As filed with the Securities and Exchange
Commission on September 2, 2016
Registration No. 333- .
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
Aqua Metals, Inc.
(Exact name of registrant as specified
in its charter)
Delaware
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47-1169572
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(
State of incorporation)
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(
I.R.S. Employer Identification No
.)
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1010 Atlantic Avenue
Alameda, California 94501
(510) 479-7635
(Address and telephone number of registrant’s
principal executive offices)
Stephen R. Clarke
Chief Executive Officer
Aqua Metals, Inc.
1010 Atlantic Avenue
Alameda, California 94501
(510) 479-7635
(Name, address and telephone number of
agent for service)
Copy to:
Daniel K. Donahue
Greenberg Traurig, LLP
3161 Michelson Drive, Suite 1000
Irvine, California 92612
(949) 732-6500
Approximate date of commencement of proposed
sale to the public:
From time to time after the effective date
of this registration statement.
If the only securities being registered
on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box:
¨
If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest reinvestment plans, check the following box:
x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering
¨
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registrations statement
number of the earlier effective registration statement for the same offering.
¨
If this Form is
a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
¨
If this Form is
a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the
registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company (as defined
in Rule 12b-2 of the Act):
Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
x
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
Title of each class of securities
to be registered
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Amount to be
registered
(1)
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Proposed Maximum
Offering Price Per
Unit
(1)
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Proposed Maximum
Aggregate Offering
Price
(1)(2)
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Amount of registration
fee
(3)
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Common Stock, par value $0.001 per share
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—
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—
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—
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—
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Warrants
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—
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—
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—
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—
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Debt Securities
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—
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—
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—
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—
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Total
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—
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$
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100,000,000
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$
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10,070
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(1)
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Pursuant to Form S-3 General Instruction II.D information is not required to be included. With
respect to the primary offering, an indeterminate amount of the securities of each identified class is being registered as may
from time to time be offered hereunder at indeterminate prices, along with an indeterminate number of securities that may be issued
upon exercise, settlement, exchange or conversion of securities offered or sold hereunder as shall have aggregate initial offering
price not to exceed $100 million. Pursuant to Rule 416 under the Securities Act of 1933, as amended, or the Securities Act, this
registration statement also covers any additional securities that may be offered or issued in connection with any stock split,
stock dividend or pursuant to anti-dilution provisions of any of the securities. Separate consideration may or may not be received
for securities that are issuable upon conversion, exercise or exchange of other securities.
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(2)
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The proposed maximum aggregate offering price per unit will be determined from time to time by
the Registrant in connection with, and at the time of, the issuance of the securities and is not specified as to each class of
security pursuant to General Instruction II.D. of Form S-3.
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(3)
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Calculated pursuant to Rule 457(o) under the Securities Act based on the proposed maximum aggregate
offering price of all securities listed.
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The Registrant hereby
amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the
Commission acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed without notice. We may not sell these securities until the registration
statement relating to these securities has been declared effective by the Securities and Exchange Commission. This prospectus
is neither an offer to sell nor a solicitation of an offer to buy these securities in any jurisdiction where the offer or sale
is not permitted.
SUBJECT
TO COMPLETION
, DATED SEPTEMBER 2, 2016
PROSPECTUS
$100,000,000
AQUA
METALS, INC.
Common Stock
Warrants
Units
Debt Securities
We may issue securities
from time to time in one or more offerings of up to $100,000,000 in aggregate offering price. This prospectus describes the general
terms of these securities and the general manner in which these securities will be offered. We will provide the specific terms
of these securities in supplements to this prospectus. The prospectus supplements will also describe the specific manner in which
these securities will be offered and may also supplement, update or amend information contained in this document. You should read
this prospectus and any applicable prospectus supplement before you invest.
We may offer these
securities in amounts, at prices and on terms determined at the time of offering. The securities may be sold directly to you, through
agents, or through underwriters and dealers. If agents, underwriters or dealers are used to sell the securities, we will name them
and describe their compensation in a prospectus supplement.
Our common stock is
listed on The NASDAQ Capital Market under the symbol “AQMS”. On August 31, 2016, the last reported sale price
of our common stock on The NASDAQ Capital Market was $9.24 per share.
Investing in these
securities involves significant risks. See “Risk Factors” included in any accompanying prospectus supplement and in
the documents incorporated by reference in this prospectus for a discussion of the factors you should carefully consider before
deciding to purchase these securities.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus
is ____________, 2016
TABLE OF CONTENTS
ABOUT THIS
PROSPECTUS
This prospectus is
part of a registration statement that we filed with the Securities and Exchange Commission, which we refer to as the “SEC,”
utilizing a “shelf” registration process. Under this shelf registration process, we may from time to time sell any
combination of the securities described in this prospectus in one or more offerings for an aggregate initial offering price of
up to $100,000,000.
This prospectus provides
you with a general description of the securities we may offer. From time to time, we may provide one or more prospectus supplements
that will contain specific information about the terms of the offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this prospectus and any accompanying prospectus supplement together
with the additional information described under the heading “Where You Can Find More Information” beginning on page 19
of this prospectus.
We have not authorized
anyone to provide you with information different from that contained in or incorporated by reference in this prospectus, any accompanying
prospectus supplement or in any related free writing prospectus filed by us with the SEC. We do not take any responsibility for,
and cannot provide any assurance as to the reliability of, any information other than the information contained or incorporated
by reference in this prospectus, any accompanying prospectus supplement or in any related free writing prospectus filed by us with
the SEC. This prospectus and any accompanying prospectus supplement do not constitute an offer to sell or the solicitation of an
offer to buy any securities other than the securities described in the accompanying prospectus supplement or an offer to sell or
the solicitation of an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. You should
assume that the information appearing in this prospectus, any prospectus supplement, the documents incorporated by reference and
any related free writing prospectus is accurate only as of their respective dates. Our business, financial condition, results of
operations and prospects may have changed materially since those dates.
Unless the context
otherwise indicates, references in this prospectus to “we,” “our” and “us” refer, collectively,
to Aqua Metals, Inc., a Delaware corporation and its subsidiaries.
ABOUT AQUA
METALS, INC.
We are engaged in
the business of recycling lead through a novel, proprietary and patent-pending process that we developed and named “AquaRefining”.
