Securities Registration: Employee Benefit Plan (s-8)
October 01 2020 - 6:12AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on September
30, 2020.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AEMETIS, INC.
(Exact name of registrant as specified in its charter)
Nevada
|
|
26-1407544
|
(State or other jurisdiction of incorporation or
organization)
|
|
(I.R.S. Employer Identification No.)
|
20400 Stevens Creek Blvd., Suite 700
Cupertino, California
|
|
95014
|
(Address of Principal Executive Offices)
|
|
(Zip Code)
|
Aemetis, Inc. Warrants
(Full title of the plan(s))
Eric A. McAfee
Chief Executive Officer and Chairman of the Board
AEMETIS, INC.
20400 Stevens Creek Blvd., Suite 700, Cupertino, California
95014
(Name and address of agent for service)
(408) 213-0940
(Telephone number, including area code, of agent for
service)
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer,
or a smaller reporting company. See the definitions of “large
accelerated filer,” “accelerated filer” and
“smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
Large accelerated
filer
☐
|
Accelerated
filer
☐
|
Non-accelerated
filer ☐
(Do not check if a
smaller reporting company)
|
Smaller reporting
company
☒
|
|
Emerging growth company ☐
|
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities
Act. ☐
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered
|
Amount to be Registered
(1)
|
Proposed Maximum Offering Price Per Share
(3)
|
Proposed Maximum Aggregate
Offering Price
|
Amount of
Registration Fee
|
Common Stock, par value $0.001 per share, to be
issued pursuant to the Aemetis, Inc. Warrants dated December
10, 2015 (the “2015 Warrants”)
|
110,000(2)
|
$3.00
|
$330,000
|
$42.83
|
TOTAL
|
110,000
|
|
|
$42.83
|
(1)
Pursuant
to Rule 416(a) of the Securities Act of 1933, as amended (the
“Securities Act”), this Registration Statement includes
an indeterminate number of additional shares which may be offered
to prevent dilution from stock splits, stock dividends,
recapitalization or other similar transactions effected without
consideration that results in an increase in the number of the
Registrant’s outstanding Common Stock.
(2)
Shares
of common stock reserved for issuance pursuant to warrants issued
on December 10, 2015.
(3)
Pursuant to Rules 457(c) and 457(h) under the
Securities Act, the registration fee for the shares covered by this
Registration Statement has been calculated based on the
average of the $3.27 (high) and $2.73 (low)
sale price of the Registrant's Common Stock as reported on the
NASDAQ on September 29, 2020, which date is within five business
days prior to filing this Registration
Statement..
EXPLANATORY NOTE
This Registration Statement is filed by Aemetis,
Inc. (the “Registrant”) for the purpose of registering
pursuant to General Instruction E to Form S-8, 110,000 shares of
the Registrant’s common stock, $0.001 par value per share
(the “Common Stock”) under the 2015
Warrants. The
total number of shares of the Registrant’s Common Stock
issuable under the 2015 Warrants, as of September 29, 2020, is
110,000 shares.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information
required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act and the “Note” to Part I
of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of
Documents by Reference.
The
following documents previously filed by the Registrant with the
Commission, are incorporated by reference in this Registration
Statement:
(a) The
Registrant’s annual report on Form 10-K for the fiscal year
ended December 31, 2019 filed with the Commission on March 12,
2020, which includes audited financial statements for the
Registrant’s latest fiscal year;
(b) All
other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange
Act”), since the end of the fiscal year covered by the
audited financial statements described in (a) above; and
(c) The
description of the Registrant’s common stock, par value
$0.001 per share, contained in the Registrant’s Form 8-A
filed with the Commission on June 3, 2014, and any amendment or
report filed for the purpose of updating such
description.
All
documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment to this Registration Statement which
indicates that all of the shares of Common Stock offered have been
sold or which deregisters all of such shares then remaining unsold,
shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of the
filing of such documents, except as to any portion of any future
annual or quarterly report to stockholders or document that is not
deemed filed under such provisions.
For
purposes of this Registration Statement, any statement contained in
a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded to the extent
that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this
Registration Statement.
Item 6. Indemnification of
Directors and Officers.
Nevada
Revised Statutes (“NRS”) Sections 78.7502 and 78.751
authorizes a corporation’s board of directors to grant
indemnity to directors and officers in terms sufficiently broad to
permit such indemnification under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising
under the Securities Act.
The
Registrant’s Articles of Incorporation (as amended and
restated from time to time, the “Articles of
Incorporation”) and Bylaws grant it the power to indemnify
any of its directors and officers. The director or officer must
have acted in good faith and in a manner which he or she reasonably
believed to be in, or not opposed to, the best interests of the
Registrant, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe the conduct was
unlawful.
Under
NRS Section 78.751, advances for expenses of officers and directors
incurred in defending a civil or criminal action, suit or
proceeding may be made by the Registrant upon receipt of an
undertaking by or on behalf of the director or officer to repay the
amount if it is ultimately determined by a court of competent
jurisdiction that the director or officer is not entitled to be
indemnified by the Registrant.
