As filed with the Securities and Exchange Commission on August 28,
2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
Aemetis, Inc.
(Exact name of registrant as specified in its charter)
(formerly known as AE Biofuels, Inc.)
Nevada
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2860
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26-1407544
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(State
or other jurisdiction of
incorporation
or organization)
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(Primary
Standard Industrial
Classification
Code Number)
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(I.R.S.
Employer
Identification
Number)
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20400 Stevens Creek Boulevard
Suite
700
Cupertino,
CA 95014
+1
(408) 213-0940
(Address, including zip code, and telephone number, including area
code, of registrant’s principal executive
offices)
Eric McAfee
Chief Executive Officer
Aemetis,
Inc.
20400
Stevens Creek Boulevard
Suite
700
Cupertino,
CA 95014
+1
(408) 213-0940
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies to:
Christopher
M. Forrester
Shearman & Sterling LLP
1460 El Camino Real, 2nd Floor
Menlo Park, California 94025
+1 (650) 838-3600
Approximate date of commencement of proposed sale to the
public:
From time to time after this registration statement is
declared effective.
If the
only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If any
of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. ☒
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, or a smaller reporting
company. See the definitions of “large accelerated
filer,” “accelerated filer,” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated
filer
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☐ (Do not check if a smaller reporting
company)
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Smaller reporting company
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☒
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Emerging
growth company
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☐
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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
pursuant to Section 7(a)(2)(B) of Securities Act.
☐
Calculation of Registration Fee:
Title of each
class of securities to be registered
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Amount to be
registered(1)(2)(3)
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Proposed maximum offering price per
unit(3)
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Aggregate maximum offering
price(3)(4)(5)
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Amount of registration fee(3)(6)
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Common
Stock, par value $0.001 per share
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Preferred Stock,
par value $0.001 per share
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Debt
Securities
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Warrants
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Rights
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Units(7)
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Total
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$100,000,000
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$ 12,980
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(1)
Also includes an
indeterminate number of shares of common stock or preferred stock
as may be issued by the Registrant upon exercise, conversion or
exchange of any securities that provide for such issuance. Except
as provided in Rule 426(b) under the Securities Act of 1933, in no
event will the aggregate offering price of all types of securities
issued by the Registrant pursuant to this registration statement
exceed $100,000,000.
(2)
Pursuant to Rule
416 under the Securities Act of 1933, this registration statement
also covers any additional securities that may be offered or issued
in connection with any stock split, stock dividend or similar
transaction.
(3)
Pursuant to General
Instruction II.D. of Form S-3, the table lists each of the classes
of securities being registered and the aggregate proceeds to be
raised, but does not specify by each class information as to the
amount to be registered, proposed maximum offering price per unit,
and proposed maximum aggregate offering price.
(4)
The proposed
maximum aggregate offering price has been estimated solely to
calculate the registration fee in accordance with Rule 457(o) under
the Securities Act of 1933.
(5)
Includes
consideration to be received by us, if applicable, for registered
securities that are issuable upon exercise, conversion or exchange
of other registered securities.
(6)
Pursuant to Rule
457(p) under the Securities Act, the registrant is offsetting the
registration fee of $12,980 against the $12,450 paid in respect of
the $100,000,000 aggregate offering price of securities registered
on the registration statement on Form S-3 (File No. 333-224952)
filed by the registrant on May 15, 2018, all of which are
unsold.
(7)
Consisting of some
or all of the securities listed above, in any combination,
including common stock, preferred stock and warrants.
The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities
Act of 1933, as amended, or until the registration statement shall
become effective on such date as the Commission, acting pursuant to
said Section 8(a), may determine.
The information contained 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 is not a solicitation of offers to buy these
securities in any jurisdiction where such offer or sale is not
permitted.
Subject to completion, Dated August 28, 2020
$100,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Rights
Units
We may
offer and sell from time to time common stock, preferred stock,
debt securities, warrants, rights and units that include any of
these securities. The preferred stock or warrants may be
convertible into or exercisable or exchangeable for common or
preferred stock or other of our securities registered hereunder.
The debt securities may be convertible into, or exercisable or
exchangeable for, common stock. Our common stock is listed on the
NASDAQ Global Market and trades under the symbol
“AMTX.”
We may
offer and sell these securities to or through one or more
underwriters, dealers and agents, or directly to purchasers, on a
continuous or delayed basis.
The aggregate market value of our outstanding common stock held by
non-affiliates was $53,266,170, based on 20,972,974 shares of
outstanding common stock as of August 26, 2020, of which
approximately 15,947,955 shares were held by non-affiliates, and
based on the last reported sale price of our common stock of $3.34
on August 12, 2020. Pursuant to General Instruction I.B.6 of
Form S-3, in no event will we sell securities pursuant to this
prospectus with a value of 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
common stock held by non-affiliates is less than $75,000,000. In
the event that subsequent to the date of this prospectus, the
aggregate market value of our outstanding common stock held by
non-affiliates equals or exceeds $75,000,000, then the one-third
limitation on sales shall not apply to additional sales made
pursuant to this prospectus. During the prior 12 calendar months
prior to, and including, the date of this prospectus, we have not
sold any securities pursuant to General Instruction I.B.6 of
Form S-3.
This
prospectus describes some of the general terms that may apply to
these securities and the general manner in which they may be
offered. The specific terms of any securities to be offered, and
the specific manner in which they may be offered, will be described
in a supplement to this prospectus. You should read this prospectus
and any applicable prospectus supplement carefully before you
invest.
See the “Risk Factors” section of this prospectus on
page 3, our filings with the SEC and the applicable prospectus
supplement for certain risks that you should consider before
investing in our securities.
None of the Securities and Exchange Commission, any state
securities commission or any other regulatory body has approved or
disapproved of these securities nor passed upon the accuracy or
adequacy of this prospectus. Any representation to the contrary is
a criminal offense.
The
date of this prospectus
is
, 2020.
TABLE OF CONTENTS
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Page
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ABOUT THIS PROSPECTUS
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1
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AVAILABLE INFORMATION
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1
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
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2
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FORWARD-LOOKING STATEMENTS
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2
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RISK FACTORS
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2
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SELECTED CONSOLIDATED FINANCIAL DATA
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3
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DESCRIPTION OF SECURITIES WE MAY OFFER
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4
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DESCRIPTION OF CAPITAL STOCK
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4
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DESCRIPTION OF PREFERRED STOCK
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7
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DESCRIPTION OF DEBT SECURITIES
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8
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DESCRIPTION OF WARRANTS
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17
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DESCRIPTION OF RIGHTS
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19
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DESCRIPTION OF UNITS
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20
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USE OF PROCEEDS
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21
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PLAN OF DISTRIBUTION
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21
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VALIDITY OF THE SECURITIES
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22
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EXPERTS
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22
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ABOUT THIS PROSPECTUS
This
document is called a prospectus and is part of a registration
statement that we have filed with the Securities and Exchange
Commission (“SEC”), using a “shelf”
registration process. Under this shelf registration process, we
may, from time to time, sell any combination of the securities
described in this prospectus in one or more offerings in amounts
that we will determine from time to time, up to a total dollar
amount of $100,000,000.
