ABOUT
THE MEETING, VOTING, STOCKHOLDER PROPOSALS
AND
COMPANY INFORMATION
Q:
Why did I receive this proxy statement?
A:
The Board of Directors is soliciting your proxy to vote at the annual meeting because you were a holder of the Company’s
shares of common stock, par value $0.01 per share (“Common Stock”), at the close of business on May 11, 2018, the
record date, and are entitled to vote at the annual meeting. The annual meeting is being held for the purposes of obtaining stockholder
approval for the following proposals (the “Proposals”):
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1.
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To
elect two Class III directors;
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2.
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To
ratify the Audit Committee’s appointment of Tanner LLC as Amedica’s independent registered public accounting firm
for the year ending December 31, 2018; and
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3.
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To
act upon such other matters as may properly come before the meeting or any adjournment or postponement of the meeting.
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Q:
What information is contained in this proxy statement?
A:
The information in this proxy statement relates to the Proposals to be voted on at the annual meeting, the voting process and
certain other required information.
Q:
What should I do if I receive more than one set of voting materials?
A:
You may receive more than one set of voting materials, including multiple copies of this proxy statement and multiple proxy cards
or voting instruction cards. For example, if you hold your shares in more than one brokerage account, you may receive a separate
voting instruction card for each brokerage account in which you hold shares. If you are a stockholder of record and your shares
of Common Stock are registered in more than one name, you will receive more than one proxy card. Please complete, sign, date and
return each proxy card and voting instruction card that you receive.
Q:
How may I obtain an additional set of proxy materials?
A:
All stockholders may write to us at the following address to request an additional copy of these materials:
Amedica
Corporation
1885
West 2100 South
Salt
Lake City, UT 84119
Attention:
Corporate Secretary
Additionally,
this proxy statement and notice of annual meeting are all available free of charge on our website at http://investors.amedica.com/annual-meetings-proxies
Q:
What is the difference between holding shares as a stockholder of record and as a beneficial owner?
A:
If your shares are registered directly in your name with our transfer agent, American Stock Transfer & Trust Company, you
are considered, with respect to those shares, the “stockholder of record.” If you are a stockholder of record, this
proxy statement and a proxy card have been sent directly to you by the Company.
If
your shares are held in a stock brokerage account or by a bank or other nominee, you are considered the “beneficial owner”
of shares held in street name. If you own shares held in street name, this proxy statement has been forwarded to you by your broker,
bank or nominee who is considered, with respect to those shares, the stockholder of record. As the beneficial owner, you have
the right to direct your broker, bank or nominee how to vote your shares by using the voting instruction card included in the
mailing or by following their instructions for voting by telephone or the Internet, if the broker, bank or nominee offers these
alternatives. Since a beneficial owner is not the stockholder of record, you may not vote these shares in person at the annual
meeting unless you obtain a “legal proxy” from the broker, bank or nominee that holds your shares, giving you the
right to vote the shares at the annual meeting.
Q:
How do I vote?
A:
You may vote using any of the following methods:
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Proxy
card or voting instruction card. Be sure to complete, sign and date the card and return it in the prepaid envelope.
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By
telephone or the Internet. If you are a stockholder of record, you may vote by telephone or on the Internet using the instructions
in the enclosed proxy card. If you own shares held in street name, you will receive voting instructions from your bank, broker
or other nominee and may vote by telephone or on the Internet if they offer that alternative.
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In
person at the annual meeting. All stockholders may vote in person at the annual meeting. You may also be represented by another
person at the annual meeting by executing a proper proxy designating that person. If you own shares held in street name, you
must obtain a legal proxy from your bank, broker or other nominee and present it to the inspector of election with your ballot
when you vote at the annual meeting.
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Q:
What can I do if I change my mind after I vote my shares?
A:
If you are a stockholder of record, you may revoke your proxy at any time before it is voted at the annual meeting by:
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sending
written notice of revocation to our Corporate Secretary;
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submitting
a new, proper proxy dated later than the date of the revoked proxy; or
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attending
the annual meeting and voting in person.
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If
you own shares held in street name, you may submit new voting instructions by contacting your broker, bank or nominee. You may
also vote in person at the annual meeting if you obtain a legal proxy as described in the answer to the previous question. Attendance
at the annual meeting will not, by itself, revoke a proxy.
Q:
What if I return a signed proxy card, but do not vote for some of the matters listed on the proxy card?
A:
If you return a signed proxy card without indicating your vote, your shares will be voted in accordance with the Board of Director’s
recommendations, “FOR” the approval of Proposal No. 1and “FOR” Proposal No. 2.
Q:
Can my broker vote my shares for me without my instructions?
A:
Your broker or nominee will have discretionary authority to vote your shares with respect to “routine” proposals such
as Proposal No. 2. Proposal No. 1 is not considered routine and your broker or nominee will not have discretionary authority to
vote your shares on that proposal without your direction. Please provide voting instructions on the proposal described herein
so your vote can be counted.
Q:
Can my shares be voted if I do not return my proxy card or voting instruction card and do not attend the annual meeting?
A:
If you do not vote your shares held of record (registered directly in your name, not in the name of a bank or broker), your shares
will not be voted.
If
you do not vote your shares held in street name with a broker, your broker will not be authorized to vote on Proposal No. 1, but
will be authorized to vote on Proposal No. 2.
Q:
What are the voting requirements with respect to each of the Proposals?
A:
Proposal No. 1
. The two nominees for Class III director receiving the highest number of votes will be elected Class III
directors. The proxy card enables a stockholder to vote “FOR” or “WITHHOLD” from voting as to each person
nominated by the Board. “Withhold” votes and broker non-votes are not considered votes cast for the foregoing purpose,
and will have no effect on the election of the nominees.
Proposal
No. 2
. This proposal requires the affirmative vote of a majority of the votes cast. Any shares not voted (whether by abstention
or otherwise) have no impact on the vote. We believe brokerage firms have authority to vote customers’ unvoted shares held
by the firms in street name on this Proposal.
Q:
How many votes do I have?
A:
As of May 11, 2018, the record date, there were 4,422,678 shares of our Common Stock outstanding and entitled to vote. Each share
of our Common Stock that you own entitles you to one vote.
Q:
What happens if additional matters are presented at the annual meeting?
A:
Other than the items of business described in this proxy statement, we are not aware of any other business to be acted upon at
the annual meeting. If you grant a proxy, the persons named as proxy holders, B. Sonny Bal and David Truetzel, will have the discretion
to vote your shares on any additional matters properly presented for a vote at the annual meeting.
Q:
How many shares must be present or represented to conduct business at the annual meeting?
A:
A quorum will be present if at least a majority of the outstanding shares of our Common Stock entitled to vote is represented
at the annual meeting, either in person or by proxy.
Both
abstentions and broker non-votes (described below) are counted for the purpose of determining the presence of a quorum.
Q:
How can I attend the annual meeting?
A:
You are entitled to attend the annual meeting only if you were a stockholder of Amedica as of the close of business on May 11,
2018, the record date, or if you hold a valid proxy for the annual meeting. You should be prepared to present photo identification
for admittance. If you are a stockholder of record, your name will be verified against the list of stockholders of record on the
record date prior to your admission to the annual meeting. If you are not a stockholder of record, but hold shares through a broker,
bank or nominee (i.e., in street name), you should provide proof of beneficial ownership on the record date, such as your most
recent account statement prior to the record date, a copy of the voting instruction card provided by your broker, bank or nominee,
or other similar evidence of ownership. If you do not provide photo identification or comply with the other procedures outlined
above, you will not be admitted to the annual meeting.
