such stockholder and the number of shares registered in the name of such stockholder. Such list shallour Bylaws will not be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either on a reasonably accessible electronic network (provided that the information required to gain access to the list is provided with the notice of the meeting) or during ordinary business hoursentertained at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, the stockholder list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be examined by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Except as otherwise provided by applicable law, the stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the list required by this Section 2.4 or to vote in person or by proxy at anyannual meeting of stockholders.
Section 2.5. Place of Meeting. The Board, the Chairman of the Board, or the Chief Executive Officer, as the case may be, may designate the place of meeting for any annual meeting or for any special meeting of stockholders. If no designation is so made, the place of meeting shall be the principal executive offices of the Corporation. The Board, acting in its sole discretion, may establish guidelines and procedures in accordance with applicable provisions of the Delaware General Corporation Law (the “DGCL”) and any other applicable law for the participation by stockholders and proxyholders inAny stockholder seeking to recommend a meeting of stockholders by means of remote communications, and may determine that any meeting of stockholders shall not be held at any place but shall be held solely by means of remote communication. Stockholders and proxyholders complying with such procedures and guidelines and otherwise entitled to vote at a meeting of stockholders shall be deemed present in person and entitled to vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication.
Section 2.6. Notice of Meeting. Written or printed notice, stating the place, if any, day, and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not fewer than ten
days nor greater than 60 days before the date of the meeting, in a manner pursuant to Section 7.7 of these Bylaws, to each stockholder of record entitled to vote at such meeting. The notice shall specify (a) the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record date for stockholders entitled to notice of the meeting), (b) the place, if any, date, and time of such meeting, (c) the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, (d) in the case of a special meeting, the purpose or purposes for which such meeting is called, and (e) such other information as may be required by applicable law or as may be deemed appropriate by the Board, the Chairman of the Board, the Chief Executive Officer, or the Secretary of the Corporation. If the stockholder list referred to in Section 2.4 of these Bylaws is made accessible on an electronic network, the notice of meeting must indicate how the stockholder list can be accessed. If the meeting of stockholders is to be held solely by means of electronic communications, the notice of meeting must provide the information required to access such stockholder list during the meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail with postage thereon prepaid, addressed to the stockholder at his/her address as it appears on the stock transfer books of the Corporation. The Corporation may provide stockholders with notice of a meeting by electronic transmission provided such stockholders have consented to receiving electronic notice in accordance with the DGCL. Such further notice shall be given as may be required by applicable law. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the notice of meeting. An affidavit that notice has been given, executed by the Secretary of the Corporation, Assistant Secretary,director candidate or any transfer agent or other agent of the Corporation, shall be prima facie evidence of the facts stated in the notice in the absence of fraud. Notice shall be deemed to have been given to all stockholdersdirector candidate who share an address if notice is given in accordance with the “householding” rules set forth in Rule 14a-3(e) under the Securities Exchange Act of 1934 (the “Exchange Act”) and Section 233 of the DGCL. Meetings may be held without notice if all stockholders entitled to vote are present, or if notice is waived by those not present in accordance with Section 7.4 of these Bylaws.
Section 2.7. Quorum and Adjournment of Meetings.
(a) Except as otherwise provided by applicable law or by the Certificate of Incorporation, the holders of a majority in voting power of the outstanding shares of stock of the Corporation entitled to vote at the meeting, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders, except that when specified business is to be voted on by a class or series of stock voting as a class, the holders of a majority in voting power of the shares of such class or series shall constitute a quorum of such class or series for the transaction of such business. For the avoidance of doubt, abstentions (that are marked as such) and broker non-votes shall be treated as present for purposes of determining the presence or absence of quorum. Only the person presiding over the meeting may adjourn the meeting from time to time, whether or not there is such a quorum. The stockholders present at a duly called meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
(b) Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the adjournment is for greater than 30 days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. At the adjourned meeting, the Corporation may transact any business that might have been transacted at the original meeting.
Section 2.8. Proxies. At all meetings of stockholders, a stockholder may vote by proxy executed in writing (or in such other manner prescribed by the DGCL) by the stockholder or by his/her duly authorized attorney-in-fact. Any copy, facsimile or electronic transmission, or other reliable reproduction of the writing or transmission created pursuant to this Section 2.8 may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile or electronic transmission, or other reproduction shall be a complete reproduction of the entire original writing or transmission. No proxy may be voted or acted upon after the expiration of three years from the date of such proxy, unless such proxy provides for a longer period. Every proxy is revocable at the pleasure of the stockholder executing it unless the proxy states that it is irrevocable and such irrevocability is permitted by applicable law. A stockholder may revoke any proxy that is not
irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or by filing another duly executed proxy bearing a later date with the Secretary of the Corporation.
Section 2.9. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(i) Nominations of persons for election to the Board and the proposal of other businesswishes to be considered by the stockholdersNominating and Corporate Governance Committee, the committee that recommends nominees to the Board for election at aneach annual meeting of stockholders, may be made only (A) pursuant to the Corporation’s notice of meeting (or any supplement thereto), (B) by or at the direction of the Board or any committee thereof, subject to the obligations of the Corporation set forth in any stockholders agreement between the Corporation and any stockholder that may be in effect from time to time (as amended or supplemented in accordance with their terms, the “Stockholders Agreement”), or (C) by any stockholder of the Corporation who (1) was a stockholder of record at the time of giving of notice provided for in these Bylaws and at the time of the annual meeting, (2) is entitled to vote at the meeting, and (3) complies with the notice procedures and other requirements set forth in these Bylaws and applicable law as to such business or nomination. For the avoidance of doubt, Section 2.9(a)(i)(C) of these Bylaws shall be the exclusive means for a stockholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act, and included in the Corporation’s proxy statement pursuant thereto) before an annual meeting of stockholders.