This
prospectus provides you with a general description of the
securities we may offer. Each time we offer a type or series of
securities described in this prospectus we will provide a
prospectus supplement, incorporate information by reference into
this prospectus, or use other offering material, as applicable,
containing more specific information about the terms of the
securities that are being offered. We may also authorize one or
more free writing prospectuses to be provided to you that may
contain material information relating to these offerings and
securities. This prospectus, together with applicable prospectus
supplements, any information incorporated by reference, and any
related free writing prospectuses we file with the SEC, includes
all material information relating to these offerings and
securities. We may also add, update or change in the prospectus
supplement any of the information contained in this prospectus or
in the documents that we have incorporated by reference into this
prospectus, including without limitation, a discussion of any risk
factors or other special considerations that apply to these
offerings or securities or the specific plan of distribution. If
there is any inconsistency between the information in this
prospectus and a prospectus supplement or information incorporated
by reference having a later date, you should rely on the
information in that prospectus supplement or incorporated
information having a later date. We urge you to read carefully this
prospectus, any applicable prospectus supplement and any related
free writing prospectus, together with the information incorporated
herein by reference as described under the heading
“Incorporation of Certain Information by Reference,”
before buying any of the securities being offered.
You
should rely only on the information we have provided or
incorporated by reference in this prospectus, any applicable
prospectus supplement and any related free writing prospectus. We
have not authorized anyone to provide you with different
information. No dealer, salesperson or other person is authorized
to give any information or to represent anything not contained in
this prospectus, any applicable prospectus supplement or any
related free writing prospectus.
Neither the delivery of this prospectus nor any sale made under it
implies that there has been no change in our affairs or that the
information in this prospectus is correct as of any date after the
date of this prospectus. You should assume that the information in
this prospectus, any applicable prospectus supplement or any
related free writing prospectus is accurate only as of the date on
the front of the document and that any information we have
incorporated by reference is accurate only as of the date of the
document incorporated by reference, regardless of the time of
delivery of this prospectus, any applicable prospectus supplement
or any related free writing prospectus, or any sale of a
security.
The
registration statement containing this prospectus, including
exhibits to the registration statement, provides additional
information about us and the securities offered under this
prospectus and any prospectus supplement. We have filed and plan to
continue to file other documents with the SEC that contain
information about us and our business. Also, we will file legal
documents that control the terms of the securities offered by this
prospectus as exhibits to the reports that we file with the SEC.
The registration statement and other reports can be read at the SEC
Internet site or at the SEC offices mentioned under the heading
“Available Information.”
This
prospectus contains summaries of certain provisions contained in
some of the documents described herein, but reference is made to
the actual documents for complete information. All of the summaries
are qualified in their entirety by the actual documents. Copies of
some of the documents referred to herein have been filed, will be
filed or will be incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under
“Available Information.”
We have
filed with the SEC a registration statement on Form S-3 under
the Securities Act of 1933, as amended (“Securities
Act”), with respect to the securities covered by this
prospectus. This prospectus, which is a part of the registration
statement, does not contain all of the information set forth in the
registration statement or the exhibits and schedules filed
therewith. For further information with respect to us and the
securities covered by this prospectus, please see the registration
statement and the exhibits filed with the registration statement. A
copy of the registration statement and the exhibits filed with the
registration statement may be inspected without charge at the
Public Reference Room maintained by the SEC, located at 100 F
Street, N.E., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for more information about the operation of the
Public Reference Room. The SEC also maintains an Internet website
that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the
SEC. The address of the website is http://www.sec.gov.
We are
subject to the information and periodic reporting requirements of
the Securities Exchange Act of 1934, as amended (“Exchange
Act”), and, in accordance therewith, we file periodic
reports, proxy statements and other information with the SEC. Such
periodic reports, proxy statements and other information are
available for inspection and copying at the Public Reference Room
and website of the SEC referred to above. We maintain a website at
http://www.aemetis.com. You may access our Annual Reports on
Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on
Form 8-K and amendments to those reports filed pursuant to
Sections 13(a) or 15(d) of the Exchange Act with the SEC free
of charge at our website as soon as reasonably practicable after
such material is electronically filed with, or furnished to, the
SEC. Our website and the information contained on that site, or
connected to that site, are not incorporated into and are not a
part of this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY
REFERENCE
The
SEC’s rules allow us to incorporate by reference information
into this prospectus. This means that we can disclose important
information to you by referring you to another document. Any
information referred to in this way is considered part of this
prospectus from the date we file that document. Any reports filed
by us with the SEC after the date of this prospectus and before the
date that the offering of the securities by means of this
prospectus is terminated will automatically update and, where
applicable, supersede any information contained in this prospectus
or incorporated by reference in this prospectus.
We
incorporate by reference into this prospectus the following
documents or information filed with the SEC (other than, in each
case, documents or information deemed to have been furnished and
not filed in accordance with SEC rules):
●
Our Annual Report
on Form 10-K for the year ended December 31, 2019, filed with
the SEC on March 12, 2020 (File No. 001-36475) (including the
information in Part III incorporated by reference from our
Definitive Proxy Statement on Schedule 14A filed with the SEC on
April 28, 2020);
●
Our Quarterly
Report on Form 10-Q for the quarters ended March 31, 2020, filed
with the SEC on May 14, 2020, and June 30, 2020, filed with the SEC
on August 13, 2020;
●
Our Current Report
on Form 8-K, filed with the SEC on April 28, 2020, June 9, 2020 and
August 18, 2020 (excluding any information furnished pursuant to
Item 2.02 or Item 7.01 of such Current Report on Form 8-K);
and
●
The description of
our common stock contained in the Registration Statement on
Form 8-A, filed with the SEC on June 3, 2014.
Additionally,
all documents filed by us with the SEC under Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act, after (i) the date of the
initial registration statement and prior to effectiveness of the
registration statement, and (ii) the date of this prospectus
and before the termination or completion of this offering, shall be
deemed to be incorporated by reference into this prospectus from
the respective dates of filing of such documents, except that we do
not incorporate any document or portion of a document that is
“furnished” to the SEC, but not deemed
“filed.” Any information that we subsequently file with
the SEC that is incorporated by reference as described above will
automatically update and supersede any previous information that is
part of this prospectus.
We will
provide without charge to each person, including any beneficial
owner, to whom this prospectus is delivered, upon his or her
written or oral request, a copy of any or all documents referred to
above which have been or may be incorporated by reference into this
prospectus excluding exhibits to those documents unless they are
specifically incorporated by reference into those documents.
