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 ☐ Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) ☐ Definitive Proxy Statement ☐ Definitive Additional Materials ☐ Soliciting Material under §240.14a-12 |
Golden Minerals Company
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
☒ No fee required. ☐ Fee paid previously with preliminary materials ☐ Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11 | ||
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Notice of |
To Our Stockholders,
The 20232024 annual meeting of stockholders of Golden Minerals Company will be held at 350 Indiana St., first floor conference center, on Friday,Tuesday, May 26, 2023,9, 2024, at 1:3:00 p.m. Mountain Time. For instructions on how to attend and vote your shares at the annual meeting, see the information in the accompanying Proxy Statement. The annual meeting of stockholders will be held for the following purposes:
1. | To elect |
2. | To ratify the appointment of |
3. | To approve |
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4. | To approve an amendment to the Company’s 2023 Equity Incentive Plan to increase the number of shares of common stock |
5. | To approve, on an |
6. | To approve, on an |
7. | To transact such other business as may properly come before the annual meeting or any postponements or adjournments thereof. |
The Board of Directors recommends (i) a vote “FOR” each of the director nominees andnominees; (ii) a vote “FOR” Proposals 2, 3, 4, 5 and 5; and (iii) a vote for “3 YEARS” for Proposal 6.
You are entitled to attend and vote at the annual meeting, or any postponement or adjournment of the annual meeting, if you are a holder of our common stock at the close of business on March 27, 2023.18, 2024. This Proxy Statement, proxy card and Annual Report to Stockholders, including financial statements for the fiscal year ended December 31, 2022,2023, are first being sent to stockholders on or around April 6, 2023.March 28, 2024.
Your vote is important. Whether or not you plan to attend the annual meeting, you are urged to vote as soon as possible to ensure your shares are represented and voted at the annual meeting.
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If you are a stockholder of record or “registered stockholder”:
How You Can Vote |
We use the “Notice and Access” model permitted by the U.S. Securities and Exchange Commission for distributing our annual meeting materials electronically to certain stockholders. Some stockholders may also automatically receive our annual meeting materials in paper form. You may choose to receive your materials in either format. Please see “Internet Availability of Proxy Materials” on page To make sure that your shares are represented at the annual meeting, please cast your vote by one of the following methods: | ||
Online | Go to www.proxypush.com/AUMN and follow the instructions provided. You will need the Control Number provided on your proxy card. | |
Telephone | Dial 1-866-858-9426 using a touch-tone telephone and following the menu instructions. | |
Complete and sign a paper proxy card or instruction form and mail it in the postage-paid envelope. | ||
During the Meeting | You may vote in person at the annual meeting |
If you are a beneficial stockholder and hold your shares through a broker, bank or other nominee:
You should follow the instructions in the Notice or voting instructions provided by your broker or nominee. In these cases, you may vote by Internet, telephone or mail. You may vote your shares beneficially held through your broker if you attend the annual meeting and you obtain a legal proxy from your broker giving you the legal right to vote the shares at the annual meeting.
How You Can Access Proxy Materials Online Important Notice Regarding the Availability of Proxy Materials for the
The Proxy Statement, Proxy Card and Annual Report to Stockholders for the year ended December 31, are available on the Internet at http://www.proxydocs.com/AUMN.
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April 6, 2023March 28, 2024
Cordially,
Julie Z. Weedman
Corporate Secretary
TO ASSURE YOUR REPRESENTATION AT THE ANNUAL MEETING OF STOCKHOLDERS, PLEASE SIGN, DATE, AND RETURN YOUR PROXY CARD OR SUBMIT YOUR PROXY AND/OR VOTING INSTRUCTIONS BY TELEPHONE OR THROUGH THE INTERNET SO THAT A QUORUM MAY BE REPRESENTED AT THE MEETING. STOCKHOLDERS WHO ATTEND THE MEETING IN PERSON MAY REVOKE THEIR PROXIES AND VOTE IN PERSON ONLINE DURING THE MEETING IF THEY SO DESIRE.
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PROPOSAL 5 – ADVISORY VOTE ON THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS (THE SAY-ON-PAY VOTE) | 27 | |||
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Proxy Statement |
GOLDEN MINERALS COMPANY
350 Indiana Street, Suite 650
Golden, Colorado 80401
This Proxy Statement is furnished to the stockholders of Golden Minerals Company (“Golden Minerals,” the “Company,” “we” or “our”) in connection with the solicitation of proxies by the board of directors of Golden Minerals to be voted at the annual meeting of stockholders on May 26, 2023,9, 2024, or at any postponements or adjournments of the annual meeting. Our annual meeting is being held for the purposes set forth in the accompanying Notice of 20232024 Annual Meeting of Stockholders. The Proxy Statement, proxy card and Annual Report to Stockholders, including financial statements for the fiscal year ended December 31, 2022,2023, were made available to stockholders on or about April 6, 2023.March 28, 2024.
INTERNET AVAILABILITY OF PROXY MATERIALS
We will furnish our proxy materials through “Notice and Access” via the Internet in accordance with the rules adopted by the Securities and Exchange Commission (the “SEC”). In accordance with the “Notice and Access” model, we will furnish a Notice of Internet Availability of Proxy Materials (the “Notice”) to our stockholders who will have the ability to access the proxy materials on the website referred to in the Notice or to request a printed set of proxy materials. The Notice will contain instructions on how to access our proxy materials and how to vote. In addition, stockholders may request proxy materials in printed form by mail or electronically by email by writing to Karen Winkler, Director of Investor Relations, Golden Minerals Company, 350 Indiana Street, Suite 650, Golden, Colorado 80401 or at investor.relations@goldenminerals.com.investor.relations@goldenminerals.com. We encourage stockholders to take advantage of the availability of the proxy materials on the Internet to help reduce the environmental impact of our annual meetings.
Important Notice Regarding the Availability of Proxy Materials for the Annual Stockholders Meeting to be Held on May 26, 2023:9, 2024: The Proxy Statement, Proxy Card, and Annual Report to Stockholders, including financial statements for the fiscal year ended December 31, 2022,2023, are available at http://www.proxydocs.com/AUMN.
You have received these proxy materials because our board of directors is soliciting your proxy to vote your common stock at the annual meeting of stockholders to be held on May 26, 2023.9, 2024. This Proxy Statement describes matters on which we would like you to vote at our annual meeting. It also provides you with information on these matters so that you may make an informed decision.
HOW TO ATTEND THE ANNUAL MEETING
All stockholders as of the close of business on the March 27, 202318, 2024 record date (or their duly appointed proxies) may attend the annual meeting. If you are not a stockholder of record but hold your shares through a broker, bank or other holder of record (i.e., in “street name”) and wish to attend the annual meeting, you will need to provide proof of beneficial ownership on the record date, such as your most recent account statement as of March 27, 2023,18, 2024, a copy of the voting instruction card provided by your broker, bank or other holder of record, or other similar evidence of
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of ownership. Registration and seating will begin at 12:302:45 P.M. Denver time.Mountain Time Cameras, recording devices and other electronic devices will not be permitted at the annual meeting.
HOW YOU CAN VOTE
We encourage stockholders to submit their votes in advance of the annual meeting. You may elect to vote by one of four methods.
If you are a stockholder of record or “registered stockholder”:
Online
| Go to www.proxypush.com/AUMN and follow the instructions provided. You will need the Control Number provided on your proxy card. | |||
Telephone
| Dial 1-866-858-9426 using a touch-tone telephone and following the menu instructions. | |||
| Complete and sign a paper proxy card or instruction form and mail it in the postage-paid envelope | |||
During the Meeting
| You may vote in person at the annual meeting. |
If you are a beneficial stockholder:
You should follow the instructions in the Notice or voting instructions provided by your broker or nominee. In these cases, you may vote by Internet, telephone or mail. You may vote your shares beneficially held through your broker if you attend the annual meeting and you obtain a legal proxy from your broker giving you the legal right to vote the shares at the annual meeting.
PROPOSALS FOR THE 20232024 ANNUAL MEETING
At our annual meeting, stockholders will vote on the following six items of business:
To elect |
To ratify the appointment of |
To approve |
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To approve an amendment to |
5. | To approve, on an advisory basis, the |
To approve, on an |
Stockholders will also vote on such other matters as may properly come before the annual meeting or any postponement or adjournment thereof.
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Our board of directors recommends that you vote:
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· | “FOR” the |
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With respect to any other matter that properly comes before the annual meeting, any of the officers named as proxy holder will vote as recommended by the board of directors or, if no recommendation is given, in their own discretion.
SHARES ENTITLED TO VOTE
As of the close of business on March 27, 2023,18, 2024, the record date for the annual meeting, we had 172,275,25514,573,252 shares of common stock outstanding.outstanding, which reflects the one-for-25 reverse stock split that became effective June 9, 2023. This amount includes 461,6725,800 shares of unvested restricted common stock issuedawarded pursuant to our Amended and Restated 2009 Equity Incentive Plan (the “2009 Equity Incentive Plan”), which are not entitled to vote at the annual meeting.
Therefore, as of March 27, 2023, 171,813,58318, 2024, 14,567,452 shares of common stock were outstanding and are entitled to vote at the annual meeting. You can vote all of the shares that you owned as of the close of business on the record date. These shares include: (1) shares held directly in your name as the stockholder of record and (2) shares held for you as the beneficial owner through a stockbroker, bank or other nominee.
Most stockholders hold their shares through a broker or other holder of record rather than directly in their own names. As summarized below, there are some distinctions between shares held of record and those owned beneficially.
Stockholder of Record. If your shares are registered directly in your name with our transfer agent, Computershare Trust Company, N.A., you are considered, with respect to those shares, the stockholder of record, and we have sent the Notice directly to you. As the stockholder of record, you have the right to grant your voting proxy directly to the named proxy holder or to vote in person at the annual meeting. You may vote by proxy via the Internet or telephone by following the instructions provided in the Notice. If you request printed copies of the proxy materials by mail, you may also vote by filling out the proxy card included with the materials or by calling the toll-free number found on the proxy card.
Beneficial Owner. If your shares are held in a brokerage account, or by a bank or other holder of record, you are considered the beneficial owner of shares held in “street name,” and the proxy materials are being forwarded to you by that holder together with a voting instruction card. As the beneficial owner, you have the right to direct your broker, bank or other holder of record how to vote and are also invited to attend the annual meeting.
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STOCKHOLDERS ENTITLED TO ATTEND THE MEETING
All stockholders as of the March 27, 2023,18, 2024 record date (or their duly appointed proxies) may attend the annual meeting.
QUORUM
The presence at the annual meeting, in person or by proxy, of the holders of one-third (at least 33 and 1/3%) of the shares of our common stock outstanding and entitled to vote as of the record date will constitute a quorum. There must be a quorum for any action to be taken at the annual meeting (other than an adjournment or postponement of the annual meeting). If you properly submit a proxy, even if you abstain from voting or cast a “withhold”“WITHHOLD” vote, then your shares will be counted for purposes of determining the presence of a quorum. If a broker or bank indicates on a proxy that it lacks discretionary authority as to certain shares to vote on a particular matter, commonly referred to as “broker non-votes,” those shares will still be counted for purposes of determining the presence of a quorum at the annual meeting.
HOW YOU MAY VOTE ON EACH PROPOSAL
The voting options for the proposals that we will consider at the annual meeting are:
· | Proposal |
· | Proposal |
· | Proposal |
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· | Proposal |
· | Proposal |
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VOTES REQUIRED FOR APPROVAL
Proposal 1 – Election of Directors. Seven candidates
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The voting requirements for the proposals that we will be elected by a plurality of affirmative votes of the outstanding shares of common stock presentconsider at the annual meeting (either in person or by proxy). That is, the seven candidates that receive the highest number of affirmative votes will be elected to serve on our board of directors. Because the candidates that receive the highest number of affirmative votes will be elected to serve on the board, a “withhold” vote or a broker non-vote will not affect the outcome of the election.
· | Proposal 1 — Election of Directors: Five candidates will be elected by a plurality of affirmative votes of the outstanding shares of common stock present at the annual meeting (either in person or by proxy). That is, the five candidates that receive the highest number of affirmative votes will be elected to serve on our board of directors. Because the candidates that receive the highest number of affirmative votes will be elected to serve on the board, a “WITHHOLD” vote or a broker non-vote will not affect the outcome of the election. |
Proposal 2 – Ratification of Armanino, LLP. The affirmative vote of a majority of the outstanding shares of common stock present at the meeting (either in person or by proxy) and entitled to vote on this matter will be required for ratification. Abstentions, which are included in the calculation of the number of shares present or represented by proxy and entitled to vote at the meeting, will have the effect of a vote “against” the proposal.
Proposal 3 – Approval of the Golden Minerals Company 2023 Equity incentive Plan. The affirmative vote of a majority of the outstanding shares of common stock present at the meeting (either in person or by proxy) and entitled to vote on this matter will be required for approval. Abstentions, which are included in the calculation of the number of shares present or represented by proxy and entitled to vote at the meeting, will have the effect of a vote “against” the proposal. Broker non-votes will have no effect on the outcome of the vote for this proposal.
Proposal 4 – Approval of a proposed amendment to the Company’s Amended and Restated Certificate of Incorporation to effect a reverse stock split of the Company’s common stock at a ratio ranging from 1-for-2 shares up to 1-for-25 shares, which ratio will be selected by our Board of Directors and set forth in a public announcement. The affirmative vote of a majority of the shares outstanding and entitled to vote on this matter will be required for approval. Because the voting threshold for this proposal is a majority of the voting power of the outstanding shares of common stock, abstentions will have the effect of a vote “against” the proposal.
Proposal 5 – Approval of an amendment to our Amended and Restated Certificate of Incorporation to effect a reduction in the total number of authorized shares of our common stock as illustrated under the table “Relationship Between the Reverse Stock Split Ratio and the Authorized Share Reduction”. The affirmative vote of a majority of the shares outstanding and entitled to vote on this matter will be required for approval. Because the voting threshold for this proposal is a majority of the voting power of the outstanding shares of common stock, abstentions will have the effect of a vote “against” the proposal.
Proposal 6 – Approval of an amendment to our Amended and Restated Certificate of Incorporation to allow for officer exculpation. The affirmative vote of a majority of the shares outstanding and entitled to vote on this matter will be required for approval. Because the voting threshold for this proposal is a majority of the voting power of the outstanding shares of common stock, abstentions and broker non-votes will have the effect of a vote “against”
· | Proposal 2 — Ratification of Appointment of Independent Auditors: The affirmative vote of a majority of the outstanding shares of common stock present at the annual meeting (either in person or by proxy) and entitled to vote on this matter will be required for ratification. Abstentions, which are included in the calculation of the number of shares present or represented by proxy and entitled to vote at the annual meeting, will have the effect of a vote “AGAINST” the proposal. |
· | Proposal 3 — Approval of an Amendment to the Amended and Restated Certificate of Incorporation to Increase the Authorized Common Stock: The affirmative vote of a majority of the votes cast at the annual meeting (either in person or by proxy) will be required to approve an amendment to the Company’s Amended and Restated Certificate of Incorporation to increase the total number of authorized common stock from 28,000,000 shares to 100,000,000 shares. Abstentions, which are not considered votes cast, will have no effect on the proposal. |
· | Proposal 4 — Approval of an Amendment to the 2023 Equity Incentive Plan to Increase the Reserved Shares of Common Stock: The affirmative vote of a majority of the votes cast at the annual meeting (either in person or by proxy) will be required to amend the 2023 Equity Incentive Plan to increase the number of shares of common stock reserved for issuance pursuant to awards from 360,000 shares to 1,400,000 shares. Abstentions, which are not considered votes cast, will have no effect on the proposal. |
· | Proposal 5 — Advisory Vote on the Compensation of Our Named Executive Officers: The affirmative vote of a majority of the outstanding shares of common stock present at the annual meeting (either in person or represented by proxy) and entitled to vote on this matter will be required to approve, on an advisory basis, the compensation of our named executive officers. Because your vote on this proposal is advisory, it will not be binding on the board of directors or the Company. However, the board of directors will review the voting results and take them into consideration when making future decisions regarding executive compensation. Abstentions, which are included in the calculation of the number of shares present or represented by proxy and entitled to vote at the annual meeting, will have the effect of a vote “AGAINST” the proposal. Broker non-votes will have no effect on the vote for this proposal. |
· | Proposal 6 — Advisory Vote on the Frequency of the Stockholder Vote on the Compensation of Our Named Executive Officers: The option (“1 YEAR”, “2 YEARS” or “3 YEARS”) that receives the highest number of votes cast by stockholders will be considered by the board of directors when determining the frequency of future advisory votes on compensation of our named executive officers. Because your vote on this proposal is advisory, it will not be binding on the board of directors or the Company. However, the board of directors will review the voting results and take them into consideration when making future decisions regarding the frequency of the advisory vote on executive compensation. Abstentions, which are included in the calculation of the number of shares present or represented by proxy and entitled to vote at the annual meeting, will not be counted in determining which of the three alternatives ae favored by our stockholders. Broker non-votes will have no effect on the vote for this proposal. |
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RIGHTS OF DISSENTERS
No action is proposed at this annual meeting for which the laws of the stateState of Delaware or our Bylaws amended and restated bylaws (the “Bylaws”)provide a right of our stockholders to dissent and obtain appraisal of or payment for such stockholders’ common stock.
HOW PROXIES WILL BE TABULATED AND VOTED
Votes will be tabulated by Donnelley Financial Solutions.Mediant, a BetaNXT Company. We do not expect any matters to be presented for a vote at the annual meeting other than the matters described in this Proxy Statement. If you grant a proxy, any of the officers named as proxy holder, Warren M. Rehn, Julie Z. Weedman, or their nominee(s) or substitute(s), will have the discretion to vote your shares on any additional matters that are properly presented for a vote at the annual meeting. If a director nominee is not available as a candidate for director, any of the officers named as proxy holder will vote your proxy for another candidate nominated by our board of directors.
Proxies submitted properly will be voted in accordance with the instructions contained therein. If you submit a proxy but do not provide voting directions, the proxy will be voted (i) “FOR” each of the seven director nominees, (ii) “FOR” the ratification of the appointment of Armanino, LLP as our independent registered public accounting firm, (iii) “FOR” the approval of the Golden Minerals Company 2023 Equity Incentive Plan, (iv) “FOR” the approval of a proposed amendment to the Company’s Amended and Restated Certificate of Incorporation to effect a reverse stock split of the Company’s common stock at a ratio ranging from 1-for-2 shares up to 1-for-25 shares, which ratio will be selected
(i) | “FOR” the election of each of the five director nominees listed in Proposal 1 (Election of Directors), |
by our Board of Directors and set forth in a public announcement; (v) “FOR” an amendment to our Amended and Restated Certificate of Incorporation to effect a reduction in the total number of authorized shares of our common stock concurrent with the reverse stock split in the amount illustrated under the table “Relationship Between the Reverse Stock Split Ratio and the Authorized Share Reduction” and (vi) “FOR” an amendment to our Amended and Restated Certificate of Incorporation to allow for officer exculpation,
(ii) | “FOR” the approval of Proposal 2 (Ratification of Appointment of Independent Auditors), |
(iii) | “FOR” the approval of Proposal 3 (Approval of an Amendment to the Amended and Restated Certificate of Incorporation to Increase the Authorized Common Stock), |
(iv) | “FOR” the approval of Proposal 4 (Approval of an Amendment to the 2023 Equity Incentive Plan to Increase the Reserved Shares of Common Stock), |
(v) | “FOR” the approval of Proposal 5 (Advisory Vote on the Compensation of Our Named Executive Officers), and |
(vi) | “3 YEARS” for Proposal 6 (Advisory Vote on the Frequency of the Stockholder Vote on the Compensation of Our Named Executive Officers), |
and in such manner as the proxy holders named on the proxy determine, in their discretion, upon such other business as may properly come before the annual meeting or any adjournment or postponement thereof.
If your shares are held through a broker, bank or other nominee (collectively referred to as “brokers”), the broker will vote your shares according to the specific instructions it receives from you. If the broker does not receive voting instructions from you, the broker may vote only on proposals that are considered “routine” matters. Under applicable NYSE rules, and guidance, at this year’s annual meeting, your broker may vote without your instructions only on Proposal 2 (the ratification(Ratification of the appointmentAppointment of Armanino, LLP as our independent registered public accounting firm for 2023), Proposal 4 (reverse stock split),Independent Auditors) and Proposal 5 (reduction in authorized shares3 (Approval of common stock)an Amendment to the Amended and Restated Certificate of Incorporation to Increase the Authorized Common Stock). The broker’s failure to vote on Proposal 1 (the election(Election of directors),Directors ), Proposal 3 (approval4 (Approval of ouran Amendment to the 2023 Equity Incentive Plan)Plan to Increase the Reserved Shares of Common Stock), Proposal 5 (Advisory Vote on the Compensation of Our Named Executive Officers), and Proposal 6 (officer exculpation)(Advisory Vote on the Frequency of the Stockholder Vote on the Compensation of Our Named Executive Officers), because the broker lacks discretionary authority to do so, is commonly referred to as a “broker non-vote.”
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CHANGING YOUR VOTE
After you have submitted your proxy, you may change the votes you cast or revoke your proxy at any time before the votes are cast at the annual meeting by (1) delivering a written notice of your revocation to our Corporate Secretary at our principal executive office located at 350 Indiana Street, Suite 650, Golden, Colorado 80401; (2) executing and delivering a later dated proxy card; or (3) by the Internet or telephone by following the voting instructions provided in the Notice. In addition, the powers of the proxy holders to vote your stock will be suspended if you attend the annual meeting and so request, although attendance at the annual meeting will not by itself revoke a previously granted proxy.
SOLICITATION COSTS
The accompanying proxy is solicited on behalf of the Company by its board of directors, and the cost of solicitation will be borne by Golden Minerals. Following the original mailing of the proxies and soliciting materials, directors, officers, and employees of the Company may solicit proxies by mail, telephone, facsimile, email or personal interviews. We will also request banks and brokers to solicit their customers who have a beneficial interest in our common stock registered in the names of nominees, and we will reimburse banks and brokers for their reasonable out-of-pocket expenses in so doing.
