As
filed with the Securities and Exchange Commission on May
31, 2019
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
——————————
FORM
S-3/A
Amendment
No. 1
REGISTRATION
STATEMENT
UNDER THE SECURITIES ACT OF 1933
——————————
AMERICAN
RESOURCES CORPORATION
(Exact name of registrant as specified in its charter)
——————————
Florida
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9002
Technology Lane
Fishers,
Indiana 46038
Tel.:
(317) 855-9926
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46-3914127
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(State or other jurisdiction of incorporation or
organization)
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(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
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(I.R.S. Employer Identification No.)
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——————————
Clifford
J. Hunt
Law
Office of Clifford J. Hunt, P.A.
8200
Seminole Boulevard
Seminole,
Florida 33772
Tel:
(727) 471-0444
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
——————————
Copy
to:
Clifford J.
Hunt
Law Office of
Clifford J. Hunt, P.A.
8200 Seminole
Boulevard
Seminole, Florida
33772
(727)
471-0444
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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 to be 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, as amended (the “Securities
Act”), other than securities offered only in connection with
dividend or interest reinvestment plans, check the following
box. ☑
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
registration 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, a smaller reporting
company or an emerging growth company. See definition of
“accelerated filer,” “large accelerated
filer,” “smaller reporting company” and
“emerging growth company” in Rule 12b-2 of the Exchange
Act (Check One).
Large accelerated
filer ☐
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Accelerated filer
☐
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Non-accelerated
filer ☐
(Do not check if
smaller reporting company)
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Smaller reporting
company ☐
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Emerging growth
company ☑
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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 to
Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION
OF REGISTRATION FEE
Title of each
class of
securities to be
registered
(1)
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Amount to be
registered
(1)
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Proposed maximum
offering price
perclass A common Share
(2)
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Proposed maximum
aggregate offering
price
(2)
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Amount of
registration fee
(3)
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Class A Common
Stock, par value $0.0001 per share
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—
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—
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—
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—
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Warrants
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—
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—
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—
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—
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Units
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—
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—
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—
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—
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Total:
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$
100,000,000
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$
100,000,000
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$
12,120
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(1)
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There are being
registered under this registration statement such indeterminate
number of shares of Class A Common Stock as will have an aggregate
initial offering price not to exceed $100,000,000. Pursuant to Rule
457(i) under the Securities Act of 1933, as amended (the
“Securities Act”), the securities being registered
hereunder include such indeterminate number and amount of our
shares of Class A Common Stock. Pursuant to Rule 416 of the
Securities Act, this registration statement also registers such
additional securities as may become issuable to prevent dilution as
a result of stock splits, stock dividends or similar
transactions.
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(2)
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Not specified as to
each class of securities to be registered pursuant to General
Instruction II.D of Form S-3 under the Securities Act. The proposed
maximum offering will be determined from time to time by the
registrant in connection with the issuance by the registrant of the
securities registered under this registration
statement.
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(3)
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Calculated pursuant
to Rule 457(o) under the Securities Act. The registrant has an
existing credit of $3,195.29 with the Securities and Exchange
Commission in connection with a previous filing of registration
statement, file number 333-226042 initially dated July 2, 2018,
that will be credited to this registration fee as an offset
pursuant to Rule 457(p), resulting in net a total of $8,924.71 due
by the registrant.
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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 or until
the registration statement shall become effective on such date as
the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities, and it is not soliciting an offer to buy these
securities, in any jurisdiction where the offer or sale is not
permitted.
SUBJECT TO COMPLETION, DATED MAY 31, 2019
PROSPECTUS
AMERICAN
RESOURCES CORPORATION
$100,000,000
Common
Stock
Warrants
Units
————————————————————
We are American
Resources Corporation (“ARC” or the
“Company”), a corporation incorporated under the laws
of the State of Florida. This prospectus relates to the public
offer and sale of our Class A Common Stock, warrants and units that
we may offer and sell from time to time, in one or more series or
issuances and on terms that we will determine at the time of the
offering, any combination of the securities described in this
prospectus, up to an aggregate amount of $100,000,000.
This prospectus
provides you with a general description of the securities we may
offer and sell. We will provide specific terms of any offering in a
supplement to this prospectus. Any prospectus supplement may also
add, update, or change information contained in this prospectus.
You should carefully read this prospectus and the applicable
prospectus supplement, as well as the documents incorporated by
reference in this prospectus before you invest in any of our
securities.
We may offer the
securities from time through public or private transactions, and in
the case of our Common Stock, on or off the Nasdaq Capital Market,
at prevailing market prices or at privately negotiate prices. These
securities may be offered and sold in the same offering or in
separate offerings, to or through underwriters, dealers and agents,
or directly to purchasers. The names of any underwriters, dealers,
or agents involved in the sale of our securities registered
hereunder and any applicable fees, commissions, or discounts will
be described in the applicable prospectus supplement. Our net
proceeds from the sale of securities will also be set forth in the
applicable prospectus supplement.
This
prospectus may not be used to consummate a sale of our securities
unless accompanied by the applicable prospectus
supplement.
Our Common Stock is
listed on the Nasdaq Capital Market under the symbol
“AREC”.
As of April 5,
2019, the aggregate market value of our outstanding Common Stock
held by non-affiliates was approximately $47,912,448, which was
calculated based on 11,629,235 shares of outstanding Common Stock
held by non-affiliates and on a price per share of $4.12, the
closing price of our Common Stock on April 5, 2019. Pursuant to
General Instruction I.B.6 of Form S-3, in no event will we sell the
shelf securities in a public primary offering with a value
exceeding more than one-third of the aggregate market value of our
Common Stock held by non-affiliates in any 12-month period so long
as the aggregate market value of our outstanding Common Stock held
by non-affiliates remains below $75 million. During the 12 calendar
months prior to and including the date of this prospectus, we have
not offered or sold any securities pursuant to General Instruction
I.B.6 of Form S-3.
Investing
in our securities involves a high degree of risk. See “Risk
Factors” beginning on page 1 of this prospectus for a
discussion of information that should be considered in connection
with an investment in our 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 , 2019.
TABLE
OF CONTENTS
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Page
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ABOUT THIS
PROSPECTUS
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iv
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RISK
FACTORS
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1
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FORWARD-LOOKING
STATEMENTS
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1
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OUR
COMPANY
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2
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DILUTION
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3
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USE OF
PROCEEDS
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3
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DESCRIPTION OF
CLASS A COMMON STOCK
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3
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DESCRIPTION OF
WARRANTS
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7
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DESCRIPTION OF
UNITS
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10
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PLAN OF
DISTRIBUTION
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12
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LEGAL
MATTERS
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13
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EXPERTS
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13
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WHERE YOU CAN FIND
MORE INFORMATION
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13
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INCORPORATION OF
CERTAIN INFORMATION BY REFERENCE
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14
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OTHER EXPENSES OF
ISSUANCE AND DISTRIBUTION
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16
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INDEMNIFICATION OF
DIRECTORS AND OFFICERS
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16
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EXHIBITS
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18
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UNDERTAKINGS
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19
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ABOUT
THIS PROSPECTUS
This prospectus is
part of a registration statement that we filed with the Securities
and Exchange Commission, or the SEC, utilizing a
“shelf” registration process. Under this shelf
registration process, we may sell the securities described in this
prospectus in one or more offerings, up to a total dollar amount of
$100,000,000. This prospectus provides you with general information
regarding the securities we may offer. We will provide a prospectus
supplement that contains specific information about any offering by
us with respect to the securities registered
hereunder.