Written or telephone requests should be directed to Aemetis, Inc.,
20400 Stevens Creek Boulevard, Suite 700, Cupertino, CA 95014,
Attention: Investor Relations; telephone: +1 (408)
213-0940.
FORWARD-LOOKING STATEMENTS
This
prospectus, including the documents we incorporate by reference
into it, contains forward-looking statements within the meaning of
Section 27A of the Securities Act, and Section 21E of the
Exchange Act, the Private Securities Litigation Reform Act of 1995
(the “PSLRA”) or in releases made by the SEC. Such
statements include, without limitation, statements regarding our
expectations, hopes or intentions regarding the future. Statements
that are not historical fact are forward-looking statements. These
forward looking statements can often be identified by their use of
words such as “expect,” “believe,”
“anticipate,” “outlook,”
“could,” “target,” “project,”
“intend,” “plan,” “seek,”
“estimate,” “should,” “will,”
“may” and “assume,” as well as variations
of such words and similar expressions referring to the future.
These cautionary statements are being made pursuant to the
Securities Act, the Exchange Act and the PSLRA with the intention
of obtaining the benefits of the “safe harbor”
provisions of such laws.
The forward-looking statements contained in or incorporated by
reference into this prospectus are largely based on our
expectations, which reflect estimates and assumptions made by our
management. These estimates and assumptions reflect our best
judgment based on currently known market conditions and other
factors. Although we believe such estimates and assumptions to be
reasonable, they are inherently uncertain and involve
certain risks and uncertainties, many of which are beyond our
control. If any of those risks and uncertainties materialize,
actual results could differ materially from those discussed in any
such forward-looking statement. Among the factors that could cause
actual results to differ materially from those discussed in
forward-looking statements are those discussed under the heading
“Risk Factors” below, those discussed under the heading
“Risk Factors” and in other sections of our Annual
Report on Form 10-K for the year ended December 31, 2019, as
well as in our other reports filed from time to time with the SEC
that are incorporated by reference into this prospectus. See
“Available Information” and “Incorporation of
Certain Information by Reference” for information about how
to obtain copies of those documents.
All readers are cautioned that the forward-looking statements
contained in this prospectus and in the documents incorporated by
reference into this prospectus are not guarantees of future
performance, and we cannot assure any reader that such statements
will be realized or that the forward-looking events and
circumstances will occur. Actual results may differ materially from
those anticipated or implied in the forward-looking
statements. All forward-looking statements in this
prospectus and the documents incorporated by reference into it are
made only as of the date of the document in which they are
contained, based on information available to us as of the date of
that document, and we caution you not to place undue reliance on
forward-looking statements in light of the risks and uncertainties
associated with them. Except as required by law, we undertake no
obligation to update any forward-looking statements, whether as a
result of new information, future events or otherwise.
Investing
in our securities involves significant risks. You should review
carefully the risks and uncertainties described under the heading
“Risk Factors” contained in, or incorporated into, the
applicable prospectus supplement and any related free writing
prospectus, and under similar headings in the other documents that
are incorporated by reference herein or therein. Each of the
referenced risks and uncertainties could adversely affect our
business, operating results and financial condition, as well as
adversely affect the value of an investment in our securities.
When we offer and sell any securities pursuant to a prospectus
supplement, we may include additional risk factors relevant to such
securities in the prospectus supplement.
SELECTED CONSOLIDATED FINANCIAL DATA
The
following tables set forth selected consolidated financial data for
the periods ended or as of the dates indicated. Such historical
consolidated financial data should be read in conjunction with the
information set forth in our Annual Report on Form 10-K for the
year ended December 31, 2019, filed with the SEC on March 12, 2020
and incorporated herein by reference.
The
statement of operations data presented below for each of the years
ended December 31, 2019 and 2018, and the balance sheet data as of
December 31, 2019 and 2018, are derived from the audited
“Consolidated Financial Statements” contained in our
Annual Report on Form 10-K for the year ended December 31, 2019.
Our historical results are not necessarily indicative of the
results to be expected for any future periods.
(in
thousands, except for loss per share)
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Statement
of Operations Data
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Sales
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$201,998
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$171,526
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Cost of goods
sold
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189,300
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166,121
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Gross
profit
|
12,698
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5,405
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Research and
development
expenses
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205
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246
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Selling, general
and administrative
expenses
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17,424
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16,085
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Operating
loss
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(4,931)
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(10,926)
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Interest rate
expense, debt related fees and amortization expense
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25,755
|
25,690
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Accretion of Series
A preferred
units
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2,257
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44
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Loss on impairment
of
intangibles
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-
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865
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Loss contingency on
litigation
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6,200
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-
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Other
income
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(797)
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(1,245)
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Income tax
expense
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(1,131)
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(7)
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Net
loss
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(39,477)
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36,287
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Loss per common
share – basic and
diluted
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(1.75)
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(1.63)
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Weighted average
shares outstanding – basic and
diluted
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20,467
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20,252
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Balance
Sheet Data
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Total
Assets
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$99,896
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$91,821
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Current
Liabilities
|
57,819
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42,579
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Long-term
Liabilities
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196,449
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164,824
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Total
Stockholder’s
Deficit
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$(154,372)
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$(115,582)
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DESCRIPTION OF SECURITIES WE MAY
OFFER
●
We may issue from
time to time, in one or more offerings the following
securities:
●
shares of common
stock;
●
shares of preferred
stock;
●
debt securities,
which may be senior or subordinated and may be convertible into or
exchangeable for common stock;
●
warrants
exercisable for debt securities, common stock or preferred
stock;
●
rights to purchase
any of such securities; and
●
units of debt
securities, common stock, preferred stock or warrants, in any
combination.
This
prospectus contains a summary of the material general terms of the
various securities that we may offer. The specific terms of the
securities will be described in a prospectus supplement,
information incorporated by reference or related free writing
prospectus, which may be in addition to or different from the
general terms summarized in this prospectus. Where applicable, the
prospectus supplement, information incorporated by reference or
related free writing prospectus will also describe any material
United States federal income tax considerations relating to the
securities offered and indicate whether the securities offered are
or will be listed on any securities exchange. The summaries
contained in this prospectus and in any prospectus supplements,
information incorporated by reference or related free writing
prospectus may not contain all of the information that you would
find useful. Accordingly, you should read the actual documents
relating to any securities sold pursuant to this prospectus. See
“Available Information” and “Incorporation of
Certain Information by Reference” for information about how
to obtain copies of those documents.
The
terms of any particular offering, the initial offering price and
the net proceeds to us will be contained in the prospectus
supplement, information incorporated by reference or free writing
prospectus, relating to such offering.