Lead is a globally traded commodity with a worldwide market value in excess of $20 billion. Lead acid batteries, or LABs, are the
primary use of all lead produced in the world. Because the chemical properties of lead allow it to be recycled and reused indefinitely,
LABs are also the primary source of all lead production. As such, LABs are almost 100% recycled for purposes of capturing the lead
contained therein for re-use. We believe that our proprietary AquaRefining process will provide for the recycling of LABs and the
production of a pure grade lead with a significantly lower cost of production, and with fewer environmental and regulatory issues,
than conventional methods of lead production.
In recent years, many
lead mines have become exhausted and recycled lead has become increasingly important to LAB production. Recycled lead surpassed
mined lead in the 1990s and now represents more than 50% of the lead content in new LABs. Whether it is produced from lead ore
or recycled LABs, lead has historically been produced by smelting. Smelting is a high-temperature, endothermic chemical reduction,
making it inefficient, energy intensive and often a highly pollutive process. As a consequence of its environmental and health
issues, lead smelting has become increasingly regulated in developed countries. In the US, regulatory non-compliance has forced
the closure of large high-capacity lead smelters in Vernon, California, Frisco, Texas and Herculaneum, Missouri over the last three
years. Herculaneum was the last remaining primary lead-mine operation (i.e., smelting lead from ore) in the US, though secondary
lead smelters that process recycled lead continue to operate in the US. In response, there has been an expansion of LAB smelting
capacity in Mexico and other less regulated countries. The resulting transportation of used LABs from where they originate in the
US to smelters in Mexico, the Philippines and elsewhere is an increasingly significant logistical and global environmental cost.
AquaRefining uses
an aqueous solvent and a novel electro-chemical process to produce pure lead (i.e., higher than 99.99% purity). We believe that
AquaRefining can significantly reduce production costs as compared with alternative methods of producing pure lead. This cost reduction
is partly because our novel electro-chemical process requires less energy than the endothermic high temperature (1400°C) chemical
reduction that is at the core of smelting. It is also partly because our process does not generate toxic high temperature dust
and gas, or the lead containing slag and dross that are unavoidable byproducts of smelting, and which require capital and energy
intensive processes to meet environmental compliance. We also have the potential to locate multiple smaller recycling facilities
in areas closer to the source of used LABs, thereby reducing transport costs and supply chain bottlenecks. AquaRefining is a water-based
ambient temperature process. On this basis, we believe that it significantly reduces environmental emissions, health concerns and
permitting needs as compared with lead smelting. We believe that the combined advantages offered by AquaRefining represent a potential
step change in lead recycling technology, one that can deliver advantages in economics, footprint and logistics while greatly reducing
the environmental impact of lead recycling.
The modular nature
of AquaRefining makes it possible to start LAB recycling at a much smaller scale than is possible with smelters, thereby significantly
reducing the investment risk associated with building a lead production facility. Our plan is to actively explore distributed recycling
in the US by establishing our own initial recycling operation near Reno, Nevada. This plan is based on our belief that Reno has
become a significant hub of the West Coast’s LAB distribution infrastructure and yet is very poorly served by the LAB recycling
industry. From our initial recycling facility near Reno, we intend to expand first throughout the US and then overseas. We will
seek to own our own recycling facilities but will also evaluate joint ventures and licensing in respect of our technologies.
Our principal executive
offices are located at 1010 Atlantic Avenue, Alameda, California 94501, and our telephone number is (510) 479-7635.
RISK FACTORS
Investing in our securities
involves significant risks. You should carefully consider the risks and uncertainties described in this prospectus and any accompanying
prospectus supplement, including the risk factors in our most recent Annual Report on Form 10-K, any subsequently filed Quarterly
Report on Form 10-Q or Current Report on Form 8-K,
together with all of the other information
appearing in or incorporated by reference into this prospectus and any applicable prospectus supplement
, before making an
investment decision pursuant to this prospectus and any accompanying prospectus supplement relating to a specific offering.
Our business, financial
condition and results of operations could be materially and adversely affected by any or all of these risks or by additional risks
and uncertainties not presently known to us or that we currently deem immaterial that may adversely affect us in the future.
NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus contains,
and any accompanying prospectus supplement will contain, forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, and the Private Securities Litigation
Reform Act of 1993. Also, documents that we incorporate by reference into this prospectus, including documents that we subsequently
file with the Commission, will contain forward-looking statements. Forward-looking statements are those that predict or describe
future events or trends and that do not relate solely to historical matters. You can generally identify forward-looking statements
as statements containing the words "may," "will," "could," "should," "expect,"
"anticipate," "intend," "estimate," "believe," "project," "plan," "assume"
or other similar expressions, or negatives of those expressions, although not all forward-looking statements contain these identifying
words. All statements contained or incorporated by reference in this prospectus and any prospectus supplement regarding our business
strategy, future operations, projected financial position, potential strategic transactions, proposed participation or casino projects,
projected sales growth, estimated future revenues, cash flows and profitability, projected costs, potential outcome of litigation,
potential sources of additional capital, future prospects, future economic conditions, the future of our industry and results that
might be obtained by pursuing management's current plans and objectives are forward-looking statements.
You should not place
undue reliance on our forward-looking statements because the matters they describe are subject to certain risks, uncertainties
and assumptions that are difficult to predict. Our forward-looking statements are based on the information currently available
to us and speak only as of the date on the cover of this prospectus, the date of any prospectus supplement, or, in the case of
forward-looking statements incorporated by reference, the date of the filing that includes the statement. Over time, our actual
results, performance or achievements may differ from those expressed or implied by our forward-looking statements, and such difference
might be significant and materially adverse to our security holders. Except as required by law, we undertake no obligation to update
publicly any forward-looking statements, whether as a result of new information, future events or otherwise.
We have identified
some of the important factors that could cause future events to differ from our current expectations and they are described in
this prospectus and supplements to this prospectus under the caption "Risk Factors," as well as in our most recent Annual
Report on Form 10-K, including under the captions "Risk Factors" and "Management's Discussion and Analysis of Financial
Condition and Results of Operations," and in other documents that we may file with the Commission, all of which you should
review carefully. Please consider our forward-looking statements in light of those risks as you read this prospectus and any prospectus
supplement.
THE SECURITIES
WE MAY OFFER
We may offer and sell,
from time to time in one or more offerings, any combination of common stock, warrants, units and debt securities having an aggregate
initial offering price not exceeding $100,000,000. In this prospectus, we refer to the common stock, warrants, units
and debt securities that we may offer collectively as “securities.”