The prospectus
supplement also may add, update, or change information contained in
the prospectus. You should read both this prospectus and the
prospectus supplement related to any offering as well as additional
information described under the headings “Where You Can Find
More Information” and “Incorporation of Certain
Information by Reference.”
We are offering to
sell, and seeking offers to buy, securities only in jurisdictions
where offers and sales are permitted. The information contained in
this prospectus and in any accompanying prospectus supplement is
accurate only as of the dates set forth on their respective covers,
regardless of the time of delivery of this prospectus or any
prospectus supplement or of any sale of our securities. Our
business, financial condition, results of operations, and prospects
may have changed since those dates. We have not authorized anyone
to provide you with information different from that contained or
incorporated by reference in this prospectus or any accompanying
prospectus supplement or any “free writing prospectus.”
You should rely only on the information contained or incorporated
by reference in this prospectus or any accompanying prospectus
supplement or related “free writing prospectus.” To the
extent there is a conflict between the information contained in
this prospectus and the prospectus supplement, you should rely on
the information in the prospectus supplement, provided that if any
statement in one of these documents is inconsistent with a
statement in another document having a later date — for
example, a document incorporated by reference into this prospectus
or any prospectus supplement — the statement in the document
having the later date modifies or supersedes the earlier
statement.
Unless the context
otherwise requires, the terms “Company,”
“we,” “us,” or “our” refer to
American Resources Corporation, a Florida corporation, and its
consolidated subsidiaries.
Investing in our
securities involves a high degree of risk. Before making an
investment decision, you should carefully consider the discussion
of risks and uncertainties under the heading “Risk
Factors” contained in our Annual Report on Form 10-K for the
fiscal year ended December 31, 2018, which is incorporated by
reference in this prospectus, and under similar headings in our
subsequently filed quarterly reports on Form 10-Q and annual
reports on Form 10-K, as well as the other risks and uncertainties
described in any applicable prospectus supplement or free writing
prospectus and in the other documents incorporated by reference in
this prospectus. See the sections entitled “Where You Can
Find More Information” and “Incorporation of Certain
Information by Reference” in this prospectus. The risks and
uncertainties we discuss in the documents incorporated by reference
in this prospectus are those we currently believe may materially
affect us. Additional risks and uncertainties not presently known
to us or that we currently believe are immaterial also may also
materially and adversely affect our business, financial condition
and results of operations.
FORWARD-LOOKING
STATEMENTS
This prospectus,
any applicable prospectus supplement and the documents and
information incorporated by reference herein and therein may
contain “forward-looking statements.” Forward-looking
statements may include, but are not limited to, statements relating
to our objectives, plans and strategies as well as statements,
other than historical facts, that address activities, events, or
developments that we intend, expect, project, believe or anticipate
will or may occur in the future. These statements are often
characterized by terminology such as “may,”
“will,” “should,” “expects,”
“plans,” “anticipates,”
“could,” “intends,” “target,”
“projects,” “contemplates,”
“believes,” “estimates,”
“predicts,” “potential,” “goal”
or “continue” or the negative of these terms or other
similar expressions.
Forward-looking
statements are based on assumptions and assessments made in light
of our experience and perception of historical trends, current
conditions, expected future developments and other factors believed
to be appropriate. Forward-looking statements are not guarantees of
future performance and are subject to risks and uncertainties, many
of which are outside of our control. You should not place undue
reliance on these forward-looking statements, which reflect our
view only as of the date of this prospectus, and we undertake no
obligation to update these forward-looking statements in the
future, except as required by applicable law.
Factors could cause
actual results to differ materially from those indicated by the
forward-looking statements include those factors described under
the caption “Risk Factors” in our Annual Report on Form
10-K for the fiscal year ended December 31, 2018, which is
incorporated by reference in this prospectus, and under similar
headings in our subsequently filed quarterly reports on Form 10-Q
and annual reports on Form 10-K, as well as the other risks and
uncertainties described in any applicable prospectus supplement or
free writing prospectus and in the other documents incorporated by
reference in this prospectus.
OUR
COMPANY
Overview
We are a producer
of primarily high-quality, metallurgical coal in eastern Kentucky.
We began our Company on October 2, 2013 and changed our name from
Natural Gas Fueling and Conversion Inc. to NGFC Equities, Inc. on
February 25, 2015, and then changed our name from NGFC Equities,
Inc. to American Resources Corporation on February 17, 2017. On
January 5, 2017, ARC executed a Share Exchange Agreement between
the Company and Quest Energy Inc., a private company incorporated
in the State of Indiana with offices at 9002 Technology Lane,
Fishers IN 46038, and due to the fulfillment of various conditions
precedent to closing of the transaction, the control of the Company
was transferred to the Quest Energy shareholders on February 7,
2017 resulting in Quest Energy becoming a wholly-owned subsidiary
of ARC. Through its wholly-owned subsidiary Quest Energy, which is
an Indiana corporation founded in June 2015, ARC was able to
acquire coal mining and coal processing operations, substantially
all located in eastern Kentucky. A majority of our domestic and
international target customer base includes blast furnace steel
mills and coke plants, as well as international metallurgical coal
consumers, domestic electricity generation utilities, and other
industrial customers.
ARC currently has
six coal mining and processing operating subsidiaries: McCoy
Elkhorn Coal LLC (doing business as McCoy Elkhorn Coal Company)
(McCoy Elkhorn), Knott County Coal LLC (Knott County Coal), Deane
Mining, LLC (Deane Mining) and Wyoming County Coal LLC (Wyoming
County), Quest Processing LLC (Quest Processing) located in eastern
Kentucky and western West Virginia within the Central Appalachian
coal basin, and ERC Mining Indiana Corporation (ERC) located in
southwest Indiana within the Illinois coal basin. The coal deposits
under control by the Company are generally comprise of
metallurgical coal (used for steel making), pulverized coal
injections (used in the steel making process) and high-BTU, low
sulfur, low moisture bituminous coal used for a variety of uses
within several industries, including industrial customers,
specialty products and thermal coal used for electricity
generation.
Current Production
We achieved initial
commercial production of metallurgical coal in September 2016 from
our McCoy Elkhorn Mine #15 and from our McCoy Elkhorn Carnegie 1
Mine in March 2017. In October 2017 we achieved commercial
production of thermal coal from our Deane Mining Access Energy Mine
and from our Deane Mining Razorblade Surface Mine in May 2018. We
believe that we will be able to take advantage of recent increases
in U.S. and global benchmark metallurgical and thermal coal prices
and intend to opportunistically increase the amount of our
projected production that is directed to the export market to
capture favorable differentials between domestic and global
benchmark prices. The Company commenced operations of two out of
four of its internally owned preparation plants in July of 2016
(Bevins #1 and Bevins #2 Prep Plants at McCoy Elkhorn), with a
third preparation plant commencing operation in October 2017 (Mill
Creek Prep Plant at Deane Mining). Pursuant to the definitions in
Paragraph (a) (4) of the Securities and Exchange Commission's
Industry Guide 7, our coal has not been classified as either
“proven” or “probable” and as a result, do
not have any “proven” or “probable”
reserves under such definition, and our company and its business
activities are deemed to be in the exploration stage until mineral
reserves are defined on our properties.