DESCRIPTION OF CAPITAL STOCK
General
The
following summary of the material features of our capital stock
does not purport to be complete and is subject to, and qualified in
its entirety by, the provisions of our amended and restated
articles of incorporation (“Articles of
Incorporation”), the Certificate of Designation of Series B
Preferred Stock, our bylaws (“Bylaws”) and other
applicable law. See “Available
Information.”
Authorized and Outstanding Capital Stock
Our
authorized capital stock consists of 40,000,000 shares of common
stock, $0.001 par value per share, and 65,000,000 shares of
preferred stock, $0.001 par value per share, of which 7,235,000
shares are designated as Series B Preferred Stock. As of August 26,
2020, there were 20,972,974 shares of common stock and 1,323,394
shares of Series B Preferred Stock issued and outstanding. The
following description of our capital stock does not purport to be
complete and should be reviewed in conjunction with our Articles of
Incorporation, including our Certificate of Designation of Series B
Preferred, and our Bylaws.
Common Stock
Dividends
Subject
to provisions of the Nevada Revised Statutes, or the NRS, the
rights of holders of our Series B Preferred Stock and to any future
rights which may be granted to the holders of any series of our
preferred stock, dividends are paid on our common stock when and as
declared by our board of directors.
Voting rights
Each
holder of shares of our common stock is entitled to one vote per
share on all matters submitted to a vote of our common
stockholders. Holders of our common stock are not entitled to
cumulative voting rights.
Liquidation
If we
are liquidated, holders of our common stock are entitled to receive
all remaining assets available for distribution to stockholders
after satisfaction of our liabilities and the preferential rights
of any of our preferred stock that may be outstanding at that
time.
Preemptive rights
The
holders of our common stock do not have any preemptive, conversion
or redemption rights by virtue of their ownership of the common
stock.
Listing
Our
common stock is listed on the NASDAQ Global Market and trades under
the symbol “AMTX.”
Transfer Agent And Registrar
The
Transfer Agent and Registrar for our common stock is
Equiniti.
Preferred Stock
Our
Articles of Incorporation authorize our Board of Directors
(“Board”) to issue shares of preferred stock in one or
more classes or series within a class upon authority of the Board
without further stockholder approval. Any preferred stock issued in
the future may rank senior to the Common Stock with respect to the
payment of dividends or amounts upon our liquidation, dissolution
or winding up. In addition, any such shares of preferred stock may
have class or series voting rights. Moreover, under certain
circumstances, the issuance of preferred stock or the existence of
the un-issued preferred stock might tend to discourage or render
more difficult a merger or other change in control. The issuance of
preferred stock, while providing desirable flexibility in
connection with possible acquisitions and other corporate purposes,
could have the effect of making it more difficult for a third party
to acquire, or of discouraging a third party from acquiring, us or
a majority of our outstanding voting stock.
Series B Preferred Stock
Voting
Holders
of our Series B Preferred Stock are entitled to the number of votes
equal to the number of shares of Common Stock into which the shares
of Series B Preferred Stock held by such holder could be converted
as of the record date. Currently, each share of Series B Preferred
Stock is entitled to one-tenth (1/10) of a vote per share of Series
B Preferred Stock. In addition, without obtaining the approval of
the holders of at least two-thirds (2/3) of the outstanding Series
B Preferred Stock, the Registrant cannot:
●
increase or
decrease (other than by redemption or conversion) the total number
of authorized shares of Series B Preferred Stock;
●
effect an exchange,
reclassification or cancellation of all or a part of the Series B
Preferred Stock, including a reverse stock split, but excluding a
stock split;
●
effect an exchange,
or create a right of exchange, of all or part of the shares of
another class of shares into shares of Series B Preferred Stock;
or
●
alter or change the
rights, preferences or privileges of the shares of Series B
Preferred Stock so as to affect adversely the shares of such
series.
Dividends
Holders
of all of our shares of Series B Preferred Stock are entitled to
receive noncumulative dividends payable in preference and prior to
any declaration or payment of any dividend on the Common Stock as
may from time to time be declared by the Board out of funds legally
available for that purpose at the rate of 5% of the original issue
price of $3.00 per share.
Liquidation Preference
In the
event of any voluntary or involuntary liquidation, dissolution or
winding up of the Registrant, the holders of the Series B Preferred
Stock are entitled to receive, prior and in preference to any
payment to the holders of the Common Stock, the original issue
price of $3.00 per share plus all declared but unpaid dividends (if
any) on the Series B Preferred Stock.
Conversion
Each
share of Series B Preferred Stock is convertible, at the option of
the holder thereof at any time, into shares of Common Stock at the
then effective conversion rate. In addition, at such time as a
registration statement covering the resale of the shares of Common
Stock issuable upon the conversion of the Series B Preferred Stock
is declared effective, then all outstanding Series B Preferred
Stock shall be automatically converted into Common Stock at the
then effective conversion rate. The conversion rate of the Series B
Preferred Stock is adjusted for stock splits, stock dividends,
stock combinations, reclassifications, exchanges and the
like. Assuming all of the issued and outstanding shares
of Series B Preferred Stock are converted to Common Stock, the
1,323,394 issued and outstanding shares of Series B Preferred Stock
as of August 26, 2020 will be converted to an aggregate of 132,340
shares of Common Stock.
Anti-Takeover Provisions
Certain
provisions of Nevada law, our Articles of Incorporation and our
Bylaws may have the effect of delaying, deferring or discouraging
another person from acquiring control of the Company.
Nevada Law
Nevada’s
“combinations with interested stockholders” statutes
(NRS 78.411 through 78.444, inclusive) prohibit specified types of
business “combinations” between certain Nevada
corporations and any person deemed to be an “interested
stockholder” for two years after such person first becomes an
“interested stockholder” unless the corporation’s
board of directors approves the combination (or the transaction by
which such person becomes an “interested stockholder”)
in advance, or unless the combination is approved by the board of
directors and sixty percent of the corporation’s voting power
not beneficially owned by the interested stockholder, its
affiliates and associates. Furthermore, in the absence of prior
approval certain restrictions may apply even after such two-year
period. For purposes of these statutes, an “interested
stockholder” is any person who is (1) the beneficial owner,
directly or indirectly, of ten percent or more of the voting power
of the outstanding voting shares of the corporation, or (2) an
affiliate or associate of the corporation and at any time within
the two previous years was the beneficial owner, directly or
indirectly, of ten percent or more of the voting power of the
then-outstanding shares of the corporation. The definition of the
term “combination” is sufficiently broad to cover most
significant transactions between a corporation and an
“interested stockholder.”