We are authorized to
issue 50,000,000 shares of $0.001 par value common stock. Holders of shares of common stock are entitled to one vote per share
on all matters to be voted upon by the stockholders generally. Stockholders are entitled to receive such dividends as may be declared
from time to time by the board of directors out of funds legally available therefore, and in the event of liquidation, dissolution
or winding up of the company to share ratably in all assets remaining after payment of liabilities. The holders of shares of common
stock have no preemptive, conversion, subscription rights or cumulative voting rights.
This prospectus provides
a general description of the securities we may offer other than our common stock. Each time we sell any of our securities
under this prospectus, we will, to the extent required by law, provide a prospectus supplement that will contain specific information
about the terms of the offering. The prospectus supplement may also add, update or change information in this prospectus. For
more information, see “About this Prospectus.”
DESCRIPTION
OF DEBT SECURITIES
We may offer and sell,
from time to time in one or more offerings, any combination of common stock, warrants, units and debt securities having an aggregate
initial offering price not exceeding $100,000,000. In this prospectus, we refer to the common stock, warrants, units
and debt securities that we may offer collectively as “securities.”
We may offer debt securities which may be
senior or subordinated. We refer to the senior debt securities and the subordinated debt securities collectively as debt securities.
The following description summarizes the general terms and provisions of the debt securities. We will describe the specific terms
of the debt securities and the extent, if any, to which the general provisions summarized below apply to any series of debt securities
in the prospectus supplement relating to the series and any applicable free writing prospectus that we authorize to be delivered.
We may issue senior debt securities from
time to time, in one or more series under a senior indenture to be entered into between us and a senior trustee to be named in
a prospectus supplement, which we refer to as the senior trustee. We may issue subordinated debt securities from time to time,
in one or more series under a subordinated indenture to be entered into between us and a subordinated trustee to be named in a
prospectus supplement, which we refer to as the subordinated trustee. The forms of senior indenture and subordinated indenture
are filed as exhibits to the registration statement of which this prospectus forms a part. Together, the senior indenture and the
subordinated indenture are referred to as the indentures and, together, the senior trustee and the subordinated trustee are referred
to as the trustees. This prospectus briefly outlines some of the provisions of the indentures. The following summary of the material
provisions of the indentures is qualified in its entirety by the provisions of the indentures, including definitions of certain
terms used in the indentures. Wherever we refer to particular sections or defined terms of the indentures, those sections or defined
terms are incorporated by reference in this prospectus or the applicable prospectus supplement. You should review the indentures
that are filed as exhibits to the registration statement of which this prospectus forms a part for additional information.
None of the indentures will limit the amount
of debt securities that we may issue. The applicable indenture will provide that debt securities may be issued up to an aggregate
principal amount authorized from time to time by us and may be payable in any currency or currency unit designated by us or in
amounts determined by reference to an index.
General
The senior debt securities will constitute
our unsubordinated general obligations and will rank pari passu with our other unsubordinated obligations. The subordinated debt
securities will constitute our subordinated general obligations and will be junior in right of payment to our senior indebtedness
(including senior debt securities), as described under the heading “—Certain Terms of the Subordinated Debt Securities—
Subordination.”
The debt securities will be our unsecured
obligations unless otherwise specified in the applicable prospectus supplement. Any secured debt or other secured obligations will
be effectively senior to the debt securities to the extent of the value of the assets securing such debt or other obligations.
The applicable prospectus supplement and
any free writing prospectus will include any additional or different terms of the debt securities or any series being offered,
including the following terms:
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the title and type of the debt securities;
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whether the debt securities will be senior or subordinated debt securities, and, with respect to debt securities issued under
the subordinated indenture the terms on which they are subordinated;
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the aggregate principal amount of the debt securities;
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the price or prices at which we will sell the debt securities;
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the maturity date or dates of the debt securities and the right, if any, to extend such date or dates;
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the rate or rates, if any, per year, at which the debt securities will bear interest, or the method of determining such rate
or rates;
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the date or dates from which such interest will accrue, the interest payment dates on which such interest will be payable or
the manner of determination of such interest payment dates and the related record dates;
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the right, if any, to extend the interest payment periods and the duration of that extension;
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the manner of paying principal and interest and the place or places where principal and interest will be payable;
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provisions for a sinking fund, purchase fund or other analogous fund, if any;
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any redemption dates, prices, obligations and restrictions on the debt securities;
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the currency, currencies or currency units in which the debt securities will be denominated and the currency, currencies or
currency units in which principal and interest, if any, on the debt securities may be payable;
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any conversion or exchange features of the debt securities;
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whether and upon what terms the debt securities may be defeased;
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any events of default or covenants in addition to or in lieu of those set forth in the indenture;
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whether the debt securities will be issued in definitive or global form or in definitive form only upon satisfaction of certain
conditions;
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whether the debt securities will be guaranteed as to payment or performance;
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if the debt securities of the series will be secured by any collateral and, if so, a general description of the collateral
and the terms and provisions of such collateral security, pledge or other agreements; and
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any other material terms of the debt securities.
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The applicable prospectus supplement will
also describe any applicable material U.S. federal income tax consequences. When we refer to “principal” in this section
with reference to the debt securities, we are also referring to “premium, if any.”
We may from time to time, without notice
to or the consent of the holders of any series of debt securities, create and issue further debt securities of any such series
ranking equally with the debt securities of such series in all respects (or in all respects other than (1) the payment of interest
accruing prior to the issue date of such further debt securities or (2) the first payment of interest following the issue date
of such further debt securities). Such further debt securities may be consolidated and form a single series with the debt securities
of such series and have the same terms as to status, redemption or otherwise as the debt securities of such series.
You may present debt securities for exchange
and you may present debt securities for transfer in the manner, at the places and subject to the restrictions set forth in the
debt securities and the applicable prospectus supplement. We will provide you those services without charge, although you may have
to pay any tax or other governmental charge payable in connection with any exchange or transfer, as set forth in the indenture.
Debt securities may bear interest at a fixed
rate or a floating rate. Debt securities bearing no interest or interest at a rate that at the time of issuance is below the prevailing
market rate (original issue discount securities) may be sold at a discount below their stated principal amount.
We may issue debt securities with the principal
amount payable on any principal payment date, or the amount of interest payable on any interest payment date, to be determined
by reference to one or more currency exchange rates, securities or baskets of securities, commodity prices or indices. You may
receive a payment of principal on any principal payment date, or a payment of interest on any interest payment date, that is greater
than or less than the amount of principal or interest otherwise payable on such dates, depending on the value on such dates of
the applicable currency, security or basket of securities, commodity or index. Information as to the methods for determining the
amount of principal or interest payable on any date, the currencies, securities or baskets of securities, commodities or indices
to which the amount payable on such date is linked.