(ii) For any nominations or any other business to be properly brought before an annual meeting by a stockholder pursuant to Section 2.9(a)(i)(C) of these Bylaws, the stockholder must have given timely notice thereof in writing toprovide the Secretary of the Corporation, and inCompany with the case of business other than nominations, such business must otherwise be a proper matter for stockholder action. To be timely, a stockholder’s notice must be delivered to the Secretary of the Corporationinformation required by registered mail at the principal executive offices of the Corporationour Bylaws, which includes, but is not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual meeting (which anniversary, in the case of the first annual meeting of stockholders following the closing of the transaction by which the Corporation converted from a limited partnership into a corporation under the laws of the state of Delaware (the “Conversion”), shall be deemed to be ); provided, however, that in the event that the date of the annual meeting is greater than 30 days before or greater than 60 days after such anniversary date, or if no annual meeting was held in the preceding year (other than with respect to the Corporation’s first annual meeting of stockholders following the closing of the Conversion, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the 150th day prior to the date of such annual meeting and not later than the close of business on the later of the 120th day prior to such annual meeting or, if the first public announcement of the date of such annual meeting is fewer than 100 days prior to the date of such annual meeting, the 10th day following the day on which public announcement of the date of such meeting is first made by the Corporation. In no event shall any adjournment, postponement, or recess of an annual meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice in this Section 2.9(a)(ii). To be in proper form, a stockholder’s notice (whether given pursuant to this Section 2.9(a)(ii) or Section 2.9(b) of these Bylaws) to the Secretary of the Corporation must:
(A) set forth, as to the stockholder giving the notice and any Stockholder Associated Person (as defined below), (1) the name and address of such stockholder or Stockholder Associated Person, as they appear on the Corporation’s books, and of such Stockholder Associated Person, if any, (2) (I) the class or series and number of shares of stock or other securities of the Corporation that are, directly or indirectly, owned beneficially and of record by such stockholder or Stockholder Associated Person as of the date of the notice, (II) any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Corporation or with a value derived in whole or in part from the value of any class or series of shares of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of stock of the Corporation or otherwise (a “Derivative Instrument”), directly or indirectly owned beneficially by such stockholder or Stockholder Associated Person, and any other direct or indirect opportunity to profit or share in any profit derived from any increase or
decrease in the value of shares of the Corporation held by such stockholder or Stockholder Associated Person, in each case, as of the date of the notice, (III) a description of any agreement, proxy, contract, arrangement, understanding, or relationship pursuant to which such stockholder or Stockholder Associated Person has a right to vote any shares of any security of the Corporation or among such stockholder, Stockholder Associated Person and any other person that would be required to be disclosed pursuant to Item 5 or Item 6 of Exchange Act Schedule 13D (regardless of whether the requirement to file a Schedule 13D is applicable), (IV) any short interest in any security of the Corporation (for purposes of these Bylaws a person shall be deemed to have a “short interest” in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security) by such stockholder or Stockholder Associated Person, (V) any rights to dividends on the shares of the Corporation owned beneficially by such stockholder or Stockholder Associated Person that are separated or separable from the underlying shares of the Corporation, (VI) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such stockholder or Stockholder Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (VII) any performance-related fees (other than an asset-based fee) that such stockholder or Stockholder Associated Person is entitled to be based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if any, as of the date of such notice, including any such interests held by members of such stockholder’s or Stockholder Associated Person’s immediate family sharing the same household (which information, in each case, shall be supplemented by such stockholder and any Stockholder Associated Person not later than 10 calendar days after the record date for the meeting to disclose such information as of the record date), (3) any otherto: (a) all information relating to such stockholder or Stockholder Associated Person, if any,nominee that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal or for the election of directorssuch nominee as a director in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (4) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote atand such meeting and intends to appear in person or by proxy at the meeting to bring such nomination or other business before the meeting, and (5) a representation as to whether such stockholder or any Stockholder Associated Person intends or is part of a group that intends to (I) deliver a proxy statement or form of proxy to holders of at least the percentage of the voting power of the Corporation’s outstanding stock required to approve or adopt the proposal or to elect each such nominee, or (II) otherwise to solicit proxies or votes from stockholders in support of such proposal or nomination. If requested by the Corporation, the information required under clauses (A)(1) and (A)(2) of the preceding sentence of this Section 2.9(a)(ii) shall be supplemented by such stockholder and any such Stockholder Associated Person not later than five days after the record date for notice of the meeting to disclose such information as of such record date;
(B) if the notice relates to any business other than a nomination of a director or directors that the stockholder proposes to bring before the meeting, set forth (1) a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend the Bylaws of the Corporation, the language of the proposed amendment), the reasons for conducting such business at the meeting, and any material interest of such stockholder or Stockholder Associated Person, if any, in such business, and (2) a description of all agreements, arrangements, and understandings between such stockholder or Stockholder Associated Person, if any, and any other person or persons (including their names) in connection with the proposal of such business by such stockholder;
(C) set forth, as to each person, if any, whom the stockholder proposes to nominate for election or reelection to the Board (1) all information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (including such person’snominee’s written consent to being named in the Corporation’s proxy statement as a nominee and to
serving a full termserve as a director if elected), (2) such person’s written consent to serving as a director, if elected, for the full term for which such person is standing for election, and (3)elected; (b) a description of all direct and indirect compensation and other material monetary agreements, arrangements, and understandings during the past three years, and any other material relationships, between or among such stockholder and such nominee, if any, and their respective affiliates and associates, or Stockholder Associated Person,others acting in concert therewith, on the one hand, and eachthe proposed nominee, and his/hersuch nominee’s respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the stockholder making the nomination and any Stockholder Associated Personbeneficial owner on whose behalf the nomination is made, if any, or any affiliate or associate thereof or person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant; and
(D) with respect to each nominee for election or reelection to the Board, include(c) a completed and signed questionnaire, representation and agreement required by Section 2.9(a)(iv) of these Bylaws and such other information that the Corporation may reasonably request or that is necessary to permit the Corporation to determine the eligibility of such person to serve as a director of the Corporation, including information relevant to a determination whether such person can be considered an independent director.
(iii) Notwithstanding anything in the second sentence of Section 2.9(a)(ii) of these Bylaws to the contrary, in the event that the number of directors to be elected to the Board is increased and there is no public announcement by the Corporation naming all of the nominees for director or specifying the size of the increased Board at least 100 days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by these Bylaws shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the Corporation.
(iv) To be eligible to be a nominee for election or reelection as a director of the Corporation, a proposed nominee must deliver (in accordance with the method, means and time periods prescribed for delivery of notice under Section 2.9(a)(ii) of these Bylaws and applicable law) to the Secretary at the principal executive offices of the Corporation (A) a written questionnaire with respect to the background and qualification of such person and the background of any other person or entity on whose behalf the nomination is being made (which questionnaire the proposed nominee shall request in writing from the Secretary with at least 7 days’ prior notice); (B) a written representation and agreement (in the form provided by the Secretary upon written request) that such person (1) is not and shall not become a party to (I) any agreement, arrangement or understanding (whether written or oral) with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation, shall act or vote in such capacity on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation, or (II) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the Corporation, with such person’s fiduciary duties under applicable law, (2) is not and shall not become a party to any agreement, arrangement or understanding (whether written or oral) with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement, or indemnification in connection with service or action as a director of the Corporation that has not been disclosed to the Corporation, (3) in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a director of the Corporation, and shall comply with all applicable law and all applicable rules of the U.S. exchanges upon which the Common Stock of the Corporation is listed and all applicable publicly disclosed corporate governance, conflict of interest, confidentiality, and stock ownership and trading policies and other guidelines of the Corporation, (4) in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made,nominee intends to serve a full term, if elected as director; and (d) such other information as the Company may reasonably require to determine the eligibility of the proposed nominee to serve as a director of the Corporation,Company or that the Company believes could be material to a reasonable stockholder’s understanding of the independence (both from management and (5) shall provide facts, statements, andfrom the stockholders or, if the proposal is made on behalf of a beneficial owner other informationthan the stockholder of record, from such beneficial owner) or qualifications of such nominee.
In addition to satisfying the requirements under the Bylaws described in all communicationsthe immediately preceding paragraphs, to comply with the Corporation and its stockholders that are or shall be true and correctuniversal proxy rules under the Exchange Act, any stockholder who intends to solicit proxies in all material respects and do not and shall not omitsupport of director nominees other than the Board’s nominees must comply with the content requirement of Rule 14a-19 under the Exchange Act at the time it complies with the earlier deadlines in the advance notice provisions of our Bylaws. Thus, if a stockholder intends to state a material fact necessarysolicit proxies in order to makesupport of any director nominees submitted under the statements made, in lightadvance notice provisions of the circumstances under which they were made,Company’s Bylaws for the Company’s 2024 Annual Meeting of Stockholders, then such stockholder must also provide proper written notice that sets forth all the information required by Rule 14a-19 of the Exchange Act to the Secretary of the Company between February 16, 2024 and March 17, 2024. However, if (a) the date of the 2024 Annual Meeting of Stockholders is more than 30 days before or more than 60 days after the anniversary of the date of the preceding year’s annual meeting of stockholders, then such written notice must be received not misleading; and (C) a
written director agreement (which agreement shall be provided by the Secretary upon written request and shall include such person’s agreement to abide by all policies applicable to directors of the Corporation, including a requirement to preserve and maintain the confidentiality of the Corporation’s material non-public information).