Nevada’s
“acquisition of controlling interest” statutes (NRS
78.378 through 78.3793, inclusive) contain provisions governing the
acquisition of a controlling interest in certain Nevada
corporations. These “control share” laws provide
generally that any person that acquires a “controlling
interest” in certain Nevada corporations may be denied voting
rights, unless a majority of the disinterested stockholders of the
corporation elects to restore such voting rights. These laws would
apply to us if we were to have 200 or more stockholders as of the
record date (at least 100 of whom have had addresses in Nevada
appearing on our stock ledger at all times during the 90 days
immediately preceding such date) and do business in the State of
Nevada directly or through an affiliated corporation, unless the
Articles of Incorporation or Bylaws in effect on the tenth day
after the acquisition of a controlling interest provide otherwise.
These laws provide that a person acquires a “controlling
interest” whenever a person acquires shares of a subject
corporation that, but for the application of these provisions of
the NRS, would enable that person to exercise (1) one-fifth or
more, but less than one-third, (2) one-third or more, but less than
a majority or (3) a majority or more, of all of the voting power of
the corporation in the election of directors. Once an acquirer
crosses one of these thresholds, shares which it acquired in the
transaction taking it over the threshold and within the 90 days
immediately preceding the date when the acquiring person acquired
or offered to acquire a controlling interest become “control
shares” to which the voting restrictions described above
apply.
In
addition, NRS 78.139 also provides that directors may resist a
change or potential change in control if the board of directors
determines that the change is opposed to, or not in, the best
interests of the corporation.
Board of Directors Vacancies
Generally,
under NRS 78.335, one or more of the incumbent directors may be
removed from office by the vote of stockholders representing
two-thirds or more of the voting power of the issued and
outstanding stock entitled to vote. In addition, if a court of
competent jurisdiction, or other governmental entity or regulatory
agency with authority over the corporation requires, without
providing any other reasonable and practicable alternative, that
any specified director cease to be a director in order for the
corporation to obtain, or avoid the suspension, conditioning or
revocation of, any permit, license, registration, franchise,
finding of suitability or similar authorization or approval
required for the conduct of all or any material portion of the
business of the corporation or any of its affiliates taken as a
whole and such requirement is not appealable or has otherwise
become final after declination or exhaustion of all appeals
therefrom, then that specified director may be removed as a
director by not less than a majority of the voting power of the
other directors, even if less than a quorum, acting at a meeting
and not by written consent and without a vote of the stockholders.
The Articles of Incorporation and Bylaws authorize only the Board
to fill vacant directorships. In addition, the number of directors
constituting the Board is set only by resolution adopted by a
majority vote of the entire Board. These provisions prevent a
stockholder from increasing the size of the Board and gaining
control of the Board by filling the resulting vacancies with its
own nominees.
No Cumulative Voting
The NRS
does not permit stockholders to cumulate their votes other than in
the election of directors, and then only if expressly authorized by
the Articles of Incorporation. The Articles of Incorporation as
currently in effect do not provide for cumulative voting in
election of directors.
DESCRIPTION OF PREFERRED STOCK
Shares
of our preferred stock may be issued in one or more series, and our
Board is authorized to determine the designation and to fix the
number of shares of each series. Our Board is further authorized to
fix and determine the dividend rate, premium or redemption rates,
conversion rights, voting rights, preferences, privileges,
restrictions and other variations granted to or imposed upon any
wholly unissued series of our preferred stock.
Prior
to the issuance of shares of a series of preferred stock, our Board
will adopt resolutions and file a certificate of designation with
the Secretary of State of the State of Nevada. The certificate of
designation will fix for each series the designation and number of
shares and the rights, preferences, privileges and restrictions of
the shares including, but not limited to, the
following:
●
voting rights, if
any, of the preferred stock;
●
any rights and
terms of redemption;
●
the dividend
rate(s), period(s) and/or payment date(s) or method(s) of
calculation applicable to the preferred stock;
●
whether dividends
are cumulative or non-cumulative, and if cumulative, the date from
which dividends on the preferred stock will
accumulate;
●
the relative
ranking and preferences of the preferred stock as to dividend
rights and rights upon the liquidation, dissolution or winding up
of our affairs;
●
the terms and
conditions, if applicable, upon which the preferred stock will be
convertible into common stock, another series of preferred stock,
or any other class of securities being registered hereby, including
the conversion price (or manner of calculation) and conversion
period;
●
the provision for
redemption, if applicable, of the preferred stock;
●
the provisions for
a sinking fund, if any, for the preferred stock;
●
liquidation
preferences;
●
any limitations on
the issuance of any class or series of preferred stock ranking
senior to or on a parity with the class or series of preferred
stock as to dividend rights and rights upon liquidation,
dissolution or winding up of our affairs; and
●
any other specific
terms, preferences, rights, limitations or restrictions of the
preferred stock.
In
addition to the terms listed above, we will set forth in a
prospectus supplement, information incorporated by reference, or
related free writing prospectus the following terms relating to the
class or series of preferred stock being offered:
●
the number of
shares of the preferred stock offered, the liquidation preference
per share and the offering price of the preferred
stock;
●
the procedures for
any auction and remarketing, if any, for the preferred
stock;
●
any listing of the
preferred stock on any securities exchange; and
●
a discussion of any
material and/or special United States federal income tax
considerations applicable to the preferred stock.
DESCRIPTION OF DEBT SECURITIES
We may
issue debt securities in one or more distinct series. This section
summarizes the material terms of the debt securities that are
common to all series. Most of the financial terms and other
specific material terms of any series of debt securities that we
offer will be described in a prospectus supplement or term sheet to
be attached to the front of this prospectus. Since the terms of
specific debt securities may differ from the general information
provided below, you should rely on information in the prospectus
supplement or term sheet that contradicts different information
below.
As
required by federal law for all bonds and notes of companies that
are publicly offered, the debt securities are governed by a
document called an “indenture.” An indenture is a
contract between us and a financial institution acting as trustee
on your behalf. The trustee has two main roles. First, the trustee
can enforce your rights against us if we default. There are some
limitations on the extent to which the trustee acts on your behalf,
described in the second paragraph under “Events of
Default.” Second, the trustee performs certain administrative
duties for us.
Senior
and subordinated debt securities will be issued by us under an
indenture (the “indenture”), between us, as issuer, and
a trustee to be named therein, as trustee (the
“trustee”).
The
indenture is subject to and governed by the Trust Indenture Act of
1939, as amended (the “TIA”). The terms
“we,” “our” and “us,” when used
to refer to an issuer of securities, means Aemetis,
Inc.
Because
this section is a summary, it does not describe every aspect of the
debt securities and the indenture. We urge you to read the
indenture because it, and not this description, defines your rights
as a holder of debt securities. For example, in this section, we
use capitalized words to signify terms that are specifically
defined in the indenture. Some of the definitions are repeated in
this prospectus, but for the rest you will need to read the
indenture. See “Where to Find More Information” for
information on how to locate the indenture and any supplemental
indentures that may be filed.