Certain Terms of the Senior Debt Securities
Covenants.
Unless we indicate otherwise
in a prospectus supplement, the senior debt securities will not contain any financial or restrictive covenants, including covenants
restricting either us or any of our subsidiaries from incurring, issuing, assuming or guaranteeing any indebtedness secured by
a lien on any of our or our subsidiaries’ property or capital stock, or restricting either us or any of our subsidiaries
from entering into sale and leaseback transactions.
Consolidation, Merger and Sale of Assets.
Unless we indicate otherwise in a prospectus supplement, we may not consolidate with or merge into any other person, in a transaction
in which we are not the surviving corporation, or convey, transfer or lease our properties and assets substantially as an entirety
to any person, in either case, unless:
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the successor entity, if any, is a U.S. corporation, limited liability company, partnership or trust (subject to certain exceptions
provided for in the senior indenture);
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the successor entity assumes our obligations on the senior debt securities and under the senior indenture;
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immediately after giving effect to the transaction, no default or event of default shall have occurred and be continuing;
and
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certain other conditions are met.
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No Protection in the Event of a Change
in Control
. Unless we indicate otherwise in a prospectus supplement with respect to a particular series of senior debt securities,
the senior debt securities will not contain any provisions that may afford holders of the senior debt securities protection in
the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results
in a change in control).
Events of Default
. Unless we indicate
otherwise in a prospectus supplement with respect to a particular series of senior debt securities, the following are events of
default under the senior indenture for any series of senior debt securities:
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failure to pay interest on any senior debt securities of such series when due and payable, if that default continues for a
period of 90 days (or such other period as may be specified for such series);
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failure to pay principal on the senior debt securities of such series when due and payable whether at maturity, upon redemption,
by declaration or otherwise (and, if specified for such series, the continuance of such failure for a specified period);
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default in the performance of or breach of any of our covenants or agreements in the senior indenture applicable to senior
debt securities of such series, other than a covenant breach which is specifically dealt with elsewhere in the senior indenture,
and that default or breach continues for a period of 90 days after we receive written notice from the trustee or from the holders
of 25% or more in aggregate principal amount of the senior debt securities of such series;
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certain events of bankruptcy or insolvency, whether or not voluntary; and
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any other event of default provided for in such series of senior debt securities as may be specified in the applicable prospectus
supplement.
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Unless we indicate otherwise in a prospectus
supplement, the default by us under any other debt, including any other series of debt securities, is not a default under the senior
indenture.
If an event of default other than an event
of default specified in the fourth bullet point above occurs with respect to a series of senior debt securities and is continuing
under the senior indenture, then, and in each such case, either the trustee or the holders of not less than 25% in aggregate principal
amount of such series then outstanding under the senior indenture (each such series voting as a separate class) by written notice
to us and to the trustee, if such notice is given by the holders, may, and the trustee at the request of such holders shall, declare
the principal amount of and accrued interest on such series of senior debt securities to be immediately due and payable, and upon
this declaration, the same shall become immediately due and payable.
If an event of default specified in the
fourth bullet point above occurs with respect to us and is continuing, the entire principal amount of and accrued interest, if
any, on each series of senior debt securities then outstanding shall become immediately due and payable.
Unless otherwise specified in the prospectus
supplement relating to a series of senior debt securities originally issued at a discount, the amount due upon acceleration shall
include only the original issue price of the senior debt securities, the amount of original issue discount accrued to the date
of acceleration and accrued interest, if any.
Upon certain conditions, declarations of
acceleration may be rescinded and annulled and past defaults may be waived by the holders of a majority in aggregate principal
amount of all the senior debt securities of such series affected by the default, each series voting as a separate class. Furthermore,
prior to a declaration of acceleration and subject to various provisions in the senior indenture, the holders of a majority in
aggregate principal amount of a series of senior debt securities, by notice to the trustee, may waive an existing default or event
of default with respect to such senior debt securities and its consequences, except a default in the payment of principal of or
interest on such senior debt securities or in respect of a covenant or provision of the senior indenture which cannot be modified
or amended without the consent of the holders of each such senior debt security. Upon any such waiver, such default shall cease
to exist, and any event of default with respect to such senior debt securities shall be deemed to have been cured, for every purpose
of the senior indenture; but no such waiver shall extend to any subsequent or other default or event of default or impair
any right consequent thereto. For information as to the waiver of defaults, see “—Modification and Waiver.”
The holders of a majority in aggregate principal
amount of a series of senior debt securities may direct the time, method and place of conducting any proceeding for any remedy
available to the trustee or exercising any trust or power conferred on the trustee with respect to such senior debt securities.
However, the trustee may refuse to follow any direction that conflicts with law or the senior indenture, that may involve the trustee
in personal liability or that the trustee determines in good faith may be unduly prejudicial to the rights of holders of such series
of senior debt securities not joining in the giving of such direction and may take any other action it deems proper that is not
inconsistent with any such direction received from holders of such series of senior debt securities. A holder may not pursue any
remedy with respect to the senior indenture or any series of senior debt securities unless:
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the holder gives the trustee written notice of a continuing event of default;
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the holders of at least 25% in aggregate principal amount of such series of senior debt securities make a written request to
the trustee to pursue the remedy in respect of such event of default;
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the requesting holder or holders offer the trustee indemnity satisfactory to the trustee against any costs, liability or expense;
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the trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and
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during such 60-day period, the holders of a majority in aggregate principal amount of such series of senior debt securities
do not give the trustee a direction that is inconsistent with the request.
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These limitations, however, do not apply
to the right of any holder of a senior debt security to receive payment of the principal of and interest, if any, on such senior
debt security in accordance with the terms of such debt security, or to bring suit for the enforcement of any such payment in accordance
with the terms of such debt security, on or after the due date for the senior debt securities, which right shall not be impaired
or affected without the consent of the holder.
The senior indenture requires certain of
our officers to certify, on or before a fixed date in each year in which any senior debt security is outstanding, as to their knowledge
of our compliance with all covenants, agreements and conditions under the senior indenture.
Satisfaction and Discharge
. We can
satisfy and discharge our obligations to holders of any series of senior debt securities if:
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we pay or cause to be paid, as and when due and payable, the principal of and any interest on all
senior debt securities of such series outstanding under the senior indenture; or
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all senior debt securities of such series have become due and payable or will become due and payable
within one year (or are to be called for redemption within one year) and we deposit in trust a combination of cash and U.S. government
or U.S. government agency obligations that will generate enough cash to make interest, principal and any other payments on the
debt securities of that series on their various due dates.