The
annual meeting will begin promptly at 9:00 a.m., local time on June 28, 2018. You should allow adequate time for check-in procedures.
Q:
How can I vote my shares in person at the annual meeting?
A:
Shares held in your name as the stockholder of record may be voted in person at the annual meeting. Shares held beneficially in
street name may be voted in person at the annual meeting only if you obtain a legal proxy from the broker, bank or nominee that
holds the shares giving you the right to vote the shares. Even if you plan to attend the annual meeting, we recommend that you
also submit your proxy card or voting instruction card as described herein so your vote will be counted if you later decide not
to attend the annual meeting.
Q:
What is the deadline for voting my shares?
A:
If you hold shares as the stockholder of record, your vote by proxy must be received before the polls close at the annual meeting,
except that proxies submitted by the Internet or telephone must be received by 11:59 p.m., Eastern Time, on June 27, 2018.
If
you hold shares beneficially in street name, please follow the voting instructions provided by your broker, bank or nominee. You
may vote these shares in person at the annual meeting only if at the annual meeting you provide a legal proxy obtained from your
broker, bank or nominee.
Q:
Is my vote confidential?
A:
Proxy instructions, ballots and voting tabulations that identify individual stockholders are handled in a manner that protects
your voting privacy. Your vote will not be disclosed either within Amedica or to third parties, except: (1) as necessary to meet
applicable legal requirements; (2) to allow for the tabulation of votes and certification of the vote; and (3) to facilitate a
successful proxy solicitation. Occasionally, stockholders provide written comments on their proxy card, which are then forwarded
to our management.
Q:
What is a broker non-vote?
A:
A broker non-vote occurs when a broker does not vote on a particular proposal with respect to shares of Common Stock held in a
fiduciary capacity (typically referred to as being held in “street name”) because the broker has not received voting
instructions from the beneficial owner. Under the rules that govern brokers who are voting with respect to shares held in street
name, brokers have the discretion to vote such shares on routine matters, but not on non-routine matters. Routine matters include
the ratification of auditors. Non-routine matters include matters such as the election of directors, the approval of, and amendments
to, stock plans and the approval of an amendment to a company’s certificate of incorporation. Therefore, if you do not give
your broker or nominee specific instructions, your shares will not be voted on non-routine matters and may not be voted on routine
matters. However, shares represented by such “broker non-votes” will be counted in determining whether there is a
quorum present at the annual meeting for the purpose of transacting business.
Q:
Where can I find the voting results of the annual meeting?
A:
We intend to announce preliminary voting results at the annual meeting and publish final voting results in a Current Report on
Form 8-K to be filed with the United States Securities and Exchange Commission (“SEC”) within four business days after
the annual meeting.
Q:
Who will bear the cost of soliciting votes for the annual meeting?
A:
The cost of this solicitation is being borne by Amedica. These costs will include the expense of preparing, assembling, printing
and mailing the notice, this proxy statement and any other material used in the Company’s solicitation of proxies to stockholders
of record and beneficial owners, and reimbursements paid to banks, brokerage firms, custodians and others for their reasonable
out-of-pocket expenses for forwarding proxy materials to stockholders and obtaining beneficial owners’ voting instructions.
Proxies may be solicited on our behalf by our directors, officers and regular employees by telephone or other means. There will
be no special or additional compensation for these services. Stockholders voting via the telephone or Internet should understand
that there may be costs associated with telephonic or electronic access, such as usage charges from telephone companies and internet
access providers, which must be borne by the stockholder.
Q:
What if I have questions for the Company’s transfer agent?
A:
Please contact our transfer agent at the telephone number or address listed below with any questions concerning stock certificates,
transfer of ownership or other matters pertaining to your stock account.
American
Stock Transfer and Trust Company
10150
Mallard Creek Road, Suite 307
Charlotte,
NC 28262
Telephone:
1-800-937-5449
Q:
Who can help answer my questions?
A:
If you have any questions about the annual meeting or how to vote or revoke your proxy, please contact:
Amedica
Corporation
188
West 2100 South
Salt
Lake City, UT 84119
Attention:
Corporate Secretary
Q:
How does the Board recommend I vote my shares?
A:
The Board recommends a vote FOR each nominee for election to the Board, and FOR ratification of the appointment of Tanner LLC.
Q:
How can I bring business to be presented from the floor of the annual meeting?
A:
Stockholders may present proposals for action at a future meeting if they comply with SEC rules, state law and our Bylaws. For
nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to our Bylaws, the stockholder
must have given timely notice thereof in writing to the Secretary of the Corporation.
Q:
How can Stockholders recommend a candidate for election to the Board?
A:
Stockholders who wish to recommend a candidate for election to our Board should write to: Corporate Secretary, Amedica Corporation,
1885 West 2100 South, Salt Lake City, UT 84119, stating in detail the qualifications of a candidate for consideration by the Board.
Additionally, our corporate Bylaws contain a detailed description of the process that must be followed by a stockholder in order
to properly nominate a candidate for election to our Board. Information on how to obtain a copy of our Bylaws is provided below.
In considering Board candidates, the Board seeks individuals of proven judgment and competence who have strong reputations in
their respective fields. The Board considers such factors as experience, education, employment history, special talents or personal
attributes, anticipated participation in Board activities, and geographic and diversity factors. The process for identifying and
evaluating nominees would include detailed consideration of the recommendations and opinions of members of our Board, our executive
officers, and our stockholders. There would be no difference in the process of evaluation of candidates recommended by a stockholder
and those recommended by other sources.
Q:
How can I communicate with the Board?
A:
Stockholders interested in communicating directly with our Board may do so by writing to: Board of Directors, Amedica Corporation,
1885 West 2100 South, Salt Lake City, UT 84119. All such written correspondence is delivered to the director or directors to whom
it is addressed or, if addressed generally to the Board, to all directors. Concerns relating to accounting, internal controls,
or auditing matters are immediately forwarded to the Chief Executive Officer, Chief Financial Officer and Principal Accounting
Officer, and Chairman of the Audit Committee.
Q:
Will the Board attend the Annual Meeting?
A:
We encourage attendance by members of the board and senior executives, but attendance is not required.
Q:
How can a stockholder submit a Stockholder Proposal for inclusion in the 2019 Proxy Statement; Discretionary Voting
A:
Stockholders interested in submitting a proposal for inclusion in our proxy statement for next year’s annual meeting must
do so in compliance with our Bylaws and applicable SEC rules and regulations. Under Rule 14a-8 adopted by the SEC, to be considered
for inclusion in our proxy materials for our 2019 annual meeting, a stockholder proposal, including nominations for directors,
must be received in writing by our Corporate Secretary no later than 5:00 p.m. MST on Thursday, February 28, 2019. If the date
of our 2019 annual meeting is moved more than 30 days before or after the anniversary date of this year’s meeting, the deadline
for inclusion of proposals in our proxy statement will instead be a reasonable time before we begin to print and mail our proxy
materials next year. Any such proposals will also need to comply with the various provisions of Rule 14a-8, which governs the
basis on which such stockholder proposals can be included or excluded from Company-sponsored proxy materials.