General Provisions of the Indenture
Each
series of debt securities will be unsecured obligations of Aemetis,
Inc. Any senior securities will rank equally with all other
unsecured and unsubordinated indebtedness of Aemetis, Inc. Any
subordinated securities will be subordinated in right of payment to
the prior payment in full of the senior indebtedness of Aemetis,
Inc. as more fully described in a prospectus supplement or term
sheet.
The
indenture provides that any debt securities proposed to be sold
under this prospectus and the attached prospectus supplement or
term sheet (“offered debt securities”) and any debt
securities issuable upon the exercise of debt warrants or upon
conversion or exchange of other offered securities
(“underlying debt securities”), as well as other
unsecured debt securities, may be issued under the indenture in one
or more series.
You
should read the prospectus supplement or term sheet for the
material terms of the offered debt securities and any underlying
debt securities, including the following:
●
The title of the
debt securities and whether the debt securities will be senior
securities or subordinated securities of Aemetis, Inc.
●
The total principal
amount of the debt securities of the series and any limit on such
total principal amount.
●
If not the
principal amount of the debt securities, the portion of the
principal amount payable upon acceleration of the maturity of the
debt securities or how this portion will be
determined.
●
The date or dates,
or how the date or dates will be determined or extended, when the
principal of the debt securities will be payable.
●
The interest rate
or rates, which may be fixed or variable, that the debt securities
will bear, if any, or how the rate or rates will be determined, the
date or dates from which any interest will accrue or how the date
or dates will be determined, the interest payment dates, any record
dates for these payments and the basis upon which interest will be
calculated if other than that of a 360-day year of twelve 30-day
months.
●
Any optional
redemption provisions.
●
Any sinking fund or
other provisions that would obligate us to repurchase or otherwise
redeem the debt securities.
●
The form in which
we will issue the debt securities and whether we will have the
option of issuing debt securities in “certificated”
form.
●
If other than U.S.
dollars, the currency or currencies in which the debt securities
are denominated and/or payable.
●
Whether the amount
of payments of principal, premium or interest, if any, on the debt
securities will be determined with reference to an index, formula
or other method (which index, formula or method may be based,
without limitation, on one or more currencies, commodities, equity
indices or other indices), and how these amounts will be
determined.
●
The place or
places, if any, other than or in addition to The City of New York,
of payment, transfer, conversion and/or exchange of the debt
securities.
●
If other than
minimum denominations of $2,000 or any integral multiple of $1,000
above the minimum denomination in the case of registered securities
issued in certificated form, the denominations in which the offered
debt securities will be issued.
●
If the provisions
of Article Fourteen of the indenture described under
“defeasance” are not applicable and any provisions in
modification of, in addition to or in lieu of any of these
provisions.
●
Whether and under
what circumstances we will pay additional amounts, as contemplated
by Section 1010 of the indenture, in respect of any tax, assessment
or governmental charge and, if so, whether we will have the option
to redeem the debt securities rather than pay the additional
amounts (and the terms of this option).
●
Whether the
securities are subordinated and the terms of such
subordination.
●
Any provisions
granting special rights to the holders of the debt securities upon
the occurrence of specified events.
●
Any changes or
additions to the Events of Default or covenants contained in the
applicable indenture.
●
Whether the debt
securities will be convertible into or exchangeable for any other
securities and the applicable terms and conditions.
●
Any other material
terms of the debt securities.
For
purposes of this prospectus, any reference to the payment of
principal of or premium or interest, if any, on the debt securities
will include additional amounts if required by the terms of the
debt securities.
The
indenture does not limit the amount of debt securities that may be
issued thereunder from time to time. Debt securities issued under
the indenture when a single trustee is acting for all debt
securities issued under the indenture are called the
“indenture securities.” The indenture also provides
that there may be more than one trustee thereunder, each with
respect to one or more different series of indenture securities.
See “—Resignation of Trustee” below. At a time
when two or more trustees are acting under the indenture, each with
respect to only certain series, the term “indenture
securities” means the one or more series of debt securities
with respect to which each respective trustee is acting. In the
event that there is more than one trustee under the indenture, the
powers and trust obligations of each trustee described in this
prospectus will extend only to the one or more series of indenture
securities for which it is trustee. If two or more trustees are
acting under the indenture, then the indenture securities for which
each trustee is acting would be treated as if issued under separate
indentures.
The
indenture does not contain any provisions that give you protection
in the event we issue a large amount of debt, we repurchase a
significant amount of equity or effect a recapitalization, or we
are acquired by another entity.
We
refer you to the applicable prospectus supplement or term sheet for
information with respect to any deletions from, modifications of or
additions to the Events of Default or our covenants that are
described below, including any addition of a covenant or other
provision providing event risk or similar protection.
We have
the ability to issue indenture securities with terms different from
those of indenture securities previously issued and, without the
consent of the holders thereof, to reopen a previous issue of a
series of indenture securities and issue additional indenture
securities of that series unless the reopening was restricted when
that series was created.
Unless
otherwise specified in the applicable prospectus supplement or term
sheet, the debt securities will be denominated in U.S. dollars and
all payments on the debt securities will be made in U.S.
dollars.
Payment
of the purchase price of the debt securities must be made in
immediately available funds.
The
authorized denominations of debt securities denominated in U.S.
dollars will be a minimum denomination of $2,000 and integral
multiples of $1,000 above the minimum denomination. The authorized
denominations of foreign currency Notes will be set forth in the
applicable prospectus supplement or term sheet.
Interest and Interest Rates
Each
debt security will begin to accrue interest from the date it is
originally issued. The related prospectus supplement or term sheet
will describe the method of determining the interest
rate.
Interest
on the debt securities other than in global form denominated in
U.S. dollars will be paid by check mailed on an Interest Payment
Date to the persons entitled thereto to the addresses of such
holders as they appear in the security register or, at our option,
by wire transfer to a bank account maintained by the holder. The
principal of, and premium, if any, and, if other than an Interest
Payment Date, interest on debt securities denominated in U.S.
dollars, together with interest accrued and unpaid thereon, due on
the Maturity Date will be paid in immediately available funds upon
surrender of such debt securities at the corporate trust office of
the trustee in The City of New York, or, at our option, by wire
transfer of immediately available funds to an account with a bank
designated at least 15 calendar days prior to the Maturity Date by
the applicable registered holder, provided the particular bank has
appropriate facilities to receive these payments and the particular
Note is presented and surrendered at the office or agency
maintained by us for this purpose in the Borough of Manhattan, The
City of New York, in time for the trustee to make these payments in
accordance with its normal procedures.
Global Securities
General
We
usually will issue debt securities as registered securities in
book-entry form only. A global security represents one or any other
number of individual debt securities. Generally, all debt
securities represented by the same global securities will have the
same terms.