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Under current U.S. federal income tax law,
the deposit and our legal release from the senior debt securities would be treated as a taxable event, and beneficial owners of
such debt securities would generally recognize any gain or loss on such senior debt securities. Purchasers of the senior debt securities
should consult their own advisers with respect to the tax consequences to them of such deposit and discharge, including the applicability
and effect of tax laws other than the U.S. federal income tax law.
Defeasance
. Unless the applicable
prospectus supplement provides otherwise, the following discussion of legal defeasance and discharge and covenant defeasance will
apply to any senior series of senior debt securities issued under the indentures.
Legal Defeasance
. We can legally
release ourselves from any payment or other obligations on the senior debt securities of any series (called “legal defeasance”)
if certain conditions are met, including the following:
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We deposit in trust for your benefit and the benefit of all other direct holders of the senior debt securities of the same
series a combination of cash and U.S. government or U.S. government agency obligations that will generate enough cash to make interest,
principal and any other payments on the senior debt securities of that series on their various due dates.
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There is a change in current U.S. federal income tax law or an IRS ruling that lets us make the above deposit without causing
you to be taxed on the senior debt securities any differently than if we did not make the deposit and instead repaid the senior
debt securities ourselves when due.
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We deliver to the trustee a legal opinion of our counsel confirming the tax law change or ruling described above.
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If we ever did accomplish legal defeasance,
as described above, you would have to rely solely on the trust deposit for repayment of the debt securities. You could not look
to us for repayment in the event of any shortfall.
Covenant Defeasance
. Without any
change of current U.S. federal tax law, we can make the same type of deposit described above and be released from some of the covenants
in the senior debt securities (called “covenant defeasance”). In that event, you would lose the protection of those
covenants but would gain the protection of having money and securities set aside in trust to repay the senior debt securities.
In order to achieve covenant defeasance, we must do the following (among other things):
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We must deposit in trust for your benefit and the benefit of all other direct holders of the senior debt securities of the
same series a combination of cash and U.S. government or U.S. government agency obligations that will generate enough cash to make
interest, principal and any other payments on the senior debt securities of that series on their various due dates.
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We must deliver to the trustee a legal opinion of our counsel confirming that under current U.S. federal income tax law we
may make the above deposit without causing you to be taxed on the senior debt securities any differently than if we did not make
the deposit and instead repaid the senior debt securities ourselves when due.
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If we accomplish covenant defeasance, you
can still look to us for repayment of the senior debt securities if there were a shortfall in the trust deposit. In fact, if one
of the events of default occurred (such as our bankruptcy) and the debt securities become immediately due and payable, there may
be such a shortfall. Depending on the events causing the default, you may not be able to obtain payment of the shortfall.
Modification and Waiver.
We and the
trustee may amend or supplement the senior indenture or the senior debt securities without the consent of any holder:
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to comply with the requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust
Indenture Act of 1939, as amended, or the Trust Indenture Act;
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to convey, transfer, assign, mortgage or pledge any assets as security for the senior debt securities of one or more series;
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to evidence the succession of a corporation, limited liability company, partnership or trust to us, and the assumption by such
successor of our covenants, agreements and obligations under the senior indenture;
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to add to our covenants such new covenants, restrictions, conditions or provisions for the protection of the holders, and to
make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions
or provisions an event of default;
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to cure any ambiguity, defect or inconsistency in the senior indenture or in any supplemental indenture or to conform the senior
indenture or the senior debt securities to the description of senior debt securities of such series set forth in this prospectus
or any applicable prospectus supplement;
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to provide for or add guarantors with respect to the senior debt securities of any series;
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to establish the form or forms or terms of the senior debt securities as permitted by the senior indenture;
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to evidence and provide for the acceptance of appointment under the senior indenture by a successor trustee, or to make such
changes as shall be necessary to provide for or facilitate the administration of the trusts in the senior indenture by more than
one trustee;
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to add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms, purposes of
issue, authentication and delivery of any series of senior debt securities;
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to make any change to the senior debt securities of any series so long as no senior debt securities of such series are outstanding;
or
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to make any change that does not adversely affect the rights of any holder in any material respect.
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Other amendments and modifications of the
senior indenture or the senior debt securities issued may be made, and our compliance with any provision of the senior indenture
with respect to any series of senior debt securities may be waived, with the consent of the holders of a majority of the aggregate
principal amount of the outstanding senior debt securities of all series affected by the amendment or modification (voting together
as a single class); provided, however, that each affected holder must consent to any modification, amendment or waiver that:
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extends the final maturity of any senior debt securities of such series;
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reduces the principal amount of any senior debt securities of such series;
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reduces the rate or extends the time of payment of interest on any senior debt securities of such series;
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reduces the amount payable upon the redemption of any senior debt securities of such series;
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changes the currency of payment of principal of or interest on any senior debt securities of such series;
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reduces the principal amount of original issue discount securities payable upon acceleration of maturity or the amount provable
in bankruptcy;
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waives a default in the payment of principal of or interest on the senior debt securities;
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changes the provisions relating to the waiver of past defaults or changes or impairs the right of holders to receive payment
or to institute suit for the enforcement of any payment or conversion of any senior debt securities of such series on or after
the due date therefor;
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modifies any of the provisions of these restrictions on amendments and modifications, except to increase any required percentage
or to provide that certain other provisions cannot be modified or waived without the consent of the holder of each senior debt
security of such series affected by the modification; or
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reduces the above-stated percentage of outstanding senior debt securities of such series whose holders must consent to a supplemental
indenture or to modify or amend or to waive certain provisions of or defaults under the senior indenture.
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It shall not be necessary for the holders
to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if the holders’
consent approves the substance thereof. After an amendment, supplement or waiver of the senior indenture in accordance with the
provisions described in this section becomes effective, the trustee must give to the holders affected thereby certain notice briefly
describing the amendment, supplement or waiver. Any failure by the trustee to give such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amendment, supplemental indenture or waiver.
No Personal Liability of Incorporators,
Stockholders, Officers, Directors.
The senior indenture provides that no recourse shall be had under any obligation, covenant
or agreement of ours in the senior indenture or any supplemental indenture, or in any of the senior debt securities or because
of the creation of any indebtedness represented thereby, against any of our incorporators, stockholders, officers or directors,
past, present or future, or of any predecessor or successor entity thereof under any law, statute or constitutional provision
or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise. Each holder, by accepting the senior
debt securities, waives and releases all such liability.
Concerning the Trustee.