If
a stockholder desires to submit a proposal, including nominations for directors, for consideration at the 2019 annual meeting,
but not have the proposal included with our proxy solicitation materials relating to the 2019 annual meeting, the stockholder
must comply with the procedures set forth in our governing documents. Our Bylaws require that, for business to be properly brought
before an annual meeting by a stockholder, such stockholder must have given timely notice thereof, along with other specified
material, in proper written form to the Company. To be timely, a stockholder’s notice pertaining to an annual meeting shall
be delivered to the Corporate Secretary at the principal executive offices of the Company not less than ninety (90) or more than
one-hundred and twenty (120) days prior to the first anniversary of the date of the preceding year’s annual meeting; provided,
however, that in the event that the date of the annual meeting is more than thirty (30) days before or more than thirty (30) days
after the previous year’s annual meeting, notice by the stockholder to be timely must be so delivered not earlier than the
close of business on the one-hundred and twentieth (120th) day prior to such annual meeting and not later than the close of business
on the later of the ninetieth (90th) day prior to such annual meeting or the close of business on the tenth (10th) day following
the day on which public announcement of the date of such meeting is first made by the Corporation.
Any
stockholder who wishes to make such a proposal should obtain a copy of the Bylaws, which contain these and other requirements
with respect to stockholder proposals and director nominations, including certain information that must be included concerning
the stockholder and each proposal and nominee. Our Bylaws were filed with the SEC as an exhibit to our Current Report on Form
8-K, filed on February 20, 2014. You may also obtain a copy by writing to our Corporate Secretary, at Amedica Corporation, 1885
W 2100 S, Salt Lake City, UT 84119.
Q:
Where can I find More Information on Amedica
Our
corporate website is http://www.amedica.com. We make available on this website, free of charge, access to our Annual Report on
Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, Proxy Statement on Schedule 14A and amendments to those
materials filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 as soon as reasonably practicable
after we electronically submit such material to the SEC. The SEC makes available on its website, free of charge, reports, proxy
and information statements, and other information regarding issuers, such as us, that file electronically with the SEC. The SEC’s
website is http://www.sec.gov.
Directors
and Officers
Directors
The
following table sets forth the names, ages, and positions with Amedica for each of our directors.
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Name
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Age
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Positions
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B.
Sonny Bal, M.D.
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55
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Chairman
of the Board of Directors, President and Chief Executive Officer
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David
W. Truetzel
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60
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Director
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Jeffrey
S. White
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64
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Director
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Eric
A. Stookey
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47
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Director
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Our
Board is divided into three classes (Class I, Class II and Class III) with staggered three-year terms. Directors in each class
are elected to serve for three-year staggered terms that expire in successive years. Officers serve at the discretion of our Board.
The following is information on the business experience of each director now serving and a discussion of the qualifications, attributes
and skills that led to the Board of Directors’ conclusion that each one is qualified to serve as a director.
Class
III Directors—up for election at this Annual Meeting with a term expiring at the 2020 annual meeting of stockholders.
B.
Sonny Bal, M.D.
has served on our Board of Directors since February 2012, as Chairman of our Board of Directors since August
2014 and as our President and Chief Executive Officer since October 2014. Dr. Bal was a tenured Professor in Orthopaedic Surgery
at the University of Missouri, Columbia, and has an extensive history of research into silicon nitride ceramics. He is Adjunct
Professor of Material Sciences at Missouri Science and Technology University at Rolla. Dr. Bal is a member of the American Academy
of Orthopaedic Surgeons, the American Association of Hip and Knee Surgeons, and the International Society of Technology in Arthroplasty.
Dr. Bal received his M.D. degree from Cornell University and an M.B.A. from Northwestern University, a J.D. from the University
of Missouri, and a Ph.D. in Engineering from the Kyoto Institute of Technology in Japan. We believe that Dr. Bal’s breadth
of experience and scientific expertise in silicon nitride qualifies him to serve as our Chairman, President and Chief Executive
Officer.
Jeffrey
S. White
has served on our Board of Directors since January 2014. Since January 2013, Mr. White has served as Principal at
Medtech Advisory Group LLC, a firm he founded that advises early and mid-stage medical technology firms. In that capacity Mr.
White has consulted MiMedx Group Inc., the leading amniotic tissue and allograft regenerative biomaterials firm since mid-2015
and served as Vice President, Product Management Strategies at MiMedix. Mr. White previously served as a director of Residency
Select LLC, a company which offers psychometric assessment, training and compliance products to medical and surgical residency
programs. Mr. White also served in 2014 and 2015 as President and director of Liventa Bioscience LLC, a provider of specialty
amniotic tissue allografts for use in surgical and wound care applications. From May 2006 to December 2012 he served as Global
Director of Business Development for Synthes Inc., a global orthopedic firm that was acquired by Johnson and Johnson in 2012.
Mr. White has served as Chief Executive Officer and/or co-founder of several start-up surgical device firms and has previously
held executive level positions at United States Surgical Corporation, unit of Covidien plc. Mr. White holds a B.S. in Biology
from Union College in Schenectady NY. We believe that Mr. White’s experience as an executive and founder of medical device
companies qualifies him to serve on our Board of Directors.
Class
II Directors - continuing directors with a term expiring at the 2019 annual meeting of stockholder.
David
W. Truetzel
has served on our Board of Directors since our acquisition of US Spine, Inc. in September 2010. Mr. Truetzel has
been the general partner of Augury Capital Partners, a private equity fund that invests in life sciences and information technology
companies, which he co-founded in 2006. Mr. Truetzel is a director of Enterprise Bank, Inc., Verifi, Inc., a provider of electronic
payment solutions, Clearent, LLC, a credit card processing provider, and Paranet, LLC, an IT services provider. Mr. Truetzel holds
a B.S. in Business Administration from Saint Louis University and an M.B.A. from The Wharton School. We believe that Mr. Truetzel’s
financial and managerial expertise qualify him to serve on our Board of Directors.
Eric
A. Stookey
has served on our Board of Directors since October 2014. Mr. Stookey has served as Chief Operating Officer of Osteoremedies,
LLC since March of 2015. From October 2011 until August 2014, Mr. Stookey served as the President of the Extremities-Biologics
division at Wright Medical Group Inc. Mr. Stookey also served in various other marketing and sales positions at Wright Medical
Group Inc. since 1995, including as the Senior Vice President and Chief Commercial Officer from January 2010 to November 2011,
as the Vice President North American Sales from 2007 to January 2010, as the Vice President US Sales from 2005 to 2007, as the
Senior Director of Sales, Central Region, from 2003 to 2005 and as the Director of Marketing for Large Joint Reconstruction Products
from 2001 to 2003. Mr. Stookey earned his M.B.A. from Christian Brothers University and his B.S. in Business from the Indiana
University School of Business. We believe that Mr. Stookey’s industry and executive leadership experience qualifies him
to serve on our Board of Directors.
Class
I Directors - continuing directors with a term expiring at the 2021 annual meeting of stockholders.
None.
Executive
Officers
Our
current executive officers and their respective ages and positions are as follows:
Name
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Age
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Position
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B.
Sonny Bal, M.D.