Our
Company Background
We began our
Company on October 2, 2013 and changed our name from Natural Gas
Fueling and Conversion Inc. to NGFC Equities, Inc. on February 25,
2015, and then changed our name from NGFC Equities, Inc. to
American Resources Corporation on February 17, 2017. On January 5,
2017, ARC executed a Share Exchange Agreement between the Company
and Quest Energy Inc., a private company incorporated in the State
of Indiana with offices at 9002 Technology Lane, Fishers IN 46038,
and due to the fulfillment of various conditions precedent to
closing of the transaction, the control of the Company was
transferred to the Quest Energy shareholders on February 7, 2017
resulting in Quest Energy becoming a wholly-owned subsidiary of
ARC. Our telephone number is (317) 855-9926 and our website address
is
www.americanresourcescorp.com
. Neither
our website nor any information contained on, or accessible
through, our website is part of this prospectus.
DILUTION
We will set forth
in a prospectus supplement the following information regarding any
material dilution of the equity interests of investors purchasing
securities in an offering under this prospectus and the related
prospectus supplement:
●
the net tangible
book value per share of our equity securities before and after the
offering;
●
the amount of the
increase in such net tangible book value per share attributable to
the cash payments made by purchasers in the offering;
and
●
the amount of the
immediate dilution from the public offering price which will be
absorbed by such purchasers.
USE
OF PROCEEDS
Except as may be
otherwise set forth in any prospectus supplement accompanying this
prospectus, we will use the net proceeds we receive from sales of
securities offered hereby for general corporate purposes, which may
include capital expenditures, acquisitions, the repayment of
indebtedness outstanding from time to time and for working capital,
and repurchases of our Common Stock or other securities. When
specific securities are offered, the prospectus supplement relating
thereto will set forth our intended use of the net proceeds that we
receive from the sale of such securities.
DESCRIPTION
OF COMMON STOCK
This section
describes the general terms of our Class A Common Stock, par value
$0.0001 per share, which may also be referred to herein as
“Common Stock”. A prospectus supplement may provide
information that is different from this prospectus. If the
information in the prospectus supplement with respect to our Common
Stock being offered differs from this prospectus, you should rely
on the information in the prospectus supplement. A copy of our
amended and restated articles of incorporation, as amended, has
been incorporated by reference from our filings with the SEC as an
exhibit to the registration statement of which this prospectus
forms a part. Our Common Stock and the rights of the holders of our
Common Stock are subject to the applicable provisions of the
Florida Business Corporation Act, which we sometimes refer to in
this section as “Florida law,” our amended and restated
articles of incorporation, as amended, our bylaws, the rights of
the holders of our preferred stock, if any, and the agreements
described below.
Under our amended
and restated articles of incorporation, as amended, we have the
authority to issue 230,000,000 shares of Common Stock, par value
$0.0001 per share, and 30,000,000 shares of preferred stock, par
value $0.0001 per share. As of March 31, 2019, there were
23,148,556 shares of our Common Stock issued and outstanding and no
shares of preferred stock issued and outstanding.
Effective
January 18, 2017, we amended our articles of incorporation to
create a new Series A Preferred Stock. Effective February 20, 2017,
we amended our articles of incorporation to change our name to
American Resources Corporation. Effective March 21, 2017, we
amended our articles of incorporation to create a new Series B
Preferred Stock. Effective November 8, 2018 we amended our articles
of incorporation to create a new Series C Preferred Stock and
modify the Series A Preferred Stock voting ratio.
The table below
presents earnings per share as previously reported in our Annual
Report on Form 10-K for the year ended December 31,
2018.
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Earnings Per
Share
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Basic and
diluted:
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As previously
reported
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$
(3.69
)
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$
(16.39
)
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The following
description of our Common Stock, and any description of our Common
Stock in a prospectus supplement, may not be complete and is
subject to, and qualified in its entirety by reference to, Florida
law and the actual terms and provisions contained in our amended
and restated articles of incorporation and our bylaws, each as
amended from time to time.
Voting
Rights
The holders of our
Common Stock are generally entitled to one vote for each share held
on all matters submitted to a vote of the shareholders and do not
have any cumulative voting rights. Unless otherwise required by
Florida law, once a quorum is present, matters presented to
shareholders, except for the election of directors, will be
approved by a majority of the votes cast. The election of directors
is determined by a plurality of the votes cast.
Dividends
Holders of our
Common Stock are entitled to receive dividends if, as and when
declared by the board of directors, or the Board, out of funds
legally available for that purpose, subject to preferences that may
apply to any preferred stock that we issue.
Liquidation
Rights
In the event of our
dissolution or liquidation, after satisfaction of all our debts and
liabilities and distributions to the holders of any preferred stock
that we may issue in the future, of amounts to which they are
preferentially entitled, the holders of Common Stock will be
entitled to share ratably in the distribution of assets to the
shareholders.
Other
Provisions
There are no
cumulative, subscription or preemptive rights to subscribe for any
additional securities which we may issue, and there are no
redemption provisions, conversion provisions or sinking fund
provisions applicable to the Common Stock. The rights of holders of
Common Stock are subject to the rights, privileges, preferences and
priorities of any class or series of preferred stock that may be
issued in the future.
Our amended and
restated articles of incorporation, as amended, and bylaws do not
restrict the ability of a holder of our Common Stock to transfer
his or her shares of our Common Stock.
Shares
of Common Stock Reserved for Issuance
As of March 31,
2019, we had reserved for issuance:
●
an aggregate of
5,957,532 shares of our Common Stock issuable upon the exercise of
outstanding warrants and employee options;
Preferred
Stock
Under our amended
and restated articles of incorporation, as amended, we are
authorized to issue up to 30,000,000 shares of preferred stock, par
value $0.0001 per share, in one or more series. We are authorized
to issue preferred stock with such designation, rights and
preferences as may be determined from time to time by our Board.
Accordingly, the Board is empowered, without shareholder approval,
to issue preferred stock with dividend, liquidation, conversion,
voting or other rights which could adversely affect the voting
power or other rights of the holders of our Common Stock and, in
certain instances, could adversely affect the market price of our
Common Stock. As of March 31, 2019, there are no shares of
preferred stock issued or outstanding.
Series A Preferred Stock
On January 18,
2017, we designated 5,000,000 shares of preferred stock as Series A
Preferred Stock, par value $0.0001 per share, which may be issued
from time to time by the board of directors. As of March 31, 2019,
there are no shares of Series A Preferred stock issued or
outstanding.
Series C Preferred Stock
On November 8,
2018, we designated 20,000,000 shares of preferred stock as Series
C Preferred Stock, par value $0.0001 per share, which may be issued
from time to time by the board of directors. As of March 31, 2019,
there are no shares of Series C Preferred stock issued or
outstanding.
Anti-takeover
Effects of our Amended and Restated Articles of Incorporation and
Bylaws
As described above,
our amended and restated articles of incorporation, as amended,
provide that our Board may issue preferred stock with such
designation, rights and preferences as may be determined from time
to time by our Board. Our preferred stock could be issued quickly
and utilized, under certain circumstances, as a method of
discouraging, delaying or preventing a change in control of the
Company or make removal of management more difficult. Our amended
and restated articles of incorporation, as amended, and our bylaws
provide that special meetings may be called only by a unanimous
vote of the Board.