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ELECTION OF DIRECTORS
The board of directors unanimously recommends that the Company’s stockholders vote FOR“FOR” the election of each of the following seven nominees:
Jeffrey G. Clevenger
Warren M. Rehn
W. Durand Eppler
Deborah J. Friedman
Kevin R. Morano
Terry M. Palmer
David H. Watkinsfive nominees.
The board of directors has nominated for election at the annual meeting Messrs. Clevenger, Rehn, Eppler, Morano Palmer and Watkins and Ms. Friedman to serve until the 20242025 annual meeting of stockholders or until their successors are elected. Messrs. Clevenger, Rehn, Eppler, Morano Palmer and Watkins and Ms. Friedman are currently directors of Golden Minerals. Each nominee has consented to being named as a nominee. Terry M. Palmer, who is currently a member of the Company’s board of directors and Chairperson of the Audit Committee has notified the Company that he is retiring from the Board and will not stand for re-election at the 2024 annual meeting of stockholders.
The sevenfollowing table sets forth the full name, age and current positions of each nominee:
Name | Age | Position | ||
Jeffrey G. Clevenger (3) | 74 | Director, Chairman of the Board of Directors | ||
Warren M. Rehn (1) | 69 | Director | ||
Deborah J. Friedman (2)(4) | 71 | Director, Chairperson of the Corporate Governance and Nominating Committee | ||
Kevin R. Morano (2)(3)(4) | 70 | Director, Chairperson of the Compensation Committee | ||
David H. Watkins (3) | 79 | Director |
(1) | Mr. Rehn also serves as our President and Chief Executive Officer. |
(2) | Member of the Audit Committee. |
(3) | Member of the Compensation Committee. |
(4) | Member of the Corporate Governance and Nominating Committee. |
The five candidates that receive the highest number of affirmative votes will be elected to serve on our board of directors.
The Company is an “Eligible International Interlisted Issuer” within the meaning of the rules of the Toronto Stock Exchange (the “TSX”) and, accordingly, the Company has been granted an exemption by the TSX from the TSX requirements regarding (i) majority approval for the election of directors, and (ii) the issuance of a news release disclosing director election voting results.
The following table sets forth the name, age, and current positions of each nominee:
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InformationBiographical information regarding each nominee is set forth below, based upon information furnished to us by the nominee.
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Nominees for Election
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was Senior Vice President of Cyprus Copper Company from August 1992 to January 1993. From 1973 to 1992, Mr. Clevenger held various technical, management and executive positions at Phelps Dodge Corporation, including President and General Manager of Phelps Dodge Morenci, Inc. He is a Member of the American Institute of Mining, Metallurgical and Petroleum Engineers and the Metallurgical Society of America. Mr. Clevenger holds a B.S. in Mining Engineering with Honors from the New Mexico Institute of Mining and Technology and is a graduate of the Advanced International Senior Management Program of Harvard University. In determining Mr. Clevenger’s qualifications to serve on our board of directors, the board has considered, among other things, his experience and expertise in the mining industry, including the operating, management, and executive positions he has held previously at several other mining companies. |
Warren M. Rehn. Mr. Rehn was appointed President of our Company in May 2015 and appointed Chief Executive Officer and director in September 2015. Mr. Rehn previously served as Senior Vice President, Exploration and Chief Geologist since December 2012 and served as Vice President, Exploration and Chief Geologist since February 2012. From 2007 until February 2012, Mr. Rehn held various positions at Barrick Gold Exploration, Inc., serving most recently as Chief Exploration Geologist for the Bald Mountain and Ruby Hill mining units. From 2005 until 2007, Mr. Rehn was a consulting geologist for Gerson Lehman Group, which provides consulting services to various industries, including geology and mining. Mr. Rehn served as a Consulting Senior Geologist at Placer Dome Exploration, Inc. in 2004 and as an independent consulting geologist throughout the Americas from 1994 until 2003. | ||
He served as a Senior Geologist at Noranda Exploration, Inc. from 1988 until 1994. Mr. Rehn holds an M.S. in Geology from the Colorado School of Mines and a B.S. in Geological Engineering from the University of Idaho. In determining Mr. Rehn’s qualifications to serve on our board of directors, the board has considered, among other things, his experience in the mining industry, including his exploration and geology expertise and experience at several mining companies, as well as his experience with the Company. |
Warren M. Rehn. Mr. Rehn was appointed President of our Company in May 2015 and appointed Chief Executive Officer and director in September 2015. Mr. Rehn previously served as Senior Vice President, Exploration and Chief Geologist since December 2012 and served as Vice President, Exploration and Chief Geologist since February 2012. From 2007 until February 2012, Mr. Rehn held various positions at Barrick Gold Exploration, Inc., serving most recently as Chief Exploration Geologist for the Bald Mountain and Ruby Hill mining units. From 2005 until 2007, Mr. Rehn was a consulting geologist for Gerson Lehman Group, which provides consulting services to various industries, including geology and mining. Mr. Rehn served as a Consulting Senior Geologist at Placer Dome Exploration, Inc. in 2004 and as an independent consulting geologist throughout the Americas from 1994 until 2003. He served as a Senior Geologist at Noranda Exploration, Inc. from 1988 until 1994. Mr. Rehn holds an M.S. in Geology from the Colorado School of Mines and a B.S. in Geological Engineering from the University of Idaho. In determining Mr. Rehn’s qualifications to serve on our board of directors, the board has considered, among other things, his experience in the mining industry, including his exploration and geology expertise and experience at several mining companies, as well as his experience with the Company.
W. Durand Eppler. Mr. Eppler has served as a director of our Company since March 2009. Mr. Eppler has over 40 years of experience in the natural resources industry and has served since June 2016 as a Managing Director of Capstone Headwaters MB, a private, middle market investment banking institution. Prior to joining Capstone Headwaters MB, Mr. Eppler was, from 2004, founder and partner of Sierra Partners, LLC, a private investment and advisory firm. From June 2005 until August 2008, Mr. Eppler was President and Chief Executive Officer of Coal International Plc, an international coal mining and development company. From 1995 to 2004, Mr. Eppler held various positions at Newmont Mining Corporation and its subsidiaries, including Vice President of Newmont Capital, Ltd. (2002 to August 2004), Vice President, Corporate Development of Newmont Mining Corporation (2001 to 2002), President of Newmont Indonesia (1998 to 2001) and Vice President, Corporate Planning of Newmont Mining Corporation (1995 to 1998). Prior to joining Newmont, Mr. Eppler served as the Managing Director, Metals & Mining for Chemical Securities, Inc., a subsidiary of Chemical Bank (now JPMorgan Chase), where he was responsible for relationship management, technical support, corporate finance services, credit marketing and transaction execution
for clients in the global precious metals, industrial and energy resources businesses. He currently serves on the boards of directors of Vista Gold Corporation and Plata Latina Minerals Corporation, and he served on the boards of Frontier Mining Limited, Augusta Resource Corporation, Allied Nevada Gold Corporation and Northern Energy Mining Company. Mr. Eppler holds a B.A. in Geography & Religion from Middlebury College and an M.S. in Mineral Economics from the Colorado School of Mines. Mr. Eppler is a member of the Society of Mining Engineers of A.I.M.E. and a member of the Global Leadership Council, College of Business, Colorado State University. In determining Mr. Eppler’s qualifications to serve on our board of directors, the board has considered, among other things, his experience and expertise in mining industry public and private finance, corporate development in public mining companies, and management in the base and precious metals mining industries.
Deborah Friedman. Ms. Friedman has served as a director of our company since 2021 and has over 35 years of experience in the mining industry. Ms. Friedman is a retired partner currently serving as senior of counsel at Davis Graham and Stubbs, LLP (“DGS”), a law firm based in Denver, Colorado, where her practice has focused primarily on corporate finance, securities, corporate governance, and domestic and international mergers and acquisitions matters for both publicly traded and privately held companies, with specific expertise in the mining industry. She previously served as Senior Vice President, General Counselsenior vice president, general counsel and Corporate Secretarycorporate secretary for Golden Minerals between 2009 and 2015 under an arrangement whereby she split her time between Golden Minerals and DGS. From 2007 to 2009 Ms. Friedman served as Senior Vice President, General Counselsenior vice president, general counsel and Corporate Secretarycorporate secretary of Apex Silver Mines Limited, predecessor to Golden Minerals. Prior to DGS she spent 16 years working in varied positions including General Counselgeneral counsel in the legal departments of Cyprus Amax Minerals Company and AMAX Gold Inc. She has served on the board of directors of Vista Gold (NYSE American: VGZ and TSX: VGZ) since March 2019. In determining Ms. Friedman’s qualifications to serve on our board of directors, the board considered, among other things, her ability to provide expertise on corporate and finance matters as well as mine development and operations.
Ms. Friedman has received numerous accolades and recognition for her work, including being featured in the International Who’s Who of Mining Lawyers by Law Business Research Ltd., and The Best Lawyers in America©. Ms. Friedman holds a Bachelor of Arts Degree in History from the University of Illinois and a Juris Doctor Degree from the University of Michigan Law School.
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Ms. Friedman has received numerous accolades and recognition for her work, including being featured in the International Who’s Who of Mining Lawyers by Law Business Research Ltd., and The Best Lawyers in America©. Ms. Friedman holds a Bachelor of Arts Degree in History from the University of Illinois and a Juris Doctor Degree from the University of Michigan Law School. |
Kevin R. Morano. Mr. Morano has served as a director of our Company since March 2009. He has over 3545 years of experience in the mining industry. Mr. Morano has been Managing Principal of KEM Capital LLC, a private equity investment company and provider of management advisory services, since March 2007. Prior to forming his own company, Mr. Morano held a number of senior executive positions at major American public companies including a 21-year career at ASARCO Incorporated, a global copper mining company and specialty chemicals and aggregates producer, which was acquired by Grupo Mexico in December 1999. At ASARCO, Mr. Morano served in various senior executive capacities including President and Chief Operating Officer, Executive Vice President and Chief Financial Officer. He currently serves as a director of Bear Creek Mining Company, and he served as a director of Southern Peru Copper Corporation, Coeur d’Alene Mines and Apex Silver. From March 2002 to March 2007, Mr. Morano was employed at Lumenis Ltd initially as Chief Financial Officer and subsequently as Senior Vice President for Marketing and Business Development. From May 2000 through October 2001, Mr. Morano served as the Chief Financial Officer of Exide Technologies. Mr. Morano holds a B.Sc. in Finance from Drexel University and an M.B.A. from Rider University. In determining Mr. Morano’s qualifications to serve on our board of directors, the board has considered, among other things, his experience and expertise in the mining industry, public and private finance and management experience at public mining companies.
Terry M. Palmer. Mr. Palmer has served as a director of our Company since March 2009. He has over 40 years of financial, management and accounting experience with a particular focus on the mining industry. For the period January 2003 to December 2016, Mr. Palmer worked on a part-time basis as a principal of the CPA firm of Marrs, Sevier & Company LLC. He spent 36 years at Ernst & Young LLP where he rose from a staff position to partner responsible for audit and advisory services to major international mining companies and serving as the technical consulting partner for SEC-related business. Mr. Palmer previously served as a director of Allied Nevada Gold Corp, Sunward Resources Ltd. and Apex Silver. Mr. Palmer holds a B.Sc. in Business Administration from Drake University and an M.B.A. from the University of Denver. He is a retired certified public accountant. In determining Mr. Palmer’s qualifications to serve on our board of directors, the board has considered, among other things, his experience and expertise as an audit partner at Ernst & Young LLP focused on public mining companies, his knowledge about and experience in the types of accounting and financial issues faced by public mining companies, and his experience as a director of exploration, development, and small public mining companies.
David H. Watkins. Mr. Watkins has served as a director of our Company since March 2009. He has over 50 years of experience in the mining industry, working as a senior executive with major mining companies and junior exploration and development companies. From 2011 to 2016, Mr. Watkins served as Chairman of Atna Resources Ltd. (“ATNA”), a company engaged in the exploration, development and production of gold properties. Mr. Watkins previously served ATNA as Executive Chairman from June 2010 to June 2011 and Chief Executive Officer from March 2000 to June 2010. From 1993 to 1999, Mr. Watkins served as Senior Vice President, Exploration of Cyprus Amax Minerals Company, a producer of commodities including copper, gold, molybdenum, lithium and coal. Prior to his employment with Cyprus Amax, Mr. Watkins served as President of Minova Inc., a producer of precious metals and base metals from mining operations in Canada. Mr. Watkins currently serves on the boards of directors of a number of companies, including Euro Resources S.A., Enduro Metals Corporation, and Commander Resources Ltd. Mr. Watkins previously served on the boards of Argonaut Gold Inc., Rio Novo Gold Inc., Camino Minerals Corporation, Valley High Ventures, Maudore Minerals Ltd., Canplatts Inc., Bearing Lithium Corporation and Landdrill International Inc. Mr. Watkins holds a B.A. in Geology from Queen’s University at Kingston, and an M.S. in Geology from Carleton University, Ottawa, and is a graduate of the Executive Business Program of the University of Western Ontario. Mr. Watkins is a member of the Canadian Institute of Mining and Metallurgy, Geological Association of Canada, Geological Society of Nevada and Prospectors and Developers Association of Canada. In determining Mr. Watkins’ qualifications to serve on our board of directors, the board has considered, among other things, his experience and expertise in mineral exploration for base and precious metals in South America and other regions, and his experience as an executive or director of small public mining companies like our company and familiarity with the technical exploration, financing, and management issues faced by such companies.
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RATIFICATION OF APPOINTMENT OF INDEPENDENT AUDITORS
The board of directors, pursuant to the recommendation of the Audit Committee of the board of directors, unanimously recommends that the Company’s stockholders vote FOR“FOR” the ratification of the appointment of Armanino, LLPHaynie & Company (“Armanino”Haynie”) to serve as our independent registered public accounting firm for the fiscal year ending December 31, 2023.2024.
The affirmative vote of the holders of a majority of the common stock entitled to vote and represented in person or by proxy at the annual meeting is required to ratify the selection of our independent registered public accounting firm for the fiscal year 2023.2024. In the event the ratification is not approved by the required number of holders, the Audit Committee may reconsider, but will not necessarily change, its selection of ArmaninoHaynie to serve as our independent registered public accounting firm.
ArmaninoHaynie has been engaged as the Company’s independent registered public accounting firm since September 6, 2022July 7, 2023 and audited the Company’s financial statementstatements for the fiscal year ended December 31, 2022.2023. Plante & Moran, PLLC (“Plante Moran”) served as the Company’s independent registered public accounting firm with respect to the audit of the financial statements for the fiscal year ended December 31, 2021. Plante Moran was replaced by Armanino, LLP (“Armanino”) as the Company’s independent registered public accounting firm effective September 6, 2022. The Company’s prior engagement with Plante & MoranArmanino served as the Company’s independent registered public accounting firm waswith respect to the audit of the financial statements for the fiscal year ended December 31, 2022. The Company’s prior engagements with Plante Moran and Armanino as the Company’s independent registered public accounting firms were terminated by mutual agreement of the Company’s Audit Committee and each of Plante Moran.Moran and Armanino, respectively. The audit reports of Plante Moran on the Company’s financial statements for the fiscal years ended December 31, 2020 and 2021 and the audit reports of Armanino on the Company’s financial statements for the fiscal year ended December 31, 2022 did not contain an adverse opinion or a disclaimer of opinion, and were not qualified or modified as to uncertainty, audit scope or accounting principles. During the fiscal years ended December 31, 2020 and 2021, and through the subsequent interim period preceding Plante Moran’s dismissal, there were no disagreements between the Company and Plante Moran on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedures, which disagreements, if not resolved to the satisfaction of Plante Moran, would have caused it to make reference thereto in its reports on the Company’s financial statements for such fiscal years and there were no reportable events, as defined in Item 304(a)(1)(v) of Regulation S-K. Additionally, during the fiscal years ended December 31, 2021 and 2022, and through the subsequent interim period preceding Armanino’s dismissal, there were no disagreements between the Company and Armanino on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedures, which disagreements, if not resolved to the satisfaction of Armanino, would have caused it to make reference thereto in its reports on the Company’s financial statements for such fiscal years and there were no reportable events, as defined in Item 304(a)(1)(v) of Regulation S-K.
The following table sets out the aggregate fees billed by Armanino related tofor the fiscal yearyears ended December 31, 20222023 and by Plante Moran for the fiscal year ended December 31, 20212022 for the categories of fees described.
Fiscal Year Ended December 31, | ||||||||
2022(4) | 2021 | |||||||
Audit Fees (1) | $ | 226,864 | $ | 267,200 | ||||
Audit Related Fees | $ | - | $ | - | ||||
Tax Fees(2) | $ | - | $ | 52,500 | ||||
All Other Fees(3) | $ | 9,706 | $ | 16,258 | ||||
Total Fees | $ | 236,570 | $ | 336,007 |
Fiscal Year Ended December 31, | ||||
2023(3)(4) | 2022(3)(4) | |||
Audit Fees (1) | $ 216,250 | $ 226,864 | ||
- | ||||
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- | ||||
All Other Fees (2) | $ 91,778 | $ 9,706 | ||
Total Fees | $ 308,028 | $ 236,570 |
(1) | Audit fees include fees for services rendered for the audit of our annual financial statements and reviews of our quarterly financial statements. | |
(2) |
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All other fees include fees for consents and comfort letters. | |
(3) |
The Company paid its prior auditor, Armanino, $26,250 for fees to review the Company’s financial statements for the fiscal year ended December 31, 2022 and the quarter ended March 31, 2023, and $70,283 related to consents and comfort letters. | ||
(4) | The Company paid its prior auditor, Plante Moran, $42,000 for fees to review the Company’s financial statements for the quarters ended March 31, 2022 and June 30, 2022, and $6,500 related to consents and comfort |
The Audit Committee charter includes certain policies and procedures regarding the pre-approval of audit and non-audit services performed by an outside accountant. The Audit Committee is required to pre-approve all engagement letters and fees for all auditing services (including providing comfort letters in connection with securities underwritings) and non-audit services performed by the outside auditors, subject to any exception under Section 10A of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and any rules promulgated thereunder. Pre-approval authority may be delegated to a committee member or a subcommittee, and any such member or subcommittee must report any decisions to the full committee at its next scheduled meeting. All of the fees and services provided byof Haynie during 2023, of Armanino during 2022 and by2023, and of Plante Moran during 2021 and 2022 were approved by the Audit Committee pursuant to its pre-approval policy as provided in the Audit Committee charter.
APPROVAL OF 2023 EQUITY INCENTIVE PLAN
APPROVAL OF AN AMENDMENT TO THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO INCREASE THE AUTHORIZED COMMON STOCK
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The board of directors unanimously recommends that the Company’s stockholders vote FOR“FOR” the approval of an amendment to the Company’s Amended and Restated Certificate of Incorporation to increase the total number of authorized common stock from 28,000,000 shares to 100,000,000 shares.
On March 11, 2024, the Company’s board of directors unanimously adopted a resolution approving, declaring advisable and recommending to stockholders for their approval the increase of the Company’s authorized common stock from 28,000,000 shares to 100,000,000 shares by amending Article IV, Section 4.1(a) of the Company’s Amended and Restated Certificate of Incorporation. The approval by the board of directors is subject to the approval of such amendment by a majority of the votes cast at the annual meeting (either in person or by proxy). A copy of the proposed amendment is attached to this Proxy Statement as Appendix A. The proposed amendment will become effective upon the filing of the amendment with the Delaware Secretary of State.
Reasons for the Proposed Amendment
We currently have 14,573,252 shares of common stock outstanding, which reflects the one-for-25 reverse stock split that became effective June 9, 2023. In addition, we have reserved (i) 400,409 shares of common stock issuable pursuant to outstanding awards under our 2009 Equity Incentive Plan, (ii) 40,000 shares of common stock issuable pursuant to outstanding awards under our 2023 Equity Incentive Plan, (the “2023 Plan”), a new omnibus equity incentive plan that will replace our existing Amended and Restated 2009 Equity Incentive Plan (the “2009 Plan”). The 2023 Plan was approved unanimously by our board of directors on February 24, 2023, to be effective upon stockholder approval.
Key Features of the 2023 Plan
The key features of the 2023 Plan include the following:
A reserve of 9,000,000(iii) 320,000 shares of our common stock that are authorized for issuance pursuant to plan awards;future awards under our 2023 Equity Incentive Plan and (iv) 11,308,314 shares issuable upon exercise of outstanding warrants. After accounting for shares reserved for issuance upon exercise of these existing convertible securities, we have only approximately 1,846,597 shares available for issuance in the future for capital raising or other purposes. While it is possible that some of the reserved shares listed above will not ultimately be issued, because they have been reserved for a particular use, they are not currently available for use by the Company for future issuance.
The Company’s board of directors recommends approval of the proposed amendment so that it will have additional authorized but unissued and unreserved shares to permit the pursuit and effectuation of corporate transactions requiring the issuance of common stock in the future. Those transactions may include:
· | the issuance of common stock in connection with the growth and expansion of the Company’s business, including acquisition of mining properties or other companies engaged in the mining business; |
· | the issuance of common stock or securities convertible into common stock in connection with financing and recapitalization transactions; |
· | the future authorization of additional shares of common stock for issuance under the Company’s executive compensation program and the 2023 Equity Incentive Plan; and |
· | the issuance of common stock in connection with other corporate transactions that implement proper business purposes determined by the board of directors to be in the best interests of the Company and its stockholders. |
The Company’s board believes that additional authorized shares should be available in the future in order to permit the Company to pursue the various transactions described above and to provide for its growth and financial stability. Many of the types of transactions discussed above arise under circumstances requiring prompt action and do not
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No “evergreen”allow the necessary time to seek stockholder approval to authorize additional shares. The board believes that it is very important for it to have the flexibility to be able to act promptly in the best interests of the Company and its stockholders when circumstances such as those described above arise.