The senior
indenture provides that, except during the continuance of an event of default, the trustee will not be liable except for the performance
of such duties as are specifically set forth in the senior indenture. If an event of default has occurred and is continuing, the
trustee will exercise such rights and powers vested in it under the senior indenture and will use the same degree of care and skill
in its exercise as a prudent person would exercise under the circumstances in the conduct of such person’s own affairs.
The senior indenture and the provisions
of the Trust Indenture Act incorporated by reference therein contain limitations on the rights of the trustee thereunder, should
it become a creditor of ours or any of our subsidiaries, to obtain payment of claims in certain cases or to realize on certain
property received by it in respect of any such claims, as security or otherwise. The trustee is permitted to engage in other transactions,
provided that if it acquires any conflicting interest (as defined in the Trust Indenture Act), it must eliminate such conflict
or resign.
We may have normal banking relationships
with the senior trustee in the ordinary course of business.
Unclaimed Funds.
All funds deposited
with the trustee or any paying agent for the payment of principal, premium, interest or additional amounts in respect of the senior
debt securities that remain unclaimed for two years after the date upon which such principal, premium or interest became due and
payable will be repaid to us. Thereafter, any right of any holder of senior debt securities to such funds shall be enforceable
only against us, and the trustee and paying agents will have no liability therefor.
Governing Law.
The senior indenture
and the senior debt securities will be governed by, and construed in accordance with, the internal laws of the State of New York.
Certain Terms of the Subordinated Debt
Securities
Other than the terms of the subordinated
indenture and subordinated debt securities relating to subordination or otherwise as described in the prospectus supplement relating
to a particular series of subordinated debt securities, the terms of the subordinated indenture and subordinated debt securities
are identical in all material respects to the terms of the senior indenture and senior debt securities.
Additional or different subordination terms
may be specified in the prospectus supplement applicable to a particular series.
Subordination.
The indebtedness evidenced
by the subordinated debt securities is subordinate to the prior payment in full of all of our senior indebtedness, as defined in
the subordinated indenture. During the continuance beyond any applicable grace period of any default in the payment of principal,
premium, interest or any other payment due on any of our senior indebtedness, we may not make any payment of principal of or interest
on the subordinated debt securities (except for certain sinking fund payments). In addition, upon any payment or distribution of
our assets upon any dissolution, winding-up, liquidation or reorganization, the payment of the principal of and interest on the
subordinated debt securities will be subordinated to the extent provided in the subordinated indenture in right of payment to the
prior payment in full of all our senior indebtedness. Because of this subordination, if we dissolve or otherwise liquidate, holders
of our subordinated debt securities may receive less, ratably, than holders of our senior indebtedness. The subordination provisions
do not prevent the occurrence of an event of default under the subordinated indenture.
The term “senior indebtedness”
of a person means with respect to such person the principal of, premium, if any, interest on, and any other payment due pursuant
to any of the following, whether outstanding on the date of the subordinated indenture or incurred by that person in the future:
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all of the indebtedness of that person for money borrowed;
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all of the indebtedness of that person evidenced by notes, debentures, bonds or other securities sold by that person for money;
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all of the lease obligations that are capitalized on the books of that person in accordance with generally accepted accounting
principles;
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all indebtedness of others of the kinds described in the first two bullet points above and all lease obligations of others
of the kind described in the third bullet point above that the person, in any manner, assumes or guarantees or that the person
in effect guarantees through an agreement to purchase, whether that agreement is contingent or otherwise; and
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all renewals, extensions or refundings of indebtedness of the kinds described in the first, second or fourth bullet point above
and all renewals or extensions of leases of the kinds described in the third or fourth bullet point above;
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unless, in the case of any particular indebtedness,
renewal, extension or refunding, the instrument creating or evidencing it or the assumption or guarantee relating to it expressly
provides that such indebtedness, renewal, extension or refunding is not superior in right of payment to the subordinated debt securities.
Our senior debt securities constitute senior indebtedness for purposes of the subordinated debt indenture.
DESCRIPTION
OF WARRANTS
We may issue warrants
for the purchase of shares of common stock, debt securities, and/or units from time to time. We may issue warrants independently
or together with common stock and/or debt securities, and the warrants may be attached to or separate from those securities. If
we issue warrants, they will be evidenced by warrant agreements or warrant certificates issued under one or more warrant agreements,
which will be contracts between us and the holders of the warrants or an agent for the holders of the warrants. We encourage you
to read the prospectus supplement that relates to any warrants we may offer, as well as the complete warrant agreement or warrant
certificate that contain the terms of the warrants. If we issue warrants, the forms of warrant agreements and warrant
certificates, as applicable, relating to the warrants will be filed as exhibits to the registration statement that includes this
prospectus, or as an exhibit to a filing with the SEC that is incorporated by reference into this prospectus.
DESCRIPTION
OF UNITS
We may issue units
comprised of one or more of the other securities described in this prospectus in any combination from time to time. Each unit will
be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will
have the rights and obligations of a holder of each included security. If we issue units, they will be evidenced by unit agreements
or unit certificates issued under one or more unit agreements, which will be contracts between us and the holders of the units
or an agent for the holders of the units. The unit agreement under which a unit is issued may provide that the securities included
in the unit may not be held or transferred separately, at any time or at any time before a specified date. We encourage you to
read the prospectus supplement that relates to any units we may offer, as well as the complete unit agreement or unit certificate
that contain the terms of the units. If we issue units, the forms of unit agreements and unit certificates, as applicable,
relating to the units will be filed as exhibits to the registration statement that includes this prospectus, or as an exhibit to
a filing with the SEC that is incorporated by reference into this prospectus.
PLAN OF
DISTRIBUTION
We may sell our securities
from time to time in any manner permitted by the Securities Act of 1933, as amended, or the Securities Act, including any one or
more of the following ways:
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to or through underwriters;
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to or through broker-dealers (acting as agent or principal);
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in “at the market” offerings, within the meaning of Rule 415(a)(4) of the Securities
Act, to or through a market maker or into an existing trading market, on an exchange or otherwise; and/or
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directly to purchasers, through a specific bidding or auction process or otherwise.
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The securities may
be sold at a fixed price or prices, which may be changed, at market prices prevailing at the time of sale, at prices relating to
the prevailing market prices or at negotiated prices.