Florida
Anti-Takeover Statute
As a Florida
corporation, we are subject to certain anti-takeover provisions
that apply to public corporations under Florida law. Pursuant to
Section 607.0901 of the Florida Business Corporation Act, a
publicly held Florida corporation may not engage in a broad range
of business combinations or other extraordinary corporate
transactions with an interested shareholder without the approval of
the holders of two-thirds of the voting shares of the corporation
(excluding shares held by the interested shareholder),
unless:
●
the transaction is
approved by a majority of disinterested directors before the
shareholder becomes an interested shareholder;
●
the interested
shareholder has owned at least 80% of the corporation’s
outstanding voting shares for at least five years preceding the
announcement date of any such business combination;
●
the interested
shareholder is the beneficial owner of at least 90% of the
outstanding voting shares of the corporation, exclusive of shares
acquired directly from the corporation in a transaction not
approved by a majority of the disinterested directors;
or
●
the consideration
paid to the holders of the corporation’s voting stock is at
least equal to certain fair price criteria.
An interested
shareholder is defined as a person who together with affiliates and
associates beneficially owns more than 10% of a corporation’s
outstanding voting shares. We have not made an election in our
amended and restated articles of incorporation, as amended, to opt
out of Section 607.0901.
In addition, we are
subject to Section 607.0902 of the Florida Business Corporation
Act, which prohibits the voting of shares in a publicly held
Florida corporation that are acquired in a control share
acquisition unless (i) our Board approved such acquisition prior to
its consummation or (ii) after such acquisition, in lieu of prior
approval by our Board, the holders of a majority of the
corporation’s voting shares, exclusive of shares owned by
officers of the corporation, employee directors or the acquiring
party, approve the granting of voting rights as to the shares
acquired in the control share acquisition. A control share
acquisition is defined as an acquisition that immediately
thereafter entitles the acquiring party to 20% or more of the total
voting power in an election of directors.
Indemnification
Both our amended
and restated articles of incorporation, as amended, and bylaws
provide for indemnification of our directors and officers to the
fullest extent permitted by Florida law.
Listing
Our Common Stock is
listed on the Nasdaq Capital Market under the symbol
“AREC”.
Transfer
Agent and Registrar
The transfer agent
and registrar for our Common Stock is Vstock Transfer, LLC located
at 18 Lafayette Place Woodmere, NY 11598, phone number
212-828-8436.
DESCRIPTION
OF WARRANTS
General
We may issue
warrants to purchase shares of Common Stock. The warrants may be
issued independently or together with shares of Common Stock
offered by this prospectus and may be attached to or separate from
those shares of Common Stock.
While the terms we
have summarized below will generally apply to any future warrants
we may offer under this prospectus, we will describe the particular
terms of any warrants that we may offer in more detail in the
applicable prospectus supplement. The terms of any warrants we
offer under a prospectus supplement may differ from the terms we
describe below.
We may issue the
warrants under a warrant agreement, which we will enter into with a
warrant agent to be selected by us. Each warrant agent will act
solely as our agent under the applicable warrant agreement and will
not assume any obligation or relationship of agency or trust with
any holder of any warrant. A single bank or trust company may act
as warrant agent for more than one issue of warrants. A warrant
agent will have no duty or responsibility in case of any default by
us under the applicable warrant agreement or warrant, including any
duty or responsibility to initiate any proceedings at law or
otherwise, or to make any demand upon us. Any holder of a warrant
may, without the consent of the related warrant agent or the holder
of any other warrant, enforce by appropriate legal action its right
to exercise, and receive the Common Stock purchasable upon exercise
of, its warrants.
We will incorporate
by reference into the registration statement of which this
prospectus forms a part the form of warrant agreement, including a
form of warrant certificate, that describes the terms of the series
of warrants we are offering before the issuance of the related
series of warrants. The following summaries of material provisions
of the warrants and the warrant agreements are subject to, and
qualified in their entirety by reference to, all the provisions of
the warrant agreement applicable to a particular series of
warrants. We urge you to read the applicable prospectus supplements
related to the warrants that we sell under this prospectus, as well
as the complete warrant agreements that contain the terms of the
warrants.
We will set forth
in the applicable prospectus supplement the terms of the warrants
in respect of which this prospectus is being delivered, including,
when applicable, the following:
●
the title of the
warrants;
●
the aggregate
number of the warrants;
●
the price or prices
at which the warrants will be issued;
●
the designation,
number, and terms of shares of Common Stock purchasable upon
exercise of the warrants;
●
the date, if any,
on and after which the warrants and the related Common Stock will
be separately transferable;
●
the price at which
each share of Common Stock purchasable upon exercise of the
warrants may be purchased;
●
the date on which
the right to exercise the warrants will commence and the date on
which such right will expire;
●
the minimum or
maximum amount of the warrants that may be exercised at any one
time;
●
any information
with respect to book-entry procedures;
●
the effect of any
merger, consolidation, sale, or other disposition of our business
on the warrant agreement and the warrants;
●
any other terms of
the warrants, including terms, procedures, and limitations relating
to the transferability, exchange, and exercise of such
warrants;
●
the terms of any
rights to redeem or call, or accelerate the expiration of, the
warrants;
●
the date on which
the right to exercise the warrants begins and the date on which
that right expires;
●
the material U.S.
federal income tax consequences of holding or exercising the
warrants; and
●
any other specific
terms, preferences, rights, or limitations of, or restrictions on,
the warrants.
Unless specified in
an applicable prospectus supplement, warrants will be in registered
form only.
A holder of warrant
certificates may exchange them for new certificates of different
denominations, present them for registration of transfer, and
exercise them at the corporate trust office of the warrant agent or
any other office indicated in the applicable prospectus supplement.
Until any warrants are exercised, holders of the warrants will not
have any rights of holders of the underlying Common Stock,
including any rights to receive dividends or to exercise any voting
rights, except to the extent set forth under the heading
“Warrant Adjustments” below.
Exercise
of Warrants
Each warrant will
entitle the holder to purchase for cash shares of Common Stock at
the applicable exercise price set forth in, or determined as
described in, the applicable prospectus supplement. Warrants may be
exercised at any time up to the close of business on the expiration
date set forth in the applicable prospectus supplement. After the
close of business on the expiration date, unexercised warrants will
become void.
Warrants may be
exercised by delivering to the corporation trust office of the
warrant agent or any other officer indicated in the applicable
prospectus supplement (a) the warrant certificate properly
completed and duly executed and (b) payment of the amount due upon
exercise. As soon as practicable following exercise, we will
forward the shares of Common Stock. If less than all of the
warrants represented by a warrant certificate are exercised, a new
warrant certificate will be issued for the remaining warrants. If
we so indicate in the applicable prospectus supplement, holders of
the warrants may surrender securities as all or a part of the
exercise price for the warrants.
Amendments
and Supplements to the Warrant Agreements
We may amend or
supplement a warrant agreement without the consent of the holders
of the applicable warrants to cure ambiguities in the warrant
agreement, to cure or correct a defective provision in the warrant
agreement, or to provide for other matters under the warrant
agreement that we and the warrant agent deem necessary or
desirable, so long as, in each case, such amendments or supplements
do not materially and adversely affect the interests of the holders
of the warrants.