The Company may pursue the acquisition of other mining companies, mining properties or interests in mining properties in the future. In the event the proposed increase in authorized shares of common stock is approved by stockholders, such future acquisitions may be effected for consideration that includes the issuance of shares of the Company’s common stock, or other securities convertible into the Company’s common stock, in partial or full payment of the purchase price. The Company anticipates that the terms of any acquisitions in which it would issue shares will be determined through direct negotiations with the securities holders or controlling persons of the entities or properties being acquired. Factors considered in determining such terms may include cash flow, reserves and mineralized material, earnings power, quality of management, properties, market location and position, and growth potential.
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APPROVAL OF AN AMENDMENT TO THE 2023 EQUITY INCENTIVE PLAN TO INCREASE THE RESERVED SHARES OF COMMON STOCK |
The board of directors unanimously recommends that the Company’s stockholders vote “FOR” the approval of an amendment to our 2023 Equity Incentive Plan to increase the number of shares of common stock reserved for issuance pursuant to awards from 360,000 shares to 1,400,000 shares.
We are seeking stockholder approval of an amendment to the share reserve;
A ten (10) year term that expires on February 23, 2033;
Permitted awards include options, stock appreciation rights (“SARs”), restricted stock, RSUs, performance stock units (“PSUs”), and other cash and stock-based awards;
No direct or indirect repricing of options or SARs without stockholder approval;
Stringent share recycling provisions that prohibit recycling2023 Equity Incentive Plan to increase the number of shares used as considerationauthorized for tax withholding or as consideration for option exercises, along with full counting of all shares subjectissuance pursuant to stock-settled SARs;
A minimum one-year cliff vesting schedule on all award typesawards under the 2023 Equity Incentive Plan (applicableby 1,040,000 shares of common stock, from 360,000 shares to at least 95%1,400,000 shares of common stock (the “Plan Amendment”). As of the shares authorized for issuance);
Dividends and dividend equivalents on unvested awards are accrued and paid only if related awards become vested;
No excise-tax gross-ups on equity awards.
Reasons for Adoptingdate of this proxy statement, we have granted 40,000 restricted stock units under the 2023 PlanEquity Incentive Plan.
Background and Purpose of the Proposal
The 2023 Equity Incentive Plan was approved by our stockholders on May 26, 2023, authorizing the issuance of 9,000,000 shares of common stock (which was reduced to 360,000 shares of common stock in connection with our 1-for-25 stock split in 2023). The 2023 Equity Incentive Plan is an important part of our overall compensation program. The 2023 Equity Incentive Plan is the only compensation plan under which we grant equity-based awards to our employees, contractors and outside directors. Accordingly, we believe that the 2023 Equity Incentive Plan is critical to our ability to attract, motivate and retain key employees, and thus plays a significant role in our continued success. Further, as employees, contractors and outside directors acquire and/or increase their ownership interest in the Company, their interests are more closely aligned with the interests of our stockholders.
The purpose of the proposed Plan Amendment is to increase the number of shares of common stock that we may issue pursuant to awards under the 2023 Equity Incentive Plan by 1,040,000 shares to 1,400,000 authorized shares. We expect that the shares currently reserved for issuance pursuant to awards under the 2023 Equity Incentive Plan will soon be exhausted. Accordingly, based on the recommendation of the Compensation Committee, and the board of directors believeunanimously adopted the Plan Amendment, subject to the approval of our stockholders at the Annual Meeting.
If our stockholders do not approve the Plan Amendment at the annual meeting, the 2023 Equity Incentive Plan will continue in effect in its current form, and we will continue to grant equity awards under the 2023 Equity Incentive Plan until the shares of common stock reserved for issuance pursuant to awards thereunder are exhausted. If that happens, we will lose an important compensation tool that is designed to attract, motivate and retain highly qualified talent and more closely align our employees’ interests with our stockholders’ interests.
If the Plan Amendment is approved by our stockholders at the annual meeting, we intend to file, pursuant to the Securities Act of 1933, as amended (the “Securities Act”), a registration statement on Form S-8 to register the additional shares of common stock available for issuance under the 2023 Equity Incentive Plan.
Text of the Amendment
The Plan Amendment increases the maximum number of shares of common stock that we must continuemay issue pursuant to offer a competitive equity incentive program in orderawards under the 2023 Equity Incentive Plan by 1,040,000 shares, from 360,000 to successfully attract, retain and motivate the best employees and directors without whom we cannot execute on our business goals or deliver value to our stockholders. Our current 2009 Plan will expire by its terms no later than May of 2024. Adoption1,400,000. To reflect such increase, Section 4.1 of the 2023 Equity Incentive Plan is therefore prudentwould be amended and restated in its entirety as follows:
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“4.1 Shares of Common Stock Subject to the Plan; Share Limit. Subject to the adjustment as provided in Sections 8.1 and 10.9, the maximum number of shares of Common Stock available for issuance under the Plan will allow for usbe equal to continue to maintain a competitive equity incentive program going forward. Adoption1,400,000, all of which may be granted, in the sole discretion of the 2023Administrator, as Incentive Stock Options. Common Stock issued under the Plan will also allow usshall be either authorized but unissued shares of Common Stock or, to incorporate certain equity incentive best practices, such as eliminating the “evergreen” provisionextent permitted, shares of Common Stock that have been reacquired by the 2009 Plan.Company or any Subsidiary.”
Shares Available for Issuance
As noted above, the 2023 Equity Incentive Plan is the only compensation plan under which we grant equity-based awards to our employees, contractors and outside directors. If the 2023 Plan Amendment is approved by the Company’s stockholders, we will immediately terminatehave the 2009 Plan and will not make any furtherfollowing shares available for issuance pursuant to equity-based awards under that Plan. We also hereby confirm that we have not issued any awards under the 2009 Equity Plan since February 24, 2023 and will not issue any additional awards under the 2009 Equity Plan unless our shareholders do not approve the 2023 Plan at the Annual Meeting. Certain information regarding our equity incentive plans is as follows, with all(all share counts for the 2009 Plan determined as of February 24, 2023:March 14, 2024):
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Shares available for issuance under the 2023 Equity Incentive Plan prior to amendment | 320,000 | |||
Amendment to 2023 Equity Incentive Plan | 1,040,000 | |||
Total shares available for issuance pursuant to new awards upon approval of the amendment to the 2023 Equity Incentive Plan | 1,360,000 |
Outstanding Awards under Existing Plans
As of February 24, 2023,March 18, 2024, there were 171,413,58214,573,252 total outstanding shares of the Company’s common stock. AsAdditionally, as of February 24, 2023,March 18, 2024, there were (i) no stock options outstanding, under the Company’s equity compensation plans. As of February 24, 2023, there were 5,810,038(ii) 272,409 RSUs and zerooutstanding, (iii) no PSUs outstanding, under the Company’s equity compensation plan. As of February 24, 2023, there were 4,050,000(iv) 168,000 KELTIPS outstanding and vested, under the Company’s equity compensation plan and 650,000 KELTIPS outstanding(v) 5,800 shares of unvested restricted common stock awarded pursuant to our Amended and unvested.Restated 2009 Equity Incentive Plan. Other than the foregoing, no other awards were outstanding as of February 24, 2023,March 18, 2024 under the Company’s equity compensation plans.
DESCRIPTION OF THE 2023 EQUITY INCENTIVE PLAN
The following summary of material terms of the 2023 Equity Incentive Plan is subject to and qualified in its entirety by the actual terms of the 2023 Plan. A copy ofEquity Incentive Plan, which was filed as Exhibit 10.1 to the 2023 Plan is provided as Appendix A to this proxy statement.Current Report filed on Form 8-K filed with the SEC on May 30, 2023.
The Purpose of the 2023 Equity Incentive Plan
The purpose of the 2023 Equity Incentive Plan is to promote the success of the Company and the interests of its stockholders by providing an additional means for the Company to attract, motivate, retain and reward directors, officers and employees.
Administration
The board of directors or one or more committees consisting of directors appointed by the board of directors will administer the 2023 Equity Incentive Plan. The board of directors intends to delegate general administrative authority for the 2023 Equity Incentive Plan to the compensation committee, which is comprised of directors who qualify as independent under SEC and NYSE American rules. Except where prohibited by applicable law, a committee may delegate some or all of its authority with respect to the 2023 Equity Incentive Plan to another committee of directors or to one or more officers of the Company. For purposes of Rule 16b-3 of of the Exchange Act and for grants to non-employee directors, directors, the 2023 Equity Incentive Plan must be administered by a committee consisting solely of two or more independent directors. The appropriate acting body, be it the board of directors, a committee within its delegated authority, or an officer within his or her delegated authority, is referred to in this proposal as the “Administrator.”
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The Administrator has broad authority under the 2023 Equity Incentive Plan with respect to award grants including, without limitation, the authority:
To select participants and determine the type(s) of award(s) that they are to receive;
· | To select participants and determine the type(s) of award(s) that they are to receive; |
To determine the number of shares that are to be subject to awards and the terms and conditions of awards, including the price (if any) to be paid for the shares or the award;
· | To determine the number of shares that are to be subject to awards and the terms and conditions of awards, including the price (if any) to be paid for the shares or the award; |
To cancel, modify, or waive the Company’s rights with respect to, or modify, discontinue, suspend, or terminate any or all outstanding awards, subject to any required consents, and subject to the repricing prohibition described below;
· | To cancel, modify, or waive the Company’s rights with respect to, or modify, discontinue, suspend, or terminate any or all outstanding awards, subject to any required consents, and subject to the repricing prohibition described below; |
To accelerate or extend the vesting or exercisability or extend the term of any or all outstanding awards subject to any required consents;
· | To accelerate or extend the vesting or exercisability or extend the term of any or all outstanding awards subject to any required consents; |
Subject to the other provisions of the 2023 Plan, to make certain adjustments to outstanding awards and authorize the conversion, succession or substitution of awards; and
· | Subject to the other provisions of the 2023 Equity Incentive Plan, to make certain adjustments to outstanding awards and authorize the conversion, succession or substitution of awards; and |
To allow the purchase price of awards or shares of the Company’s common stock to be paid in the form of cash, check, or electronic funds transfer, by the delivery of already-owned shares of the Company’s common stock or by a reduction of the number of shares deliverable pursuant to the awards, by services rendered by the recipient of the awards, by notice of third party payment or by cashless exercise, on such terms as the Administrator may authorize, or any other form permitted by law.
· | To allow the purchase price of awards or shares of the Company’s common stock to be paid in the form of cash, check, or electronic funds transfer, by the delivery of already-owned shares of the Company’s common stock or by a reduction of the number of shares deliverable pursuant to the awards, by services rendered by the recipient of the awards, by notice of third-party payment or by cashless exercise, on such terms as the Administrator may authorize, or any other form permitted by law. |
Eligibility
Persons eligible to receive awards under the 2023 Equity Incentive Plan include officers and employees of the Company or any of its subsidiaries, certain individual consultants who render bona fide services to the Company or any of its subsidiaries, and non-employee directors directors of the Company. As of February 24, 2023,March 13, 2024, there were approximately 242196 employees, including officers, of the Company and its subsidiaries, 542 individual consultants and seven five non-employee directors directors of the Company who would potentially be eligible to receive awards under the 2023 Equity Incentive Plan.
Authorized Shares
The 2023 Equity Incentive Plan currently authorizes the issuance of up to 9,000,000360,000 shares of the Company’s common stock pursuant to plan awards. The 2023 Equity Incentive Plan generally provides that shares issued in connection with awards that are granted by or become obligations of the Company through the assumption of awards (or in substitution for awards) in connection with an acquisition of another company will not count against the shares available for issuance under the 2023 Equity Incentive Plan, except as may be required by the Administratorplan administrator or applicable law or stock exchange rules.
Shares that are subject to or underlie awards that expire or for any reason are canceled or terminated, are forfeited, fail to vest, or for any other reason are not paid or delivered under the 2023 Equity Incentive Plan are available for reissuance under the 2023 Equity Incentive Plan. However, the 2023 Equity Incentive Plan prohibits liberal share recycling. Accordingly, shares tendered or withheld to satisfy the exercise price of options or tax withholding obligations, and shares covering the portion of exercised stock-settled SARsstock appreciate rights (“SARs”) (regardless of the number of shares actually delivered), count against the share limit.
Awards Under the 2023 Equity Incentive Plan
Because awards under the 2023 Equity Incentive Plan are granted in the discretion of the board of directors or a committee of the board of directors, the type, number, recipients and other terms of future awards cannot be determined at this time.
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No Repricing
In no event will any adjustment be made to a stock option or SARstock appreciate right under the 2023 Equity Incentive Plan (by amendment, cancellation and regrant, exchange for other awards or cash or other means) that would constitute a repricing of the per share exercise or base price of the award, unless such adjustment is approved by the stockholders of the Company. Adjustments made in accordance with the 2023 Equity Incentive Plan to reflect a stock split or similar event are not deemed to be a repricing.
Minimum Vesting Schedule
The 2023 Equity Incentive Plan requires a minimum one-year cliff cliff vesting schedule for all equity award types under the 2023 Equity Incentive Plan. This minimum vesting schedule will apply to at least 95% of the shares authorized for grant under the 2023 Equity Incentive Plan.
Dividends and Dividend Equivalents
Accrued dividends or dividend equivalent amounts shall not be paid unless and until the awards to which they relate become vested.
TYPES OF AWARDSTypes of Awards
The 2023 Equity Incentive Plan authorizes stock options, SARs, restricted stock, RSUs, PSUs, and other forms of awards that may be granted or denominated in or otherwise determined by reference to the Company’s common stock, as well as cash awards. The 2023 Equity Incentive Plan provides flexibility to offer competitive incentives and to tailor benefits to specific needs and circumstances. Awards may, in certain cases, be paid or settled in cash.
Stock Options
A stock option is a right to purchase shares of the Company’s common stock at a future date at a specified price per share (the “exercise price”). The per share exercise price of an option generally may not be less than the fair market value of a share of the Company’s common stock on the date of grant. On March 17, 2023,13, 2024, the last sale price of the Company’s common stock as reported on NYSE American was $0.20$0.35 per share. The maximum term of an option is ten years from the date of grant. An option may be either an incentive stock option or a nonqualified stock option. Incentive stock options are taxed differently than nonqualified stock options and are subject to more restrictive terms under the Internal Revenue Code of 1986, as amended (the “Code”) and the 2023 Equity Incentive Plan. Incentive stock options may be granted only to employees of the Company or a subsidiary.
SARs
A SAR is the right to receive payment of an amount equal to the excess of the fair market value of shares of the Company’s common stock on the date of exercise of the SAR over the base price of the SAR. The base price is established by the Administrator at the time of grant of the SAR and may not be less than the fair market value of a share of the Company’s common stock on the date of grant. SARs may be granted in connection with other awards or independently. The maximum term of a SAR is ten years from the date of grant.
Restricted Stock
Shares of restricted stock are shares of the Company’s common stock that are subject to forfeiture and to certain restrictions on sale, pledge, or other transfer by the recipient during a particular period of employment or service or until certain performance vesting conditions are satisfied. Subject to the restrictions provided in the applicable award agreement and the 2023 Equity Incentive Plan, a participant receiving restricted stock may have all of the rights of a stockholder as to such shares, including the right to vote and the right to receive dividends; provided,
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however, that dividends on unvested shares shall be accrued and shall be paid only if the restricted stock to which they relate become vested.
RSUs
A RSU represents the right to receive one share of the Company’s common stock on a specific future vesting or payment date. Subject to the restrictions provided in the applicable award agreement and the 2023 Equity Incentive Plan, a participant receiving RSUs has no rights as a stockholder with respect to the RSUs until the shares of common stock are issued to the participant. RSUs may be granted with dividend equivalent rights that are payable only if the underlying RSUs vest. RSUs may be settled in cash if so provided in the applicable award agreement.
PSUs
A PSU is a performance-based award that entitles the recipient to receive shares of the Company’s common stock based on attainment of one or more performance goals. Each PSU shall designate a target number of shares payable under the award, with the actual number of shares earned (if any) based on a formula set forth in the award agreement related to the attainment of one or more performance goals. A participant receiving PSUs has no rights as a stockholder until the shares of common stock are issued to the participant. PSUs may be granted with dividend equivalent rights that are payable only if the underlying PSUs are earned. PSUs may be settled in cash if so provided in the applicable award agreement.
Cash Awards
The Administrator, in its sole discretion, may grant cash awards, including, without limitation, discretionary awards, awards based on objective or subjective performance criteria, and awards subject to other vesting criteria.
Other Awards
The other types of awards that may be granted under the 2023 Equity Incentive Plan include, without limitation, stock bonuses, and similar rights to purchase or acquire shares of the Company’s common stock, and similar securities with a value derived from the value of, or related to, the Company’s common stock or returns thereon.
OTHER TERMSOther Terms
Change of Control
The 2023 Equity Incentive Plan provides that, in the event of a change in control (as defined in the 2023 Equity Incentive Plan), the Administrator shall have full discretion to take whatever actions it deems necessary or appropriate with respect to outstanding awards, including, but not limited to: (a) to provide for full or partial accelerated vesting of any award or portion thereof, either immediately prior to such change in control or on such terms and conditions following the change in control (such as a termination without cause) as the Administrator determines in its sole and absolute discretion, (b) to provide for the assumption of such awards or portions thereof or the substitution of such awards or portions thereof with similar awards of the surviving or acquiring company or parent thereof, in a manner designed to comply with Section 409A of the Code, (c) to provide for the settlement in cash or property and cancellation of any award or portions thereof immediately prior to such change in control, which settlement may, in a manner designed to comply with Section 409A of the Code, be subject to any escrow, earn-out or or other contingent or deferred payment arrangement that is contemplated by such change in control, and (d) take any other actions as the Administrator deems necessary or advisable in connection with such change in control transaction; provided, however, that in the event the surviving or acquiring company does not assume the outstanding awards or portions thereof or substitute similar stock awards for those outstanding under the 2023 Equity Incentive Plan as of the change in control, then (a) the vesting and exercisability, if applicable, of all awards or portions thereof shall be accelerated in full immediately prior to such change in control, with all
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performance goals or other vesting criteria applicable to any performance-based awards deemed achieved based on performance measured through the date of the change in control, and (b) such outstanding awards or portions thereof shall terminate and/or be payable upon the occurrence of the change in control. The Administrator may take different actions with respect to different Participants under the 2023 Equity Incentive Plan, different awards under the 2023 Equity Incentive Plan, and different portions of awards granted under the 2023 Equity Incentive Plan.
Transferability of Awards
Awards under the 2023 Equity Incentive Plan generally are not transferable by the recipient other than by will or the laws of descent and distribution, or pursuant to domestic relations orders. Awards with exercise features are generally exercisable during the recipient’s lifetime only by the recipient. Any amounts payable or shares issuable pursuant to an award generally will be paid only to the recipient or the recipient’s beneficiary or representative. The Administrator has discretion, however, to establish written conditions and procedures for the transfer of awards to other persons or entities, as long as such transfers comply with applicable federal and state securities laws and provided that any such transfers are not for consideration.
Adjustments
As is customary in plans of this nature, the share limits and the number and kind of shares available under the 2023 Equity Incentive Plan and any outstanding awards, as well as the exercise or purchase prices of awards, are subject to adjustment in the event of certain reorganizations, mergers, combinations, recapitalizations, stock splits, stock dividends, or other similar events that change the number or kind of shares outstanding, and extraordinary dividends or distributions of property to the stockholders.
No Limit on Other Authority
The 2023 Equity Incentive Plan does not limit the authority of the board of directors or any committee to grant awards or authorize any other compensation, with or without reference to the Company’s common stock, under any other plan or authority.
Restrictive Covenants and Clawback Policy
By accepting awards and as a condition to the exercise of awards and the enjoyment of any benefits of the 2023 Equity Incentive Plan, participants agree to be bound by any clawback policy adopted by the Company from time to time. Participants may also be subject to restrictive covenants if so required by the Administrator in any award agreement.
Termination of, or Changes to, the 2023 Equity Incentive Plan
The Administrator may amend or terminate the 2023 Equity Incentive Plan at any time and in any manner. Stockholder approval for an amendment will be required only to the extent then required by applicable law or any applicable stock exchange rules, or as required to preserve the intended tax consequences of the 2023 Equity Incentive Plan. For example, stockholder approval is required for any proposed amendment to increase the maximum number of shares that may be delivered with respect to awards granted under the 2023 Equity Incentive Plan. Adjustments as a result of stock splits or similar events will not, however, be considered amendments requiring stockholder approval. Unless terminated earlier by the Board, the authority to grant new awards under the 2023 Equity Incentive Plan will terminate five years after the date on which the 2023 Equity Incentive Plan was approved by the Board. Outstanding awards will generally continue following the expiration or termination of the 2023 Equity Incentive Plan. Generally speaking, outstanding awards may be amended by the Administrator (except for a repricing), but the consent of the award holder is required if the amendment (or any plan amendment) materially and adversely affects the award holder.
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CERTAIN FEDERAL TAX CONSEQUENCES
The following summary of the federal income tax consequences of awards under the 2023 Equity Incentive Plan is based upon federal income tax laws in effect on the date of this proxy statement. This summary does not purport to be complete, and does not discuss state, local or non-U.S. tax tax consequences. The tax consequences of individual awards may vary depending upon the particular circumstances applicable to any individual participant.
Nonqualified Stock Options
The grant of a nonqualified stock option under the 2023 Equity Incentive Plan will not result in any federal income tax consequences to the participant or to the Company. Upon exercise of a nonqualified stock option, the participant will recognize ordinary compensation income equal to the excess of the fair market value of the shares of common stock at the time of exercise over the option exercise price. If the participant is an employee, this income is subject to withholding for federal income and employment tax purposes. The Company is entitled to an income tax deduction in the amount of the income recognized by the participant, subject to possible limitations imposed by the Code, including Section 162(m) thereof. Any gain or loss on the participant’s subsequent disposition of the shares will be treated as long-term or short-term capital gain or loss, depending on the sales proceeds received and whether the shares are held for more than one year following exercise. The Company does not receive a tax deduction for any subsequent capital gain.