(v) For purposes of this Section 2.9(a), “Stockholder Associated Person” of any stockholder shall mean (A) any person acting in concert with such stockholder, (B) any other beneficial owner of shares of stock of the Corporation owned of record or beneficially by such stockholder (other than a stockholder that is a depositary), and (C) if any such stockholder or beneficial owner is an entity, each director, executive, managing member, or control person of such entity, where “control person” includes any person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such stockholder or such beneficial owner.
(b) Special Meetings of Stockholders.
Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to a notice of meeting (i) by or at the direction of the Board or any committee thereof, subject to the obligations of the Corporation set forth in the Stockholders Agreement, or (ii) provided that the Board has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who (A) is a stockholder of record at the time of giving of notice provided for in these Bylaws and at the time of the special meeting, (B) is entitled to vote at the meeting, and (C) complies with the notice procedures and other requirements set forth in these Bylaws. In the event a special meeting of stockholders is called for the purpose of electing one or more directors to the Board, any such stockholder may nominate a person or persons (as the case may be), for election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by Section 2.9(a)(ii) of these Bylaws with respect to any nomination (including the completed and signed questionnaire, representation, and agreement required by Section 2.9(a)(iv) of these Bylaws) shall be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation not earlier than the close of business on the 120th150th day prior to the date of such specialannual meeting and not later than the close of business on the later of the 90th120th day prior to such specialannual meeting or, if the first public announcement of the date of such specialannual meeting is fewer than 100 days prior to the date of such specialannual meeting, the 10th10th day following the day on which the date of the 2024 Annual Meeting of Stockholders is first publicly announced by the Company; or (b) the date of the 2024 Annual Meeting of Stockholders is more than more than 30 days but less than 60 days after the anniversary of the date of the preceding year’s annual meeting of stockholders, then such written notice must be received no later than the later of the 10th day following the day on which public announcement is first made of the date of the special meeting2024 Annual Meeting of Stockholders is first made by the Company and the date which is 60 days prior to the date of the nominees proposed2024 Annual Meeting of Stockholders.
The Nominating and Corporate Governance Committee is not required to consider director candidates received after the applicable date or without the required information. The Nominating and Corporate Governance Committee will consider all director candidates who comply with these requirements and will evaluate these candidates using the criteria described above under the caption “Proposal No. 1 — Election of Directors — Nomination of Directors.” Director candidates who are then nominated by the Board towill be elected at such meeting. In no event shallincluded in the public announcement of an adjournment, postponement, or recess of a special meeting commence a new time periodCompany’s proxy statement for the giving of a stockholder’s notice as described above.
(c) General.
(i) Only such persons who are nominated in accordance with the procedures set forth in these Bylaws and the Stockholders Agreement shall be eligible to serve as directors, and only such other business shall be conducted at athat annual meeting of stockholders.
DELIVERY OF PROXY MATERIALS
Our 2022 annual report to stockholders, as shall have been brought before the meeting in accordance with the procedures set forth in these Bylawsincluding audited financial statements, accompanies this proxy statement.
Our 2022 annual report to stockholders, and applicable law. Except as otherwise provided by applicable law, the Certificate of Incorporation or these Bylaws, the person presiding over the meeting shall have the power and duty to determine whether a nomination or any other business proposed to be brought before the meeting was made or proposed, as the caseinformation may be obtained without charge upon written request addressed to Enviva Inc., 7272 Wisconsin Ave., Suite 1800, Bethesda, Maryland 20814 or by telephone at (301) 657-5560, in accordance with the procedures set forth in these Bylaws and, if any proposed nomination or business is not in compliance with these Bylaws, to declare that such defective proposal or nomination shall be disregarded. For the avoidance of doubt, unless otherwise required by law or otherwise determined by the Chairman of the Board, the Board or the person presiding over the meeting, if the stockholder does not provide the information required under Section 2.9 of these Bylaws to the Corporation within the time frames specified herein, or if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or other business, such nomination shall be disregarded, and such other business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation.each case, Attention: Secretary.
(ii) For purposes of these Bylaws, “public announcement” shall mean disclosure in a press release reported by Dow Jones News Service, the Associated Press, or any other national news service or in aEACH STOCKHOLDER IS URGED TO COMPLETE, DATE, AND SIGN THE ENCLOSED PROXY CARD AND RETURN IT IN THE POSTAGE-PREPAID ENVELOPE PROVIDED.
document publiclyAPPENDIX A
Amendment to Amended and Restated Certificate of Incorporation
Additions to the Current Certificate pursuant to the Exculpation Amendment contemplated by Proposal No. 2 are indicated below by bold, underlined text and deletions contemplated thereby are indicated below by strike-out text. The full text of the Company’s currently applicable Certificate of Incorporation was filed byas an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on January 3, 2022.
The proposed Exculpation Amendment changes to Section 9.1 and Section 9.3 are set forth below:
Section 9.1 No Personal Liability. No director or officer of the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.
(iii) Notwithstanding the foregoing provisions of these Bylaws, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respectbe liable to the matters set forth in these Bylaws; providedCorporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, however, that any references in these Bylaws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to nominations or proposals as to any other business to be considered pursuant to Sections 2.9(a) or 2.9(b) of these Bylaws or the Stockholders Agreement. Nothing in these Bylaws shall be deemed to affect any rights (A) of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act, (B) of the holders of any class or series of Preferred Stock if andexcept to the extent provided forsuch exemption from liability or limitation thereof is not permitted under applicable law, the CertificateDGCL as it now exists. In addition to the circumstances in which a director or officer of Incorporation or these Bylaws, or (C)the Corporation is not personally liable as set forth in the Stockholders Agreement.
(iv) The Corporation may require any proposed stockholder nominee for director to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve aspreceding sentence, a director or officerof the Corporation. Unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) making a nomination or proposal under this Section 2.9 does not appear at a meeting of stockholders to present such nomination or proposal, the nomination shall be disregarded and the proposed businessCorporation shall not be transacted, asliable to the case may be, notwithstandingfullest extent permitted by any amendment to the DGCL hereafter enacted that proxies in favor thereof may have been received byfurther limits the Corporation. For purposesliability of a director or officer.
Section 9.3 Amendment, Repeal, or Modification. Any amendment, repeal, or modification of this Section 2.9,Article IX shall be prospective only and shall not affect any limitation on liability of a director or officer for acts or omissions occurring prior to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager, or partnerdate of such stockholderamendment, repeal, or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
Section 2.10. Conduct of Business. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board, the person presiding over any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations, and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations, or procedures, whether adopted by the Board or prescribed by the presiding person of the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present; (c) limitations on attendance at or participation in the meeting to stockholders entitled to vote at the meeting, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed for the commencement thereof; (e) restrictions on the use of any audio or video recording devices at the meeting; (f) limitations on the time allotted to questions or comments by participants; (g) regulations for the opening and closing of the polls for balloting and matters which are to be voted on by ballot (if any); and (h) procedures (if any) requiring attendees to provide the Corporation advance notice of their intent to attend the meeting. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
Section 2.11. Required Vote. Except as otherwise required by law or the Certificate of Incorporation, each holder of stock of the Corporation entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of such stock held of record by such holder that has voting power upon the subjectmodification.