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55
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Chairman
of the Board of Directors, President and Chief Executive Officer, Principal Financial Officer
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Bryan
J. McEntire
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65
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Chief
Technology Officer
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The
following is a brief summary of the background of each of our current directors and executive officers.
B.
Sonny Bal, M.D.
has served on our Board of Directors since February 2012, as Chairman of our Board of Directors since August
2014 and as our President and Chief Executive Officer since October 2014. Dr. Bal was a tenured Professor in Orthopaedic Surgery
at the University of Missouri, Columbia, and has an extensive history of research into silicon nitride ceramics. He is Adjunct
Professor of Material Sciences at Missouri Science and Technology University at Rolla. Dr. Bal is a member of the American Academy
of Orthopaedic Surgeons, the American Association of Hip and Knee Surgeons, and the International Society of Technology in Arthroplasty.
Dr. Bal received his M.D. degree from Cornell University and an M.B.A. from Northwestern University, a J.D. from the University
of Missouri, and a Ph.D. in Engineering from the Kyoto Institute of Technology in Japan. We believe that Dr. Bal’s breadth
of experience and scientific expertise in silicon nitride qualifies him to serve as our Chairman, President and Chief Executive
Officer.
Bryan
J. McEntire
has served as our Chief Technology Officer since May 2012. From June 2004 to May 2012 he served as our Vice President
of Manufacturing and as our Vice President of Research from December 2006 to May 2012. Dr. McEntire has worked in various advanced
ceramic product development, quality engineering and manufacturing roles at Applied Materials, Inc., (Santa Clara, CA), Norton
Advanced Ceramics, a division of Saint-Gobain Industrial Ceramics Corporation (E. Granby, CT), Norton/TRW Ceramics (Northboro,
MA) and Ceramatec, Inc., (Salt Lake City, UT). Dr. McEntire has a BS degree in Materials Science and Engineering and an MBA both
from the University of Utah (Salt Lake City, UT), and a Ph.D. from the Kyoto Institute of Technology (Kyoto, Japan).
Arrangements
between Officers and Directors
To
our knowledge, there is no arrangement or understanding between any of our officers and any other person, including directors,
pursuant to which the officer was selected to serve as an officer.
Family
Relationships
None
of our directors are related by blood, marriage, or adoption to any other director, executive officer, or other key employees.
Other
Directorships
None
of the directors of the Company are also directors of issuers with a class of securities registered under Section 12 of the Exchange
Act (or which otherwise are required to file periodic reports under the Exchange Act).
Other
Involvement in Certain Legal Proceedings
None
of our directors or executive officers has been involved in any bankruptcy or criminal proceedings (other than traffic and other
minor offenses) or been subject to any of the items set forth under Item 401(f) of Regulation S-K, nor have there been any judgments
or injunctions brought against any of our directors or executive officers during the last ten years that we consider material
to the evaluation of the ability and integrity of any director or executive officer.
The
Board and Committees
Our
Board of Directors has four members. The Chairman of the Board and our Chief Executive Officer, B. Sonny Bal, MD, PhD, is a member
of the Board and is a full-time employee of Amedica. The other three members of the Board, David W. Truetzel, Eric A. Stookey
and Jeffrey S. White, are non-employee directors, and the Board has determined that these persons (who constitute a majority of
the Board) are “independent directors” under the criteria set forth in Rule 5605(a)(2) of the Nasdaq Listing Rules.
The Board met twenty-one (21) times during the year ended December 31, 2017. All directors attended 86% of the meetings of the
Board held during 2017.
In
accordance with our restated Certificate of Incorporation, our Board of Directors is divided into three classes with staggered
three-year terms. At each annual meeting of stockholders, the successors to the directors whose terms then expire will be elected
to serve until the third annual meeting following such election. Our directors are divided among the three classes as follows:
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The
Class I directors terms will expire at the annual meeting of stockholders to be held in 2018. There are currently no Class
I directors.
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The
Class II directors are David W. Truetzel and Eric A. Stookey, and their terms will expire at the annual meeting of stockholders
to be held in 2019.
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The
Class III directors are B. Sonny Bal, M.D. and Jeffrey S. White, and their terms were initially scheduled to expire at the
annual meeting of stockholders which was to be held in 2017. However, because there was no annual meeting of stockholders
held in 2017 their terms are now set to expire at the annual meeting of stockholders to be held in 2018.
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Any
additional directorships resulting from an increase in the number of directors will be distributed among the three classes so
that, as nearly as possible, each class will consist of one-third of the directors.
Our
Board of Directors has three permanent committees: the Audit Committee, the Compensation Committee, and the Corporate Governance
and Nominating Committee. The written charters for these committees are on our website at http://investors.amedica.com/corporate-governance.cfm.
Our Board of Directors may from time to time establish other standing committees. In addition, from time to time, special committees
may be established under the direction of our Board of Directors when necessary to address specific issues.
The
following table sets forth a description of the three permanent Board committees and the chairpersons and members of those committees,
all of whom are independent directors:
Committee
|
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Independent
Chairman
|
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Independent
Members
|
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Audit
Committee
|
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David
W. Truetzel
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Eric
A. Stookey
|
|
Jeffrey
S. White
|
|
|
|
|
|
|
|
Compensation
Committee
|
|
Jeffrey
S. White
|
|
David
W. Truetzel
|
|
Eric
A. Stookey
|
|
|
|
|
|
|
|
Governance
and Nominating Committee
|
|
Eric
A. Stookey
|
|
Jeffrey
S. White
|
|
David
W. Truetzel
|
Corporate
Governance and Nominating Committee
The
Corporate Governance and Nominating Committee is currently comprised of the following members: Eric A. Stookey (Chairman), David
W. Truetzel and Jeffrey S White. Among other items, the Corporate Governance and Nominating Committee is tasked by the Board to:
(1) identify individuals qualified to serve as members of the Board and, where appropriate, recommend individuals to be nominated
by the Board for election by the stockholders or to be appointed by the Board to fill vacancies consistent with the criteria approved
by the Board; (2) develop and periodically evaluate and recommend changes to Amedica’s Corporate Governance Guidelines and
Code of Ethics, and to review the Company’s policies and programs that relate to matters of corporate responsibility, including
public issues of significance to the Company and its stakeholders; and (3) oversee an annual evaluation of the performance of
the Board. The Board has determined that each of the members of the Corporate Governance and Nominating Committee is “independent”
under the standard set forth in Rule 5605(a)(2) of the Nasdaq Listing Rules. The Corporate Governance and Nominating Committee
did not meet in 2017. The Corporate Governance and Nominating Committee operates under a written charter adopted by the Board
of Directors, which sets forth the responsibilities and powers delegated by the Board to the Corporate Governance and Nominating
Committee.
Board
Nominations
In
considering Board candidates, the Board seeks individuals of proven judgment and competence who have strong reputations in their
respective fields. The Board considers such factors as experience, education, employment history, special talents or personal
attributes, anticipated participation in Board activities, and geographic and diversity factors. The process for identifying and
evaluating nominees would include detailed consideration of the recommendations and opinions of members of our Board, our executive
officers, and our stockholders. There would be no difference in the process of evaluation of candidates recommended by a stockholder
and those recommended by other sources.