Incentive Stock Options
The grant of an incentive stock option (or “ISO”) under the 2023 Equity Incentive Plan will not result in any federal income tax consequences to the participant or to the Company. A participant recognizes no federal taxable income upon exercising an ISO (subject to the alternative minimum tax rules discussed below), and the Company receives no deduction at the time of exercise. In the event of a disposition of stock acquired upon exercise of an ISO, the tax
consequences depend upon how long the participant has held the shares. If the participant does not dispose of the shares within two years after the ISO was granted, nor within one year after the ISO was exercised, the participant will recognize a long-term capital gain (or loss) equal to the difference between the sale price of the shares and the exercise price. The Company is not entitled to any deduction under these circumstances.
If the participant fails to satisfy either of the foregoing holding periods (referred to as a “disqualifying disposition”), he or she will recognize ordinary compensation income in the year of the disposition. The amount of ordinary compensation income generally is the lesser of (i) the difference between the amount realized on the disposition and the exercise price or (ii) the difference between the fair market value of the stock at the time of exercise and the exercise price. Such amount is not subject to withholding for federal income and employment tax purposes, even if the participant is an employee of the Company. Any gain in excess of the amount taxed as ordinary income will generally be treated as a short-term capital gain. The Company, in the year of the disqualifying disposition, is entitled to a deduction equal to the amount of ordinary compensation income recognized by the participant, subject to possible limitations imposed by the Code, including Section 162(m) thereof.
The “spread” under an ISO (i.e., the difference between the fair market value of the shares at exercise and the exercise price) is classified as an item of adjustment in the year of exercise for purposes of the alternative minimum tax. If a participant’s alternative minimum tax liability exceeds such participant’s regular income tax liability, the participant will owe the alternative minimum tax liability.
Restricted Stock
Restricted stock is generally taxable to the participant as ordinary compensation income on the date that the restrictions lapse (i.e., the date that the stock vests), in an amount equal to the excess of the fair market value of the shares on such date over the amount paid for such stock, if any. If the participant is an employee, this income is
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subject to withholding for federal income and employment tax purposes. The Company is entitled to an income tax deduction in the amount of the ordinary income recognized by the participant, subject to possible limitations imposed by the Code, including Section 162(m) thereof. Any gain or loss on the participant’s subsequent disposition of the shares will be treated as long-term or short-term capital gain or loss depending on the sales price and how long the stock has been held since the restrictions lapsed. The Company does not receive a tax deduction for any subsequent gain.
Participants receiving restricted stock awards may make an election under Section 83(b) of the Code (a “Section 83(b) Election”) to recognize as ordinary compensation income in the year that such restricted stock is granted in an amount equal to the excess of the fair market value on the date of the issuance of the stock over the amount paid for such stock. If the participant is an employee, this income is subject to withholding for federal income and employment tax purposes. If such an election is made, the recipient recognizes no further amounts of compensation income upon the lapse of any restrictions and any gain or loss on subsequent disposition will be long-term or short-term capital gain or loss to the recipient. However, if the stock is later forfeited, the participant will not be able to recover the tax previously paid pursuant to the Section 83(b) Election. The Section 83(b) Election must be made within 30 days from the time the restricted stock is issued. The Company is entitled to a deduction equal to the amount of income taken into account as a result of the Section 83(b) Election, subject to possible limitations imposed by the Code, including Section 162(m) thereof.
To the extent dividends are paid while the restrictions on the stock are in effect, any such dividends will be taxable to the participant as ordinary income (and will be treated as additional wages for federal income and employment tax withholding purposes, if the recipient is an employee) and will be deductible by the Company (subject to possible limitations imposed by the Code, including Section 162(m) thereof), unless the participant has made a Section 83(b) Election, in which case the dividends will generally be taxed at dividend rates and will not be deductible by the Company.
Other Awards
Other awards (such as RSUs and PSUs) are generally treated as ordinary compensation income as and when common stock or cash are paid to the participant upon vesting or settlement of such awards. If the participant is an employee, this income is subject to withholding for income and employment tax purposes. The Company is generally entitled to an income tax deduction equal to the amount of ordinary income recognized by the recipient, subject to possible limitations imposed by the Code, including Section 162(m) thereof.
Section 162(m) of the Internal Revenue Code
Under Code Section 162(m), no deduction is generally allowed in any taxable year of the Company for compensation in excess of $1 million paid to any of the Company’s “covered employees.” A “covered employee” is any individual who has served at any time after December 31, 2016 as the Company’s chief executive officer, chief financial officer, or other executive officer whose compensation has been reported in a Company proxy statement, regardless of whether any such individual is still employed by the Company. We may be prohibited under Code Section 162(m) from deducting compensation paid pursuant to the 2023 Equity Incentive Plan to our “covered employees.”
Section 409A of the Internal Revenue Code
Section 409A of the Code provides certain requirements for the deferral and payment of deferred compensation arrangements. In the event that any award under the 2023 Equity Incentive Plan is deemed to be a deferred compensation arrangement, and if such arrangement does not comply with Section 409A of the Code, the recipient of such award will recognize ordinary income once such award is vested, as opposed to at the time or times set forth above. In addition, the amount taxable will be subject to an additional 20% federal income tax along with other
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potential taxes and penalties. It is intended, although not guaranteed, that all awards issued under the 2023 Equity Incentive Plan will either be exempt from or compliant with the requirements of Section 409A of the Code.
Interested Parties
Approval of the 2023 Plan will change the number of shares available for issuance to the directors and executive officers of the Company, thus each of those persons has an interest in and will be affected from the approval of the 2023 Plan.26
APPROVAL OF A REVERSE STOCK SPLIT
The board of directors unanimously recommends that the Company’s stockholders vote FOR the approval of a proposed amendment to the Company’s Amended and Restated Certificate of Incorporation to effect a reverse stock split of the Company’s common stock at a ratio ranging from 1-for-2 shares up to 1-for-25 shares, which ratio will be selected by our Board of Directors and set forth in a public announcement (the “Reverse Stock Split”). In accordance with the DGCL, the Board of Directors may elect to abandon the proposed amendment without further action by the stockholders at any time prior to the effectiveness of the filing of the Certificate of Amendment effecting the Reverse Stock Split with the Secretary of State of the State of Delaware, notwithstanding stockholder approval of the proposed amendment effecting the Reverse Stock Split.
Reasons for a Reverse Stock Split
To maintain our listing on NYSE American. The primary purpose of the Reverse Stock Split is to raise the per share trading price of the Company’s common stock in order to maintain its listing on the NYSE American. Delisting from the NYSE American may adversely affect the Company’s ability to raise additional financing through the public or private sale of equity securities, may significantly affect the ability of investors to trade in the Company’s securities and may negatively affect the value and liquidity of the Company’s common stock. Delisting may also have other negative impacts, including potential loss of employee confidence, the loss of institutional investors or interest in business development opportunities.
To potentially improve the marketability and liquidity of our common stock. The board of directors believes that an increased stock price may also improve the marketability and liquidity of our common stock. For example, many brokerages, institutional investors and funds have internal policies that either prohibit them from investing in low-priced stocks or tend to discourage individual brokers from recommending low-priced stocks to their customers by restricting or limiting the ability to purchase such stocks on margin. Additionally, investors may be dissuaded from purchasing stocks below certain prices because brokers’ commissions, as a percentage of the total transaction value, can be higher for low-priced stocks.
To decrease the risk of market manipulation of our common stock. The board of directors believes that the potential increase in stock price may reduce the risk of market manipulation of our common stock, which we believe is enhanced when our stock trades below $1.00 per share. By reducing market manipulation risk, we may also thereby potentially decrease the volatility of our stock price.
To provide us with flexibility with respect to our authorized common stock. The approval of the proposed Reverse Stock Split would not have any impact on the number of authorized shares of common stock, which is currently 350,000,000. If Proposal 5 is also approved, the number of authorized shares of common stock would be reduced as illustrated under the table “Relationship Between the Reverse Stock Split Ratio and the Authorized Share Reduction,” but the reduction would not be proportionate with the corresponding Reverse Stock Split ratio. Therefore, a Reverse Stock Split, whether or not Proposal 5 is approved, would result in an increase in the percentage of our authorized shares of common stock which are unissued and available for future issuance. These additional shares would provide flexibility to the Company for raising capital; repurchasing debt; providing equity incentives to employees, officers, directors, consultants and advisors (including pursuant to our equity compensation plans); expanding our business through the acquisition of other businesses and for other purposes. However, at present, we do not have any specific plans, arrangements, understandings or commitments for the additional shares that would become available.
Accordingly, for these and other reasons, the board of directors believes that a Reverse Stock Split is in the best interests of the Company and our stockholders. The Proposed Amendment of the Amended and Restated Certificate of Incorporation effecting the reverse stock split is attached as Appendix B to this proxy statement.
Criteria to be Used for Determining Whether to Implement a Reverse Stock Split
This proposal gives the board of directors discretion to select a Reverse Stock Split ratio from within a range between and including 1-for-2 shares up to 1-for-25 shares. The Reverse Stock Split ratio will be selected in the sole discretion of the board of directors at any time within one year of the 2023 stockholder meeting based on the board of director’s then-current assessment of the factors below, and in order to maximize Company and stockholder interests. In determining whether to implement the Reverse Stock Split, and which ratio to implement, if any, the board of directors may consider, among other factors:
the historical trading price and trading volume of our common stock;
the then-prevailing trading price and trading volume of our common stock and the expected impact of the Reverse Stock Split on the trading market in the short- and long-term;
the continued listing requirements for our common stock on NYSE American or other applicable exchanges;
the number of shares of common stock outstanding;
which Reverse Stock Split ratio would result in the least administrative cost to us; and
prevailing industry, market and economic conditions.
Notwithstanding stockholder approval of this proposal the board of directors may elect not to proceed with the reverse stock split By voting in favor of this proposal, you are expressly authorizing our board of directors to proceed with the reverse stock split if, at any time our board of directors, in its sole discretion, determines that it is in our best interest and the best interests of our stockholders to proceed with the reverse stock split. By voting in favor of this proposal, you are expressly also authorizing our board of directors to determine not to proceed with the reverse stock split if our board of directors, in its sole discretion, determine that it is no longer in our best interest and the best interest of our stockholders to proceed with the reverse stock split.
Certain Risks and Potential Disadvantages Associated with a Reverse Stock Split
We cannot assure stockholders that the proposed Reverse Stock Split will sufficiently increase our stock price or be completed before the NYSE American commences delisting procedures. The effect of a Reverse Stock Split on our stock price cannot be predicted with any certainty, and the history of reverse stock splits for other companies in our industry is varied, particularly since some investors may view a Reverse Stock Split negatively. It is possible that our stock price after a Reverse Stock Split will not increase in the same proportion as the reduction in the number of shares outstanding, causing a reduction in the Company’s overall market capitalization. Further, even if we implement a Reverse Stock Split, our stock price may decline due to various factors, including our future performance and general industry, market and economic conditions. This percentage decline, as an absolute number and as a percentage of our overall market capitalization, may be greater than would occur in the absence of a Reverse Stock Split. If we fail to meet the NYSE American’s listing requirements, the NYSE American may suspend trading and commence delisting proceedings.
The proposed Reverse Stock Split may decrease the liquidity of our common stock and result in higher transaction costs. The liquidity of our common stock may be negatively impacted by the reduced number of shares outstanding after the Reverse Stock Split, which would be exacerbated if the stock price does not increase following the split. In addition, a Reverse Stock Split would increase the number of stockholders owning “odd lots” of fewer than 100 shares, trading in which generally results in higher transaction costs. Accordingly, a Reverse Stock Split may not achieve the desired results of increasing marketability and liquidity as described above.
The implementation of a Reverse Stock Split, even with an Authorized Shares Reduction, would result in an effective increase in the authorized number of shares of common stock available for issuance, which could, under certain circumstances, have anti-takeover implications. The additional shares of common stock available for issuance could be used by the Company to oppose a hostile takeover attempt or to delay or prevent changes in control or in our management. Although the Reverse Stock Split has been prompted by business and financial considerations, and not by the threat of any hostile takeover attempt (nor is the board of directors currently aware of any such attempts directed at us), stockholders should be aware that approval of the Reverse Stock Split could facilitate future efforts by us to deter or prevent changes in control, including transactions in which stockholders might otherwise receive a premium for their shares over then-current market prices.
Stockholders should also keep in mind that the implementation of a Reverse Stock Split does not have an effect on the actual or intrinsic value of our business or a stockholder’s proportional ownership interest (subject to the treatment of fractional shares). However, should the overall value of our common stock decline after a Reverse Stock Split, then the actual or intrinsic value of shares held by stockholders will also proportionately decrease as a result of the overall decline in value.
Effects of a Reverse Stock Split
If Proposal 4 is approved and the Board of Directors decides to implement the Reverse Stock Split, as of the date on which the Reverse Stock Split becomes effective (the “Effective Date”):
each 2 to 25 shares of common stock outstanding (depending on the Reverse Stock Split ratio selected by the Board) will be combined, automatically and without any action on the part of the Company or its stockholders, into one new share of common stock;
no fractional shares of common stock will be issued; instead, stockholders who would otherwise receive a fractional share will instead be issued a full share in lieu of such fractional share;
proportionate adjustments will be made to the number of shares issuable upon the exercise or vesting of all then-outstanding warrants and restricted stock units, which will result in a proportional decrease in the number of shares of common stock reserved for issuance upon exercise or vesting of such warrants and restricted stock units;
the number of shares of common stock then reserved for issuance under our equity compensation plans, including the 2023 Equity Incentive Plan (if approved by stockholders at the meeting) will be reduced proportionately; and
if the Authorized Shares Reduction is also approved, the total number of authorized shares of common stock will be reduced from 350 million to a range between 28,000,000 million and 344,000,000, as shown in the table below (otherwise, the total number of authorized shares of common stock will remain at 350 million).
The following tables summarize, for illustrative purposes only, the anticipated effects of a Reverse Stock Split on our shares available for issuance based on information as of March 17, 2023 (unless otherwise noted below) and without giving effect to the treatment of fractional shares.
Assuming Both Proposals 4 and 5 are Approved by the Stockholders and Implemented by the Board
Status | Number of Shares of Common Stock Authorized | Number of Shares of Common Stock Issued and Outstanding | Number of Shares of Common Stock Reserved for Future Issuance | Number of Shares of Common Stock Authorized but Unissued and Unreserved | Hypothetical Initial Market Value of Shares of Common Stock Authorized but Unissued and Unreserved* | |||||
Pre-Reverse Stock Split | 350,000,000 | 172,173,047 | 20,313,884 | 157,513,069 | 31,502,614 | |||||
Post-Reverse Stock Split 2:1 | 344,000,000 | 86,086,524 | 10,156,942 | 247,756,535 | 99,102,614 | |||||
Post-Reverse Stock Split 3:1 | 230,000,000 | 57,391,016 | 6,771,295 | 165,837,690 | 99,502,614 | |||||
Post-Reverse Stock Split 4:1 | 172,000,000 | 43,043,262 | 5,078,474 | 123,878,267 | 99,102,614 |
Post-Reverse Stock Split 5:1 | 138,000,000 | 34,434,609 | 4,062,777 | 99,502,614 | 99,502,614 | |||||
Post-Reverse Stock Split 6:1 | 115,000,000 | 28,695,508 | 3,385,647 | 82,918,845 | 99,502,614 | |||||
Post-Reverse Stock Split 7:1 | 99,000,000 | 24,596,150 | 2,901,983 | 70,501,867 | 98,702,614 | |||||
Post-Reverse Stock Split 8:1 | 86,000,000 | 21,521,631 | 2,539,236 | 61,939,134 | 99,102,614 | |||||
Post-Reverse Stock Split 9:1 | 77,000,000 | 19,130,339 | 2,257,098 | 55,612,563 | 100,102,614 | |||||
Post-Reverse Stock Split 10:1 | 69,000,000 | 17,217,305 | 2,031,388 | 49,751,307 | 99,502,614 | |||||
Post-Reverse Stock Split 11:1 | 63,000,000 | 15,652,095 | 1,846,717 | 45,501,188 | 100,102,614 | |||||
Post-Reverse Stock Split 12:1 | 58,000,000 | 14,347,754 | 1,692,824 | 41,959,422 | 100,702,614 | |||||
Post-Reverse Stock Split 13:1 | 53,000,000 | 13,244,081 | 1,562,606 | 38,193,313 | 99,302,614 | |||||
Post-Reverse Stock Split 14:1 | 50,000,000 | 12,298,075 | 1,450,992 | 36,250,934 | 101,502,614 | |||||
Post-Reverse Stock Split 15:1 | 46,000,000 | 11,478,203 | 1,354,259 | 33,167,538 | 99,502,614 | |||||
Post-Reverse Stock Split 16:1 | 43,000,000 | 10,760,815 | 1,269,618 | 30,969,567 | 99,102,614 | |||||
Post-Reverse Stock Split 17:1 | 41,000,000 | 10,127,826 | 1,194,934 | 29,677,239 | 100,902,614 | |||||
Post-Reverse Stock Split 18:1 | 39,000,000 | 9,565,169 | 1,128,549 | 28,306,282 | 101,902,614 | |||||
Post-Reverse Stock Split 19:1 | 37,000,000 | 9,061,739 | 1,069,152 | 26,869,109 | 102,102,614 | |||||
Post-Reverse Stock Split 20:1 | 35,000,000 | 8,608,652 | 1,015,694 | 25,375,653 | 101,502,614 | |||||
Post-Reverse Stock Split 21:1 | 33,000,000 | 8,198,717 | 967,328 | 23,833,956 | 100,102,614 | |||||
Post-Reverse Stock Split 22:1 | 32,000,000 | 7,826,048 | 923,358 | 23,250,594 | 102,302,614 | |||||
Post-Reverse Stock Split 23:1 | 30,000,000 | 7,485,785 | 883,212 | 21,631,003 | 99,502,614 | |||||
Post-Reverse Stock Split 24:1 | 29,000,000 | 7,173,877 | 846,412 | 20,979,711 | 100,702,614 |
Post-Reverse Stock Split 25:1 | 28,000,000 | 6,886,922 | 812,555 | 20,300,523 | 101,502,614 |
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Assuming Proposal 4 (but not Proposal 5) Is Approved by Stockholders and Implemented by the Board
Status | Number of Shares of Common Stock Authorized | Number of Shares of Common Stock Issued and Outstanding | Number of Shares of Common Stock Reserved for Future Issuance | Number of Shares of Common Stock Authorized but Unissued and Unreserved | Hypothetical Initial Market Value of Shares of Common Stock Authorized but Unissued and Unreserved* | |||||
Pre-Reverse Stock Split | 350,000,000 | 172,173,047 | 20,313,884 | 157,513,069 | 31,502,614 | |||||
Post-Reverse Stock Split 2:1 | 350,000,000 | 86,086,524 | 10,156,942 | 253,756,535 | 101,502,614 | |||||
Post-Reverse Stock Split 3:1 | 350,000,000 | 57,391,016 | 6,771,295 | 285,837,690 | 171,502,614 | |||||
Post-Reverse Stock Split 4:1 | 350,000,000 | 43,043,262 | 5,078,474 | 301,878,267 | 241,502,614 | |||||
Post-Reverse Stock Split 5:1 | 350,000,000 | 34,434,609 | 4,062,777 | 311,502,614 | 311,502,614 | |||||
Post-Reverse Stock Split 6:1 | 350,000,000 | 28,695,508 | 3,385,647 | 317,918,845 | 381,502,614 | |||||
Post-Reverse Stock Split 7:1 | 350,000,000 | 24,596,150 | 2,901,983 | 322,501,867 | 451,502,614 | |||||
Post-Reverse Stock Split 8:1 | 350,000,000 | 21,521,631 | 2,539,236 | 325,939,134 | 521,502,614 | |||||
Post-Reverse Stock Split 9:1 | 350,000,000 | 19,130,339 | 2,257,098 | 328,612,563 | 591,502,614 | |||||
Post-Reverse Stock Split 10:1 | 350,000,000 | 17,217,305 | 2,031,388 | 330,751,307 | 661,502,614 | |||||
Post-Reverse Stock Split 11:1 | 350,000,000 | 15,652,095 | 1,846,717 | 332,501,188 | 731,502,614 | |||||
Post-Reverse Stock Split 12:1 | 350,000,000 | 14,347,754 | 1,692,824 | 333,959,422 | 801,502,614 | |||||
Post-Reverse Stock Split 13:1 | 350,000,000 | 13,244,081 | 1,562,606 | 335,193,313 | 871,502,614 | |||||
Post-Reverse Stock Split 14:1 | 350,000,000 | 12,298,075 | 1,450,992 | 336,250,934 | 941,502,614 |
Post-Reverse Stock Split 15:1 | 350,000,000 | 11,478,203 | 1,354,259 | 337,167,538 | 1,011,502,614 | |||||
Post-Reverse Stock Split 16:1 | 350,000,000 | 10,760,815 | 1,269,618 | 337,969,567 | 1,081,502,614 | |||||
Post-Reverse Stock Split 17:1 | 350,000,000 | 10,127,826 | 1,194,934 | 338,677,239 | 1,151,502,614 | |||||
Post-Reverse Stock Split 18:1 | 350,000,000 | 9,565,169 | 1,128,549 | 339,306,282 | 1,221,502,614 | |||||
Post-Reverse Stock Split 19:1 | 350,000,000 | 9,061,739 | 1,069,152 | 339,869,109 | 1,291,502,614 | |||||
Post-Reverse Stock Split 20:1 | 350,000,000 | 8,608,652 | 1,015,694 | 340,375,653 | 1,361,502,614 | |||||
Post-Reverse Stock Split 21:1 | 350,000,000 | 8,198,717 | 967,328 | 340,833,956 | 1,431,502,614 | |||||
Post-Reverse Stock Split 22:1 | 350,000,000 | 7,826,048 | 923,358 | 341,250,594 | 1,501,502,614 | |||||
Post-Reverse Stock Split 23:1 | 350,000,000 | 7,485,785 | 883,212 | 341,631,003 | 1,571,502,614 | |||||
Post-Reverse Stock Split 24:1 | 350,000,000 | 7,173,877 | 846,412 | 341,979,711 | 1,641,502,614 | |||||
Post-Reverse Stock Split 25:1 | 350,000,000 | 6,886,922 | 812,555 | 342,300,523 | 1,711,502,614 |
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A Reverse Stock Split would affect all stockholders uniformly. As of the Effective Date, each stockholder would own a reduced number of shares of common stock. Percentage ownership interests, voting rights and other rights and preferences would not be affected, except to the extent that the Reverse Stock Split would result in fractional shares (as described below).