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matter in question. SubjectENVIVA INC.7272 Wisconsin AveSuite 1800Bethesda, MD 20814 USATHIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORSThe undersigned hereby appoints John K. Keppler and Jason E. Paral as proxies, each with full power of substitution, to represent and vote as designated on the rightsreverse side, all the common stock of Enviva Inc. held of record by the holdersundersigned on April 21, 2023, at the Annual Meeting of any class or series of Preferred Stock to elect directors under specified circumstances, at any meeting at which directors areStockholders to be elected, so long as a quorum is present, the directors shallheld virtually at https://web.lumiagm.com/218783948 (password: enviva2023) on June 15, 2023, or any adjournment or postponement thereof.(Continued and to be elected by a plurality of the votes validly cast in such election. Unless otherwise provided in the Certificate of Incorporation, cumulative voting for the election of directors shall be prohibited. Except as otherwise provided by applicable law, the rules and regulations of any stock exchange applicable to the Corporation, the Certificate of Incorporation, or these Bylaws, in all matters other than the election of directors and certain non-binding advisory votes described below, the affirmative vote of a majority in voting power of the shares present in person or represented by proxy at the meeting and entitled to votesigned on the matter shall be the act of the stockholders. In non-binding advisory matters with more than two possible vote choices, the matter shall be deemed the recommendation of the stockholders if it has received a plurality of the votes.reverse side)1.114475
Section 2.12. Treasury Stock. The Corporation shall not vote, directly or indirectly, shares of its own stock owned by it or any other corporation, if a majority of shares entitled to vote in the election of directors of such corporation is held, directly or indirectly by the Corporation, and such shares shall not be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation or such other corporation, to vote stock of the Corporation held in a fiduciary capacity.
Section 2.13. Inspectors of Elections; Opening and Closing the Polls. At any stockholder meeting, the Board by resolution may, and when required by applicable law, shall, appoint one or more inspectors, which inspector or inspectors may include individuals who serve the Corporation in other capacities, including as officers, employees, agents, or representatives, to act at the meetings of stockholders and make a written report thereof. One or more persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate has been appointed to act or is able to act at a meeting of stockholders and the appointment of an inspector is required by applicable law, the person presiding over the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his/her duties, shall take and sign an oath to faithfully execute the duties of inspector with strict impartiality and according to the best of his/her ability. The inspectors shall have the duties prescribed by applicable law.
Section 2.14. Stockholder Action by Written Consent. Subject to the rights of holders of any class or series of Preferred Stock with respect to such class or series of Preferred Stock, any action required or permitted to be taken by the stockholders of the Corporation must be taken at a duly held annual or special meeting of stockholders and may not be taken by any consent in writing of such stockholders.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1. General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board elected in accordance with these Bylaws. In addition to the powers and authorities by these Bylaws expressly conferred upon them, the Board may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws required to be exercised or done by the stockholders. The directors shall act only as a Board, and the individual directors shall have no power as such.
Section 3.2. Number, Tenure and Qualifications. Subject to the rights of the holders of any class or series of Preferred Stock to elect directors under specified circumstances and the Stockholders Agreement, the number of directors shall be fixed from time to time exclusively pursuant to a resolution adopted by a majority of the Board, provided that the number of directors of the Corporation shall not exceed thirteen (13). The election and term of directors shall be as set forth in the Certificate of Incorporation.
Section 3.3. Regular Meetings. Subject to Section 3.5 of these Bylaws, regular meetings of the Board shall be held on such dates, and at such times and places, as are determined from time to time by resolution of the Board.
Section 3.4. Special Meetings. Special meetings of the Board shall be called at the request of the Chairman of the Board, the Chief Executive Officer or a majority of the Board then in office. The person or persons authorized to call special meetings of the Board may fix the place, if any, date, and time of the meetings. Any business may be conducted at a special meeting of the Board.
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Section 3.5. Notice.ANNUAL MEETING OF STOCKHOLDERS OFENVIVA INC.June 15, 2023GO GREENe-Consent makes it easy to go paperless. With e-Consent, you can quickly access your proxy material, statements and other eligible documents online, while reducing costs, clutter and paper waste. Enroll today via www.astfinancial.com to enjoy online access.NOTICE OF INTERNET AVAILABILITY OF PROXY MATERIALS: The Notice of Meeting, proxy statement and proxy cardare available at http://www.astproxyportal.com/ast/20060Please sign, date and mail your proxy card in the envelope provided as soon as possible.Please detach along perforated line and mail in the envelope provided.21330403030300000000 1061523THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE ELECTION OF DIRECTORS AND "FOR" PROPOSALS 2, 4, 5, AND 6 AND "EVERY YEAR" FOR PROPOSAL 3.PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE x1. Election of Directors:2.The approval of an amendment to the Company's Certificate ofFORAGAINSTABSTAINNOMINEES:Incorporation to reflect new Delaware law provisions regardingEVERYEVERYofficer exculpation.FOR ALL NOMINEESO 1a. Thomas MethEVERYTWOTHREEO 1b. John K. Keppler3.The approval of, on an advisory (non-binding) basis, theYEARYEARSYEARSABSTAINWITHHOLD AUTHORITYO 1c. Ralph AlexanderFOR ALL NOMINEESO 1d. John C. Bumgarner, Jr.frequency of future advisory votes to approve compensation ofFOR ALL EXCEPTO 1e. Martin N. Davidsonour Named Executive Officers.O 1f. Jim H. DerryberryFORAGAINSTABSTAIN(See instructions below)O 1g. Gerrit L. Lansing, Jr.4.The approval of, on an advisory (non-binding) basis, theO 1h. Pierre F. Lapeyre, Jr.compensation of the Company's Named Executive Officers.O 1i. David M. LeuschenO 1j. Jeffrey W. UbbenFORAGAINSTABSTAINO 1k. Gary L. Whitlock5.The ratification of the appointment of Ernst & Young LLP as theO 1l. Janet S. WongCompany's independent registered public accounting firm.O 1m. Eva T. ZlotnickaINSTRUCTIONS: To withhold authority to vote for any meetingindividual nominee(s), mark “FOR ALL EXCEPT”FORAGAINSTABSTAIN6.The approval of directors shall be giventhe issuance of shares of the Company's commonand fill in the circle next to each directornominee you wish to withhold, as shown here:stock, par value $0.001 per share, upon the conversion of theCompany's Series A Preferred Stock, par value $0.001 per share.The undersigned acknowledges receipt from the Company before the execution of thisproxy of the Notice of Annual Meeting of Stockholders and a Proxy Statement for theAnnual Meeting of Stockholders. If no direction is made, this proxy will be voted FORproposals 1, 2, 4, 5 and 6 and EVERY YEAR for proposal 3.To change the address on your account, please check the box at his/her business or residence in writing by hand delivery, first-class or overnight mail, courier service, facsimile or electronic transmission, or orally by telephone. If mailed by first-class mail, such notice shall be deemed adequately delivered when depositedright andindicate your new address in the United States mail so addressed, with postage thereon prepaid, at least five days before such meeting. If by overnight mail or courier service, such notice shall be deemed adequately delivered when the notice is deliveredaddress space above. Please note thatchanges to the overnight mail or courier service company at least 48 hours before such meeting. If by facsimile or electronic transmission, such notice shall be deemed adequately delivered when the notice is transmitted at least 48 hours before such meeting. If by telephone or by hand delivery, the notice shall be given at least 48 hours prior to the time set for the meeting and shall be confirmed by facsimile or electronic transmission that is sent promptly thereafter. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board need be specified in the notice of such meeting, except for amendments to these Bylaws, as provided under Section 8.1 of these Bylaws. A meeting may be held at any time without notice if all the directors are present or if those not present waive notice of the meeting in accordance with Section 7.4 of these Bylaws.