The
Nominating and Governance Committee has adopted a policy and procedures for shareholders to recommend nominees to the Company’s
Board. The Committee will only consider qualified proposed nominees that meet the qualification standards set forth on Appendix
A to the Committee’s charter available on the Company’s website at www.amedica.com. Pursuant to the policy, only shareholders
who meet minimum percentage ownership requirements as established by the Board may make recommendations for consideration by the
Committee. At this time, the Board has set a minimum percentage ownership of 5% of the Company’s issued and outstanding
shares of common stock for a period of at least one year. To make recommendations, s shareholder must submit the recommendation
in writing by mail, courier or personal delivery to: Corporate Secretary, Amedica Corporation, 1885 West 2100 South, Salt Lake
City, UT 84119. For each annual meeting the Committee will consider only one proposed nominee from each shareholder or shareholder
group (within the meaning of Regulation 13D under the Exchange Act).
The
recommendation must set forth (1) the name, address, including telephone number, of the recommending shareholder or shareholder
group; (2) the number of the Company’s shares of common stock held by such shareholder and proof of ownership if the shareholder
is not a holder of record; and (3) a statement that the shareholder has a good faith intention of holding the shares through the
record date of the Company’s next annual meeting. For shareholder groups this information must be submitted for each shareholder
in the group.
The
recommendation must set forth in relation to the proposed nominee being recommended by the shareholder: (1) the information required
by Items 401, 403 and 404 of Regulation S-K under the Exchange Act, (2) any material relationships or agreements between the proposed
nominee and the recommending shareholder or the Company’s competitors, customers, labor unions or other persons with special
interests in the Company; (3) a statement regarding the qualifications of the proposed nominee to serve on the Board; (4) a statement
that the proposed nominee can fairly represent the interests of all shareholders of the Company; and (5) a signed consent by the
proposed nominee to being interviewed by the Nominating and Governance Committee.
Recommendations
must be made not later than 120 calendar days prior to the first anniversary of the date of the proxy statement for the prior
annual meeting of shareholders. In the event that the date of the annual meeting of shareholders for the current year is more
than 30 days following the first anniversary date of the annual meeting of shareholders for the prior year, the submission of
a recommendation will be considered timely if it is submitted not earlier than the close of business on the 120 days prior to
such annual meeting and not later than the close of business on the later of 90 days prior to such annual meeting or the close
of business 10 days following the day on which public announcement of the date of such meeting is first made by the Company.
Audit
Committee
We
have a standing Audit Committee and audit committee charter, which complies with Rule 10A-3 of the Exchange Act, and the requirements
of the Nasdaq Listing Rules. Our Audit Committee was established in accordance with Section 3(a)(58)(A) of the Exchange Act. The
Audit Committee is currently comprised of the following members: David W. Truetzel (Chairman), Eric A. Stookey and Jeffrey S White.
The Audit Committee provides oversight for financial reporting matters, internal controls, and compliance with the Company’s
financial policies, and meets with its auditors when appropriate. The Audit Committee met three (3) times in 2017, and all director
members of the committee attended 100% of the meetings. The Board has determined that David W. Truetzel is an “audit committee
financial expert” within the meaning of Item 407(d)(5) of Regulation S-K. Further, the Board has determined that each of
David W. Truetzel, Jeffrey S. White and Eric A. Stookey are “independent” under the standard set forth in Rule 5605(a)(2)
of the Nasdaq Listing Rules. The Audit Committee operates under a written charter adopted by the Board of Directors, which sets
forth the responsibilities and powers delegated by the Board to the Audit Committee.
Compensation
Committee
The
Compensation Committee of the Board is comprised of the following members: Jeffrey S. White, (Chairman), David W. Truetzel and
Eric A. Stookey. The Board has determined that each of David W. Truetzel, Jeffrey S. White and Eric A. Stookey are “independent”
under the standard set forth in Rule 5605(a)(2) of the Nasdaq Listing Rules. The Compensation Committee recommends to the Board
for determination compensation of our executive officers, including the chief executive officer, and addresses salary and benefit
matters for other key personnel and employees of the Company. The Compensation Committee did not meet in 2017. The Compensation
Committee operates under a written charter adopted by the Board of Directors, which sets forth the responsibilities and powers
delegated by the Board to the Compensation Committee.
Code
of Business Conduct
The
Board has adopted a Code of Business Conduct that applies to all of our employees, officers and directors, including those officers
responsible for financial reporting. The code of business conduct is available on our website at http://investors.amedica.com/corporate-governance.cfm.
We intend to disclose any amendments to the code or any waivers of its requirements on our website.
The
Bylaws of the Company provide that no contract or transaction between Amedica and one or more of its directors or officers, or
between Amedica and any other corporation, firm, association, or other organization in which one or more of its directors or officers
are financially interested, shall be void or voidable solely for this reason, or solely because the director or officer is present
at or participates in the meeting of the Board of Directors or committee that authorizes or approves the contract or transaction,
or because their votes are counted for such purpose, provided that:
|
●
|
the
material facts as to his, her, or their relationship or interest as to the contract or transaction are disclosed or are known
to the Board of Directors or the committee and noted in the minutes, and the Board of Directors or committee authorizes the
contract or transaction in good faith by the affirmative vote of a majority of disinterested directors, even though the disinterested
directors are less than a quorum;
|
|
|
|
|
●
|
the
material facts as to his, her, or their relationship or interest as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon and the contract or transaction is specifically approved in good faith by vote
of the stockholders; or
|
|
|
|
|
●
|
the
contract or transaction is fair as to Amedica as of the time it is authorized, approved or ratified by the Board of Directors,
a committee thereof, or the stockholders.
|
Section
16(a) Beneficial Ownership Reporting Compliance
Section
16(a) of the Securities Exchange Act of 1934, as amended, requires our officers, directors, and persons who beneficially own more
than 10% of our common stock (“10% Stockholders”), to file reports of ownership and changes in ownership with the
Securities and Exchange Commission (“SEC”). Such officers, directors and 10% Stockholders are also required by SEC
rules to furnish us with copies of all Section 16(a) forms that they file.
Based
solely on our review of the copies of such forms received by us, or written representations from certain reporting persons, the
Company believes that during fiscal year ended December 31, 2017, the filing requirements applicable to its officers, directors
and greater than 10% percent beneficial owners were complied with.
STOCK
OWNERSHIP
The
following table sets forth certain information regarding the beneficial ownership of our common stock as of May 18, 2018 by:
|
●
|
each
of our current directors;
|
|
|
|
|
●
|
each
of our executive officers; and
|
|
|
|
|
●
|
all
of our directors and executive officers as a group;
|
|
|
|
|
●
|
each
stockholder known by us to own beneficially more than 5% of our Common Stock.
|
Beneficial
ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to the securities.
Shares of common stock that may be acquired by an individual or group within 60 days of May 18, 2018, pursuant to the exercise
or vesting of options or warrants or conversion of convertible promissory notes, are deemed to be outstanding for the purpose
of computing the percentage ownership of such individual or group, but are not deemed to be outstanding for the purpose of computing
the percentage ownership of any other person shown in the table. Percentage of shares beneficially owned is based on 7,224,240
shares issued and outstanding on May 18, 2018.