A Reverse Stock Split would not affect the registration of our common stock under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and we would continue to be subject to the periodic reporting and other requirements of the Exchange Act. Barring delisting by NYSE American, our common stock would continue to be listed on the NYSE American under the symbol “AUMN,” but would have a new Committee on Uniform Securities Identification Procedures (“CUSIP”) number after the Effective Date.
Treatment of Fractional Shares in the Reverse Stock Split
The Company does not intend to issue fractional shares in the event that a stockholder owns a number of shares of common stock that is not evenly divisible by the Reverse Stock Split ratio. If the Reverse Stock Split is effected, any stockholder that would otherwise be entitled to receive a fractional share will instead be issued a full share in lieu of such fractional share.
We do not intend for this transaction to be the first step in a series of plans or proposals of a “going private transaction” within the meaning of Rule 13e-3 of the Exchange Act.
Procedure for Effecting a Reverse Stock Split
If our stockholders approve this proposal, and if our board of directors determines that it is in our best interest and the best interests of our stockholders to proceed with the Reverse Stock Split, we will file the amendment to our
amended and restated certificate of incorporation with the Secretary of State of the State of Delaware to effect the Reverse Stock Split. As of the effective time of the Reverse Stock Split, each stock certificate representing pre-split shares will be deemed for all corporate purposes to evidence ownership of post-split shares.
Beneficial holders of common stock. Stockholders who hold their shares through a bank, broker or other nominee will be treated in the same manner as registered stockholders who hold their shares in their names. Banks, brokers and other nominees will be instructed to effect the Reverse Stock Split for beneficial owners of such shares. However, banks, brokers or other nominees may implement different procedures than those to be followed by registered stockholders for processing the Reverse Stock Split, particularly with respect to the treatment of fractional shares. Stockholders whose shares of common stock are held in the name of a bank, broker or other nominee are encouraged to contact their bank, broker or other nominee with any questions regarding the procedures for implementing the Reverse Stock Split with respect to their shares.
Registered holders of common stock. Registered stockholders hold shares electronically in book-entry form under the direct registration system (i.e., do not have stock certificates evidencing their share ownership but instead have a statement reflecting the number of shares registered in their accounts) and, as a result, do not need to take any action to receive post-split shares. If they are entitled to receive post-split shares, they will automatically receive, at their address of record, a transaction statement indicating the number of post-split shares held following the Effective Date.
Material U.S. Federal Income Tax Consequences
The following is a summary of material U.S. federal income tax consequences of a Reverse Stock Split to stockholders. This summary is based on the provisions of the Internal Revenue Code of 1986, as amended (the “Code”), U.S. Treasury regulations, administrative rulings and judicial decisions, all as in effect on the date of this proxy statement, and all of which are subject to change or differing interpretations, possibly with retroactive effect. Any such change or differing interpretation could affect the tax consequences described below.
We have not sought and will not seek an opinion of counsel or ruling from the Internal Revenue Service (the “IRS”) with respect to the statements made and the conclusions reached in the following summary, and there can be no assurance that the IRS or a court will agree with such statements and conclusions.
This summary is limited to stockholders that are U.S. holders, as defined below, and that hold our common stock as a capital asset (generally, property held for investment).
This summary is for general information only and does not address all U.S. federal income tax considerations that may be applicable to a holder’s particular circumstances or to holders that may be subject to special tax rules, such as, for example, brokers and dealers in securities, currencies or commodities, banks and financial institutions, regulated investment companies, real estate investment trusts, expatriates, tax-exempt entities, governmental organizations, traders in securities that elect to use a mark-to-market method of accounting for their securities, certain former citizens or long-term residents of the United States, insurance companies, persons holding shares of our common stock as part of a hedging, integrated or conversion transaction or a straddle or persons deemed to sell shares of our common stock under the constructive sale provisions of the Code, persons that hold more than 5% of our common stock, persons that hold our common stock in an individual retirement account, 401(k) plan or similar tax-deferred favored account, persons who are treated as non-U.S. persons for U.S. federal income tax purposes, or partnerships or other pass-through entities for U.S. federal income tax purposes and investors in such entities. This summary does not address any U.S. federal tax consequences other than U.S. federal income tax consequences (such as estate or gift tax consequences), the Medicare tax on net investment income, the alternative minimum tax or any U.S. state, local or foreign tax consequences. This summary also does not address any U.S. federal income tax considerations relating to any other transaction other than the Reverse Stock Split.
For purposes of this summary, a “U.S. holder” means a beneficial owner of our common stock that is, for U.S. federal income tax purposes:
an individual who is a citizen or resident of the United States;
a corporation (or any 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;
an estate the income of which is subject to U.S. federal income taxation regardless of its source; or
a trust if (1) it is subject to the primary supervision of a court within the United States and one or more U.S. persons have the authority to control all substantial decisions of the trust or (2) it has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person.
If an entity (or arrangement) classified as a partnership for U.S. federal income tax purposes holds shares of our common stock, the tax treatment of a partner in the partnership will generally depend upon the status of the partner and the activities of the partnership. If a holder of our common stock is a partner of a partnership holding shares of our common stock, such holder should consult his or her own tax advisor.
This summary of certain U.S. federal income tax consequences is for general information only and is not tax advice. Stockholders are urged to consult their own tax advisor with respect to the application of U.S. federal income tax laws to their particular situation as well as any tax considerations arising under other U.S. federal tax laws (such as the estate or gift tax laws) or under the laws of any state, local, foreign or other taxing jurisdiction or under any applicable tax treaty.
The Reverse Stock Split is intended to be treated as a recapitalization for U.S. federal income tax purposes. Assuming the Reverse Stock Split qualifies as a recapitalization, except as described below with respect to cash received in lieu of a fractional share, a U.S. holder will not recognize any gain or loss for U.S. federal income tax purposes upon the Reverse Stock Split. In the aggregate, a U.S. holder’s tax basis in the common stock received pursuant to the Reverse Stock Split (excluding the portion of the tax basis that is allocable to any fractional share) will equal the U.S. holder’s tax basis in its common stock surrendered in the Reverse Stock Split in exchange therefor, and the holding period of the U.S. holder’s common stock received pursuant to the Reverse Stock Split will include the holding period of the common stock surrendered in the Reverse Stock Split in exchange therefor.
U.S. holders that have acquired different blocks of our common stock at different times or at different prices are urged to consult their own tax advisors regarding the allocation of their aggregated adjusted basis among, and the holding period of, our common stock.
Alternative characterizations of the Reverse Stock Split are possible. For example, while the Reverse Stock Split would generally be treated as a tax-free recapitalization under the Code, a U.S. Holder that receives a whole share in lieu of a fractional share that would otherwise result from the Reverse Stock Split may recognize gain for federal income tax purposes equal to the value of the additional fractional share. However, we believe that, in such case, the resulting tax liability will not be material in view of the low value of such fractional interest. U.S. Holders should consult their own tax advisors regarding alternative characterizations of the Reverse Stock Split for U.S. federal income tax purposes.
Accounting Consequences
The par value per share of our common stock will remain unchanged at $0.01 per share following a Reverse Stock Split. As a result, as of the Effective Date, the stated capital on the Company’s balance sheets attributable to common stock will be reduced proportionally based on the Reverse Stock Split ratio, and the additional paid-in capital will be credited with the amount by which the capital is reduced. The net income or loss per share of common stock will be increased as a result of the fewer shares of common stock outstanding. The Reverse Stock Split will be reflected retroactively in our consolidated financial statements.
APPROVALADVISORY VOTE ON THE COMPENSATION OF A REDUCTION IN THE NUMBER OF
AUTHORIZED SHARES OF COMMON STOCKOUR NAMED EXECUTIVE OFFICERS (THE SAY-ON-PAY VOTE)
The board of directors unanimously recommends that the Company’s stockholders vote FOR“FOR” the approval, on an amendment to our Amended and Restated Certificate of Incorporation to effect a reduction inadvisory basis, the total number of authorized sharescompensation of our named executive officers.
Pursuant to the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), the Company seeks a non-binding advisory vote from the holders of a majority of the common stock concurrententitled to vote and represented in person or by proxy at the annual meeting approving the compensation of our named executive officers as disclosed in this Proxy Statement in accordance with the Reverse Stock Splitcompensation disclosure rules of the SEC. This proposal is also referred to as the “say-on-pay” vote. At our 2018 annual meeting of stockholders, the stockholders approved the frequency of submitting the say-on-pay vote to stockholders every three years. As the last advisory vote on executive compensation was held in 2021, we are submitting the amount illustrated undercompensation of our named executive officers to an advisory vote at the table “Relationship Betweenupcoming annual meeting.
At our 2021 annual meeting of stockholders, approximately 94.8% of votes cast were in favor of the Reverse Stock Split Ratio and the Authorized Share Reduction” below (the “Authorized Shares Reduction”).
In connection with the Reverse Stock Split, our stockholders also are being askedproposal to approve an amendmentadvisory resolution regarding the 2020 compensation program for our named executive officers. The Compensation Committee believes this result is an indication that a vast majority of our stockholders are satisfied with our executive compensation policies and decisions, and that our executive compensation program effectively aligns the interests of our named executive officers with the interests of our stockholders.
Our executive compensation programs are designed to attract and retain top quality executive talent who can contribute to our Amendedlong-term success and Restated Certificatethereby build value for our stockholders, to tie annual and long-term cash and equity incentive compensation to the achievement of Incorporationmeasurable company and individual performance objectives, and to effect a reduction inalign compensation incentives available to our executives with the total numbergoal of authorized sharescreating stockholder value. We urge stockholders to read the “Executive Compensation” section of this Proxy Statement, beginning on page 33, which contains tabular information and narrative discussion about the compensation of our common stock as illustrated in the table under the caption “Relationship Between the Reverse Stock Split Rationamed executive officers. The Compensation Committee and the Authorized Shares Reduction.” The implementation of the Authorized Shares Reduction is contingent upon the implementation of the Reverse Stock Split.
Reasons for an Authorized Shares Reduction; Certain Risks
The implementation of a Reverse Stock Split does not require a reduction in the number of authorized shares. As described above, in the event a Reverse Stock Split is implemented, the board of directors desiresbelieve that these policies are effective in implementing our compensation philosophy and in achieving our goals.
We are asking our stockholders to ensureindicate their support for our executive compensation as described in this Proxy Statement. This proposal gives our stockholders the opportunity to express their views on our named executive officers’ compensation. This vote is not intended to address any specific item of compensation, but rather the overall compensation of our named executive officers and the philosophy, policies and practices described in this Proxy Statement. Accordingly, we are asking our stockholders to approve, on an advisory basis, the following resolution:
“RESOLVED, that it strikes an appropriate balancethe compensation paid to the Company’s named executive officers, as disclosed pursuant to Item 402 of Regulation S-K, including the Executive Compensation section, compensation tables, and narrative disclosure in the post-split number of authorized but unissued and unreserved shares. In determining the appropriate reduction in authorized shares described below, the board of directors sought to balance relevant proxy advisory firm guidelines with the need to maintain sufficient flexibility with respect to our authorized common stock (as described in more detail above). To calculate the amounts shown in the table below, the Board targeted a number of authorized shares following the Reverse Stock Split and Authorized Share Reduction that would result inProxy Statement for the Company’s outstanding shares2024 Annual Meeting of common stock being approximately equal to 25% of the total authorized shares.
The Authorized Shares ReductionStockholders, is not directly proportionate to the Reverse Stock Split ratio, which means, in the event a Reverse Stock Split is implemented, there would be an effective increase in the number of authorized shares of common stock available for issuance. However, this increase will be smaller than the effect a Reverse Stock Split would have had without an Authorized Share Reduction.
As described in Proposal 4, a Reverse Stock Split and the resulting effective increase in the number of authorized shares available for issuance, could, under certain circumstances, have anti-takeover implications. Stockholders should be aware that if Proposal 4 is approved and Proposal 5 is not approved, the authorized shares of common stock would remain unchanged at 350 million shares, and as such, the anti-takeover implications associated with any Reverse Stock Split may be enhanced.
Effects of an Authorized Shares Reduction
If Proposals 4 and 5 are approved and implemented, the Authorized Shares Reduction will become effective simultaneously with the Reverse Stock Split on the Effective Date. As of the Effective Date, the number of authorized shares of common stock will automatically be reduced from 350 million to a range between 28 million and 344 million, as detailed below. For more information, see the caption “Effects of a Reverse Stock Split.hereby APPROVED.”
Relationship Between the Reverse Stock Split Ratio and the Authorized Shares Reduction
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The Authorized Shares Reduction will not have any effect on the rights of existing stockholders or the par value per share of the common stock.
The Proposed Amendment of the Amended and Restated Certificate of Incorporation reflecting the foregoing authorized shares reduction is attached as Appendix B to this proxy statement.27
APPROVALADVISORY VOTE ON THE FREQUENCY OF AMENDMENT TOTHE STOCKHOLDER VOTE ON THE COMPENSATION OF OUR AMENDED AND
RESTATED CERTIFICATE OF INCORPORATION TO ALLOW
FOR EXCULPATION OFNAMED EXECUTIVE OFFICERS (THE SAY-WHEN-ON-PAY VOTE)
The board of directors unanimously recommends that the Company’s stockholders vote FOR“3 YEARS,” on an amendment to our Amended and Restated Certificate of Incorporation to allowadvisory basis, for officer exculpation.
Background
The State of Delaware, which is the Company’s state of incorporation, recently enacted legislation that enables Delaware companies to limit the liability of certain officers in limited circumstances under Section 102(b)(7)frequency of the Delaware General Corporation Law (“DGCL”). Historically, DGCL Section 102(b)(7) enabled corporations to limitadvisory stockholder vote on the liability of directors in limited circumstances and the Company adopted exculpation provisions its Certificate of Incorporation, as amended. With the recent amendment, DGCL Section 102(b)(7) now permits exculpation for officers, but only for direct claims brought by stockholders for breach of an officer’s fiduciary duty of care, including class actions, but does not eliminate officers’ monetary liability for breach of fiduciary duty claims brought by the corporation itself or for derivative claims brought by stockholders in the name of the corporation. Furthermore, the limitation on liability does not apply to breaches of the duty 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.
The board of directors believes it is important to provide protection from certain liabilities and expenses that may discourage prospective or current directors from accepting or continuing membership on corporate boards and prospective or current officers from serving corporations. In the absence of such protection, qualified directors and officers might be deterred from serving as directors or officers due to exposure to personal liability and the risk that substantial expense will be incurred in defending lawsuits, regardless of merit. Our Amended and Restated Certificate of Incorporation currently provides exculpation and limitations of liability for directors pursuant to the DGCL. In considering whether to extend exculpation and limitations of liability to officers pursuant to DGCL Section 102(b)(7), the Board of Directors took into account the narrow class and type of claims that such officers would be exculpated from liability pursuant to DGCL Section 102(b)(7), the limited number of Company officers that would be impacted, and the benefits the board of directors believes would accrue to the Company by providing exculpation in accordance with DGCL Section 102(b)(7), including, without limitation, the ability to attract and retain key officers and the potential to reduce litigation costs associated with frivolous lawsuits.
The board of directors balanced these considerations with our corporate governance guidelines and practices and determined that it is advisable and in the best interests of the Company and our stockholders to amend the current exculpation and liability provisions in Article 8.1 of the Amended and Restated Certificate of Incorporation, to adopt DGCL Section 102(b)(7) and extend exculpation protection to our officers in addition to our directors.
Text of Proposed Officer Exculpation Certificate Amendment
Our Amended and Restated Certificate of Incorporation currently provides for the exculpation of directors and does not include a provision allowing for the exculpation of officers. We propose to amend Article 8.1compensation of our Amended and Restated Certificate of Incorporation so that it would state in its entirety as follows:named executive officers.
“To the fullest extent permitted by law, a director or officer of the corporation shall not be personally liable to the Company or any of its stockholders for monetary damages for breach of fiduciary duty as a director or officer, except for liability (i) for any breach of the director’s or officer’s duty of loyalty to the Company
or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) in the case of a director, under Section 174 of the General Corporation Law of the State of Delaware, or (iv) for any transaction from which the director or officer derived an improper personal benefit, or (v) in the case of an officer, in any action by or in the right of the Company. If the General Corporation Law of the State of Delaware is hereafter amended, changed or modified in any way to further eliminate or limit the liability of directors or officers to the Company or its stockholders or third parties, then directors and officers of the Company, inIn addition to the circumstances in which directors and officers are not personally liable asadvisory vote on executive compensation set forth in Proposal 5 above, the preceding sentence, shall also notDodd-Frank Act requires that stockholders have the opportunity to vote on how often they believe the advisory vote on executive compensation should be personally liable to the Company or its stockholders or third parties for monetary damages to such further extent permitted by such amendment, change or modification.
Any amendment, repeal or modification of the foregoing paragraph shall not adversely affect the rights of any director or officer of the Company relating to claims arising in connection with events which took place prior to the date of such amendment, repeal or modification.”
The Proposed Amendment of the Amended and Restated Certificate of Incorporation reflecting the foregoing officer exculpation certificate amendment this attached as Appendix C to this proxy statement.
Reasons for the Proposed Officer Exculpation Certificate Amendment
The board of directors adopted the proposed officer exculpation certificate amendment to maintain provisions of the Amended and Restated Certificate of Incorporation in keeping with the governing statutes containedheld in the DGCL.future. This proposal is also referred to as the “say-when-on-pay” vote.
In 2018, the last time our stockholders cast a vote on frequency, approximately 94.5% of votes cast were in favor of a three-year frequency. The board of directors believes that DGCL 102(b)(7)holding an advisory vote on executive compensation every three years continues to be the most appropriate policy for our stockholders and the officer exculpation certificate amendment remediesCompany at this time. Our executive compensation program is designed to incentivize performance over not just the inconsistent treatmentshort term but also the long term. As such, we believe that stockholder input on executive compensation will be most useful if the effectiveness of officersour compensation program is evaluated over a multi-year period. A three-year cycle will also provide us with sufficient time to thoughtfully respond to stockholders’ input and directors underto implement any changes to our compensation program.
We intend to continue to consider communications from our stockholders during the DGCLperiod between stockholder votes. We seek and the Amendedare open to communications from our stockholders regarding corporate governance matters, as well as our executive compensation program, and Restated Certificate of Incorporation, despite directors and officers having similar fiduciary duties. The nature of the role of directors and officers often requires themhave made attempts to make decisions on crucial matters. Frequently, directors and officers must make decisions in responseensure there are avenues for our stockholders to time-sensitive opportunities and challenges, which can create substantial risk of investigations, claims, actions, suits or proceedings seekingsubmit comments to impose liability on the basis of hindsight. Limiting concern about personal risk empowers both directors and officers to best exercise their business judgment in furtherance of stockholder interests. The board of directors also considered that, unlike director exculpation, officer exculpation may not be provided in connection with claims brought against an officer by or in the right of the Company. We expect many Delaware companiesbelieve our stockholders’ ability to adopt exculpation clauses limitingcontact us to express specific views on executive compensation holds us accountable to stockholders and reduces the personal liabilityneed for and value of officers in their certificates of incorporation. Failing to adopt the proposed officer exculpation certificate amendment could impact our recruitment and retention of exceptional officer candidates who may conclude that the potential exposure to liabilities, costs of defense and other risks of proceedings exceeds the benefits of serving as an officer of the Company.more frequent advisory votes on executive compensation.
The officer exculpation certificate amendment is not being proposed in response to any specific resignation, threat of resignation or refusal to serve by any officer nor is it being proposed in response to any litigation or threat of litigation.
Timing and Effect of the Officer Exculpation Certificate Amendment
If the proposed officer exculpation certificate amendment is approved by our stockholders, it will become effective immediately upon the filing of a Certificate of Amendment with the Secretary of State of the State of Delaware, which we expect to file promptly after the Annual Meeting. Other than the replacement of the existing Article 8.1 by the proposed Article 8.1, the remaining provisions of our Amended and Restated Certificate of Incorporation will be unchanged after effectiveness of the officer exculpation certificate amendment, with the exception of any other certificate amendments made in connection with the proposals included in this proxy statement. In accordance with the DGCL,While the board of directors may elect to abandonrecommends that stockholders vote for “3 YEARS” as the proposed officer exculpation certificate amendment without further action by the stockholders at any time prior to the effectivenessfrequency of the filingadvisory stockholder vote on the compensation of our named executive officers, stockholders may vote for “1 YEAR,” “2 YEARS” or “3 YEARS.” Stockholders may also “ABSTAIN” from voting on this proposal.
Because your vote is advisory, it will not be binding upon the board of directors. However, the board of directors values our stockholders’ opinions and will consider the outcome of the officer exculpation
Certificatevote when determining the frequency of Amendmentthe say on pay vote. While the board of directors is making a recommendation with respect to this proposal, stockholders are being asked to vote on the choices specified above, and not whether they agree or disagree with the Secretaryboard of State of the State of Delaware, notwithstanding stockholder approval of the proposed officer exculpation certificate amendment.directors’ recommendation.
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Meetings and Committees of the Board of Directors
During 2022,2023, our board of directors held fourfifteen meetings. EachAll incumbent directordirectors attended all meetings of the board of directors and committees of the board of directors in which they served except for Mr. Watkins, who missed two meetings of the board of directors. Overall, each director attended at least 90% of all meetings of the board of directors and the respective meetings of the board committees on which hethey served.