Section 3.6. Action by Consent of Board. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, including by electronic transmission, and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the Board or committee. Such consent shall have the same force and effect as a unanimous vote at a meeting, and may be stated as such in any document or instrument filed with the Secretary of State of the State of Delaware.
Section 3.7. Conference Telephone Meetings. Members of the Board or any committee thereof may participate in a meeting of the Board or such committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting, except where such person participates in the meeting for the express purpose of objecting to the transaction of any businessregistered name(s) on the ground thataccount may not be submitted viathis method.Signature of StockholderDate:Signature of StockholderDate:Note: Please signexactly as your name or names appear on this Proxy. Whensharesare held jointly, eachholder should sign. Whensigning as executor, administrator, attorney, trustee orguardian,please give fulltitle as such. If the meetingsigner is not lawfully called or convened.a corporation, please sign full corporate name by duly authorized officer, giving full title as such. If signer is a partnership, please sign in partnership name by authorized person.
Section 3.8. Quorum. Subject to Section 3.9 of these Bylaws, a whole number of directors equal to at least a majority of the Board shall constitute a quorum for the transaction of business, but if at any meeting of the Board there shall be less than a quorum present, a majority of the directors present may adjourn the meeting from time to time without further notice unless (a) the date, time and place, if any, of the adjourned meeting are not announced at the time of adjournment, in which case notice conforming to the requirements of Section 3.5 of these Bylaws shall be given to each director, or (b) the meeting is adjourned for more than 24 hours, in which case the notice referred to in clause (a) shall be given to those directors not present at the announcement of the date, time, and place of the adjourned meeting. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board. The directors present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough directors to leave less than a quorum.
Section 3.9. Vacancies. Subject to applicable law, the rights of holders of any class or series of Preferred Stock and the Stockholders Agreement, any newly created directorship that results from an increase in the number of directors or any vacancy on the Board that results from the death, disability, resignation, disqualification or removal of any director or from any other cause shall be filled in accordance with the Certificate of Incorporation.
Section 3.10. Removal. Except for such additional directors, if any, as are elected by the holders of any class or series of Preferred Stock as provided for or fixed pursuant to the Certificate of Incorporation (including any Preferred Stock Designation), and unless otherwise restricted by law, any director, or the entire Board, may be removed, with or without cause, by the affirmative vote of at least a majority of the voting power of the stock outstanding and entitled to vote thereon.
Section 3.11. Chairman of the Board. The Chairman of the Board shall be chosen by the directors from among the directors. The Chairman of the Board shall preside at all meetings of the stockholders and of the Board. The Chairman of the Board shall perform all duties incidental to his/her office that may be required by law and all such other duties as are properly required of him/her by the Board. The Chairman of the Board shall make reports to the Board and the stockholders and shall see that all orders and resolutions
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of the Board and of any committee thereof are carried into effect. The Chairman of the Board may also serve as Chief Executive Officer, if so elected by the Board.
Section 3.12. Records. The Board shall cause to be kept a record containing the minutes of the proceedings of the meetings of the Board and of the stockholders, appropriate stock books and registers, and such books of records and accounts as may be necessary for the proper conduct of the business of the Corporation.
Section 3.13. Compensation. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board shall have authority to fix the compensation of directors, including fees and reimbursement of expenses. The Corporation shall cause each non-employee director serving on the Board to be reimbursed for all reasonable out-of-pocket costs and expenses incurred by him/her in connection with such service.
Section 3.14. Regulations. To the extent consistent with applicable law, the Certificate of Incorporation, and these Bylaws, the Board may adopt such rules and regulations for the conduct of meetings of the Board and for the management of the affairs and business of the Corporation as the Board may deem appropriate.
ARTICLE IV
COMMITTEES
Section 4.1. Designation; Powers. The Board may designate one or more committees, each committee to consist of one or more of the directors of the Corporation, subject to the obligations of the Corporation set forth in the Stockholders Agreement. Any such committee, to the extent permitted by applicable law and to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation.
Section 4.2. Procedure; Meetings; Quorum. Any committee designated pursuant to Section 4.1 of these Bylaws shall choose its own chairman by a majority vote of the members then in attendance in the event the chairman has not been selected by the Board, shall keep regular minutes of its proceedings and report the same to the Board when requested, and shall meet at such times and at such place or places as may be provided by the charter of such committee or by resolution of such committee or resolution of the Board. At every meeting of any such committee, the presence of a majority of all the members thereof shall constitute a quorum and the affirmative vote of a majority of the members present shall be necessary for the adoption by it of any resolution. The Board shall adopt a charter for each committee for which a charter is required by applicable laws, regulations, or stock exchange rules, may adopt a charter for any other committee, and may adopt other rules and regulations for the governance of any committee not inconsistent with the provisions of these Bylaws or any such charter, and each committee may adopt its own rules and regulations of governance, to the extent not inconsistent with these Bylaws or any charter, or other rules and regulations adopted by the Board.
Section 4.3. Substitution of Members. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not constituting a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of the absent or disqualified member.
ARTICLE V
OFFICERS
Section 5.1. Officers. The officers of the Corporation shall be a Chief Executive Officer, a Chief Financial Officer, a President, a Treasurer, a Secretary, and such other officers as the Board from time to time may deem proper. All officers elected by the Board shall each have such powers and duties as generally pertain to their respective offices, subject to the specific provisions of this Article V. Such officers shall also have such powers and duties as from time to time may be conferred by the Board or by any committee thereof. The Board or any committee thereof may from time to time elect, or the Chief Executive Officer may appoint, such other officers (including one or more Vice Presidents, Assistant Secretaries, and Assistant
Treasurers) and such agents, as may be necessary or desirable for the conduct of the business of the Corporation. Such other officers and agents shall have such duties and shall hold their offices for such terms as shall be provided in these Bylaws or as may be prescribed by the Board or such committee thereof or by the Chief Executive Officer, as the case may be.
Section 5.2. Election and Term of Office. The officers of the Corporation shall be elected or appointed from time to time by the Board. Each officer shall hold office until such officer’s successor shall have been duly elected or appointed and shall have qualified or until such officer’s death or until such officer shall resign, but any officer may be removed from office at any time by the affirmative vote of a majority of the Board or, except in the case of an officer or agent elected by the Board, by the Chief Executive Officer. Such removal shall be without prejudice to the contractual rights, if any, of the person so removed. No elected officer shall have any contractual rights against the Corporation for compensation by virtue of such election beyond the date of the election of his/her successor or his/her death, resignation, or removal, whichever event shall first occur, except as otherwise provided in an employment contract or under an employee deferred compensation plan.
