As filed with the Securities and Exchange Commission on April 8,
2019
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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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 APRIL 8, 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 Quarterly
Reports on Form 10-Q for quarters ended March 31, 2018, June 30,
2018 and September 30, 2018, filed with the SEC on May 15, 2018,
August 14, 2018 and November 14, 2018, respectively;
●
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, and March 8, 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.
|
|
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Articles of
Amendment to Articles of Incorporation of American Resources
Corporation dated March 24, 2017.
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Incorporated herein
by reference to Exhibit 3.4 to the Company’s Form 10-Q, filed
with the SEC on May 15, 2018.
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Bylaws of Natural
Gas Fueling and Conversion Inc.
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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.
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Bylaws, of NGFC
Equities Inc., as amended and restated.
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Incorporated herein
by reference to Exhibit 3.2 to the Company’s 8k filed on
February 25, 2015.
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Articles of
Amendment to Articles of Incorporation of American Resources
Corporation dated November 8, 2018.
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Filed as Exhibit
99.1 to the Company's 8k filed on November 13, 2018, incorporated
herein by reference.
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Bylaws of American
Resources Corporation, as amended and restated
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Incorporated herein
by reference to Exhibit 99.2 to the Company's 8k filed on November
13, 2018.
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Common
Stock Purchase Warrant "B-4" dated October 4, 2017
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Incorporated herein
by reference to Exhibit 4.1 to the Company’s 8k filed on
October 11, 2017.
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Common
Stock Purchase Warrant "C-1" dated October 4, 2017
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Incorporated herein
by reference to Exhibit 4.2 to the Company’s 8k filed on
October 11, 2017.
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Common
Stock Purchase Warrant "C-2" dated October 4, 2017
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Incorporated herein
by reference to Exhibit 4.3 to the Company’s 8k filed on
October 11, 2017.
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Common
Stock Purchase Warrant "C-3" dated October 4, 2017
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Incorporated herein
by reference to Exhibit 4.4 to the Company’s 8k filed on
October 11, 2017.
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Common
Stock Purchase Warrant "C-4" dated October 4, 2017
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Incorporated herein
by reference to Exhibit 4.5 to the Company’s 8k filed on
October 11, 2017.
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Promissory
Note for $600,000.00 dated October 4, 2017
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Incorporated herein
by reference to Exhibit 4.6 to the Company’s 8k filed on
October 11, 2017.
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Promissory
Note for $1,674,632.14 dated October 4, 2017
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Incorporated herein
by reference to Exhibit 4.7 to the Company’s 8k filed on
October 11, 2017.
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Loan
Agreement for up to $6,500,000 dated December 31, 2018
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Incorporated
herein by reference to Exhibit 99.1 to the Company's 8k filed on
January 3, 2019.
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Promissory
Note for up to $6,500,000 dated December 31, 2018
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Incorporated
herein by reference to Exhibit 99.2 to the Company's 8k filed on
January 3, 2019.
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Opinion of Law
Office of Clifford J. Hunt, P.A. as to legality
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Filed
Herewith.
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Secured
Promissory Note
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Incorporated
herein by reference to Exhibit 99.1 to the Company's 8k filed on
May 15, 2018.
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Security
Agreement
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Incorporated
herein by reference to Exhibit 99.2 to the Company's 8k filed on
May 15, 2018.
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Pledge
Agreement
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Incorporated
herein by reference to Exhibit 99.3 to the Company's 8k filed on
May 15, 2018.
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Guaranty
Agreement
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Incorporated
herein by reference to Exhibit 99.4 to the Company's 8k filed on
May 15, 2018.
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Bill
of Sale
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Incorporated
herein by reference to Exhibit 99.5 to the Company's 8k filed on
May 15, 2018.