Audit Committee. We have a standing Audit Committee established in accordance with Section 3(a)(58)(A) of the Securities Exchange Act of 1934.Act. The Audit Committee met sevenfive times during 2022.2023. Our Audit Committee is currently comprised of Terry Palmer (Chairperson), Randy EpplerKevin Morano and Deborah Friedman. Each of the members of the Audit Committee is independent and financially sophisticated, as defined by the NYSE American listing standards. Our board of directors has determined that Mr. Morano and Mr. Palmer the Audit Committee Chairman, qualifieseach qualify as an “Audit Committee Financial Expert” as that term is defined in rules promulgated by the SEC. The Audit Committee is responsible for the selection, compensation, retention and oversight of the independent auditor, which reports directly to the Audit Committee. The Audit Committee also assists the board of directors in reviewing and oversight of the quality and integrity of the Company’s accounting, auditing and financial reporting practices. The Audit Committee regularly reviews the Company’s financial statements and reports, earnings press releases, financial reporting process, system of internal controls, and compliance with applicable law. Mr. Palmer has informed the Company that he does not intend to stand for re-election at the annual meeting. It is anticipated that Mr. Morano would be named the Chairperson of the Audit Committee following the annual meeting.
The board of directors has adopted a written charter for the Audit Committee that may be viewed on Golden Minerals’ website at: https://www.goldenminerals.com/_resources/governance/GLDN_Audit_Committee_Charter.pdfGLDN_Audit_Committee_Charter.pdf?v=0311.
Compensation Committee. The Compensation Committee met two times during 20222023 and is currently comprised of Kevin Morano (Chairperson), Jeffrey Clevenger and David Watkins. Each member of the Compensation Committee is independent as defined by the NYSE American listing standards. The principal responsibilities of the Compensation Committee are to establish policies and periodically determine matters involving executive compensation, recommend changes in employee benefit programs, grant or recommend the grant of stock options and stock awards under our Amended and Restated 2009 Equity Incentive Plan, and provide counsel regarding key personnel selection. The Compensation Committee has authority to retain such compensation consultants, outside counsel and other advisors as the Committee in its sole discretion deems appropriate. The Compensation Committee has not engaged the services of or paid a fee to any compensation consultant or other third party to evaluate or assist with the evaluation of the Company’s compensation arrangements.
The board of directors has adopted a charter for the Compensation Committee that may be viewed on Golden Minerals’ website at: https://www.goldenminerals.com/_resources/governance/GLDN_Compensation_Comm_Charter.pdfGLDN_Compensation_Comm_Charter.pdf?v=0311.
Corporate Governance and Nominating Committee. The Corporate Governance and Nominating Committee which met two times during 2022,held one meeting in 2023 and acted by written consent in lieu of a meeting once. It is currently comprised of Deborah Friedman (Chairperson) Randy Eppler, and Kevin Morano. Each member of the Corporate Governance and Nominating Committee is independent as defined by the NYSE American listing standards. The Corporate Governance and Nominating Committee is responsible for overseeing and evaluating the board’sboard of directors’ performance, selecting and evaluating prospective director nominees and reviewing board and board committee compensation. The Corporate Governance and Nominating Committee also oversees and provides advice to the board of directors regarding our corporate governance policies, practices and procedures.
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The board of directors has adopted a charter for the Corporate Governance and Nominating Committee that may be viewed on Golden Minerals’ website at:
https://www.goldenminerals.com/_resources/governance/GLDN_Corp_Gov_Nominating_Comm%20Charter.pdf20Charter.pdf?v=0311.
The Role of the Corporate Governance and Nominating Committee in the Nomination Process
In identifying and recommending nominees for positions on our board of directors, our Corporate Governance and Nominating Committee places emphasis on the following criteria, among others:
Judgment, character, expertise, skills and knowledge useful to the oversight of our business;
Business or other relevant experience; and
The extent to which the interplay of the nominee’s expertise, skills, knowledge and experience with that of other members of our board of directors will contribute to a board that is effective, collegial and responsive to the needs of the Company.
· | Judgment, character, expertise, skills and knowledge useful to the oversight of our business; |
· | Business or other relevant experience; and |
· | The extent to which the interplay of the nominee’s expertise, skills, knowledge and experience with that of other members of our board of directors will contribute to a board that is effective, collegial and responsive to the needs of the Company. |
Our Corporate Governance and Nominating Committee does not set specific, minimum qualifications that nominees must meet in order for the Corporate Governance and Nominating Committee to recommend them to our board of directors, but rather believes that each nominee should be evaluated based on his or her individual merits, taking into accountconsidering the needs of the Company and the composition of our board of directors. In considering diversity, we consider diversity of viewpoints, backgrounds and experience. We do not, however, have any formal policy regarding diversity in identifying nominees for a directorship, but rather consider it among the various factors relevant to any particular nominee. Our Corporate Governance and Nominating Committee evaluates possible candidates in detail and suggests individuals to explore in more depth. In the event that we decide to fill a vacancy that exists or we decide to increase the size of the board of directors, our Corporate Governance and Nominating Committee will identify, interview and examine, and make recommendations to the board of directors regarding appropriate candidates. We identify potential candidates principally through suggestions from the Company’s directors and senior management. Our President and Chief Executive Officer and board members may also seek candidates through informal discussions with third parties. We also consider candidates recommended or suggested by stockholders.
Board Independence and Leadership Structure
Our board of directors has determined that each of our current directors, other than Mr. Rehn, our President and Chief Executive Officer, and Mr. Pullar, is independent as defined by the NYSE American listing standards.
Mr. Rehn serves as our President and Chief Executive Officer. Mr. Rehn succeeded Mr. Clevenger, who served as our President to May 2015 and as our Chief Executive Officer to September 2015. Mr. Clevenger has served as our Chairman of the board of directors since the Company’s inception in March 2009. The board believes that the Company is best served by a Chairman who has been actively involved with the Company and is therefore able to bring a significant depth of knowledge about the Company to the role of Chairman. Pursuant to NYSE American listing standards, any individual who was employed by the Company during the preceding three years is not considered to be independent. Because this three-year period elapsed on September 1, 2018, for Mr. Clevenger, the board of directors has determined that he may now be considered to be independent.
The board has determined that Mr. Pullar is not an independent director, in part, because he is the Managing Partner and Director of Sentient Equity Partners (and was previously Chief Executive Officer of The Sentient Group). Sentient, through the Sentient executive funds, is the Company’s largest stockholder, holding approximately 22% of the Company’s outstanding common stock. Additionally, pursuant to an agreement entered into between the Company and a fund managed by The Sentient Group in connection with its initial investment in the Company in a 2009 private placement, the Company agreed to nominate one individual designated by The Sentient Group for election to the Company’s board of directors. However, after consideration of the current composition of the Board and discussion
with Mr. Pullar, the Corporate Governance and Nominating Committee and Mr. Pullar mutually agreed that he would not be nominated to stand for re-election as a director of the Company at the 2023 Annual Meeting.
We believe that our current board leadership structure is appropriate as a majority of our board of directors are independent directors.
The Board’s Role in Risk Oversight
It is management’s responsibility to manage risk and bring to the board of directors’ attention any material risks to the Company. The board of directors has oversight responsibility through its Audit Committee, which oversees the
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Company’s risk policies and processes relating to the financial statements and financial reporting processes and the guidelines, policies and processes for mitigating those risks.
Stockholder Nominations
The Corporate Governance and Nominating Committee will receive, review and evaluate director candidate recommendations from stockholders. The Corporate Governance and Nominating Committee has adopted written procedures to be followed by stockholders in submitting such recommendations. Candidates proposed by stockholders will be evaluated by the Corporate Governance and Nominating Committee in the same manner as candidates that are not proposed by stockholders. A stockholder that wishes to submit a director nomination for inclusion on the universal proxy card in connection with the 20232024 Annual Meeting, other than those directors nominated by the Company, must submit advance written notice to the ChairmanChairperson of the Corporate Governance and Nominating Committee no later than 60 calendar days prior to the anniversary of the previous year’s annual meeting date. The notice must include all of the information required by Rule 14a-19 under the Exchange Act.
A stockholder nominee for director should be a person of integrity committed to devoting the time and attention necessary to fulfill his or her duties to Golden Minerals. The Corporate Governance and Nominating Committee will evaluate the independence of directors and potential directors nominated by stockholders, as well as his or her business experience, specialized skills and other experience. Diversity of background and experience, including diversity of race, ethnicity, international background, gender and age, are also important factors in evaluating candidates for board membership. In considering diversity, we consider diversity of viewpoints, backgrounds and experience. The Corporate Governance and Nominating Committee will also consider issues involving possible conflicts of interest of directors or potential directors.
The information noted on our website is not, and shall not be deemed to be, a part of this Proxy Statement or incorporated herein or into any of our other filings with the SEC.
Communication with the Board
We have established a process for security holders to communicate with the board of directors. Securityholders wishing to communicate with the board of directors of Golden Minerals should send an email, write or telephone Karen Winkler, Director of Investor Relations, at:
Golden Minerals Company
350 Indiana Street, Suite 650
Golden, Colorado 80401
Telephone: (303) 839-5060
Email: investor.relations@goldenminerals.com
Any such communication must state the type and amount of Golden Minerals securities held by the securityholder and must clearly state that the communication is intended to be shared with the board of directors, or if applicable,
with a specific committee of the board. Ms. Winkler will forward any such communication to the members of the board or specific board committee.
Director Attendance at the Annual Meeting
All members of the board of directors are encouraged, but not required, to attend the annual meeting of stockholders. All board members at the time of the 20222023 annual meeting of stockholders held on May 26, 2022,2023, attended the annual meeting.
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Compensation Committee Interlocks and Insider Participation
Our Compensation Committee is currently comprised of Kevin Morano, Jeffrey Clevenger and David Watkins. Each member of the Compensation Committee is independent as defined by NYSE American listing standards. With the exception of Mr. Clevenger, who was our President to May 2015 and our Chief Executive Officer to September 2015, no other member of the Compensation Committee has ever been an officer or employee of Golden Minerals or any of its subsidiaries. None of the individuals on our Compensation Committee had any reportable transactions with Golden Minerals or any of its subsidiaries in 2022.2023. None of our current executive officers have served as a director or member of the compensation committee (or equivalent thereof) of another entity.
Director Compensation
Our directors who are also our employees receive no fees for board service. Currently, Mr. Rehn is the only director who is also an employee. The compensation for the non-employee directors of Golden Minerals includes the following: (i) a $20,000 annual cash retainer, (ii) a $1,000 cash fee for each board meeting that the director attends in person or by telephone, (iii) a $1,000 cash fee for each committee meeting that the director attends in person or by telephone, (iv) an additional $30,000 cash retainer for the Chairman of the board, and (v) an additional $5,000 annual cash retainer for the ChairmanChairperson of the Audit Committee. Retainer payments are typically made on the date of the annual stockholders meeting for service until the next annual meeting. We also reimburse our directors for all reasonable out-of-pocket costs incurred by them in connection with their services. To conserve cash, all board fees earned in 2023 were accrued.
Non-employee directors may receive discretionary grants of restricted stock units under our Non-Employee Directors Deferred Compensation and Equity Award Plan (the “Deferred Compensation Plan”), an award program pursuant to our Amended and Restated 20092023 Equity Incentive Plan. Restricted stock units typically vest on the first anniversary of the grant date, and the recipient director is entitled to receive one unrestricted share of common stock for each vested restricted stock unit upon the termination of the director’s service on our board of directors. Our directors are also eligible to receive other equity awards, including stock options, stock appreciation rights, restricted stock units and other stock awards pursuant to our Amended and Restated 20092023 Equity Incentive Plan. In May 2022, we awarded each of our directors 100,000Directors may also hold previously issued restricted stock units.units and may be entitled to other amounts that are payable on a delayed basis, under the Company’s Non-Employee Directors’ Deferred Compensation and Equity Award Plan (the “Deferred Compensation Plan”). Due to limited availability of shares under the 2023 Equity Incentive Plan, no shares were granted to Directors in 2023.
The table below sets forth all compensation awarded toearned by our non-employee directors during 2022:
Name | Fees Earned or Paid in Cash($) | Stock Awards ($)(1) | Stock Options ($) | Total ($) | ||||
Jeffrey G. Clevenger(2) | 56,000 | 39,000 | — | 95,000 | ||||
W. Durand Eppler | 33,000 | 39,000 | — | 72,000 | ||||
Deborah J. Friedman | 33,000 | 39,000 | 72,000 | |||||
Kevin R. Morano | 28,000 | 39,000 | — | 67,000 | ||||
Terry M. Palmer | 36,000 | 39,000 | — | 75,000 | ||||
Andrew N. Pullar(3) | — | 39,000 | — | 39,000 | ||||
David H. Watkins | 26,000 | 39,000 | — | 65,000 |
Name | Fees Earned or Paid in Cash($) | Stock Awards ($) | Stock Options ($) | Total ($) | ||||
Jeffrey G. Clevenger(1) | 67,000 | — | — | 67,000 | ||||
W. Durand Eppler | 40,000 | — | — | 40,000 | ||||
Deborah J. Friedman | 41,000 | — | — | 41,000 | ||||
Kevin R. Morano | 38,000 | — | — | 38,000 | ||||
Terry M. Palmer | 46,000 | — | — | 46,000 | ||||
David H. Watkins | 35,000 | — | — | 35,000 |
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As a non-employee director, Mr. Clevenger receives regular board compensation, as described above, plus an additional annual $30,000 retainer for his service as Chairman of the board. |
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Summary Compensation Table
Compensation information is set forth below for the named executive officers of Golden Minerals through December 31, 2022,2023, including our current principal executive officer and our two other highest compensated executive officers during 2022,2023, and our former chief financialoperating officer, who would have been among the two other highest compensated executive officers for 20222023 had he not terminated employment. We have not entered into employment agreements with any of our executive officers but have certain arrangements regarding payments following termination of employment. For a description of these arrangements, see “—Post-Employment Payments”. All executives are employed on an at-will basis.
Name and Principal Position | Year | Salary ($) | Bonus ($) | Stock Awards (1) ($) | Option Awards ($) | Non-Equity Incentive Plan Compensation ($) | All Other Compensation (2) ($) | Total ($) | ||||||||||||||||||||
Warren M. Rehn | 2022 | 365,000 | 300,000 | 400,000 | — | — | 22,720 | 1,087,720 | ||||||||||||||||||||
President and Chief Executive Officer | 2021 | 330,000 | 231,000 | 767,000 | — | — | 13,986 | 1,341,986 | ||||||||||||||||||||
Julie Z. Weedman(3) | 2022 | 239,599 | — | 171,000 | — | — | 10,443 | 421,042 | ||||||||||||||||||||
Senior Vice President and Chief Financial Officer | ||||||||||||||||||||||||||||
John Galassini | 2022 | 177,605 | — | 200,000 | — | — | 7,340 | 384,945 | ||||||||||||||||||||
Chief Operating Officer | ||||||||||||||||||||||||||||
Robert P. Vogels(4) | 2022 | 91,100 | 150,000 | — | — | — | 3,191 | 244,291 | ||||||||||||||||||||
Former Senior Vice President and Chief Financial Officer | 2021 | 270,000 | 135,000 | 356,350 | — | — | 12,227 | 773,577 | ||||||||||||||||||||
Name and Principal Position | Year | Salary ($) | Bonus ($) | Stock Awards ($) | All Other Compensation (2) ($) | Total ($) | ||||||||||||||||||
Warren M. Rehn | 2023 | 365,000 | — | — | 14,423 | 379,423 | ||||||||||||||||||
President and Chief Executive Officer | 2022 | 365,000 | 300,000 | 400,000 | 22,720 | 1,087,720 | ||||||||||||||||||
Julie Z. Weedman(3) | 2023 | 250,000 | — | — | 10,584 | 260,584 | ||||||||||||||||||
Senior Vice President and Chief Financial Officer | 2022 | 239,599 | — | 171,000 | 10,443 | 421,042 | ||||||||||||||||||
Pablo Castanos(4) | 2023 | 150,000 | — | 64,800 | 6,419 | 260,000 | ||||||||||||||||||
Executive Vice President | 2022 | — | — | — | — | — |
(1) | Stock-based compensation cost for stock awards is measured based on the closing fair market value of the Company’s common stock on the date of grant, in accordance with stock-based compensation accounting rules (FASB ASC Topic 718). See footnote 16 of the Notes to the Consolidated Financial Statements for the year-ended December 31, |
(2) | Amounts shown as “All Other Compensation” include contributions to the Company’s 401(k) Plan, life insurance premiums paid on behalf of each of the named executive officers and other items. |
(3) | Ms. Weedman was appointed as the Senior Vice President, Chief Financial Officer and Corporate Secretary of the Company on April 1, 2022. |
(4) | Mr. |
In May 2014, our stockholders approved amendments to the Company’sThe Company terminated its 2009 Equity Incentive Plan adoptingwhen the Amended and Restated 2009Company’s stockholders approved the 2023 Equity Incentive Plan (the “Equity Plan”),at the Company’s 2023 annual meeting, pursuant to which awards of the Company’s common stock may be made to officers, directors, employees, consultants and agents of the Company and its subsidiaries. The number of shares available under our Equity Plan is equal to 10% of our outstanding shares of common stock, plus shares issuable upon exercise of our derivative securities (other than derivative securities granted pursuant to the Equity Plan). As of March 27, 2023,18, 2024, the total number of authorized shares for the purposes of determining the number of shares available under the 2023 Equity Incentive Plan is 181,976,893 (calculated based on 172,173,047 shares of common stock outstanding plus 9,803,846 shares issuable upon exercise of outstanding warrants (the “Outstanding Float”)),360,000, of which 2,747,236 (or approximately 1.5% of the Outstanding Float)320,000 currently remain available for issuance, and an aggregate of 10,510,03840,000 shares (or approximately 5.8% of the Outstanding Float) are issuable under outstanding awards that have been granted under the 2023 Equity Incentive Plan. As described in Proposal 3, above, we have not granted any new awards under the Equity Plan after February 24, 2023 and will not grant any additional awards under the Equity Plan unless our 2023 Plan is not approved by our stockholders at the Annual Meeting. The maximum number of shares of common stock that may be issued (i) to any participant pursuant to awards under the plan (other than options or stock appreciation rights) that are intended to qualify as performance based compensation under the Internal Revenue Code must not exceed 500,000 shares, and (ii) to certain employees for the purposes of the Internal Revenue Code in respect of options or stock appreciation rights must not exceed 2,000,000 shares (or approximately 1.1% of the Outstanding Float) during any calendar year. In addition, the aggregate fair market value of common stock with respect to which incentive stock options are exercisable for the first time by an option holder under the 2023 Equity Incentive Plan or any other option plan of the Company must not exceed $100,000 in any calendar year. Options and other equity incentive awards under the 2023 Equity Incentive Plan may vest in periodic installments or may be fully vested at the time of grant, as determined by our board of directors. Options under the plan generally may have a term of up to 10ten years, except
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in the case of certain participants where the term of options is limited to a term of up to 5five years. The exercise price of options is not less than 100% of the fair market value of the common stock on the date the option is granted, except in certain instances where the exercise price is set at 110% of such fair market value. Options and other equity awards granted under the 2023 Equity Incentive Plan are generally not transferable except by will or by the laws of descent and distribution, or unless otherwise specified by our board of directors. Our board of directors may amend the plan from time to time, provided that no amendment will be effective unless approved by the stockholders of the Company to the extent necessary to satisfy the requirements of applicable law or rules of any applicable securities exchange. If our stockholders approve the 2023 Plan at the Annual Meeting, we will terminate the Equity Plan and will not make any additional grants thereunder.
In accordance with the requirements of Section 613 of the TSX Company Manual, our annual burn rate under the 2023 Equity Incentive Plan as of the end of fiscal year December 31, 2023 was 0.47% and our annual burn rate under the 2009 Equity Plan as of the end of the fiscal years December 31, 2023, 2022 and 2021 was zero, 0.57% and 2020 was 0.57%, 1.46% and 1.882%, respectively. The annual burn rate is calculated by dividing (1) the total number of securities granted under the Equity Planrespective equity incentive plan during the applicable fiscal year by (2) the weighted-average number of outstanding shares during the applicable fiscal year.
In December 2013, the board of directors approved and the Company adopted the 2013 Key Employee Long-Term Incentive Plan (the “KELTIP”), which became effective immediately. The KELTIP providesprovided for the grant of units (“KELTIP Units”) to certain officers and key employees of the Company, which units will, once vested, entitle such officers and employees to receive, at the Company’s option, an amount, in cash or in Company common stock issued pursuant to a stockholder approved plan,the Company’s stockholder-approved equity incentive plan(s), measured generally by the price of the Company’s common stock on the settlement date. KELTIP Units are not an actual equity interest in the Company and are solely unfunded and unsecured obligations of the Company that are not transferable and do not provide the holder with any stockholder rights. Payment of the settlement amount of vested KELTIP Units may be deferred until the earlier of a change of control of the Company or the date the grantee ceases to serve as an officer or employee of the Company. The Company and may be madeintends to settle all the KELTIP Units in cash or common stock granted pursuant toof the Equity Plan or another planCompany, an option that maythe Board of Directors holds in the future be approved byits sole discretion so long as sufficient shares remain available under the Company’s stockholders (such as the 2023 Plan)stockholder-approved equity incentive plan(s).