The
Registrant’s Articles of Incorporation include an
indemnification provision under which the Registrant is required to
indemnify its directors and officers and may indemnify any other
person (including employees and former directors, officers and
employees (including heirs and personal representatives)) to the
fullest extent permitted under Nevada law.
As
permitted by the NRS, the Registrant’s Articles of
Incorporation include a provision that provides that no director or
officer shall be personally liable to the Registrant or its
stockholders for damages as a result of any act or failure to act
in his or her capacity as a director or officer unless it is proven
that:
●
The
director’s or officer’s act or failure to act
constituted a breach of his or her fiduciary duties as a director
or officer; and
●
The
breach of those duties involved intentional misconduct, fraud or a
knowing violation of law.
The
indemnification provision in the Registrant’s Articles of
Incorporation may be sufficiently broad to permit indemnification
of the Registrant’s directors and officers for liabilities
arising under the Securities Act. The Registrant has
directors’ and officers’ liability insurance for
securities matters.
The
Registrant’s board of directors has approved a form of
indemnification agreement for its directors and officers. Each of
the Registrant’s current directors and officers has entered
into, and the Registrant expects that its future directors and
officers will enter into, indemnification agreements substantially
in that form to give the Registrant’s directors and officers
additional contractual assurances regarding the scope of the
indemnification set forth in the Registrant’s Articles of
Incorporation and to provide additional procedural protections. At
present, there is no pending litigation or proceeding involving a
director, officer or employee of the Registrant regarding which
indemnification is sought, nor is the Registrant aware of any
threatened litigation that may result in claims for
indemnification.
The
Registrant and its subsidiaries are covered by liability insurance
policies which indemnify their directors and officers against loss
arising from claims by reason of their legal liability for acts as
such directors, officers or trustees, subject to limitations and
conditions as set forth in the policies.
Item 8. Exhibits.
Exhibit Number
|
|
Description of Exhibit
|
|
|
|
|
|
Opinion
of Nevada Legal Counsel regarding the legality of the securities
being registered
|
|
|
|
|
|
Form
of warrant to Purchase Common Stock of Aemetis, Inc.
|
|
|
|
|
|
Consent
of Independent Registered Public Accounting Firm
|
|
|
|
|
|
Consent
of Nevada Legal Counsel (included in Exhibit 5.1)
|
|
|
|
|
|
Power
of Attorney (included on the signature page included in this Part
II)
|
Item 9.
Undertakings.
(a) 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:
(i) To
include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) 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 SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) 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; provided, however, that clauses (1)(i) and
(1)(ii) of this section do not apply if the registration statement
is on Form S-8, and the information required to be included in a
post-effective amendment by those clauses is contained in reports
filed with or furnished to the SEC by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration
statement.
2. That,
for the purpose of determining any liability under the Securities
Act, 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.
(b) The undersigned Registrant hereby undertakes 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 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) 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.
(c) 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 SEC such indemnification is against public
policy as expressed in the 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 Act and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Cupertino, State of California on the 30th
day of September,
2020.
AEMETIS, INC.
|
By:/s/
Eric A. McAfee
|
Eric
A. McAfee
|
Chief
Executive Officer
|
KNOW
ALL PERSONS BY THESE PRESENTS, that the persons whose signatures
appear below constitute and appoint Eric A. McAfee and Todd Waltz,
and each of them, as true and lawful attorneys-in-fact and agents
with full power of substitution and re-substitution, for him or her
and in his or her name, place and stead, in any and all capacities,
to sign the Form S-8 Registration Statement, and any or all
amendments (including post-effective amendments) to said Form S-8
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
attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be
done, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following
persons in the capacities and on the date
indicated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Eric A. McAfee
|
|
Chairman of the Board, Chief Executive Officer
|
|
September 30, 2020
|
Eric A. McAfee
|
|
and Director (Principal Executive Officer)
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Todd Waltz
|
|
Executive Vice President and Chief Financial Officer
|
|
September 30, 2020
|
Todd Waltz
|
|
(Principal Financial and Accounting Officer)
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Francis P. Barton
|
|
|
|
|
Francis P. Barton
|
|
Director
|
|
September 30, 2020
|
|
|
|
|
|
|
|
|
|
|
/s/ Lydia I Beebe
|
|
|
|
|
Lydia I Beebe
|
|
Director
|
|
September 30, 2020
|
|
|
|
|
|
|
|
|
|
|
/s/ John R. Block
|
|
|
|
|
John R. Block
|
|
Director
|
|
September 30, 2020
|
|
|
|
|
|
|
|
|
|
|
/s/ Naomi Boness
|
|
|
|
|
Naomi Boness
|
|
Director
|
|
September 30, 2020
|
Aemetis (NASDAQ:AMTX)
Historical Stock Chart
From Aug 2024 to Sep 2024
Aemetis (NASDAQ:AMTX)
Historical Stock Chart
From Sep 2023 to Sep 2024