Except
as indicated in footnotes to this table, we believe that the stockholders named in this table have sole voting and investment
power with respect to all shares of common stock shown to be beneficially owned by them, based on information provided to us by
such stockholders. The address for each director and executive officer listed is: c/o Amedica Corporation, 1885 West 2100 South,
Salt Lake City, Utah 84119.
|
|
Shares
Beneficially Owned
|
|
Name
and Address of Beneficial Owner
|
|
Number
|
|
|
Percentage
|
|
Five
Percent Stockholders:
|
|
|
|
|
|
|
|
|
CVI
Investments, Inc.(1)
|
|
|
484,388
|
|
|
|
6.7
|
%
|
Alpha
Capital Anstalt (2)
|
|
|
427,255
|
|
|
|
5.9
|
%
|
Directors
and Named Executive Officers:
|
|
|
|
|
|
|
|
|
B.
Sonny Bal, M.D. (3)
|
|
|
56,628
|
|
|
|
*
|
|
David
W. Truetzel (4)
|
|
|
3,572
|
|
|
|
*
|
|
Jeffrey
S. White (5)
|
|
|
443
|
|
|
|
*
|
|
Eric
A. Stookey (6)
|
|
|
389
|
|
|
|
*
|
|
Bryan
McEntire (7)
|
|
|
1,713
|
|
|
|
*
|
|
All
executive officers and directors as a group (5 persons)
|
|
|
62,745
|
|
|
|
0.9
|
%
|
|
*
|
Indicates
ownership of less than 1% of the outstanding shares of the Company’s common stock.
|
(1)
|
CVI
Investments Inc. and Heights Capital Management filed a Schedule 13G on May 18, 2018 reporting that they had dispositive power
with respect to an aggregate of 484,388 shares. Heights Capital Management reported that it is the investment manager to CVI
Investments and as such may exercise voting and dispositive power over the shares. The number of Shares reported as beneficially
owned consists of common shares issuable upon conversion of Series B Preferred Stock, par value $0.01 per share (the “Preferred
Stock”). The Preferred Stock is not convertible to the extent that the total number of Shares then beneficially owned
by a Reporting Person and its affiliates and any other persons whose beneficial ownership of Shares would be aggregated with
such Reporting Person for purposes of Section 13(d) of the Exchange Act, would exceed 9.99%. Heights Capital Management, Inc.,
which serves as the investment manager to CVI Investments, Inc., may be deemed to be the beneficial owner of all Shares owned
by CVI Investments, Inc. Each of the Reporting Persons hereby disclaims any beneficial ownership of any such Shares, except
for their pecuniary interest therein. CVI Investments Inc.’s address is P.O. Box 309GT, Ugland House, South Church Street,
George Town, Grand Cayman KY1-1104 Cayman Islands and Heights Capital Management’s address is 101 California Street,
Suite 3250, San Francisco, California 94111.
|
|
|
(2)
|
Alpha
Capital Anstalt filed a Schedule 13G on May 11, 2018 reporting that it had dispositive power with respect to an aggregate
of 427,255 shares of common stock issuable upon conversion of Series B Preferred Stock, par value $0.01 per share (the “Preferred
Stock”). The Preferred Stock is not convertible to the extent that the total number of Shares then beneficially owned
by a Reporting Person and its affiliates and any other persons whose beneficial ownership of Shares would be aggregated with
such Reporting Person for purposes of Section 13(d) of the Exchange Act, would exceed 9.99%. Alpha Capital Anstalt’s
address is Lettstrasse 32, 9490 Vaduz, Liechtenstein.
|
|
|
(3)
|
Represents
332 shares of Common Stock and options and warrants to purchase 56,296 shares of Common Stock that are currently exercisable
within 60 days of May 18, 2018.
|
|
|
(4)
|
Represents
2,102 shares of Common Stock and options and warrants to purchase 1,470 shares of Common Stock that are currently exercisable
within 60 days of May 18, 2018.
|
|
|
(5)
|
Represents
54 shares of Common Stock and options to purchase 389 shares of Common Stock that are currently exercisable within 60 days
of May 18, 2018.
|
|
|
(6)
|
Represents
options to purchase 389 shares of Common Stock that are currently exercisable within 60 days of May 18, 2018.
|
|
|
(7)
|
Represents
375 shares of Common Stock and options to purchase 1,338 shares of Common Stock that are currently exercisable within 60 days
of May 18, 2018.
|
Audit
Committee Report
The
Audit Committee has reviewed and discussed the Company’s audited consolidated financial statements as of and for the year
ended December 31, 2017 and internal controls over financial reporting with our management and our independent registered public
accounting firm. Further, the Audit Committee has discussed with our independent registered public accounting firm the matters
required to be discussed under auditing standards generally accepted in the United States, including those matters set forth in
Auditing Standard No. 16, Communications with Audit Committees, as adopted by the Public Company Accounting Oversight Board (the
“PCAOB”), other standards of the PCAOB, rules of the SEC, and other applicable regulations, relating to the firm’s
judgment about the quality, not just the acceptability, of the Company’s accounting principles, the reasonableness of significant
judgments and estimates, and the clarity of disclosures in the consolidated financial statements.
The
Audit Committee also has received the written disclosures and the letter from our independent registered public accounting firm
required by PCAOB Ethics and Independence Rule 3526, Communication with Audit Committees Concerning Independence, which relate
to our independent registered public accounting firm’s independence from our Company, and has discussed with our independent
registered public accounting firm its independence from our Company. The Audit Committee has also considered whether the independent
registered public accounting firm’s provision of non-audit services to us is compatible with maintaining the firm’s
independence. The Audit Committee has concluded that the independent registered public accounting firm is independent from our
Company and our management. The Audit Committee has also discussed with our management and our independent registered public accounting
firm such other matters and received such assurances from them as it has deemed appropriate.
The
Audit Committee also reviewed management’s report on its assessment of the effectiveness of our internal control over financial
reporting. In addition, the Audit Committee reviewed key initiatives and programs aimed at strengthening the effectiveness of
our internal and disclosure control structure. As part of this process, the Audit Committee continues to monitor the scope and
adequacy of our internal auditing program.
Based
on the reviews, reports and discussions referred to above, the Audit Committee recommended to the Board of Directors, and the
Board of Directors approved, that our audited consolidated financial statements for the year ended December 31, 2017 and management’s
assessment of the effectiveness of our internal control over financial reporting be included in our Annual Report on Form 10-K
for the year ended December 31, 2017, for filing with the SEC. The Audit Committee has selected, and the Board of Directors has
approved, subject to stockholder ratification, the selection of Tanner LLC as our independent registered public accounting firm
for the year ending December 31, 2018.
|
Respectfully
submitted,
|
|
|
|
David
W. Truetzel, Chairman
|
|
Eric
A. Stookey
|
|
Jeffrey
S. White
|
Board
Compensation
The
following table shows the total compensation paid or accrued during the fiscal year ended December 31, 2017 to each of our non-employee
directors.
Name
|
|
Fees
Earned or
Paid
in Cash
($)
|
|
|
Value
of Stock
Awards
(1)
($)
|
|
|
Value
of Option
Grants
(1)
($)
|
|
|
Total
($)
|
|
David
W. Truetzel
|
|
$
|
130,000
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
130,000
|
|
Jeffrey
S. White
|
|
|
49,500
|
|
|
|
-
|
|
|
|
-
|
|
|
|
49,500
|
|
Eric
A. Stookey
|
|
|
49,500
|
|
|
|
-
|
|
|
|
-
|
|
|
|
49,500
|
|
(1)
|
These
columns represent the aggregate grant date fair value of restricted stock awards and stock option awards granted during the
year indicated, in accordance with ASC Topic 718 and do not correspond to the actual value that may be realized by the directors.