Equity Compensation Plan Information
The following table includes information regarding our equity compensation plans as of December 31, 2022:2023:
Plan Category
| (a)
| (b)
| (c)
| (a) Number of Securities to be Issued upon Exercise of Outstanding Options, Warrants and Rights | (b) Weighted Average Exercise Price of Outstanding Options, Warrants and Rights ($) |
| (c) Number of Securities Remaining Available for Future Issuance Under Equity Compensation Plans (Excluding Securities reflected in Column (a)) | |||||||||||||||||
Equity compensation plans approved by security holders | 10,510,038 | (1) | 0.54 | 2,747,236 | 440,409 (1 | ) | $12.50 | 320,000 | ||||||||||||||||
Equity compensation plans not approved by security holders | — | — | — | — | — | — | ||||||||||||||||||
Total
|
| 10,510,038
|
|
| 0.54
|
|
| 2,747,236
|
| 440,409 | $12.50 | 320,000 |
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(1) | The amount of shares reported in column (a) includes (i) |
Outstanding Equity Awards at Fiscal Year-End Table
The following table shows the equity awards held by our named executive officers onas of December 31, 2022.2023:
Stock Awards | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Option Awards | Stock Awards | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Stock Awards: | Option Awards | Stock Awards: | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Name | Number of Securities Underlying Unexercised Options Exercisable | Number of Securities Underlying Unexercised Options Unexercisable | Option Exercise Price ($) | Option Expiration Date | Number of Shares or Units of Stock That Have Not Vested | Market Value of Shares or Units of Stock That Have Not Vested ($) | Number of Securities Underlying Unexercised Options Exercisable |
| Number of Securities Underlying Unexercised Options Unexercisable | Option Exercise Price ($) | Option Expiration Date | Number of Shares or Units of Stock That Have Not Vested | Market Value of Shares or Units of Stock That Have Not Vested ($) | |||||||||||||||||||||||||||||||||||||||||||||||
Warren M. Rehn | — | — | — | — | 1,000,000 | (1) | 270,000 | — | — | — | — | – | – | |||||||||||||||||||||||||||||||||||||||||||||||
Julie Z. Weedman | — | — | — | — | 300,000 | 114,000 | — | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||||||||
John Galassini | — | — | — | — | 500,000 | 200,000 | — | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||||||
Robert P. Vogels | — | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
Pablo Castanos | — | — | — | — | 40,000 | (1) | 20,800 |
(1) | Represents restricted stock units |
Risk Assessment and Clawback Policy
The compensation committeeCompensation Committee believes that although a portion of compensation provided to our executive officers is performance-based, our compensation programs do not encourage excessive or unnecessary risk taking. In fact, the design of our compensation programs encourages our executives to remain focused on both short-term and long-term strategic goals. In addition, in 2023 our board of directors adopted a clawback policy soin compliance with Rule 10d-1 of the Exchange Act and Section 811 of the NYSE American listing rules. Pursuant to that policy, in the event of a restatement of the Company’s financial results (other thanas a restatement caused by a changeresult of material non-compliance with financial reporting requirements, the Company is generally required to recoup incentive-based compensation of any executive officer to the extent that it is granted, earned, or vested wholly or in applicable accounting rules or interpretations, or an administratively required restatementpart on financial reporting measures and if such as in connection with a stock combination or split) and any performance-basedincentive compensation paid to an executive officer would have been a lower amount if calculated based on the restated results, and results. In
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such executive officer engaged in fraud or intentional illegal conduct which materially contributed toevent, the need for such restatement,recoupment amount is generally the Company will seek to recover for the Company the after-tax portion of the awardedincentive compensation andthat exceeds the compensation that should have been paid based on the restated results.
Post-Employment Payments
Termination Not in Connection with a Change of Control. All of our full-time salaried employees, including each of our executives, are covered by our Severance Compensation Plan. If an executive’s employment is terminated by us other than for cause (as defined in the plan) and such termination is not in connection with or following a change of control, death, disability or retirement, the executive is entitled to receive a lump sum payment equal to the executive’s then current annual salary. We will also pay to the executive an amount equal to the difference between the monthly medical and/or dental premiums the executive was paying immediately prior to termination of employment and the total COBRA premium due in order to continue such insurance coverage. Our Incentive Bonus Plan provides that in such circumstances, the executive will be entitled to receive an amount equal to the executive’s target bonus percentage, multiplied by the amount of annual salary paid to the executive through the date of termination. No executive who is terminated for cause, terminates or otherwise voluntarily leaves his or her employment, or whose employment is terminated as a result of death, disability or retirement, is entitled to receive any benefits under the Severance Compensation Plan.
In addition, restrictions on unvested restricted shares will lapse and unvested KELTIP Units and restricted stock units issued pursuant to the Company’s stockholder-approved equity incentive plan(s) will vest upon an executive’s termination of employment without cause, or as a result of the executive’s death, disability or retirement. If an executive’s employment terminates for any other reason, including for cause, prior to the scheduled vesting date of restricted shares, KELTIP Units or KELTIPrestricted stock units issued pursuant to the Company’s stockholder-approved equity incentive plan(s), the shares and units, respectively, are forfeited upon termination unless otherwise determined by the Company. Upon an executive’s retirement or termination without cause, all unvested options vest. If an executive’s employment terminates for cause or in the case of disability or death, all unvested options will immediately terminate. For the purpose of our restricted share and option awards, “retirement” means an executive’s termination of employment from the Company and a cessation of work in the executive’s profession as determined at the discretion of the board of directors or designated committee (i) on or after attaining age 55 and completing at least ten years of service, or (ii) on or after attaining age 62.
The following table describes the estimated potential payments and benefits under the Company’s compensation and benefit plans and agreements to which our named executive officers would have been entitled if a termination of employment had occurred as of December 31, 2022. Mr. Vogels retired as the Senior Vice President and Chief Financial Officer of the Company effective as of March 31, 2022 and the information shown below for Mr. Vogels reflects the actual payments and benefits Mr. Vogels received in connection with his retirement.2023.
Severance Payment (Salary)(1) ($) | Severance Payment (Bonus)(2) ($) | Health Insurance Premiums(3) ($) | Stock Awards(4) ($) | Total ($) | ||||||||||||||||||||||||||||||||||||
Severance Payment (Salary)(1) ($) | Severance Payment (Bonus)(2) ($) | Health Insurance Premiums(3) ($) | Stock Awards(4) ($) | Total ($) | ||||||||||||||||||||||||||||||||||||
Warren M. Rehn | ||||||||||||||||||||||||||||||||||||||||
Termination without Cause | 365,000 | 231,000 | 34,979 | 1,012,500 | 365,000 | 231,000 | 37,446 | 98,800 | ||||||||||||||||||||||||||||||||
Death, Disability or Retirement | 0 | 0 | 0 | 1,012,500 | 1,012,500 | 0 | 0 | 0 | 98,800 | 98,800 | ||||||||||||||||||||||||||||||
Julie Z. Weedman | ||||||||||||||||||||||||||||||||||||||||
Termination without Cause | 250,000 | 125,000 | 32,060 | 121,500 | 250,000 | 125,000 | 34,594 | 9,360 | ||||||||||||||||||||||||||||||||
Death, Disability or Retirement | 0 | 0 | 0 | 121,500 | 121,500 | 0 | 0 | 0 | 9,360 | 9,360 | ||||||||||||||||||||||||||||||
John Galassini | ||||||||||||||||||||||||||||||||||||||||
Pablo Castanos | ||||||||||||||||||||||||||||||||||||||||
Termination without Cause | 275,000 | 137,500 | 15,599 | 135,000 | 300,000 | 150,000 | 26,262 | 20,800 | ||||||||||||||||||||||||||||||||
Death, Disability or Retirement | 0 | 0 | 0 | 135,000 | 135,000 | 0 | 0 | 0 | 20,800 | 20,800 | ||||||||||||||||||||||||||||||
Robert P. Vogels | ||||||||||||||||||||||||||||||||||||||||
Retirement | 0 | 0 | 0 | 0 | 0 |
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(1) | Reflects executive’s annual salary for the year ended December 31, |
(2) | Reflects target bonus amounts for the year ended December 31, |
(3) | We currently pay 100% of group health insurance premiums for medical and dental benefits. Amounts shown reflect 12 months of such premiums at rates in effect at December 31, |
(4) | Reflects the value of outstanding KELTIP awards and restricted stock units calculated at |
Termination in Connection with a Change of Control. We have entered into a Change of Control Agreement, as amended, with each of our named executive officers. Payments under a Change of Control Agreement are in lieu of payments pursuant to our Severance Compensation Plan and are triggered only if one of the following events occurs within two years after a change of control: (1) termination of employment by us other than for cause, disability or death, or (2) termination of employment by the executive for good reason. Upon the occurrence of a change of control, all restricted stock is no longer subject to restrictions, all unvested options shall vest, all unvested KELTIP Units shall vest and all unvested KELTIPrestricted stock units issued under the Company’s stockholder-approved equity incentive plan(s) shall vest in full. The amounts shown in the table below assume the occurrence of a change of control and one of the triggering termination events on December 31, 2022.2023. These amounts are estimates of the amounts that would
have been paid to the named executive officers upon the occurrence of such events. Actual future amounts can only be determined at the time of the named executive officer’s termination of employment. If payments made to the executive would subject the executive to the excise tax imposed by Section 4999 of the Internal Revenue Code, the executive would be entitled to receive an additional gross-up payment to cover the excise tax. Receipt of benefits upon termination is subject to the execution of a general release of claims by the named executive officer or his beneficiary.
Cash ($) | Cash Severance Payment (Bonus)(2) ($) | Health Insurance Premiums(3) ($) | Other Insurance Benefits(4) ($) | Stock Awards(5) ($) | Total ($) | |||||||
Warren M. Rehn | 730,000 | 462,000 | 69,957 | 5,000 | 1,012,500 | 2,279,457 | ||||||
Julie Z. Weedman | 500,000 | 250,000 | 64,120 | 5,000 | 121,500 | 940,620 | ||||||
John Galassini | 550,000 | 275,000 | 31,199 | 5,000 | 135,000 | 996,199 | ||||||
Robert P. Vogels(6) | — | — | — | — | — | — |
Cash Severance Payment (Salary)(1) ($) | Cash Severance Payment (Bonus)(2) ($) | Health Insurance Premiums(3) ($) | Other Insurance Benefits(4) ($) | Stock Awards(5) ($) | Total ($) | |||||||
Warren M. Rehn | 730,000 | 462,000 | 74,892 | 5,000 | 98,800 | 1,370,692 | ||||||
Julie Z. Weedman | 500,000 | 250,000 | 69,188 | 5,000 | 9,360 | 833,548 | ||||||
Pablo Castanos | 600,000 | 300,000 | 52,524 | 5,000 | 20,800 | 978,324 |
(1) | Each of Mr. Rehn, Ms. Weedman and Mr. |
(2) | Each of Mr. Rehn, Ms. Weedman and Mr. |
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(3) | We will pay, on each executive’s behalf, the portion of premiums of the Company’s group health insurance, including coverage for each of their eligible dependents, that the Company paid immediately prior to the date of termination (“COBRA Payments”) for the period that such executive is entitled to coverage under COBRA, but not to exceed 24 months for Mr. Rehn, Ms. Weedman and Mr. |
(4) | For the 24-month period immediately following the date of termination, we have agreed to provide to the executive, at a cost not to exceed an aggregate of $5,000, life, disability, and accident insurance benefits substantially similar to those that the executive was receiving immediately prior to the termination of employment. For the purpose of the above table, we have assumed that a benefit in the aggregate amount of $5,000 will be provided for the named executives. |
(5) | Reflects the value of outstanding KELTIP Units and restricted stock unit awards calculated at |
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Pay Versus Performance Disclosure
The following pay versus performance disclosure is new this year, as required by rules recently adopted by the SEC in the fall of 2022. The disclosure required for smaller reporting companies consists of a Pay Versus Performance
table and reconciliation of the information reported in the table. The SEC believes this disclosure will help stockholders better evaluate the link between executive pay and performance, both for the Company on a stand-alone basis and as compared to other publicly traded companies.
The pay versus performance table is highly regulated and requires pay disclosure that is significantly different than what we have customarily provided in the Summary Compensation Table and the other executive compensation tables in prior years. The table currently provides SEC mandated compensation data for fiscal years 2021, 2022 and 20222023 for our NEOs, along with certain financial performance measures. In reviewing the table, our stockholders should note the following:
The amounts in columns (b) and (d) of the table are taken from or derived directly from the total compensation paid to the relevant NEOs as reported in this year’s or prior years’ Summary Compensation Tables;
· | The amounts in columns (b) and (d) of the table are taken from or derived directly from the total compensation paid to the relevant NEOs as reported in this year’s or prior years’ Summary Compensation Tables; |
The “compensation actually paid” in columns (c) and (e) represents a new type of compensation disclosure mandated by the SEC, the intent of which is to try and isolate the amount of compensation earned by the relevant NEO(s) in each year. To calculate “compensation actually paid,” we are required to start with the totals for that year as reported in the Summary Compensation Table, deduct the Summary Compensation Table values for stock and option awards, and then add back amounts for new and previously outstanding stock and option awards in a manner mandated by the SEC. The disclosure and calculations are complex and can be confusing, and the amounts determined in accordance with the rules often bear no relation to the money or the economic value received or monetized by a particular NEO in the given year. We therefore caution that the term “compensation actually paid” should not be read literally and does not actually reflect the “take home” amounts received by our NEOs in a given year;
· | The “compensation actually paid” in columns (c) and (e) represents a new type of compensation disclosure mandated by the SEC, the intent of which is to try and isolate the amount of compensation earned by the relevant NEO(s) in each year. To calculate “compensation actually paid,” we are required to start with the totals for that year as reported in the Summary Compensation Table, deduct the Summary Compensation Table values for stock and option awards, and then add back amounts for new and previously outstanding stock and option awards in a manner mandated by the SEC. The disclosure and calculations are complex and can be confusing, and the amounts determined in accordance with the rules often bear no relation to the money or the economic value received or monetized by a particular NEO in the given year. We therefore caution that the term “compensation actually paid” should not be read literally and does not actually reflect the “take home” amounts received by our NEOs in a given year; |
The SEC rules require that we include in the Pay Versus Performance table information regarding our U.S. GAAP net income results. U.S. GAAP net income was not a performance metric in any of our compensation programs and did not affect the compensation awarded to our NEOs for the years covered by the Pay Versus Performance Table. We are nonetheless required to include such information in the table and we urge our investors to keep in mind that U.S. GAAP net income did not drive the amount of pay awarded to or realized by our NEOs; and38
· | The SEC rules require that we include in the Pay Versus Performance table information regarding the results of our net income as prepared under generally accepted accounting principles in the United States (“U.S. GAAP”). U.S. GAAP net income was not a performance metric in any of our compensation programs and did not affect the compensation awarded to our NEOs for the years covered by the Pay Versus Performance Table. We are nonetheless required to include such information in the table and we urge our investors to keep in mind that U.S. GAAP net income did not drive the amount of pay awarded to or realized by our NEOs; and |
Pay Versus Performance Table
Year | Year | Summary Table Total | Compen- sation Actually Paid to PEO | Average Summary Compensation Table Total for Non-PEO NEOs | Average Compen- sation Actually Paid to Non-PEO NEOs | Net Income | Summary Compen- sation Table Total for PEO | Compen- sation Actually Paid to PEO | Average Summary Compensation Table Total for Non-PEO NEOs | Average Compen- sation Actually Paid to Non-PEO NEOs |
Value of Initial Fixed $100 | Net Income | ||||||||||||||||||||||||||
(a) | (a) | (b) | (c) | (d) | (e) | (h) | (b) | (c) | (d) | (e) | (g) | (h) | ||||||||||||||||||||||||||
2022 | $ | 1,087,720 | $ | 787,720 | $ | 350,093 | $ | 350,093 | ($ | 9,906,000 | ) | |||||||||||||||||||||||||||
2021 | $ | 1,341,986 | $ | 255,486 | $ | 773,577 | $ | 332,827 | ($ | 2,095,000 | ) | |||||||||||||||||||||||||||
2023 | $379,423 | ($859,477) | $240,902 | $209,462 | $2.74 | ($9,228,000) | ||||||||||||||||||||||||||||||||
2022 | $1,087,720 | $787,720 | $350,093 | $350,093 | $35.53 | ($9,906,000) | ||||||||||||||||||||||||||||||||
2021 | $1,341,986 | $255,486 | $773,577 | $332,827 | $46.05 | (2,095,000) |
(1) | Total Shareholder Return (“TSR”) represents the value as of the end of each relevant fiscal year of a hypothetical $100 investment in the Company’s common stock on October 31, 2021, assuming dividend reinvestment. [No dividends were paid on stock or option awards in 2023, 2022 or 2021.] |
1. | Warren Rehn was the Company’s principal executive officer (“PEO”) for all of 2021, 2022 and |
2021 | 2022 | 2023 | ||||
Summary Compensation Table total for Mr. Rehn for the covered year | $1,341,986 | $1,087,720 | $379,423 | |||
Less Stock awards as reported in the Summary Compensation Table for the covered year | $767,000 | $400,000 | $0 | |||
Plus Fair value of stock awards granted during the covered fiscal year that are outstanding and unvested as of the end of that covered fiscal year | $0 | $400,000 | $0 | |||
Plus (Minus) Change in fair value as of the end of the covered fiscal year of stock awards granted in any prior fiscal year that are outstanding and unvested as of the end of the covered fiscal year | $(1,086,500) | $(300,000) | $(934,500) | |||
Plus Fair value of stock awards that are granted and vest in the covered fiscal year | $767,000 | $0 | $0 | |||
Plus Change in fair value as of the vesting date of any stock awards granted in a prior fiscal year that vest during the covered fiscal year | $0 | $0 | $(304,400) |
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| 2021 | 2022 | ||
Summary Compensation Table total for Mr. Rehn for the covered year | $1,341,986 | $1,087,720 | ||
Less Stock awards as reported in the Summary Compensation Table for the covered year | $767,000 | $400,000 | ||
Plus Fair value of stock awards granted during the covered fiscal year that are outstanding and unvested as of the end of that covered fiscal year | $0 | $400,000 | ||
Plus (Minus) Change in fair value as of the end of the covered fiscal year of stock awards granted in any prior fiscal year that are outstanding and unvested as of the end of the covered fiscal year | $(1,086,500) | $(300,000) | ||
Plus Fair value of stock awards that are granted and vest in the covered fiscal year | $767,000 | $0 | ||
Plus Change in fair value as of the vesting date of any stock awards granted in a prior fiscal year that vest during the covered fiscal year | $0 | $0 | ||
Less Fair value as of the end of the prior fiscal year of all stock awards forfeited during the covered fiscal year | $0 | $0 | ||
Plus The dollar value of all dividends or dividend equivalent amounts paid on awards in the covered fiscal year | $0 | $0 | ||
Compensation Actually Paid to Mr. Rehn for the covered year | $255,486 | $787,720 |
2021 | 2022 | 2023 | ||||
Less Fair value as of the end of the prior fiscal year of all stock awards forfeited during the covered fiscal year | $0 | $0 | $0 | |||
Plus The dollar value of all dividends or dividend equivalent amounts paid on awards in the covered fiscal year | $0 | $0 | $0 | |||
Compensation Actually Paid to Mr. Rehn for the covered year | $255,486 | $787,720 | $(859,477) |
2. | The following table contains a reconciliation of the average of the amounts reflected in the Summary Compensation Table for the company NEOs (other than the PEOs) for each year covered in the pay for performance table above (as reported in column (d), above) as compared to the Average Compensation Actually Paid to the non-PEO NEOs for each such covered year (as reported in column (e), above). The company NEOs (other than the PEOs) whose compensation is used to calculate the average amounts in the pay for performance table above for fiscal year 2021 |
| 2021 | 2022 | 2021 | 2022 | 2023 | |||||||||||
Average of Summary Compensation Table Total for non-PEOs named executive officers | $773,577 | $350,093 | $773,577 | $350,093 | $240,902 | |||||||||||
Less Average of stock awards as reported in the Summary Compensation Table for the covered year | $356,350 | $123,667 | $356,350 | $123,667 | ($32,400) | |||||||||||
Plus Average of fair value of stock awards granted during the covered fiscal year that are outstanding and unvested as of the end of that covered fiscal year | $0 | $104,667 | $0 | $104,667 | $32,400 | |||||||||||
Plus (Minus) Average of the change in fair value as of the end of the covered fiscal year of stock awards granted in any prior fiscal year that are outstanding and unvested as of the end of the covered fiscal year | $(440,750) | $0 | $(440,750) | $0 | $(26,940) | |||||||||||
Plus Average of fair value of stock awards that are granted and vest in the covered fiscal year | $356,350 | $19,000 | $0 | |||||||||||||
Plus Average of change in fair value as of the vesting date of any stock awards granted in a prior fiscal year that vest during the covered fiscal year | $0 | $0 | $(4,500) | |||||||||||||
Less Average of the fair value as of the end of the prior | $0 | $0 | $0 |
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2021 | 2022 | 2023 | ||||||||||
fiscal year of all stock awards forfeited during the covered fiscal year | ||||||||||||
Plus The dollar value of all dividends or dividend equivalent amounts paid on awards in the covered fiscal year | $0 | $0 | $0 | |||||||||
Average Compensation Actually Paid to the non-PEOs named executive officers for the covered year | $332,827 | $350,093 | $209,462 | |||||||||
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Compensation Actually Paid and Cumulative TSR
The following graph reflects the relationship between the amount of “compensation actually paid” to Mr. Rehn and the average amount of “compensation actually paid” to the Company’s NEOs as a group (excluding Mr. Rehn) with the Company’s cumulative TSR over the three years presented in the table. The Company does not use TSR as a performance measure in the overall executive compensation program.
Compensation Actually Paid and GAAP Net Income
The following table reflects the relationship between the amount of “compensation actually paid” to Mr. Rehn and the average amount of “compensation actually paid” to the Company’s NEOs as a group (excluding Mr. Rehn) with the Company’s net income, as reported under US GAAP, over the three years presented in the table. The Company does not use net income as a performance measure in the overall executive compensation program.