Warrant
Adjustments
Unless the
applicable prospectus supplement states otherwise, the exercise
price of, and the number of shares of Common Stock covered by a
warrant will be adjusted proportionately if we subdivide or combine
our Common Stock. In addition, unless the prospectus supplement
states otherwise, if we, without payment:
●
issue capital stock
or other securities convertible into or exchangeable for Common
Stock, or any rights to subscribe for, purchase, or otherwise
acquire Common Stock, as a dividend or distribution to holders of
our Common Stock;
●
pay any cash to
holders of our Common Stock other than a cash dividend paid out of
our current or retained earnings;
●
issue any evidence
of our indebtedness or rights to subscribe for or purchase our
indebtedness to holders of our Common Stock; or
●
issue Common Stock
or additional stock or other securities or property to holders of
our Common Stock by way of spinoff, split-up, reclassification,
combination of shares, or similar corporate
rearrangement,
then the holders of
warrants will be entitled to receive upon exercise of the warrants,
in addition to the shares of Common Stock otherwise receivable upon
exercise of the warrants and without paying any additional
consideration, the amount of stock and other securities and
property such holders would have been entitled to receive had they
held the Common Stock issuable under the warrants on the dates on
which holders of those securities received or became entitled to
receive such additional stock and other securities and
property.
Except as stated
above, the exercise price and number of securities covered by a
warrant, and the amounts of other securities or property to be
received, if any, upon exercise of those warrants, will not be
adjusted or provided for if we issue those securities or any
securities convertible into or exchangeable for those securities,
or securities carrying the right to purchase those securities or
securities convertible into or exchangeable for those
securities.
Holders of warrants
may have additional rights under the following
circumstances:
●
certain
reclassifications, capital reorganizations, or changes of the
Common Stock;
●
certain share
exchanges, mergers, or similar transactions involving us and which
result in changes of the Common Stock; or
●
certain sales or
dispositions to another entity of all or substantially all of our
property and assets.
If one of the above
transactions occurs and holders of our Common Stock are entitled to
receive stock, securities, or other property with respect to or in
exchange for their shares of Common Stock, the holders of the
warrants then outstanding, as applicable, will be entitled to
receive upon exercise of their warrants the kind and amount of
shares of stock and other securities or property that they would
have received upon the applicable transaction if they had exercised
their warrants immediately before the transaction.
Outstanding
Warrants and Options
As of March 31,
2019, we had outstanding:
●
an aggregate of
5,275,702 of our Common Stock issuable upon the exercise of
outstanding warrants with exercise prices ranging from $ $0.01
to $ $11.44 per share and expiration dates ranging from April
29, 2019 to January 24, 2024; and
●
an aggregate of
681,830 of our Common Stock issuable upon the exercise of
outstanding employee and director options with an exercise price of
$1.00 per share and an expiration date of September 10,
2025.
DESCRIPTION
OF UNITS
The following
description, together with the additional information we include in
any applicable prospectus supplement, summarizes the material terms
and provisions of the units that we may offer under this
prospectus. Units may be offered independently or together with
Common Stock and warrants offered by any prospectus supplement, and
may be attached to or separate from those securities. While the
terms we have summarized below will generally apply to any future
units that we may offer under this prospectus, we will describe the
particular terms of any series of units that we may offer in more
detail in the applicable prospectus supplement. The terms of any
units offered under a prospectus supplement may differ from the
terms described below.
We will incorporate
by reference into the registration statement of which this
prospectus forms a part the form of unit agreement, including a
form of unit certificate, if any, that describes the terms of the
series of units we are offering before the issuance of the related
series of units. The following summaries of material provisions of
the units and the unit agreements are subject to, and qualified in
their entirety by reference to, all the provisions of the unit
agreement applicable to a particular series of units. We urge you
to read the applicable prospectus supplements related to the units
that we sell under this prospectus, as well as the complete unit
agreements that contain the terms of the units.
General
We may issue units
consisting of Common Stock and warrants. 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. 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 will describe in
the applicable prospectus supplement the terms of the series of
units, including the following:
●
the designation and
terms of the units and of the securities comprising the units,
including whether and under what circumstances those securities may
be held or transferred separately;
●
any provisions of
the governing unit agreement that differ from those described
below; and
●
any provisions for
the issuance, payment, settlement, transfer, or exchange of the
units or of the securities comprising the units.
The provisions
described in this section, as well as those described under
“Description of Common Stock” and “Description of
Warrants,” will apply to each unit and to any Common Stock or
warrant included in each unit, respectively.
Issuance
in Series
We may issue units
in such amounts and in such numerous distinct series as we
determine.
Enforceability
of Rights by Holders of Units
Each unit agent, if
any, will act solely as our agent under the applicable unit
agreement and will not assume any obligation or relationship of
agency or trust with any holder of any unit. A single bank or trust
company may act as unit agent for more than one series of units. A
unit agent will have no duty or responsibility in case of any
default by us under the applicable unit agreement or unit,
including any duty or responsibility to initiate any proceedings at
law or otherwise, or to make any demand upon us. Any holder of a
unit, without the consent of the related unit agent or the holder
of any other unit, may enforce by appropriate legal action its
rights as holder under any security included in the
unit.
Title
We, the unit agent,
and any of their agents may treat the registered holder of any unit
certificate as an absolute owner of the units evidenced by that
certificate for any purposes and as the person entitled to exercise
the rights attaching to the units so requested, despite any notice
to the contrary.
PLAN
OF DISTRIBUTION
We may sell
securities to one or more underwriters or dealers for public
offering and sale by them, or we may sell the securities to
investors directly or through agents. The applicable prospectus
supplement will set forth the terms of the particular offering and
the method of distribution and will identify any firms acting as
underwriters, dealers or agents in connection with the offering,
including:
●
the name or names
of any underwriters;
●
the respective
amounts underwritten;
●
the nature of any
material relationship between us and any underwriter;
●
the nature of the
obligation of the underwriter(s) to take the
securities;
●
the purchase price
of the securities;
●
any underwriting
discounts and other items constituting underwriters’
compensation;
●
any initial public
offering price and the net proceeds we will receive from such
sale;
●
any discounts or
concessions allowed or reallowed or paid to dealers;
and
●
any securities
exchange or market on which the securities offered in the
prospectus supplement may be listed.
We may distribute
our securities from time to time in one or more transactions at a
fixed price or prices, which may be changed, or at prices
determined as the prospectus supplement specifies, including in
“at-the-market” offerings.
Any underwriting
discounts or other compensation which we pay to underwriters or
agents in connection with the offering of our securities, and any
discounts, concessions or commissions which underwriters allow to
dealers, will be set forth in the prospectus supplement.
Underwriters may sell our securities to or through dealers, and
such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters and commissions
from the purchasers for whom they may act as agents. Underwriters,
dealers and agents that participate in the distribution of our
securities may be deemed to be underwriters under the Securities
Act and any discounts or commissions they receive from us and any
profit on the resale of our securities they realize may be deemed
to be underwriting discounts and commissions under the Securities
Act. Any such underwriter or agent will be identified, and any such
compensation received from us, will be described in the applicable
supplement to this prospectus. Unless otherwise set forth in the
supplement to this prospectus relating thereto, the obligations of
the underwriters or agents to purchase our securities will be
subject to conditions precedent and the underwriters will be
obligated to purchase all our offered securities if any are
purchased. The public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed
from time to time.
Any Common Stock
sold pursuant to this prospectus and applicable prospectus
supplement will be approved for trading, upon notice of issuance,
on the Nasdaq Capital Market.
Underwriters and
their controlling persons, dealers and agents may be entitled,
under agreements entered into with us, to indemnification against
and contribution toward specific civil liabilities, including
liabilities under the Securities Act.