Section 5.3. Chief Executive Officer. The Chief Executive Officer shall act as the general manager and, subject to the control of the Board, to have general supervision, direction, and control of the business and affairs of the Corporation. If the Chief Executive Officer is also a member of the Board, the Chief Executive Officer shall, in the absence of or because of the inability to act of the Chairman of the Board, perform all duties of the Chairman of the Board and preside at all meetings of stockholders and of the Board. The Chief Executive Officer shall have the authority to sign, in the name and on behalf of the Corporation, checks, orders, contracts, leases, notes, drafts, and all other documents and instruments in connection with the business of the Corporation.
Section 5.4. Chief Financial Officer. The Chief Financial Officer shall act in an executive financial capacity. The Chief Financial Officer shall assist the Chief Executive Officer in the general supervision of the Corporation’s financial policies and affairs.
Section 5.5. President. The President, if any, shall have such powers and shall perform such duties as shall be assigned to him/her by the Board.
Section 5.6. Senior Vice Presidents and Vice Presidents. Each Senior Vice President and Vice President, if any, shall have such powers and shall perform such duties as shall be assigned to him/her by the Board.
Section 5.7. Treasurer. The Treasurer, if any, shall exercise general supervision over the receipt, custody, and disbursement of corporate funds. The Treasurer shall cause the funds of the Corporation to be deposited in such banks as may be authorized by the Board, or in such banks as may be designated as depositaries in the manner provided by resolution of the Board. The Treasurer shall have such further powers and duties and shall be subject to such directions as may be granted or imposed upon him/her from time to time by the Board, the Chairman of the Board, or the Chief Executive Officer.
Section 5.8. Secretary. The Secretary shall (a) keep or cause to be kept in one or more books provided for that purpose, the minutes of all meetings of the Board, the committees of the Board and the stockholders, (b) see that all notices are duly given in accordance with the provisions of these Bylaws and as required by applicable law, (c) be custodian of the records and the seal of the Corporation and affix and attest the seal to all stock certificates of the Corporation (unless the seal of the Corporation on such certificates shall be a facsimile or electronic transmission, as hereinafter provided) and affix and attest the seal to all other documents to be executed on behalf of the Corporation under its seal, (d) see that the books, reports, statements, certificates, and other documents and records required by law to be kept and filed are properly kept and filed, and in general, (e) perform all the duties incident to the office of Secretary and such other duties as from time to time may be assigned to the Secretary by the Board, the Chairman of the Board, or the Chief Executive Officer.
Section 5.9. Vacancies. A newly created elected office and a vacancy in any elected office because of death, resignation, or removal may be filled by the Board or any committee thereof for the unexpired portion of the term at any meeting of the Board or any committee thereof. Any vacancy in an office appointed by
the Chairman of the Board or the Chief Executive Officer because of death, resignation, or removal may be filled by the Chairman of the Board or the Chief Executive Officer.
Section 5.10. Action with Respect to Securities of Other Corporations. Unless otherwise directed by the Board, the Chief Executive Officer shall have power to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of security holders of or with respect to any action of security holders of any other corporation or entity in which the Corporation may hold securities and otherwise to exercise any and all rights and powers that the Corporation may possess by reason of its ownership of securities in such other corporation.
ARTICLE VI
STOCK CERTIFICATES AND TRANSFERS
Section 6.1. Uncertificated Shares and Transfers. The shares of the Corporation shall be uncertificated, provided that (a) the Corporation shall be permitted to issue a nominal number of certificates to securities depositories and (b) the Board may provide by resolution or resolutions that some or all of any or all classes or series of the Corporation’s stock shall be represented by certificates. The shares of the stock of the Corporation shall be transferred on the books of the Corporation, which may be maintained by a third party registrar or transfer agent, by the holder thereof in person or by his/her attorney, upon surrender for cancellation of certificates for at least the same number of shares, with an assignment and power of transfer endorsed thereon or attached thereto, duly executed, with such proof of the authenticity of the signature as the Corporation or its agents may reasonably require or upon receipt of proper transfer instructions from the registered holder of uncertificated shares and upon compliance with appropriate procedures for transferring shares in uncertificated form.
Each certificated share of stock shall be signed, countersigned, and registered in such manner as the Board may by resolution prescribe, which resolution may permit all or any of the signatures on such certificates to be in facsimile or electronic transmission. In case any officer, transfer agent, or registrar who has signed or whose facsimile or electronic signature has been placed upon a certificate has ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.
Section 6.2. Lost, Stolen or Destroyed Certificates. If at any time shares of the Corporation’s stock are represented by certificates, no certificate for shares or uncertificated shares of stock in the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed, or stolen, except on production of such evidence of such loss, destruction, or theft and on delivery to the Corporation of a bond of indemnity in such amount, upon such terms and secured by such surety, as the Board or any financial officer may in its or his/her discretion require.
Section 6.3. Ownership of Shares. The Corporation shall be entitled to treat the holder of record of any share or shares of stock of the Corporation as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.
Section 6.4. Regulations Regarding Certificates. If at any time shares of the Corporation’s stock are represented by certificates, the Board shall have the power and authority to make all such rules and regulations as they may deem expedient concerning the issue, transfer, and registration or the replacement of such certificates. The Corporation may enter into additional agreements with stockholders to restrict the transfer of stock of the Corporation in any manner not prohibited by the DGCL.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and end on the thirty-first day of December of each year unless otherwise determined by the Board.
Section 7.2. Dividends. Except as otherwise provided by law or the Certificate of Incorporation, the Board may from time to time declare, and the Corporation may pay, dividends on its outstanding shares of
stock, which dividends may be paid in cash, stock of the Corporation, or other property. A member of the Board, or a member of any committee designated by the Board, shall be fully protected in relying in good faith upon the records of the Corporation and upon such information, opinions, reports, or statements presented to the Corporation by any of its officers or employees, or committees of the Board, or by any other person as to matters the director reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation, as to the value and amount of the assets, liabilities, or net profits of the Corporation, or any other facts pertinent to the existence and amount of surplus or other funds from which dividends might properly be declared and paid.
Section 7.3. Seal. The seal of the Corporation shall be in such form as the Board may adopt.
Section 7.4. Waiver of Notice. Whenever any notice is required to be given to any stockholder or director of the Corporation under the provisions of the DGCL, the Certificate of Incorporation or these Bylaws, a waiver thereof in writing, including by electronic transmission, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at, nor the purpose of, any annual or special meeting of stockholders or the Board or committee thereof need be specified in any waiver of notice of such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
Section 7.5. Resignations. Any director or any officer, whether elected or appointed, may resign at any time by giving written notice, including by electronic transmission, of such resignation to the Chairman of the Board, the Chief Executive Officer, the President, or the Secretary, and such resignation shall be deemed to be effective as of the close of business on the date said notice is received by the Chairman of the Board, the Chief Executive Officer, the President, or the Secretary, or at such earlier or later time as is specified therein. No formal action shall be required of the Board or the stockholders to make any such resignation effective.
Section 7.6. Indemnification and Advancement of Expenses.
(a) The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (a “proceeding”) by reason of the fact that such person, or a person for whom such person is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee, trustee, or agent of another corporation or of a partnership, joint venture, trust, other enterprise, or nonprofit entity, including service with respect to an employee benefit plan (a “Covered Person”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee, trustee, or agent, or in any other capacity while serving as a director, officer, employee, trustee, or agent, against all liability, loss, and reasonable expenses (including, without limitation, reasonable attorneys’ fees, judgments, fines, ERISA excise taxes and penalties, and amounts paid in settlement) incurred or suffered by such Covered Person in connection with such proceeding.