For additional information on the assumptions underlying the valuation of the Company’s stock-based awards, please refer
to Note 9 of the Company’s consolidated financial statements included in this Annual Report on Form 10-K for the fiscal
year ended December 31, 2017.
|
During
2016, our Board approved the following compensation schedule for non-employee directors (paid on a quarterly basis):
|
●
|
Annual
Retainer of $40,000 paid in four equal installments of $10,000 each at the beginning of each calendar quarter;
|
|
|
|
|
●
|
$1,000
for each board and committee meeting attended in person;
|
|
|
|
|
●
|
$500
for each board and committee meeting attended via telephone or other remote medium; and
|
|
|
|
|
●
|
Reimbursement
of reasonable expenses as supported by documentation and receipts.
|
A
new Board appointee receives an award of 40,000 stock options upon appointment. Further, historically, each member of the Board
is awarded an option grant for 15,000 stock options on an annual basis. No awards were made for 2017.
The
chair of the Audit Committee is paid an annual retainer of $120,000 payable in monthly increments of $10,000 each.
Equity
Compensation Plan Information
The
following table sets forth information as of December 31, 2017 relating to all of our equity compensation plans:
Plan
Category
|
|
(a)
Number of
Shares
to be Issued upon
Exercise of
Outstanding
Options
|
|
|
(b)
Weighted-
average
Exercise
Price of
Outstanding
Options
|
|
|
(c)
Number of Securities
Remaining Available for
Future Issuance under
Equity Compensation
Plans (Excluding
Securities Referenced
in Column (a))
|
|
Equity
compensation plans
approved by stockholders
|
|
|
11,446
|
(1)
|
|
$
|
367.08
|
(2)
|
|
|
75,600
|
|
Equity
compensation plans not
approved by Stockholders
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
Total
|
|
|
11,446
|
(1)
|
|
$
|
367.08
|
(2)
|
|
|
75,600
|
|
(1)
|
Includes
options outstanding under our 2012 Equity Incentive Plan
|
|
|
(2)
|
Represents
weighted-average exercise price per share of common stock acquirable upon exercise of outstanding stock options.
|
2012
Equity Incentive Plan
The
2012 Plan is intended to encourage ownership of common stock by our employees and directors and certain of our consultants in
order to attract and retain such people, to induce them to work for the benefit of us and to provide additional incentive for
them to promote our success. The number of shares of our common stock reserved for issuance under the 2012 Plan is 95,202, which
number is automatically increased on January 1 of each of year by the lesser of (i) 18,031 shares of our common stock on such
date, (ii) 5% of the number of outstanding shares of our common stock on such date, and (iii) such other amount determined by
the board through the termination of the 2012 Plan.
Types
of Awards.
The 2012 Plan provides for the granting of incentive stock options, NQSOs, stock grants and other stock-based awards,
including RSUs.
●
Incentive and Nonqualified Stock Options
. The plan administrator determines the exercise price of each stock option. The
exercise price of an NQSO may not be less than the fair market value of our common stock on the date of grant. The exercise price
of an incentive stock option may not be less than the fair market value of our common stock on the date of grant if the recipient
holds 10% or less of the combined voting power of our securities, or 110% of the fair market value of a share of our common stock
on the date of grant otherwise.
●
Stock Grants
. The plan administrator may grant or sell stock, including restricted stock, to any participant, which purchase
price, if any, may not be less than the par value of shares of our common stock. The stock grant will be subject to the conditions
and restrictions determined by the administrator. The recipient of a stock grant shall have the rights of a stockholder with respect
to the shares of stock issued to the holder under the 2012 Plan.
●
Stock-Based Awards
. The administrator of the 2012 Plan may grant other stock-based awards, including stock appreciation
rights, phantom stock awards and RSUs, with terms approved by the administrator, including restrictions related to the awards.
The holder of a stock-based award shall not have the rights of a stockholder until shares of our common stock are issued pursuant
to such award.
Plan
Administration.
Our Board is the administrator of the 2012 Plan, except to the extent it delegates its authority to a committee,
in which case the committee shall be the administrator. Our Board has delegated this authority to our compensation committee.
The administrator has the authority to determine the terms of awards, including exercise and purchase price, the number of shares
subject to awards, the value of our common stock, the vesting schedule applicable to awards, the form of consideration, if any,
payable upon exercise or settlement of an award and the terms of award agreements for use under the 2012 Plan.
Eligibility
.
Our Board will determine the participants in the 2012 Plan from among our employees, directors and consultants. A grant may be
approved in advance with the effectiveness of the grant contingent and effective upon such person’s commencement of service
within a specified period.
Termination
of Service.
Unless otherwise provided by our Board or in an award agreement, upon a termination of a participant’s service,
all unvested options then held by the participant will terminate and all other unvested awards will be forfeited.
Transferability.
Awards under the 2012 Plan may not be transferred except by will or by the laws of descent and distribution, unless otherwise
provided by our Board in its discretion and set forth in the applicable agreement, provided that no award may be transferred for
value.
Adjustment.
In the event of a stock dividend, stock split, recapitalization or reorganization or other change in change in capital structure,
our Board will make appropriate adjustments to the number and kind of shares of stock or securities subject to awards.
Corporate
Transaction
. If we are acquired, our Board of Directors (or Compensation Committee) will: (i) arrange for the surviving entity
or acquiring entity (or the surviving or acquiring entity’s parent company) to assume or continue the award or to substitute
a similar award for the award; (ii) cancel or arrange for cancellation of the award, to the extent not vested or not exercised
prior to the effective time of the transaction, in exchange for such cash consideration, if any, as our Board of Directors in
its sole discretion, may consider appropriate; or (iii) make a payment, in such form as may be determined by our Board of Directors
equal to the excess, if any, of (A) the value of the property the holder would have received upon the exercise of the award immediately
prior to the effective time of the transaction, over (B) any exercise price payable by such holder in connection with such exercise.
In addition, in connection with such transaction, our Board of Directors may accelerate the vesting, in whole or in part, of the
award (and, if applicable, the time at which the award may be exercised) to a date prior to the effective time of such transaction
and may arrange for the lapse, in whole or in part, of any reacquisition or repurchase rights held by us with respect to an award.
Amendment
and Termination.
The 2012 Plan will terminate on September 6, 2022 or at an earlier date by vote of the stockholders or our
Board; provided, however, that any such earlier termination shall not affect any awards granted under the 2012 Plan prior to the
date of such termination. The 2012 Plan may be amended by our Board, except that our Board may not alter the terms of the 2012
Plan if it would adversely affect a participant’s rights under an outstanding stock right without the participant’s
consent. Stockholder approval will be required for any amendment to the 2012 Plan to the extent such approval is required by law,
include the Internal Revenue Code or applicable stock exchange requirements.
Amendment
of Outstanding Awards.
The administrator may amend any term or condition of any outstanding award including, without limitation,
to reduce or increase the exercise price or purchase price, accelerate the vesting schedule or extend the expiration date, provided
that no such amendment shall impair the rights of a participant without such participant’s consent.