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Sublease
Agreement Between Colonial Coal Company, Inc. and McCoy Elkhorn
Coal LLC
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Incorporated
herein by reference to Exhibit 99.1 to the Company's 8k filed on
May 1, 2018
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Interim
Operating Agreement
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Incorporated
herein by reference to Exhibit 99.2 to the Company's 8k filed on
May 1, 2018
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Consolidated
and Restated Loan and Security Agreement dated October 4,
2017
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Incorporated
herein by reference to Exhibit 10.1 to the Company's 8k filed on
October 11, 2017
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Asset
Purchase Agreement between Wyoming County Coal LLC and Thomas
Shelton dated November 7, 2018
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Incorporated herein by reference to Exhibit 10.9 to the
Company’s registration statement filed on December 11,
2018.
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Asset
Purchase Agreement between Wyoming County Coal LLC and Synergy
Coal, LLC dated November 7, 2018
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Incorporated herein by reference to Exhibit 10.10 to the Company's
registration statement filed on December 11, 2018.
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Security
Agreement
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Incorporated
herein by reference to Exhibit 99.3 to the Company's 8k filed on
January 3, 2019.
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Purchase
Order
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Incorporated
herein by reference to Exhibit 99.4 to the Company's 8k filed on
January 3, 2019.
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Employment
Agreement with Mark C. Jensen
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Incorporated herein by reference to Exhibit 10.13 to the Company's
registration statement filed on February 6, 2019.
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Employment
Agreement with Thomas M. Sauve
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Incorporated herein by reference to Exhibit 10.14 to the Company's
registration statement filed on February 6, 2019.
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Employment
Agreement with Kirk P. Taylor
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Incorporated herein by reference to Exhibit 10.15 to the Company's
registration statement filed on February 6, 2019.
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Employee
Stock Option Plan
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Incorporated herein by reference to Exhibit 10.16 to the Company's
registration statement filed on February 6, 2019.
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Letter
of Intent
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Incorporated
herein by reference to Exhibit 10.17 to the Company's registration
statement filed on February 6, 2019.
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Merger Agreement with Colonial Coal
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Incorporated
herein by reference to Exhibit 10.18 to the Company's registration
statement filed on February 14, 2019.
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Share Exchange Agreement to replace Merger Agreement with Colonial
Coal
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Incorporated
herein by reference to Exhibit 10.19 to the Company's registration
statement filed on February 14, 2019.
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Code of
Conduct
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Incorporated herein
by reference to Exhibit 99.2 to the Company's 8k filed on November
13, 2018.
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Financial Code of
Ethics
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Incorporated herein
by reference to Exhibit 99.3 to the Company's 8k filed on November
13, 2018.
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Consent of
MaloneBailey LLP
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File
Herewith.
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Consent of Law
office of Clifford J. Hunt, P.A. included in Exhibit
5.1
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File
Herewith.
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Mine Safety
Disclosure pursuant to Regulation S-K, Item 104
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Incorporated
herein by reference to Exhibit 95.1 to the Company's 10K filed on
April 3, 2019.
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101.INS
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XBRL Instance
Document
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101.SCH
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XBRL Taxonomy
Extension Schema Document
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101.CAL
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XBRL Taxonomy
Extension Calculation Linkbase Document
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101.DEF
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XBRL Taxonomy
Extension Definition Linkbase Document
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101.LAB
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XBRL Taxonomy
Extension Label Linkbase Document
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101.PRE
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XBRL Taxonomy
Extension Presentation Linkbase Document
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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 April 8, 2019.
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AMERICAN RESOURCES CORPORATION
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By:
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/s/
Mark C.
Jensen
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Mark C.
Jensen
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Chief Executive
Officer
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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.
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Signature
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Title
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Date
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/s/
Mark C. Jensen
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Chairman
of the Board of Directors,
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April
8, 2019
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Mark
C. Jensen
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Chief
Executive Officer
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/s/
Thomas M.
Sauve
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President
and Director
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April
8, 2019
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Thomas
M. Sauve
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/s/
Kirk P. Taylor
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Chief
Financial Officer
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April
8, 2019
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Kirk P.
Taylor
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(Principal Accounting Officer)
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/s/
Randal V.
Stephenson
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Director
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April
8, 2019
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Randal
V. Stephenson
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/s/
Ian Sadler
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Director
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April
8, 2019
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Ian
Sadler
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/s/
Courtney O.
Taplin
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Director
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April
8, 2019
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Courtney O. Taplin
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