An underwriter may
engage in over-allotment, stabilizing transactions, short covering
transactions and penalty bids in accordance with securities laws.
Over-allotment involves sales in excess of the offering size, which
creates a short position. Stabilizing transactions permit bidders
to purchase the underlying security so long as the stabilizing bids
do not exceed a specified maximum. Short covering transactions
involve purchases of the securities 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 covering transaction to cover short positions. Those
activities may cause the price of the securities to be higher than
it would otherwise be. The underwriters may engage in these
activities on any exchange or other market in which the securities
may be traded. If commenced, the underwriters may discontinue these
activities at any time.
Certain of the
underwriters and their affiliates may be customers of, engage in
transactions with, and perform services for, us and our
subsidiaries in the ordinary course of business.
LEGAL
MATTERS
The validity of the
securities offered hereby will be passed upon by Law Office of
Clifford J. Hunt, P.A. The law firm’s principal, Clifford J.
Hunt, Esquire, is the beneficial owner of 1,721 shares of our
Common Stock
EXPERTS
The consolidated
financial statements of American Resources Corporation as of
December 31, 2018 and 2017 and for each of the years then ended
incorporated by reference in this prospectus and in the
registration statement of which this prospectus forms a part have
been so included in reliance on the report of MaloneBailey, LLP, an
independent registered public accounting firm, as set forth in
their report which is incorporated by reference in this prospectus
and elsewhere in the registration statement, 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, proxy statements and other
information with the SEC. Through our website at
www.americanresourcescorp.com
, you may
access, free of charge, our filings, as soon as reasonably
practical after we electronically file them with or furnish them to
the SEC. The information contained on, or accessible through, our
website is not incorporated by reference in, and is not a part of
this prospectus or any accompanying prospectus supplement. You also
may read and copy any document we file with the SEC at the
SEC’s public reference room at 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference room. Our SEC filings
are also available to the public from the SEC’s website at
www.sec.gov
.
This prospectus is
part of a registration statement on Form S-3 that we filed with the
SEC to register the securities to be offered hereby. This
prospectus does not contain all of the information included in the
registration statement, including certain exhibits and schedules.
You may obtain the registration statement and exhibits to the
registration statement from the SEC at the address listed above or
from the SEC’s website listed above.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us
to incorporate by reference the information we file with the SEC,
which means that we can disclose important information to you by
referring you to those documents. The information that we
incorporate by reference is considered to be part of this
prospectus. Information that we file with the SEC in the future and
incorporate by reference in this prospectus automatically updates
and supersedes previously filed information as
applicable.
We incorporate by
reference into this prospectus the following documents filed by us
with the SEC, other than any portion of any such documents that is
not deemed “filed” under the Exchange Act in accordance
with the Exchange Act and applicable SEC rules:
●
our Annual Report
on Form 10-K for the year ended December 31, 2018, filed with the
SEC on April 3, 2019;
●
our Annual Report
on Form 10-KA for the year ended December 31, 2018, filed with the
SEC on May 30, 2019;
●
our Quarterly
Reports on Form 10-Q for the quarter ended March 31,
2019, filed with the SEC on May 16,
2019;
●
our Quarterly
Report on Form 10-QA for the quarter end March 31, 2019 filed with
the SEC on May 30, 2019;
●
our Current Reports
on Form 8-K or Form 8-K/A, filed on May 1, 2018, May 15, 2018, June
1, 2018, July 26, 2018, September 10, 2018, September 25, 2018,
October 30, 2018, November 13, 2018, November 15, 2018, January 3,
2019, February 20, 2019, February 22, 2019, March 8,
2019
, April 17, 2019,
April 26, 2019, May 3, 2019 and May 29, 2019
;
and
●
the description of
our Common Stock contained in our registration statement on Form
8-A filed on February 14, 2019 pursuant to Section 12 of the
Exchange Act, including any subsequent amendment or report filed
for the purpose of updating that description.
In addition, all
documents subsequently filed by us (including all documents
subsequently filed by us after the date of this registration
statement and prior to the effectiveness of this registration
statement) pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act prior to the termination of the offering, will be
deemed to be incorporated herein by reference and to be a part of
this registration statement from the date of filing of such
documents.
This prospectus
does not, however, incorporate by reference any documents or
portions thereof, whether specifically listed above or furnished by
us in the future, that are not deemed “filed” with the
SEC, including information “furnished” pursuant to
Items 2.02, 7.01 and 9.01 of Form 8-K.
Any statement
contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement
contained herein or in any subsequently filed document that is also
incorporated by reference herein modifies or replaces such
statement. Any statements so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this prospectus.
Any information
incorporated by reference herein is available to you without charge
upon written or oral request. If you would like a copy of any of
this information, please submit your request to us at the following
address:
American Resources
Corporation
Attn: Gregory Q.
Jensen
9002 Technology
Lane
Fishers, IN
4038
(317)
855-9926
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The following table
sets forth the costs and expenses payable by the registrant in
connection with the offerings described in this registration
statement. In addition to the costs and expenses set forth below,
the registrant will pay any selling commissions and brokerage fees
and any applicable taxes, fees and disbursements with respect to
securities registered hereby sold by the registrant. All of the
amounts shown are estimates, except for the SEC registration
fee:
|
|
SEC Registration
Fee
|
$
12,160
|
Accountants’
Fees and Expenses
|
12,000
|
Legal Fees and
Expenses
|
25,000
|
Printing and
Engraving Expenses
|
25,000
|
Transfer Agent
Fees
|
3,000
|
Miscellaneous
Fees
|
5,000
|
Total
|
$
82,160
|
Item
15. Indemnification of Directors and Officers.
The Florida
Business Corporation Act (the “Florida Act”) authorizes
the indemnification of officers, directors, employees and agents
under specified circumstances. Under Section 607.0831 of the
Florida Act, a director is not personally liable for monetary
damages to the corporation or any other person for any statement,
vote, decision, or failure to act regarding corporate management or
policy unless (1) the director breached or failed to perform his or
her duties as a director and (2) the director’s breach of, or
failure to perform, those duties constitutes: (a) a violation of
the criminal law, unless the director had reasonable cause to
believe his or her conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful, (b) a transaction from
which the director derived an improper personal benefit, either
directly or indirectly, (c) a circumstance under which the
liability provisions of Section 607.0834 of the Florida Act are
applicable, (d) in a proceeding by or in the right of the
corporation to procure a judgment in its favor or by or in the
right of a shareholder, conscious disregard for the best interest
of the corporation, or willful misconduct, or (e) in a proceeding
by or in the right of someone other than the corporation or a
shareholder, recklessness or an act or omission which was committed
in bad faith or with malicious purpose or in a manner exhibiting
wanton and willful disregard of human rights, safety, or property.
A judgment or other final adjudication against a director in any
criminal proceeding for a violation of the criminal law estops that
director from contesting the fact that his or her breach, or
failure to perform, constitutes a violation of the criminal law;
but does not estop the director from establishing that he or she
had reasonable cause to believe that his or her conduct was lawful
or had no reasonable cause to believe that his or her conduct was
unlawful.