(b) The Corporation shall, to the fullest extent not prohibited by applicable law as it presently exists or may hereafter be amended, pay the reasonable expenses (including reasonable attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition; provided, however, that to the extent required by applicable law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined by final judicial decision from which there is no further right to appeal that the Covered Person is not entitled to be indemnified under this Section 7.6 or otherwise.
(c) The rights to indemnification and advancement of expenses under this Section 7.6 shall be contract rights and such rights shall continue as to a Covered Person who has ceased to be a director, officer, employee, trustee, or agent and shall inure to the benefit of his/her heirs, executors and administrators. Notwithstanding the foregoing provisions of this Section 7.6, except for proceedings to enforce rights to
indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to a Covered Person in connection with a proceeding (or part thereof) initiated by such Covered Person only if such proceeding (or part thereof) was authorized by the Board.
(d) If a claim for indemnification under this Section 7.6 (following the final disposition of such proceeding) is not paid in full within 60 days after the Corporation has received a claim therefor by the Covered Person, or if a claim for any advancement of expenses under this Section 7.6 is not paid in full within thirty days after the Corporation has received a statement or statements requesting such amounts to be advanced, the Covered Person shall thereupon (but not before) be entitled to file suit to recover the unpaid amount of such claim. If successful in whole or in part, the Covered Person shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by applicable law. In any suit brought by the Covered Person to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Covered Person is not entitled to be indemnified, or to such advancement of expenses, under this Section 7.6 or otherwise shall be on the Corporation.
(e) The rights conferred on any Covered Person by this Section 7.6 shall not be exclusive of any other rights that such Covered Person may have or hereafter acquire under any statute, any provision of the Certificate of Incorporation, these Bylaws, any agreement or vote of stockholders or disinterested directors, or otherwise.
(f) This Section 7.6 shall not limit the right of the Corporation, to the extent and in the manner permitted by applicable law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.
(g) Any Covered Person entitled to indemnification and/or advancement of expenses, in each case pursuant to this Section 7.6, may have certain rights to indemnification, advancement and/or insurance provided by one or more persons with whom or which such Covered Person may be associated. Further, (i) the Corporation shall be the indemnitor of first resort with respect to any proceeding, expense, liability or matter that is the subject of this Section 7.6, (ii) the Corporation shall be primarily liable for all such obligations and any indemnification afforded to a Covered Person in respect of a proceeding, expense, liability or matter that is the subject of this Section 7.6, whether created by law, organizational, or constituent documents, contract or otherwise, (iii) any obligation of any persons with whom or which a Covered Person may be associated to indemnify such Covered Person and/or advance expenses or liabilities to such Covered Person in respect of any proceeding shall be secondary to the obligations of the Corporation pursuant to this Section 7.6, (iv) the Corporation shall indemnify each Covered Person and advance expenses to each Covered Person hereunder to the fullest extent provided herein without regard to any rights such Covered Person may have against any other person with whom or which such Covered Person may be associated or insurer of any such person, and (v) the Corporation irrevocably waives, relinquishes and releases any other person with whom or which a Covered Person may be associated from any claim of contribution, subrogation, or any other recovery of any kind in respect of amounts paid by the Corporation hereunder.
Section 7.7. Notices. Except as otherwise specifically provided herein or required by applicable law, all notices required to be given to any stockholder, director, officer, employee, trustee, or agent shall be in writing and may in every instance be effectively given by hand delivery to the recipient thereof, by depositing such notice in the mails, postage paid, or by sending such notice by commercial courier service, or by facsimile or other electronic transmission, provided that notice to stockholders by electronic transmission shall be given in the manner provided in Section 232 of the DGCL. Any such notice shall be addressed to such stockholder, director, officer, employee, trustee, or agent at his/her last known address as the same appears on the books of the Corporation. Without limiting the manner by which notice otherwise may be given effectively, notice to any stockholder shall be deemed given: (a) if by facsimile, when directed to a number at which the stockholder has consented to receive notice; (b) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (c) if by posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (i) such posting and (ii) the giving of such separate notice; (d) if by any other form of electronic transmission, when directed to the stockholder; and (e) if by mail, when deposited in the mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation.
Section 7.8. Facsimile and Electronic Signatures. In addition to the provisions for use of facsimile or electronic signatures elsewhere specifically authorized in these Bylaws, facsimile or electronic signatures of any officer or officers of the Corporation may be used whenever and as authorized by the Board or a committee thereof.
Section 7.9. Time Periods. In applying any provision of these Bylaws that require that an act be done or not done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
Section 7.10. Reliance Upon Books, Reports and Records. Each director, each member of any committee designated by the Board, and each officer of the Corporation shall, in the performance of his/her duties, be fully protected in relying in good faith upon the records of the Corporation and upon information, opinions, reports, or statements presented to the Corporation by any of the Corporation’s officers or employees, or committees designated by the Board, or by any other person as to the matters the member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.
Section 7.11. Severability. Whenever possible, each provision or portion of any provision of these Bylaws shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or portion of any provision of these Bylaws is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such provision or portion of any provision shall be severable and the invalidity, illegality, or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and these Bylaws shall be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provision or portion of any provision had never been contained herein.
Section 7.12. Forum for Adjudication of Disputes. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by applicable law, be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee, trustee, or agent of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation arising pursuant to any provision of the DGCL, the Certificate of Incorporation, or these Bylaws, or (d) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation governed by the internal affairs doctrine, in each such case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. Unless the Corporation consents in writing to the selection of an alternative forum, to the fullest extent permitted by law, the federal district courts of the United States shall be the exclusive forum for resolving any complaint asserting a cause of action arising under the federal securities laws of the United States. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 7.12.
ARTICLE VIII
AMENDMENTS
Section 8.1. Amendments. Subject to the provisions of the Certificate of Incorporation, these Bylaws may be amended, altered, or repealed (a) by the Board by resolution adopted by a majority of the directors present at any special or regular meeting of the Board at which a quorum is present if, in the case of such special meeting only, notice of such amendment, alteration, or repeal is contained in the notice or waiver of notice of such meeting or (b) by the stockholders at any regular or special meeting of stockholders upon the affirmative vote of at least a majority of the voting power of the shares of the Corporation entitled to vote thereon if, in the case of such special meeting only, notice of such amendment, alteration, or repeal is contained in the notice or waiver of notice of such meeting. No Bylaws hereafter made or adopted, nor any repeal of or amendment thereto, shall invalidate any prior act of the Board that was valid at the time it was taken.
Notwithstanding the foregoing, no amendment, alteration, or repeal of Section 7.6 of these Bylaws shall adversely affect any right or protection existing under these Bylaws immediately prior to such amendment, alteration, or repeal, including any right or protection of a present or former director, officer, or employee thereunder in respect of any act or omission occurring prior to the time of such amendment.