PROPOSAL
NO. 2
RATIFICATION
OF THE APPOINTMENT OF TANNER LLC
AS
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR 2018
The
Audit Committee has selected and appointed the firm of Tanner LLC as the independent registered public accounting firm to examine
our financial statements for the year ended December 31, 2018. Tanner LLC audited our 2017 annual financial statements. We do
not expect representatives of Tanner LLC will attend the annual meeting.
Ratification
of the selection of Tanner LLC is not required by our Bylaws or otherwise. The Board is submitting the selection to our stockholders
for ratification as a matter of good corporate practice. If the selection is not ratified, the Audit Committee will consider whether
it is appropriate to select another registered public accounting firm. Even if the selection is ratified, the Audit Committee
in its discretion may select a different registered public accounting firm at any time after the annual meeting if it determines
such a change would be in the interests of Amedica and its stockholders.
Dismissal
of BDO USA, LLP
On
September 20, 2017, we informed BDO USA, LLP (“BDO”) of their dismissal as our independent registered public accounting
firm. The dismissal was authorized by the Audit Committee. On the same date, the Audit Committee engaged Tanner LLC (“Tanner”)
as our independent registered public accounting firm for the fiscal year ending December 31, 2017.
The
report of BDO on our consolidated financial statements for the fiscal year ended December 31, 2016 did not contain any other adverse
opinion or disclaimer of opinion and were not qualified or modified as to uncertainty, audit scope or accounting principles, except
that BDO’s report indicated that there was substantial doubt as to our ability to continue as a going concern.
In
connection with the audit of our financial statements for fiscal year ended December 31, 2016, there were no disagreements between
us and BDO on any matters of accounting principles or practices, financial statement disclosure, or auditing scope or procedure,
which disagreements, if not resolved to the satisfaction of BDO, would have caused BDO to make reference to the subject matter
of the disagreements in connection with in their audit report on our consolidated financial statements..
During
the fiscal year ended December 31, 2016, and through the date of the filing of this Form 8-K, there were no reportable events,
as that term is described in Item 304(a)(1)(v) of Regulation S-K, except with respect to the material weaknesses discussed below,
which is disclosed in our Annual Report on Form 10-K for the fiscal year ended December 31, 2016.
In
connection with the audit of our financial statements for the year ended December 31, 2016, BDO identified material weaknesses
in our internal control over financial reporting and advised us that the internal controls necessary for us to develop reliable
financial statements do not exist. More specifically, BDO advised us of the following material weaknesses:
Control
Environment and Risk Assessment – We did not have an effective control environment with the structure necessary for effective
internal controls over financial reporting. Further, we did not have an effective risk assessment to identify and assess risks
associated with changes to our structure and the impact on internal controls. With the dismissal of our CFO, we did not have appropriately
qualified personnel to meet our control objectives. We do not have personnel with an appropriate level of GAAP knowledge and experience
to properly review and evaluate the work performed by other personnel and experts related to complex accounting matters.
Control
Activities – We did not have control activities that were designed and operating effectively including management review
controls, controls related to monitoring and assessing the work of consultants, and controls to verify the completeness and adequacy
of information. Specifically, we did not have procedures for competent personnel to review work performed by experts in relation
to complex debt and equity transactions and impairment evaluations.
Monitoring
Activities – We did not maintain effective monitoring controls related to the financial reporting process. We did not effectively
monitor the changes in internal control related to changes in the roles and responsibilities associated with the changes in personnel
and organizational structure. The failure to properly monitor impacted the timing, accuracy, and completion of the work related
to significant accounting matters.
The
Audit Committee has discussed the identified material weaknesses with BDO. The Audit Committee has authorized BDO to respond fully
to the inquiries of Tanner concerning the material weaknesses in our internal control over financial reporting.
We
previously provided BDO with a copy of the above disclosure in accordance with Item 304(a) of Regulation S-K prior to its filing
in our Current Report on Form 8-K with the Securities and Exchange Commission on September 22, 2018 and requested that BDO furnish
us with a letter addressed to the United States Securities and Exchange Commission stating whether it agrees with the above statements
and, if it does not agree, the respects in which it does not agree. A copy of the letter of BDO, dated September 22, 2017 was
filed as Exhibit 16.1 to such Current Report on Form 8-K.
On
September 20, 2017 the Audit Committee engaged Tanner LLC as our independent registered public accounting firm for the fiscal
year ending December 31, 2017. We have not consulted with Tanner during the two most recently completed fiscal years prior to
its appointment as our auditor with respect to the application of accounting principles to a specified transaction, either completed
or proposed, or the type of audit opinion that might be rendered on our consolidated financial statements, or any other matters
or reportable events as identified in Items 304(a)(2)(i) and (ii) of Regulation S-K.
Accountant
Fees and Services
The aggregate fees and expenses from our principal accounting firm, Tanner LLC for 2017 and for
BDO USA, LLP who acquired Mantyla McReynolds LLC during 2016, and which are separately presented, for fees and expenses incurred
during fiscal years ended December 31, 2017 and 2016, were as follows (in thousands):
|
|
MANTYLA
MCREYNOLDS LLC
|
|
|
BDO
USA,
LLP
|
|
|
TANNER
LLC
|
|
|
|
Year
Ended
December 31, 2016
|
|
|
Year
Ended
December 31, 2016
|
|
|
Year
Ended
December 31, 2017
|
|
Audit
fees
|
|
$
|
103,520
|
|
|
$
|
485,991
|
|
|
$
|
260,081
|
|
Audit
related fees
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
Tax
fees
|
|
|
-
|
|
|
|
-
|
|
|
|
15,500
|
|
All
other fees
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
Total
Fees
|
|
$
|
103,520
|
|
|
$
|
485,991
|
|
|
$
|
275,581
|
|
Each
of the permitted non-audit services has been pre-approved by the Audit Committee or the Audit Committee’s Chairman pursuant
to delegated authority by the Audit Committee, other than de minimus non-audit services for which the pre-approval requirements
are waived in accordance with the rules and regulations of the Securities and Exchange Commission.
Audit
Fees
Consist
of fees billed for professional services rendered for the audit of our financial statements and review of interim consolidated
financial statements included in quarterly reports and services that are normally provided by the principal accountants in connection
with statutory and regulatory filings or engagements.
Audit
Related Fees
Consist
of fees billed for assurance and related services that are reasonably related to the performance of the audit or review of our
consolidated financial statements and are not reported under “Audit Fees”.
Tax
Fees
Consist
of fees billed for professional services for tax compliance, tax advice and tax planning. These services include preparation of
federal and state income tax returns.
All
Other Fees
Consist
of fees for product and services other than the services reported above.
Policy
for Approval of Audit and Permitted Non-Audit Services
The
Audit Committee charter provides that the Audit Committee will pre-approve audit services and non-audit services to be provided
by our independent auditors before the accountant is engaged to render these services. The Audit Committee may consult with management
in the decision-making process, but may not delegate this authority to management. The Audit Committee may delegate its authority
to pre-approve services to one or more committee members, provided that the designees present the pre-approvals to the full committee
at the next committee meeting.
The
affirmative vote of the holders of a majority of the common shares voted on the proposal and represented at the annual meeting
in person or by proxy is required to ratify the selection of Tanner LLC. The Board of Directors recommends that you vote FOR this
proposal.