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| 2021 | 2022 | ||
Plus Average of fair value of stock awards that are granted and vest in the covered fiscal year | $356,350 | $19,000 | ||
Plus Average of change in fair value as of the vesting date of any stock awards granted in a prior fiscal year that vest during the covered fiscal year | $0 | $0 | ||
Less Average of the fair value as of the end of the prior fiscal year of all stock awards forfeited during the covered fiscal year | $0 | $0 | ||
Plus The dollar value of all dividends or dividend equivalent amounts paid on awards in the covered fiscal year | $0 | $0 | ||
Average Compensation Actually Paid to the non-PEOs named executive officers for the covered year | $332,827 | $350,093 | ||
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Risk Management
The board of directors has determined that risks arising from our compensation policies and practices for our executives and employees are not reasonably likely to have a material adverse effect on the Company. The Compensation Committee and board of directors assess our compensation policies and practices from time to time to ensure that the incentives provided in our compensation arrangements do not emphasize short-term risk taking at the expense of decisions likely to enhance stockholder value over the long term.
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
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Review of Related Person Transactions
We do not have a formal written policy for the review and approval of transactions with related parties. However, the Audit Committee Charter and our Code of Ethics and Business Conduct each provide guidelines for reviewing any “related party transaction”.transaction.” In particular, the Audit Committee Charter requires that the Audit Committee review any transaction involving Golden Minerals and a related party at least once a year or upon any significant change in the transaction or relationship. Additionally, our Code of Ethics and Business Conduct prohibits conflicts of interest and provides non-exclusive examples of conduct that would violate the prohibition. If any of our employees are unsure as to whether a conflict of interest exists, the employee is instructed to consult with a specified compliance officer.
We annually require each of our directors and executive officers to complete a directors’ or officers’ questionnaire, respectively, that elicits information about related party transactions. Our board and legal counsel annually review all transactions and relationships disclosed in the directors’ and officers’ questionnaires, and the board makes a formal determination regarding each director’s independence. If a director were determined no longer to be independent, that director, if he or she serves on any of the Audit Committee, the Corporate Governance and Nominating Committee, or the Compensation Committee, would be removed from such committee prior to (or otherwise would not participate in) any future meetings of the committee. If the transaction were to present a conflict of interest, the board would determine the appropriate response.
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Indemnification Agreements with Officers and Directors
We have entered into an indemnification agreement with each of our directors and officers. The indemnification agreements require us to indemnify our directors and officers to the fullest extent permitted under Delaware law.
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The following table contains information about the beneficial ownership (unless otherwise indicated) of our common stock as of March 27, 202318, 2024 by:
each person known by us to beneficially hold 5% or more of our outstanding common stock,
each of our directors,
each of our named executive officers, and
all of our executive officers and directors as a group.
· | each person known by us to beneficially hold 5% or more of our outstanding common stock, |
· | each of our directors, |
· | each of our named executive officers, and |
· | all of our executive officers and directors as a group. |
All information is taken from or based upon ownership filings made by such persons with the SEC or upon information provided by such persons to us. Except as otherwise noted, we believe that all of the persons and groups shown below have sole voting and investment power with respect to the common stock indicated.
Directors, Executive Officers and 5% Stockholders of Golden Minerals (1) | Beneficial Ownership as of March 27, 2023 (2) | | Beneficial Ownership as of March 18, 2024 (2) | |||||||||||||
Number | Percentage | Number | Percentage | |||||||||||||
The Sentient Group (3) | 37,650,684 | 22% | 1,506,028 | 10.7% | ||||||||||||
Warren M. Rehn (4) | 5,250,000 | 3% | 210,000 | 1.5% | ||||||||||||
Jeffrey G. Clevenger (5) | 1,402,683 | * | 56,108 | * | ||||||||||||
W. Durand Eppler (6) | 830,279 | * | ||||||||||||||
Deborah J. Friedman (7) | 200,000 | * | 8,000 | * | ||||||||||||
Kevin R. Morano (8) | 744,279 | * | 29,773 | * | ||||||||||||
Terry M. Palmer (9) | 745,279 | * | 29,813 | * | ||||||||||||
David H. Watkins (10) | 747,279 | * | 29,893 | * | ||||||||||||
Julie Z. Weedman (11) | 335,000 | * | 19,400 | * | ||||||||||||
John Galassini (12) | 270,000 | * | ||||||||||||||
Pablo Castanos (12) | 40,000 | |||||||||||||||
Directors and Executive Officers as a group (9 persons) (13) | 10,524,799 | 6% | 456,200 | 3.2% |
* | The percentage of common stock beneficially owned is less than 1%. |
(1) | The address of these persons, unless otherwise noted, is c/o Golden Minerals Company, 350 Indiana Street, Suite 650, Golden, Colorado 80401. |
(2) | For each holder that holds restricted stock, options, restricted stock units, warrants or other securities that are currently vested or exercisable or that vest or become exercisable within 60 days of March |
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(3) | The amount in the table is based on a Schedule 13D/A filed with the SEC on March |
(4) | Consists of |
(5) | Consists of |
(6) | Consists of |
(7) | Consists of |
(8) | Consists of |
(9) | Consists of |
(10) | Consists of |
(11) | Consists of |
(12) | Consists of |
(13) | Consists of 48,628 shares of common stock held directly; |
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The following Report of the Audit Committee does not constitute soliciting material and should not be deemed filed or incorporated by reference into any other Company filing under the Securities Act of 1933 or the Securities Exchange Act, of 1934, except to the extent the Company specifically incorporates this Report.
The Audit Committee is currently comprised of Terry M. Palmer (Chairman)(Chairperson), W. Durand EpplerKevin R. Morano and Deborah J. Friedman. The Audit Committee is responsible for overseeing and evaluating the Company’s financial reporting process on behalf of the board of directors, selecting and retaining the independent auditors, and overseeing and reviewing the internal audit function of the Company.
Management has the primary responsibility for the Company’s financial reporting process, accounting principles, and internal controls, as well as preparation of the Company’s financial statements in accordance with generally accepted accounting principles in the United States (“GAAP”).U.S. GAAP The independent auditors are responsible for performing an audit of the Company’s consolidated financial statements in accordance with the standards of the Public Company Accounting Oversight Board (United States) and issuing reports thereon. The Audit Committee is responsible for overseeing the conduct of these activities. It is not the Audit Committee’s duty or responsibility to conduct auditing or accounting reviews or procedures or to independently verify the representations made by management and the independent auditors. The Audit Committee’s considerations and discussions with management and the independent auditors do not assure that the Company’s financial statements are presented in accordance with GAAP or that an audit of the annual financial statements has been carried out in accordance with the standards of the Public Company Accounting Oversight Board (United States), or that the independent auditors are, in fact, “independent.”
The Audit Committee has met and held discussions with management and the independent auditors on a regular basis. The Audit Committee plans and schedules its meetings with a view to ensuring that it devotes appropriate attention to all of its responsibilities. The Audit Committee’s meetings include, whenever appropriate, executive sessions with the independent auditors without the presence of the Company’s management. The Audit Committee has reviewed and discussed with both management and the independent auditors the Company’s consolidated financial statements as of and for the year ended December 31, 2022,2023, including a discussion of the quality, not just the acceptability, of the accounting principles, the reasonableness of significant judgments and the clarity of the disclosures in the financial statements. Management advised the Audit Committee that the financial statements were prepared in accordance with GAAP. The Audit Committee has relied on this representation, without independent verification, and on the representations of the independent auditors included in their report on the consolidated financial statements.
The Audit Committee discussed with the independent auditors the matters required to be discussed pursuant to the Statement of Auditing Standards, as amended, the Public Company Accounting Oversight Board (PCAOB) Auditing Standards and the NYSE American listing standards. The independent auditors have provided to the Audit Committee the written disclosures and the letter required by PCAOB Rule 3526, “Communication with Audit Committees Concerning Independence,” and the Audit Committee has discussed with the independent auditors their independence. The Audit Committee has also considered whether the independent auditors’ provision of other non-audit services to the Company is compatible with maintaining auditor independence. The Audit Committee has concluded that the provision of non-audit services by the independent auditors was compatible with the maintenance of independence in the conduct of their auditing functions.
Based upon its review and discussions with management and the independent auditors and the reports of the independent auditors, and in reliance upon such information, representations, reports and opinions, the Audit Committee recommended that the board of directors approve the audited financial statements for inclusion in the Company’s annual report on Form 10-K for the year ended December 31, 2022,2023, and the board of directors accepted the Audit Committee’s recommendations.
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Submitted by the Members of the Audit Committee:
Terry M. Palmer, ChairmanChairperson
W. Durand EpplerKevin R. Morano
Deborah J. Friedman
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Stockholder Proposals
Stockholders may present proposals for stockholder action in our proxy statement where such proposals are consistent with applicable law, pertain to matters appropriate for stockholder action and are not properly omitted by our action in accordance with the proxy rules. Stockholder proposals prepared in accordance with the proxy rules must be received by us on or before December 6, 2023,November 27, 2024, to be included in our proxy statement for the annual meeting of stockholders in 2024.2025. In addition, in accordance with our Bylaws, if a stockholder proposal is not received by us between January 27, 2024,9, 2025, and the close of business on February 26, 2024,8, 2025, it will not be considered or voted on at the annual meeting. Our Bylaws also contain other procedures to be followed for stockholder proposals for stockholder action, including the nomination of directors.
To be timely, a stockholder’s notice to the secretary must be delivered to, or mailed and received at, the principal executive offices of the Company not later than the close of business on the 90th day, nor earlier than the close of business on the 120th day, prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is more than 30 days before, or more than 60 days after, such anniversary date, notice by the stockholder to be timely must be so delivered, or mailed and received, not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is first made.
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Our management and the board of directors know of no other matters to be brought before the annual meeting. If other matters are presented properly to the stockholders for action at the annual meeting and any postponements and adjournments thereof, it is the intention of the proxy holders named in the proxy to vote in their discretion on all matters on which the common stock represented by such proxy are entitled to vote.
You are urged to complete, sign, date and return your proxy promptly. You may revoke your proxy at any time before it is voted. If you attend the annual meeting, as we hope you will, you may vote your shares during the annual meeting.
By order of the Board of Directors, |
Julie Z. Weedman |
Corporate Secretary |
Our Annual Report on Form 10-K filed with the Securities and Exchange Commission (including exhibits) may be obtained at no charge by any stockholder entitled to vote at the annual meeting who writes to: Karen Winkler,
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Director of Investor Relations, Golden Minerals Company, 350 Indiana Street, Suite 650, Golden, Colorado 80401 or at investor.relations@goldenminerals.com.
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APPENDIX A
GOLDEN MINERALS COMPANY
2023 EQUITY INCENTIVE PLAN
Adopted by the Board on February 24, 2023
Approved by the Company’s stockholders on [•], 2023
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Golden Minerals Company, a Delaware corporation (the “Company”), hereby establishes the Golden Minerals Company 2023 Equity Incentive Plan (the “Plan”) as set forth in this document. The purpose of the Plan is to promote the success of the Company and to increase stockholder value by providing an additional means to attract, motivate, retain and reward selected employees, non-employee directors, and other eligible persons through the grant of equity and cash Awards that align the interests of Plan participants with the interests of the Company’s stockholders.
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For purposes of this definition, Persons will be considered to be acting as a group if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with the Company.
If the occurrence of a Change in Control is a payment event for an Award that is “non-qualified deferred compensation” subject to Code Section 409A, then a Change in Control will be deemed to have occurred only if the transaction is also a “change in ownership or effective control of” the Company or a “change in the ownership of a substantial portion of the assets of” the Company as determined under Treasury Regulation Section 1.409A-3(i)(5).
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Grants of Awards, and transactions in or involving Awards, intended to be exempt under Rule 16b-3 under the Exchange Act, must be duly and timely authorized by the Board or a Committee consisting solely of two or more non-employee directors (as this requirement is applied under Rule 16b-3 promulgated under the Exchange Act). Awards granted to non-employee directors shall not be subject to the discretion of any officer or employee of the Company and shall be administered exclusively by the Board or a Committee consisting solely of independent directors.
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The Administrator may grant Awards under this Plan only to those persons that the Administrator determines to be Eligible Persons. The Administrator shall, in its sole and absolute discretion, select from among the Eligible Persons those individuals who shall receive Awards and become Participants under the Plan. There is no right of any Eligible Person to receive an Award under the Plan, and the Administrator has absolute discretion to treat Eligible Persons differently from one another under the Plan. Receipt of an Award by a Participant shall not create the right to receive future Awards under the Plan, but a Participant who has been granted an Award may, if otherwise eligible, be granted additional Awards if the Administrator shall so determine.
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In the event that the Administrator allows a Participant to exercise an Award by delivering shares of Common Stock previously owned by such Participant and unless otherwise expressly provided by the Administrator, any shares delivered which were initially acquired by the Participant from the Company (upon exercise of an Option or otherwise) must have been owned by the Participant at least six (6) months as of the date of delivery (or such other period as may be required by the Administrator in order to avoid adverse accounting treatment). Shares of Common Stock used to satisfy the exercise price of an Option shall be valued at their Fair Market Value on the date of exercise. The Company will not be obligated to deliver any shares with respect to any Award unless and until it receives full payment of the exercise or purchase price therefor and any related withholding amounts under Section 9.1, and any other conditions to exercise or purchase, as established from time to time by the Administrator, have been satisfied. Unless otherwise expressly provided in the applicable Award Agreement, the Administrator may at any time eliminate or limit a Participant’s ability to pay the purchase or exercise price of any Award by any method other than cash payment to the Company.
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The Administrator will, in its absolute discretion, determine the effect of all matters and questions relating to a termination of a Participant’s employment or service, including, but not limited to, the question of whether a leave of absence constitutes a termination of employment or service and whether a Participant’s termination is for Cause.
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In any case where a tax is required to be withheld in connection with the delivery of shares of Common Stock under this Plan, the Administrator may in its sole discretion (subject to Section 10.1) grant (either at the time of the Award or thereafter) to the Participant the right to elect, pursuant to such rules and subject to such conditions as the Administrator may establish, to have the Company reduce the number of shares to be delivered by (or otherwise reacquire) the appropriate number of shares, valued in a consistent manner at their Fair Market Value or at the sales price in accordance with authorized procedures for cashless exercises, necessary to satisfy the applicable withholding obligation on exercise, vesting or payment, not in excess of the maximum statutory rates in the Participant’s applicable jurisdictions.
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As adopted by the Board of Directors of Golden Minerals Company on February 24, 2023.
APPENDIX B
CERTIFICATE OF AMENDMENT
TO THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF GOLDEN MINERALS COMPANY
a Delaware corporation
* * * * *
Pursuant to Section 242
of the Delaware General Corporation Law
* * * * *
Golden Minerals Company, a Delaware corporation (the “Corporation”), DOES HEREBY CERTIFY as follows:
1. | The name of the corporation is Golden Minerals Company. The Certificate of Incorporation was filed with the Secretary of State of the State of Delaware (the “Secretary of State”) on March 6, 2009. The corporation filed its Amended and Restated Certificate of Incorporation with the Secretary of State on March 24, 2009. The Amended and Restated Certificate of Incorporation was amended on September 2, 2011, May 19, 2016, |
2. |
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(d) Effective as of the filing and effectiveness (the “Effective Time”) of this Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Corporation, each [•]1 shares of the Corporation’s Common Stock, par value $0.01 per share, issued and outstanding immediately prior to the Effective Time shall automatically be combined and converted into one (1) validly issued, fully paid and non-assessable share of Common Stock without any further action by the Corporation or the holder thereof, subject to the treatment of fractional share interests described below (the “Reverse Stock Split”). No fractional shares shall be issued at the Effective Time. Stockholders who otherwise would be entitled to receive a fractional share of Common Stock shall be entitled to receive a whole share of Common Stock in lieu of such fractional share.
Upon the Effective Time, ARTICLE IV, Section 4.1(a) is hereby amended to read in its entirety as follows: |
(a)The total number of shares of common stock, par value $0.01 per share (“Common |
This Certificate of Amendment shall become effective as of |
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to the Amended and Restated Certificate of Incorporation to be executed by its duly authorized officer as of the [•] day of [•], [•].
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1 To be based on a reverse stock split ratio of between 1:2 and 1:25, as determined by the Board of Directors.
2 To be based on the number of authorized shares corresponding to the reverse stock split ratio determined by the Board of Directors shown in the table included in Proposal 5.
APPENDIX C
CERTIFICATE OF AMENDMENT TO THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF GOLDEN MINERALS COMPANY
a Delaware corporation
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Pursuant to Section 242
of the Delaware General Corporation Law
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Golden Minerals Company, a Delaware corporation (the “Corporation”), DOES HEREBY CERTIFY as follows:
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“To the fullest extent permitted by law, a director or officer of the corporation shall not be personally liable to the Company or any of its stockholders for monetary damages for breach of fiduciary duty as a director or officer, except for liability (i) for any breach of the director’s or officer’s duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) in the case of a director, under Section 174 of the General Corporation Law of the State of Delaware, or (iv) for any transaction from which the director or officer derived an improper personal benefit, or (v) in the case of an officer, in any action by or in the right of the Company. If the General Corporation Law of the State of Delaware is hereafter amended, changed or modified in any way to further eliminate or limit the liability of directors or officers to the Company or its stockholders or third parties, then directors and officers of the Company, in addition to the circumstances in which directors and officers are not personally liable as set forth in the preceding sentence, shall also not be personally liable to the Company or its stockholders or third parties for monetary damages to such further extent permitted by such amendment, change or modification.
Any amendment, repeal or modification of the foregoing paragraph shall not adversely affect the rights of any director or officer of the Company relating to claims arising in connection with events which took place prior to the date of such amendment, repeal or modification.”
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4. | This Certificate of Amendment to the Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the provisions of Section 242 of the Delaware General Corporation Law. |
IN WITNESS WHEREOF, the Corporation has caused this Fourth Amendment to the Amended and Restated Certificate of Incorporation to be executed by its duly authorized officer as of the [•]9th day of [•], 2023.May, 2024.
Golden Minerals Company, |
a Delaware corporation |
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Its: Senior Vice President and Chief Financial Officer |
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P.O. BOX 8016, CARY, NC 27512-9903
P.O. BOX 8016, CARY, NC 27512-9903 |
YOUR VOTE IS IMPORTANT! PLEASE VOTE BY:
INTERNET | ||
Go To: www.proxypush.com/AUMN | ||
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PHONE Call 1-866-858-9426 | ||
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Golden Minerals Company | ||||
Annual Meeting of Stockholders | ||||
For Stockholders of record as of March |
TIME: Friday, May 26, 2023 1:00 PM, Mountain Time
DATE: | Thursday, May 9, 2024 | |
TIME: | 3:00 PM, Mountain Time | |
PLACE: |
Golden, CO 80401 |
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby constitutes and appoints Warren M. Rehn and Julie Z. Weedman and each of them, as proxies, each with the power to appoint his or her substitute, and hereby authorize(s) them to represent and to vote, as designated on the reverse side of this ballot, all of the shares of common stock of Golden Minerals Company that the stockholder(s) is/are entitled to vote at the Annual Meeting of Stockholders to be held at 1:3:00 P.M. Mountain Time on May 26, 20239, 2024 and any adjournment or postponement thereof. Further instructions on how to attend and vote at the Annual Meeting of Stockholders are contained in the Proxy Statement in the sections titled “How To Attend the Annual Meeting” and “How You Can Vote”.
THIS PROXY WILL BE VOTED IN THE MANNER DIRECTED HEREIN. IF NO SUCH DIRECTION IS MADE, THIS PROXY WILL BE VOTED IN ACCORDANCE WITH THE BOARD OF DIRECTORS’ RECOMMENDATIONS. THE PROXIES ARE AUTHORIZED TO VOTE IN THEIR DISCRETION UPON SUCH OTHER BUSINESS NOT KNOWN AS MAY PROPERLY COME BEFORE THE ANNUAL MEETING OR ANY ADJOURNMENTS THEREOF.
You are encouraged to specify your choice by marking the appropriate box (SEE REVERSE SIDE) but you need not mark any box if you wish to vote in accordance with the Board of Directors’ recommendation. The Named Proxies cannot vote your shares unless you sign (on the reverse side) and return this card.
PLEASE BE SURE TO SIGN AND DATE THIS PROXY CARD AND MARK ON THE REVERSE SIDE
Golden Minerals Company
Annual Meeting of Stockholders
Please make your marks like this: |
THE BOARD OF DIRECTORS RECOMMENDS A VOTE:
FOR ON PROPOSALS 1, 2, 3, 4, 5 AND 6
THE BOARD OF DIRECTORS RECOMMENDS A VOTE: |
FOR each of the director nominees; a vote FOR proposals 2, 3, 4 and 5; and a vote of “3 Years” for proposal 6. |
PROPOSAL | YOUR VOTE | BOARD OF DIRECTORS RECOMMENDS | ||||||||||
1. | To elect | |||||||||||
FOR
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1.01 Jeffrey G. Clevenger | ☐ | ☐ | FOR | |||||||||
1.02 Warren M. Rehn | ☐ | ☐ | FOR | |||||||||
1.03 | ☐ | ☐ | FOR | |||||||||
1.04 Kevin R. Morano | ☐ | ☐ | FOR | |||||||||
1.05 David H. Watkins | ☐ | ☐ | FOR | |||||||||
FOR | AGAINST | ABSTAIN | ||||||||||
2. | To ratify the appointment of Haynie & Company as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2024; | ☐ | ☐ | ☐ | FOR | |||||||
3. | ☐ | ☐ | ☐ | FOR | ||||||||
4. | ☐ | ☐ | ☐ | FOR | ||||||||
5. | ☐ | ☐ | ☐ | FOR | ||||||||
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To approve, on an advisory basis, the | ☐ | ☐ | ☐ | ☐ | ||||||||
PLEASE SIGN, DATE AND RETURN PROMPTLYPROPMPTLY IN THE ENCLOSED PRE-PAID ENVELOPE.
Please sign exactly as your name or name(s) appears on this Proxy Card. If held in joint tenancy, all persons should sign individually. If signing as a fiduciary or attorney, please give your exact title. Corporations should provide the full name of the corporation and the title of the authorized officer signing the Proxy/Vote Form.
Signature (and title, if applicable) | Date | Signature (if held jointly) | Date |