Offers to purchase
offered securities may be solicited by agents designated by us from time to time. Any agent involved in the offer or sale of the
offered securities in respect of which this prospectus is delivered will be named, and any commissions payable by us will be set
forth, in the applicable prospectus supplement. Unless otherwise set forth in the applicable prospectus supplement, any agent will
be acting on a reasonable best efforts basis for the period of its appointment. Any agent may be deemed to be an underwriter, as
that term is defined in the Securities Act, of the offered securities so offered and sold.
We will set forth in
a prospectus supplement the terms of the offering of our securities, including:
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the name or names of any agents, underwriters or dealers;
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the purchase price of our securities being offered and the proceeds we will receive from the sale;
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any over-allotment options under which underwriters may purchase additional securities from us;
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any agency fees or underwriting discounts and commissions and other items constituting agents’
or underwriters’ compensation;
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the public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any securities exchanges on which such securities may be listed.
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If offered securities
are sold to the public by means of an underwritten offering, either through underwriting syndicates represented by managing underwriters
or directly by the managing underwriters, we will execute an underwriting agreement with an underwriter or underwriters, and the
names of the specific managing underwriter or underwriters, as well as any other underwriters, will be set forth in the applicable
prospectus supplement. In addition, the terms of the transaction, including commissions, discounts and any other compensation of
the underwriters and dealers, if any, will be set forth in the applicable prospectus supplement, which prospectus supplement will
be used by the underwriters to make resales of the offered securities. If underwriters are utilized in the sale of the offered
securities, the offered securities will be acquired by the underwriters for their own account and may be resold from time to time
in one or more transactions, including:
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transactions on The NASDAQ Capital Market or any other organized market where the securities may
be traded;
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in the over-the-counter market;
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in negotiated transactions; or
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under delayed delivery contracts or other contractual commitments.
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We may grant to the
underwriters options to purchase additional offered securities to cover over-allotments, if any, at the public offering price with
additional underwriting discounts or commissions, as may be set forth in the applicable prospectus supplement. If we grant any
over-allotment option, the terms of the over-allotment option will be set forth in the applicable prospectus supplement.
We may authorize agents
or underwriters to solicit offers by certain types of institutional investors to purchase securities from us at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified
date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these
contracts in the prospectus supplement.
We may indemnify agents,
underwriters and dealers against specified liabilities, including liabilities incurred under the Securities Act, or to contribution
by us to payments they may be required to make in respect of such liabilities. Agents, underwriters or dealers, or their respective
affiliates, may be customers of, engage in transactions with or perform services for us or our respective affiliates, in the ordinary
course of business.
Unless otherwise specified
in the applicable prospectus supplement, each class or series of securities will be a new issue with no established trading market,
other than our common stock, which is traded on The NASDAQ Capital Market. We may elect to list any other class or series of securities
on any exchange and, in the case of our common stock, on any additional exchange. However, unless otherwise specified in the applicable
prospectus supplement, we will not be obligated to do so. It is possible that one or more underwriters may make a market in a class
or series of securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time
without notice. We cannot give any assurance as to the liquidity of the trading market for any of the offered securities.
Any underwriter may
engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation
M under the Securities Exchange Act of 1934, as amended. Over-allotment involves sales in excess of the offering size, which create
a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not
exceed a specified maximum price. Syndicate-covering or other short-covering transactions involve purchases of the securities,
either through exercise of the over-allotment option or in the open market after the distribution is completed, to cover short
positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold
by the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price
of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities
at any time.
To comply with the
securities laws of certain states, if applicable, the securities offered by this prospectus will be offered and sold in those states
only through registered or licensed brokers or dealers.
In compliance with
guidelines of the Financial Industry Regulatory Authority, or FINRA, the maximum consideration or discount to be received by any
FINRA member or independent broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this
prospectus and any applicable prospectus supplement.
LEGAL
MATTERS
The validity of the
issuance of the securities offered by this prospectus has been passed upon for us by Greenberg Traurig, LLP, Irvine, California.
EXPERTS
The financial statements
incorporated in this Prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2015 have been so
incorporated in reliance on the report of Armanino LLP, an independent registered public accounting firm, given on the authority
of said firm as experts in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
We file annual, quarterly
and current reports and other information with the SEC. You may read and copy any document we file at the SEC's Public Reference
Room located at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the public reference
room by calling the SEC at 1-800-SEC-0330. Our filings with the SEC also are available from the SEC's internet site at http://www.sec.gov,
which contains reports, proxy and information statements, and other information regarding issuers that file electronically.
This prospectus is
part of a registration statement that we filed with the SEC. As permitted by SEC rules, this prospectus and any accompanying prospectus
supplement that we may file, which form a part of the registration statement, do not contain all of the information that is included
in the registration statement. The registration statement contains more information regarding us and our securities,
including certain exhibits. You can obtain a copy of the registration statement from the SEC at the address listed above or from
the SEC’s website.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The SEC permits us
to “incorporate by reference” the information and reports we file with it. This means that we can disclose important
information to you by referring to another document. The information that we incorporate by reference is considered to be part
of this prospectus, and later information that we file with the SEC automatically updates and supersedes this information. We incorporate
by reference the documents listed below, except to the extent information in those documents is different from the information
contained in this prospectus, and all future documents filed with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange
Act (other than the portions thereof deemed to be furnished to the SEC pursuant to Item 9 or Item 12) until we terminate the offering
of these securities:
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2015, which was filed on
March 28, 2016;
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Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2016, which was filed on May 19,
2016;
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Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2016, which was filed on August 10,
2016;
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Our Current Reports on Form 8-K, which were filed on March 25, 2016 and May 24, 2016;
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The description of our common stock in our Form 8-A12B, which was filed on July 24, 2015, and any
amendments or reports filed for the purpose of updating this description; and
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All documents we file with the SEC under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
after the date of this prospectus and prior to the termination of this offering made by way of this prospectus.
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To the extent that
any statement in this prospectus is inconsistent with any statement that is incorporated by reference and that was made on or before
the date of this prospectus, the statement in this prospectus shall supersede such incorporated statement. The incorporated statement
shall not be deemed, except as modified or superseded, to constitute a part of this prospectus or the registration statement. Statements
contained in this prospectus as to the contents of any contract or other document are not necessarily complete and, in each instance,
we refer you to the copy of each contract or document filed as an exhibit to our various filings made with the SEC.
You may request a copy
of these filings, at no cost, by writing or telephoning us at the following address or telephone number:
Aqua Metals, Inc.