Each
debt security issued in book-entry form will be represented by a
global security that we deposit with, or on behalf of, and register
in the name of a financial institution or its nominee that we
select. The financial institution that we select for this purpose
is called the depositary. Unless we specify otherwise in the
applicable prospectus supplement or term sheet, The Depository
Trust Company, New York, New York, known as DTC, will be the
depositary for all debt securities issued in book-entry
form.
A
global security may not be transferred to or registered in the name
of anyone other than the depositary or its nominee, unless special
termination situations arise. We describe those situations below
under “Special Situations when a Global Security Will Be
Terminated.” As a result of these arrangements, the
depositary, or its nominee, will be the sole registered owner and
holder of all debt securities represented by a global security, and
investors will be permitted to own only beneficial interests in a
global security. Beneficial interests must be held by means of an
account with a broker, bank or other financial institution that in
turn has an account with the depositary or with another institution
that has an account with the depositary. Thus, an investor whose
security is represented by a global security will not be a holder
of the debt security, but only an indirect owner of a beneficial
interest in the global security.
Special Considerations for Global Securities
As an
indirect holder, an investor’s rights relating to a global
security will be governed by the account rules of the
investor’s financial institution and of the depositary, as
well as general laws relating to securities transfers. The
depositary that holds the global security will be considered the
holder of the debt securities represented by the global
security.
If debt
securities are issued only in the form of a global security, an
investor should be aware of the following:
●
An investor cannot
cause the debt securities to be registered in his or her name, and
cannot obtain certificates for his or her interest in the debt
securities, except in the special situations we describe
below.
●
An investor will be
an indirect holder and must look to his or her own bank or broker
for payments on the debt securities and protection of his or her
legal rights relating to the debt securities.
●
An
investor may not be able to sell interests in the debt
securities to some insurance companies and other institutions that
are required by law to own their securities in non-book-entry
form.
●
An investor
may not be able to pledge his or her interest in a global security
in circumstances where certificates representing the debt
securities must be delivered to the lender or other beneficiary of
the pledge in order for the pledge to be effective.
●
The
depositary’s policies, which may change from time to
time, will govern payments, transfers, exchanges and other matters
relating to an investor’s interest in a global security. We
and the trustee have no responsibility for any aspect of the
depositary’s actions or for its records of ownership
interests in a global security. We and the trustee also do not
supervise the depositary in any way.
●
If we redeem
less than all the debt securities of a particular series being
redeemed, DTC’s practice is to determine by lot the amount to
be redeemed from each of its participants holding that
series.
●
An investor is
required to give notice of exercise of any option to elect
repayment of its debt securities, through its participant, to the
trustee and to deliver the related debt securities by causing its
participant to transfer its interest in those debt securities, on
DTC’s records, to the trustee.
●
DTC requires that
those who purchase and sell interests in a global security
deposited in its book−entry system use immediately available
funds. Your broker or bank may also require you to use immediately
available funds when purchasing or selling interests in a global
security.
●
Financial institutions
that participate in the depositary’s book−entry system,
and through which an investor holds its interest in a global
security, may also have their own policies affecting payments,
notices and other matters relating to the debt securities. There
may be more than one financial intermediary in the chain of
ownership for an investor. We do not monitor and are not
responsible for the actions of any of those
intermediaries.
Special Situations When a Global Security Will Be
Terminated
In a
few special situations described below, a global security will be
terminated and interests in it will be exchanged for debt
securities of the same series in non−book−entry form
(certificated debt securities). After that exchange, the choice of
whether to hold the certificated debt securities directly or in
street name will be up to the investor. Investors must consult
their own banks or brokers to find out how to have their interests
in a global security transferred on termination to their own names,
so that they will be holders.
The
special situations for termination of a global security are as
follows:
●
if the depositary
notifies us that it is unwilling, unable or no longer qualified to
continue as depositary for that global security, and we do not
appoint another institution to act as depositary within 90
days,
●
if we notify the
trustee that we wish to terminate that global security,
or
●
if an event of
default has occurred with regard to the debt securities represented
by that global security and has not been cured or waived; we
discuss defaults later under “Events of
Default.”
The
prospectus supplement or term sheet may list situations for
terminating a global security that would apply only to the
particular series of debt securities covered by the prospectus
supplement or term sheet. If a global security is terminated, only
the depositary, and not we or the trustee, will be responsible for
deciding the names of the institutions in whose names the debt
securities represented by the global security will be registered
and, therefore, who will be the holders of those debt
securities.
Payment and Paying Agents
We will
pay interest to the person listed in the trustee’s records as
the owner of the debt security at the close of business on a
particular day in advance of each regularly scheduled date for
interest, even if that person no longer owns the debt security on
the interest due date. That day, typically set at a date
approximately two weeks prior to the interest due date, is called
the “record date.” Because we will pay all the interest
for an interest period to the holders on the record date, holders
buying and selling debt securities must work out between themselves
the appropriate purchase price. The most common manner is to adjust
the sales price of the debt securities to prorate interest fairly
between buyer and seller based on their respective ownership
periods within the particular interest period. This prorated
interest amount is called “accrued
interest.”
Payments on Global Securities
We will
make payments on a global security in accordance with the
applicable policies of the depositary as in effect from time to
time. Under those policies, we will make payments directly to the
depositary, or its nominee, and not to any indirect holders who own
beneficial interests in the global security. An indirect
holder’s right to those payments will be governed by the
rules and practices of the depositary and its participants, as
described under “General” above.
Payments on Certificated Debt Securities
We will
make payments on a certificated debt security as follows. We will
pay interest that is due on an interest payment date by check
mailed on the interest payment date to the holder at his or her
address shown on the trustee’s records as of the close of
business on the regular record date. We will make payments of
principal and premium, if any, duly and punctually to the office of
the trustee.
Alternatively,
if the holder asks us to do so, we may pay any amount that becomes
due on the debt security by wire transfer of immediately available
funds to an account at a bank in New York City, on the due date. To
request payment by wire, the holder must give the trustee or other
paying agent appropriate transfer instructions at least 15 calendar
days before the requested wire payment is due. In the case of any
interest payment due on an interest payment date, the instructions
must be given by the person who is the holder on the relevant
regular record date. Any wire instructions, once properly given,
will remain in effect unless and until new instructions are given
in the manner described above. In addition, see the description
under “Interest and Interest Rates.”
Material Covenants
Consolidation, Merger, Sale or Conveyance
The
indenture provides that we may not consolidate with or merge into
any other entity or convey, transfer or lease our properties
and assets as an entirety or substantially as an entirety to any
entity, unless:
●
the successor or
transferee entity, if other than us, is a corporation organized and
existing under the laws of the United States, any state thereof or
the District of Columbia and expressly assumes by a supplemental
indenture executed and delivered to the trustee, in form reasonably
satisfactory to the trustee, the due and punctual payment of the
principal of, any premium on and any interest on, all of our
outstanding debt securities and the performance of every covenant
and obligation in the indenture to be performed or observed by
us;
●
immediately after
giving effect to the transaction, no Event of Default, as defined
in the indenture, and no event which, after notice or lapse of time
or both, would become an Event of Default, has happened and is
continuing; and
●
we have delivered
to the trustee an officers’ certificate and an opinion of
counsel, each in the form required by the indenture and stating
that such consolidation, merger, conveyance, transfer or lease and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture complies with the
foregoing provisions relating to such transaction.