Under Section
607.0850 of the Florida Act, a corporation has power to indemnify
any person who was or is a party to any proceeding (other than an
action by, or in the right of the corporation), by reason of the
fact that he or she is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against liability incurred in connection with such proceeding,
including any appeal thereof, if he or she acted in good faith and
in a manner he or she reasonably believed to be in, or not opposed
to, the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful. The termination of any proceeding
by judgment, order, settlement or conviction or upon a plea of nolo
contendere or its equivalent shall not, of itself, create a
presumption that the person did not act 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 corporation or, with respect to any
criminal action or proceeding, has reasonable cause to believe that
his or her conduct was unlawful.
In addition, under
Section 607.0850 of the Florida Act, a corporation has the power to
indemnify any person, who was or is a party to any proceeding by or
in the right of the corporation to procure a judgment in its favor
by reason of the fact that the person is or was a director,
officer, employee, or agent of the corporation or is or was serving
at the request of the corporation as a director, officer, employee,
or agent of another corporation, partnership, joint venture, trust,
or other enterprise, against expenses and amounts paid in
settlement not exceeding, in the judgment of the board of
directors, the estimated expense of litigating the proceeding to
conclusion, actually and reasonably incurred in connection with the
defense or settlement of such proceeding, including any appeal
thereof. Such indemnification shall be authorized if such person
acted in good faith and in a manner he or she reasonably believed
to be in, or not opposed to, the best interests of the corporation,
except that no indemnification shall be made under this subsection
in respect of any claim, issue, or matter as to which such person
shall have been adjudged to be liable unless, and only to the
extent that, the court in which such proceeding was brought, or any
other court of competent jurisdiction, shall determine upon
application that, despite the adjudication of liability but in view
of all circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which such court
shall deem proper.
Under Section
607.0850 of the Florida Act, the indemnification and advancement of
expenses provided pursuant to Section 607.0850 of the Florida Act
are not exclusive, and a corporation may make any other or further
indemnification or advancement of expenses of any of its directors,
officers, employees, or agents, under any bylaw, agreement, vote of
shareholders or disinterested directors, or otherwise, both as to
action in his or her official capacity and as to action in another
capacity while holding such office. However, indemnification or
advancement of expenses shall not be made to or on behalf of any
director, officer, employee or agent if a judgment or other final
adjudication establishes that his or her actions, or omissions to
act, were material to the cause of action so adjudicated and
constitute: (a) a violation of the criminal law, unless the
director, officer, employee or agent had reasonable cause to
believe his or her conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful; (b) a transaction from
which the director, officer, employee or agent derived an improper
personal benefit; (c) in the case of a director, a circumstance
under which the above liability provisions of Section 607.0834 of
the Florida Act are applicable; or (d) willful misconduct or a
conscious disregard for the best interests of the corporation in a
proceeding by or in the right of the corporation to procure a
judgment in its favor or in a proceeding by or in the right of a
stockholder.
Section 607.0850 of
the Florida Act also provides that a corporation shall have the
power to purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the
corporation against any liability asserted against the person and
incurred by him or her in any such capacity or arising out of his
status as such, whether or not the corporation would have the power
to indemnify him against such liability under the provisions of
Section 607.0850 of the Florida Act.
Our amended and
restated articles of incorporation, as amended, provide that we
shall, to the fullest extent provided, authorized, permitted or not
prohibited by the Florida Act and our bylaws, indemnify our
directors and officers, from and against any and all of the
expenses or liabilities incurred in defending a civil or criminal
proceeding or other specified matters in the manner provided in our
amended and restated articles of incorporation. Our bylaws also
provide for indemnification of our directors and officers to the
fullest extent permitted by law. We maintain directors’ and
officers’ liability insurance for the benefit of our officers
and directors.
Item
16. Exhibits.
The exhibits
identified in the Exhibit Index below are included herein or
incorporated by reference.
Exhibit
Index
Exhibit
Number
|
|
Description
|
|
Location
Reference
|
|
|
|
|
|
1.1
|
|
Form of
Underwriting Agreement
|
|
To be filed by
amendment to this registration statement or by a report filed under
the Securities Exchange Act of 1934, as amended, and incorporated
herein by reference in connection with an offering of the offered
securities.
|
|
|
Articles of
Incorporation of Natural Gas Fueling and Conversion
Inc.
|
|
Incorporated herein
by reference to Exhibit 3.1 to the Company’s Registration
Statement on Form S-1, filed with the SEC on November 27,
2013.
|
|
|
Amended and
Restated Articles of Incorporation of NGFC Equities
Inc.
|
|
Incorporated herein
by reference to Exhibit 3.1 to the Company’s 8k filed on
February 25, 2015.
|
|
|
Articles of
Amendment to Articles of Incorporation of NGFC Equities,
Inc.
|
|
Incorporated herein
by reference to Exhibit 10.2 to the Company’s Form 8-K on
February 21, 2017.
|
|
|
Articles of
Amendment to Articles of Incorporation of American Resources
Corporation dated March 24, 2017.
|
|
Incorporated herein
by reference to Exhibit 3.4 to the Company’s Form 10-Q, filed
with the SEC on May 15, 2018.
|
|
|
Bylaws of Natural
Gas Fueling and Conversion Inc.
|
|
Incorporated herein
by reference to Exhibit 3.2 to the Company’s Registration
Statement on Form S-1, filed with the SEC on November 27,
2013.
|
|
|
Bylaws, of NGFC
Equities Inc., as amended and restated.
|
|
Incorporated herein
by reference to Exhibit 3.2 to the Company’s 8k filed on
February 25, 2015.
|
|
|
Articles of
Amendment to Articles of Incorporation of American Resources
Corporation dated November 8, 2018.
|
|
Filed as Exhibit
99.1 to the Company's 8k filed on November 13, 2018, incorporated
herein by reference.
|
|
|
Bylaws of American
Resources Corporation, as amended and restated
|
|
Incorporated herein
by reference to Exhibit 99.2 to the Company's 8k filed on November
13, 2018.
|
|
|
Common
Stock Purchase Warrant "B-4" dated October 4, 2017
|
|
Incorporated herein
by reference to Exhibit 4.1 to the Company’s 8k filed on
October 11, 2017.
|
|
|
Common
Stock Purchase Warrant "C-1" dated October 4, 2017
|
|
Incorporated herein
by reference to Exhibit 4.2 to the Company’s 8k filed on
October 11, 2017.
|
|
|
Common
Stock Purchase Warrant "C-2" dated October 4, 2017
|
|
Incorporated herein
by reference to Exhibit 4.3 to the Company’s 8k filed on
October 11, 2017.
|
|
|
Common
Stock Purchase Warrant "C-3" dated October 4, 2017
|
|
Incorporated herein
by reference to Exhibit 4.4 to the Company’s 8k filed on
October 11, 2017.
|
|
|
Common
Stock Purchase Warrant "C-4" dated October 4, 2017
|
|
Incorporated herein
by reference to Exhibit 4.5 to the Company’s 8k filed on
October 11, 2017.
|
|
|
Promissory
Note for $600,000.00 dated October 4, 2017
|
|
Incorporated herein
by reference to Exhibit 4.6 to the Company’s 8k filed on
October 11, 2017.
|
|
|
Promissory
Note for $1,674,632.14 dated October 4, 2017
|
|
Incorporated herein
by reference to Exhibit 4.7 to the Company’s 8k filed on
October 11, 2017.
|
|
|
Loan
Agreement for up to $6,500,000 dated December 31, 2018
|
|
Incorporated
herein by reference to Exhibit 99.1 to the Company's 8k filed on
January 3, 2019.