Attn: Investor Relations
1010 Atlantic Avenue
Alameda, California 94501
(510) 479-7635
PART II – INFORMATION NOT REQUIRED
IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses in connection with
the issuance and distribution of the securities being registered, all of which will be borne by us, are set forth in the following
itemized table:
SEC Registration Fee
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$
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10,070.00
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Printing Fees and Expenses
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*
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Legal Fees and Expenses
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*
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Accounting Fees and Expenses
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*
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Transfer Agent Fees and Expenses
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*
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Miscellaneous Fees and Expenses
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*
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Total
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$
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10,070.00
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* Fees and expenses (other
than the SEC registration fee to be paid upon the filing of this registration statement) will depend on the number and nature of
the offerings, and cannot be estimated at this time. An estimate of the aggregate expenses in connection with the issuance and
distribution of securities being offered will be included in any applicable prospectus supplement.
Item 15. Indemnification of Officers and Directors
We are incorporated
under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law, or DGCL, provides that a Delaware
corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation),
by reason of the fact that such person was an officer, director, employee or agent of such corporation, or is or was serving at
the request of such corporation as an officer, director, employee or agent of another corporation or enterprise. The indemnity
may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in
a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. Section 145 of the
DGCL further authorizes a corporation to purchase and maintain insurance on behalf of any indemnified person against any liability
asserted against and incurred by such person in any indemnified capacity, or arising out of such person’s status as such,
regardless of whether the corporation would otherwise have the power to indemnify such person under the DGCL.
Section 102(b)(7)
of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except
for liability for any:
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·
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breach of a director’s duty of loyalty to the corporation or its stockholders;
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·
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act or omission not in good faith or that involves intentional misconduct or a knowing violation
of law;
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·
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unlawful payment of dividends or redemption of shares; or
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·
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transaction from which the director derives an improper personal benefit.
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Our amended and restated
certificate of incorporation authorizes us to, and our amended and restated bylaws provide that we must, indemnify our directors
and officers to the fullest extent authorized by the DGCL and also pay expenses incurred in defending any such proceeding in advance
of its final disposition upon delivery of an undertaking, by or on behalf of an indemnified person, to repay all amounts so advanced
if it should be determined ultimately that such person is not entitled to be indemnified under this section or otherwise.
As permitted by the
DGCL, we have entered into indemnification agreements with each of our directors and certain of our officers. These agreements
require us to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities that may arise
by reason of their service to us, and to advance expenses incurred as a result of any proceeding against them as to which they
could be indemnified.
We have an insurance
policy covering our officers and directors with respect to certain liabilities, including liabilities arising under the Securities
Act or otherwise.
Any underwriting agreement
or similar agreement that we enter into in connection with an offer of securities pursuant to this registration statement may provide
for indemnification by any underwriters of us, our directors, our officers who sign the registration statement and our controlling
persons for some liabilities, including liabilities arising under the Securities Act of 1933.
Insofar as the forgoing
provisions permit indemnification of directors, executive officers, or persons controlling us for liability arising under the Securities
Act we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities
Act and is therefore unenforceable.
Item 16. Exhibits
The exhibits to this registration statement
are listed below in the Exhibit Index.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the “
Calculation of Registration Fee
” table in the effective registration
statement; and
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such information in the registration statement;
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provided, however, that paragraphs (i),
(ii) and (iii) do not apply if the registration statement is on Form S-3 and the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) That, for the purpose of determining
any liability under the Securities Act of 1933, each such post- effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means
of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser:
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(i)
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of
the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
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(ii)
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Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i),
(vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall
be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of sale of securities in the offering described in prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed
to be a new effective date of the registration statement relating to the securities in the registration statement to which the
prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part
of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made
in any such document immediately prior to such effective date, or
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(5) That, for the purpose of determining
liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering
required to be filed pursuant to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned
registrant or used or referred to by the undersigned Registrant;
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(iii)
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The portion of any other free writing prospectus relating to the offering containing material information
about the undersigned registrant or its securities provided by or on behalf of an undersigned registrant; and
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(iv)
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Any other communication that is an offer in the offering made by the undersigned registrant to
the purchaser.
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(6) That, for purposes of determining
any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(7) That (1) for purposes
of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the
time it was declared effective, and (2) for the purpose of determining any liability under the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(8) Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been advised that, in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer, or controlling person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Alameda, California on September 2, 2016.
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Aqua
Metals, Inc.
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By:
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/s/ Stephen R. Clarke
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Stephen R. Clarke
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Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature
appears below hereby constitutes and appoints Stephen R. Clarke and Thomas Murphy, and each of them, as such person’s true
and lawful attorney-in-fact and agent, each with full powers of substitution and re-substitution, for such person and in such person’s
name, place and stead, in any and all capacities, to sign any or all amendments (including post effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act
and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as such person might
or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his or her substitute or substitutes,
may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements
of the Securities Act of 1933, this Registration Statement has been signed on September 2, 2016 by the following persons
in the capacities indicated.
Signature
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Title
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/s/
Stephen R. Clarke
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President, Chief Executive Officer and Director (Principal Executive Officer)
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Stephen R. Clarke
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/s/
Thomas Murphy
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Chief Financial Officer and Director (Principal Financial and Accounting Officer)
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Thomas Murphy
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/s/
Vincent L. DiVito
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Director
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Vincent L. DiVito
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/s/
Mark Slade
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Director
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Mark Slade
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EXHIBIT INDEX
Exhibit
No.
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Description
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1.1
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Form of Underwriting Agreement*
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3.1
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First Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference from the Registrant’s Registration Statement on Form S-1 filed on June 9, 2015)
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3.2
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Amended and Restated Bylaws of the Registrant
(incorporated by reference from the Registrant’s Registration Statement on Form S-1 filed on June 9, 2015)
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4.1
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Form of Senior Indenture
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4.2
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Form of Subordinated Indenture
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4.3
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Form of Senior Note
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4.4
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Form of Subordinated Note
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4.5*
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Form of Warrant Agreement
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4.6*
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Form of Unit Agreement
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4.7
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Investor Rights Agreement between Aqua
Metals, Inc. and Interstate Emerging Investments, LLC dated May 18, 2016 (incorporated by reference from the Registrant’s
Registration Statement on Form S-3 filed on August 1, 2016)
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5.1
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Opinion and Consent of Greenberg Traurig, LLP
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23.1
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Consent of Armanino LLP
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23.4
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Consent of Greenberg Traurig, LLP (included in Exhibit 5.1)
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24.1
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Power of Attorney (included on the signature page to this registration statement)
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* To be filed by amendment to this registration statement,
or as an exhibit to a document to be incorporated by reference into this registration statement, in each case in connection with
a particular offering of the securities.
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