Date of Adoption: , 2021
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SPECIAL MEETING OF UNITHOLDERS OFENVIVA PARTNERS, LPDecember 17, 2021PROXYANNUAL MENVIVAETINGOFSTOCKHOLDERSINC. OFJune 15, 2023PROXY VOTING INSTRUCTIONS INTERNET - Access “www.voteproxy.com” and follow the on-screeninstructionson-screen instructions or scan the QR code with your smartphone. Have your proxycardproxy card available when you access the web page.Vote online until 11:59 PM EST the day before the meeting.MAIL - Sign, date and mail your proxy card in the envelope provided assoonas soon as possible.VIRTUALLY AT THE MEETING - The company will be hosting the meetinglivemeeting live via the Internet. To attend the meeting via the Internet, please visithttps:visit https://web.lumiagm.com/218783948 (password: Enviva2021)enviva2023) and besurebe sure to have your control number available.GO GREEN - e-Consent makes it easy to go paperless. With e-Consent,you can quickly access your proxy materials, statements and other eligibledocumentseligible documents online, while reducing costs, clutter and paper waste. EnrolltodayEnroll today via www.astfinancial.com to enjoy online access. COMPANY NUMBER ACCOUNT NUMBER NOTICE OF INTERNET AVAILABILITY OF PROXY MATERIALS:The Notice of Meeting, proxy statement and proxy cardare available at http://www.astproxyportal.com/ast/20060Please detach along perforated line and mail in the envelope provided IF you are not voting via the Internet. 00030003000000000000 121721 THEInternet.21330403030300000000 1061523THE BOARD OF DIRECTORS
RECOMMENDS A VOTE “FOR” EACH"FOR" THE ELECTION OF THE LISTED PROPOSALS.PLEASEDIRECTORS AND "FOR" PROPOSALS 2, 4, 5, AND 6 AND "EVERY YEAR" FOR PROPOSAL 3.PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE FOR AGAINST ABSTAIN 1. Thex1. Election of Directors:2.The approval of a Plan of Conversion (the “Plan of Conversion”) thatprovides for and sets forth matters relatedan amendment to the conversion ofEnviva Partners, LP from aCompany's Certificate ofFORAGAINSTABSTAINNOMINEES:Incorporation to reflect new Delaware limited partnershiplaw provisions regardingEVERYEVERYofficer exculpation.FOR ALL NOMINEESO 1a. Thomas MethEVERYTWOTHREEO 1b. John K. Keppler3.The approval of, on an advisory (non-binding) basis, theYEARYEARSYEARSABSTAINWITHHOLD AUTHORITYO 1c. Ralph AlexanderFOR ALL NOMINEESO 1d. John C. Bumgarner, Jr.frequency of future advisory votes to aDelaware corporation named “Enviva Inc.” (the “Corporation”), thefilingapprove compensation ofFOR ALL EXCEPTO 1e. Martin N. Davidsonour Named Executive Officers.O 1f. Jim H. DerryberryFORAGAINSTABSTAIN(See instructions below)O 1g. Gerrit L. Lansing, Jr.4.The approval of, a Certificate of Conversion and the Certificate ofIncorporationon an advisory (non-binding) basis, theO 1h. Pierre F. Lapeyre, Jr.compensation of the Corporation with the Secretary of State of theState of Delaware (the "Plan of Conversion Proposal").2. The approval to adjourn the Special Meeting to a later date or dates,if presented, to permit further solicitation of proxies if there are notsufficient votes at the timeCompany's Named Executive Officers.O 1i. David M. LeuschenO 1j. Jeffrey W. UbbenFORAGAINSTABSTAINO 1k. Gary L. Whitlock5.The ratification of the Special Meetingappointment of Ernst & Young LLP as theO 1l. Janet S. WongCompany's independent registered public accounting firm.O 1m. Eva T. ZlotnickaINSTRUCTIONS: To withhold authority to approvevote for any individual nominee(s), mark “FOR ALL EXCEPT”FORAGAINSTABSTAIN6.The approval of the Planof Conversion Proposal.Theissuance of shares of the Company's commonand fill in the circle next to each nominee you wish to withhold, as shown here:stock, par value $0.001 per share, upon the conversion of theCompany's Series A Preferred Stock, par value $0.001 per share.The undersigned acknowledges receipt from the Company before the execution of thisproxy of the Notice of SpecialAnnual Meeting of UnitholdersStockholders and a Proxy Statement for the SpecialMeetingtheAnnual Meeting of Unitholders.Stockholders. If no direction is made, this proxy will be voted FOR Proposal1FORproposals 1, 2, 4, 5 and Proposal 2. To6 and EVERY YEAR for proposal 3.To change the address on your account, please check the box at right andindicateand indicate your new address in the address space above. Please note thatchangesthat changes to the registered name(s) on the account may not be submitted viathis method. via this method.Signature of StockholderDate:Signature of Unitholder Date Signature of Unitholder Date StockholderDate:Note: Please sign exactlysignexactly as your name or names appear on this Proxy. When shares areWhensharesare held jointly, each holdereachholder should sign. When signingWhensigning as executor, administrator, attorney, trustee or guardian, orguardian,please give fulltitle as such. If the signer is a corporation, please sign full corporate name by duly authorized officer, giving full title as such. If signer is a partnership, please sign in partnership name by authorized person.
0001592057 6 2022-01-01 2022-12-31
ENVIVA PARTNERS, LP7272 Wisconsin AveSuite 1800Bethesda, MD 20814 USATHIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORSThe undersigned hereby appoints John K. Keppler and Jason E. Paral as proxies, each with fullpower of substitution, to represent and vote as designated on the reverse side, all thecommon units representing limited partnership interests of Enviva Partners, LP held ofrecord by the undersigned on November 19, 2021, at the Special Meeting of Unitholders tobe held virtually at https://web.lumiagm.com/218783948 (password: Enviva2021) onDecember 17, 2021, or any adjournment or postponement thereof.(Continued and to be signed on the reverse side)
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SPECIAL MEETING OF UNITHOLDERS OFENVIVA PARTNERS, LPDecember 17, 2021 GO GREENe-Consent makes it easy to go paperless. With e-Consent, you can quickly access your proxymaterial, statements and other eligible documents online, while reducing costs, clutter andpaper waste. Enroll today via www.astfinancial.com to enjoy online access. NOTICE OF INTERNET AVAILABILITY OF PROXY MATERIALS:The Notice of Meeting, proxy statement and proxy cardare available at http://www.astproxyportal.com/ast/20060Please sign, date and mailyour proxy card in theenvelope provided as soonas possible. Please detach along perforated line and mail in the envelope provided. 00030003000000000000 121721 THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” EACH OF THE LISTED PROPOSALS.PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE FOR AGAINST ABSTAIN 1. The approval of a Plan of Conversion (the “Plan of Conversion”) thatprovides for and sets forth matters related to the conversion ofEnviva Partners, LP from a Delaware limited partnership to aDelaware corporation named “Enviva Inc.” (the “Corporation”), thefiling of a Certificate of Conversion and the Certificate ofIncorporation of the
Corporation with the Secretary of State of theState of Delaware (the "Plan of Conversion Proposal").2. The approval to adjourn the Special Meeting to a later date or dates,if presented, to permit further solicitation of proxies if there are notsufficient votes at the time of the Special Meeting to approve the Planof Conversion Proposal.The undersigned acknowledges receipt from the Company before the execution of thisproxy of the Notice of Special Meeting of Unitholders and a Proxy Statement for the SpecialMeeting of Unitholders. If no direction is made, this proxy will be voted FOR Proposal1 and Proposal 2. To change the address on your account, please check the box at right andindicate your new address in the address space above. Please note thatchanges to the registered name(s) on the account may not be submitted viathis method. Signature of Unitholder Date Signature of Unitholder Date Note: Please sign exactly as your name or names appear on this Proxy. When shares are held jointly, each holder should sign. When signing as executor, administrator, attorney, trustee or guardian, please give fulltitle as such. If the signer is a corporation, please sign full corporate name by duly authorized officer, giving full title as such. If signer is a partnership, please sign in partnership name by authorized person.
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