|
|
|
Promissory
Note for up to $6,500,000 dated December 31, 2018
|
|
Incorporated
herein by reference to Exhibit 99.2 to the Company's 8k filed on
January 3, 2019.
|
5.1
|
|
Opinion of Law
Office of Clifford J. Hunt, P.A. as to legality
|
|
Filed
Herewith.
|
|
|
Secured
Promissory Note
|
|
Incorporated
herein by reference to Exhibit 99.1 to the Company's 8k filed on
May 15, 2018.
|
|
|
Security
Agreement
|
|
Incorporated
herein by reference to Exhibit 99.2 to the Company's 8k filed on
May 15, 2018.
|
|
|
Pledge
Agreement
|
|
Incorporated
herein by reference to Exhibit 99.3 to the Company's 8k filed on
May 15, 2018.
|
|
|
Guaranty
Agreement
|
|
Incorporated
herein by reference to Exhibit 99.4 to the Company's 8k filed on
May 15, 2018.
|
|
|
Bill
of Sale
|
|
Incorporated
herein by reference to Exhibit 99.5 to the Company's 8k filed on
May 15, 2018.
|
|
|
Sublease
Agreement Between Colonial Coal Company, Inc. and McCoy Elkhorn
Coal LLC
|
|
Incorporated
herein by reference to Exhibit 99.1 to the Company's 8k filed on
May 1, 2018
|
|
|
Interim
Operating Agreement
|
|
Incorporated
herein by reference to Exhibit 99.2 to the Company's 8k filed on
May 1, 2018
|
|
|
Consolidated
and Restated Loan and Security Agreement dated October 4,
2017
|
|
Incorporated
herein by reference to Exhibit 10.1 to the Company's 8k filed on
October 11, 2017
|
|
|
Asset
Purchase Agreement between Wyoming County Coal LLC and Thomas
Shelton dated November 7, 2018
|
|
Incorporated
herein by reference to Exhibit 10.9 to the Company’s
registration statement filed on December 11, 2018.
|
|
|
Asset
Purchase Agreement between Wyoming County Coal LLC and Synergy
Coal, LLC dated November 7, 2018
|
|
Incorporated
herein by reference to Exhibit 10.10 to the Company's registration
statement filed on December 11, 2018.
|
|
|
Security
Agreement
|
|
Incorporated
herein by reference to Exhibit 99.3 to the Company's 8k filed on
January 3, 2019.
|
|
|
Purchase
Order
|
|
Incorporated
herein by reference to Exhibit 99.4 to the Company's 8k filed on
January 3, 2019.
|
|
|
Employment
Agreement with Mark C. Jensen
|
|
Incorporated
herein by reference to Exhibit 10.13 to the Company's registration
statement filed on February 6, 2019.
|
|
|
Employment
Agreement with Thomas M. Sauve
|
|
Incorporated
herein by reference to Exhibit 10.14 to the Company's registration
statement filed on February 6, 2019.
|
|
|
Employment
Agreement with Kirk P. Taylor
|
|
Incorporated
herein by reference to Exhibit 10.15 to the Company's registration
statement filed on February 6, 2019.
|
|
|
Employee
Stock Option Plan
|
|
Incorporated
herein by reference to Exhibit 10.16 to the Company's registration
statement filed on February 6, 2019.
|
|
|
Letter
of Intent
|
|
Incorporated herein
by reference to Exhibit 10.17 to the Company's registration
statement filed on February 6, 2019.
|
|
|
Merger
Agreement with Colonial Coal
|
|
Incorporated herein
by reference to Exhibit 10.18 to the Company's registration
statement filed on February 14, 2019.
|
|
|
Share
Exchange Agreement to replace Merger Agreement with Colonial
Coal
|
|
Incorporated herein
by reference to Exhibit 10.19 to the Company's registration
statement filed on February 14, 2019.
|
|
|
Code of
Conduct
|
|
Incorporated herein
by reference to Exhibit 99.2 to the Company's 8k filed on November
13, 2018.
|
|
|
Financial Code of
Ethics
|
|
Incorporated herein
by reference to Exhibit 99.3 to the Company's 8k filed on November
13, 2018.
|
|
|
Consent of
MaloneBailey LLP
|
|
File
Herewith.
|
|
|
Consent of Law
office of Clifford J. Hunt, P.A. included in Exhibit
5.1
|
|
File
Herewith.
|
|
|
Mine Safety
Disclosure pursuant to Regulation S-K, Item 104
|
|
Incorporated herein
by reference to Exhibit 95.1 to the Company's 10K filed on April 3,
2019.
|
|
|
101.INS
|
|
XBRL Instance
Document
|
|
|
101.SCH
|
|
XBRL Taxonomy
Extension Schema Document
|
|
|
101.CAL
|
|
XBRL Taxonomy
Extension Calculation Linkbase Document
|
|
|
101.DEF
|
|
XBRL Taxonomy
Extension Definition Linkbase Document
|
|
|
101.LAB
|
|
XBRL Taxonomy
Extension Label Linkbase Document
|
|
|
101.PRE
|
|
XBRL Taxonomy
Extension Presentation Linkbase Document
|
|
|
Item
17. 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 of
1933;
(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 Commission 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
paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) of this section
do not apply if 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:
(A) 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
(B) 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 of 1933 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 the 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 that
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.
(5) That, for the
purpose of determining liability of the registrant under the
Securities Act of 1933 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:
(i) Any preliminary
prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule
424;
(ii) 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;
(iii) 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 the undersigned
registrant; and
(iv) Any other
communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
(b) The undersigned
registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Securities 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.
(c) Insofar as
indemnification for liabilities arising under the Securities Act of
1933 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 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 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 the City of Fishers,
State of Indiana on May 31, 2019.
|
AMERICAN
RESOURCES CORPORATION
|
|
|
|
|
|
|
By:
|
/s/ Mark C.
Jensen
|
|
|
|
Mark C.
Jensen
|
|
|
|
Chief Executive
Officer
|
|
POWER
OF ATTORNEY
Each person whose
signature appears below hereby constitutes and appoints Mark C.
Jensen as his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name,
place, and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and to sign any registration statement for
the same offering covered by this registration statement that is to
be effective upon filing pursuant to Rule 462(b) under the
Securities Act, and all post-effective amendments thereto, 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, and each of them
acting alone, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or his 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 by the following persons in the
capacities and on the dates indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/
Mark C. Jensen
|
|
Chairman of the
Board of Directors,
|
|
May
31
, 2019
|
Mark C.
Jensen
|
|
Chief Executive
Officer
|
|
|
|
|
|
|
|
/s/
Thomas M. Sauve
|
|
President and
Director
|
|
May
31
, 2019
|
Thomas M.
Sauve
|
|
|
|
|
|
|
|
|
|
/s/
Kirk P. Taylor
|
|
Chief Financial
Officer
|
|
May
31
, 2019
|
Kirk P.
Taylor
|
|
(Principal Accounting Officer)
|
|
|
|
|
|
|
|
/s/
Randal V. Stephenson
|
|
Director
|
|
May
31
, 2019
|
Randal V.
Stephenson
|
|
|
|
|
|
|
|
|
|
/s/
Ian Sadler
|
|
Director
|
|
May
31
, 2019
|
Ian
Sadler
|
|
|
|
|
|
|
|
|
|
/s/
Courtney O.
Taplin
|
|
Director
|
|
May
31, 2019
|
Courtney
O. Taplin
|
|
|
|
|
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