In case
of any such consolidation, merger, conveyance or transfer, the
successor entity will succeed to and be substituted for us as
obligor on the debt securities with the same effect as if it had
been named in the indenture as issuer.
Restrictions on Liens
We will
not, and will not permit any Restricted Subsidiary to, create,
incur, issue, assume or guarantee any indebtedness for money
borrowed secured by a Mortgage (“Secured Debt”) upon
any Operating Property or any shares of stock or indebtedness for
borrowed money of any Restricted Subsidiary, whether owned at the
date of the indenture or thereafter acquired, without effectively
providing concurrently that the debt securities of each series then
outstanding under the indenture are secured equally and ratably
with or, at our option, prior to such Secured Debt so long as such
Secured Debt shall be so secured.
The
foregoing restriction shall not apply to, and there shall be
excluded from Secured Debt in any computation under such
restriction, Secured Debt secured by:
(1)
Mortgages on any
property, shares of stock or indebtedness for borrowed money of any
corporation existing at the time such corporation becomes a
Restricted Subsidiary;
(2)
Mortgages on
property or shares of stock existing at the time of acquisition of
such property or stock by us or a Restricted Subsidiary or existing
as of the original date of the applicable indenture;
(3)
Mortgages to secure
the payment of all or any part of the price of acquisition,
construction or improvement of such property or stock by us or a
Restricted Subsidiary, or to secure any Secured Debt incurred by us
or a Restricted Subsidiary, prior to, at the time of, or within 360
days after, the later of the acquisition or completion of
construction (including any improvements on an existing property),
which Secured Debt is incurred for the purpose of financing all or
any part of the purchase price thereof or construction of
improvements thereon; provided, however, that, in the case of any
such acquisition, construction or improvement, the Mortgage shall
not apply to any property theretofore owned by us or a Restricted
Subsidiary, other than, in the case of any such construction or
improvement, any theretofore substantially unimproved real property
on which the property or improvement so constructed is
located;
(4)
Mortgages securing
Secured Debt of a Restricted Subsidiary owing to us or to another
Restricted Subsidiary;
(5)
Mortgages on
property of a corporation existing at the time such corporation is
merged into or consolidated with us or a Restricted Subsidiary or
at the time of a sale, lease or other disposition of the properties
of a corporation or firm as an entirety or substantially as an
entirety to us or a Restricted Subsidiary;
(6)
Mortgages on
property of us or a Restricted Subsidiary in favor of the United
States or any state thereof, or any department, agency or
instrumentality or political subdivision of the United States or
any state thereof, or in favor of any other country or any
political subdivision thereof, or any department, agency or
instrumentality of such country or political subdivision, to secure
partial progress, advance or other payments pursuant to any
contract or statute or to secure any indebtedness incurred for the
purpose of financing all or any part of the purchase price or the
cost of construction of the property subject to such
Mortgages;
(7)
Any extension,
renewal or replacement (or successive extensions, renewals or
replacements) in whole or in part of any Mortgage referred to in
clauses (1) through (6) above and (9) below; provided, however,
that the principal amount of Secured Debt so secured shall not
exceed the principal amount of Secured Debt so secured at the time
of such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of the
property which secured the Mortgage so extended, renewed or
replaced (plus improvements and construction on such
property);
(8)
Mortgages upon any
Operating Property, or any transfer or disposition of any Operating
Property, that is created or implemented as a necessary component
of a bond for title transaction, payment in lieu of tax agreement
or other tax incentive vehicle designed to provide us or any
Subsidiary with certain ad valorem property tax savings or other
incentive savings; or
(9)
Mortgages to secure
Hedging Obligations entered into the ordinary course of business to
purchase any raw material or other commodity or to hedge risks or
reduce costs with respect to the interest rate, currency or
commodity exposure of us or any Restricted Subsidiary of
ours and not for speculative purposes.
Notwithstanding
the foregoing, we and any one or more of our Restricted
Subsidiaries may, however, without securing any debt securities,
create, incur, issue, assume or guarantee Secured Debt secured by a
Mortgage if, after giving effect to the transaction, the aggregate
of the Secured Debt then outstanding (not including Secured Debt
permitted under the above exceptions) does not exceed 15% of our
Consolidated Net Tangible Assets as shown on our financial
statements as of the end of the fiscal year preceding the date of
determination.
“Commodity
Agreement” means any forward contract, commodity swap,
commodity option or other financial agreement or arrangement
relating to, or the value of which is dependent upon, fluctuations
in commodity prices.
“Consolidated
Net Tangible Assets” means the total assets of Aemetis, Inc.
and its Restricted Subsidiaries (including, without limitation, any
net investment in Subsidiaries that are not Restricted
Subsidiaries) after deducting therefrom (a) all current liabilities
(excluding any thereof constituting indebtedness for borrowed
money) and (b) all goodwill, trade names, trademarks, franchises,
patents, unamortized debt discount and expense, organization and
developmental expenses and other like segregated intangibles, all
as computed by us and our Restricted Subsidiaries in accordance
with generally accepted accounting principles as of the end of the
fiscal year preceding the date of determination; provided, that any
items constituting deferred income taxes, deferred investment tax
credit or other similar items shall not be taken into account as a
liability or as a deduction from or adjustment to total
assets.
“Currency
Agreement” means any foreign exchange contract, currency swap
agreement or other similar agreement with respect to currency
values.
“GAAP”
means U.S. generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other successor entities
as have been sanctioned and approved by the Securities and Exchange
Commission, approved by a significant segment of the
accounting profession, that are applicable at the date of any
relevant calculation or determination.
“Hedging
Obligations” of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement, Currency Agreement,
Commodity Agreement or derivative contract entered into to hedge
interest rate risk, currency exchange risk, and commodity price
risk.
“Interest
Rate Agreement” means any interest rate swap agreement,
interest rate cap agreement or other financial agreement or
arrangement with respect to exposure to interest
rates.
“Mortgage”
or “Mortgages” means any mortgage, pledge, lien,
security interest or other encumbrances upon any Operating Property
or any shares of stock or on indebtedness for borrowed money of any
Restricted Subsidiary (whether such Operating Property, shares of
stock or indebtedness for borrowed money are now owned or hereafter
acquired).
“Operating
Property” means each plant or facility of Aemetis, Inc. or a
Restricted Subsidiary located within the United States except any
such plant or facility which the Board of Directors of Aemetis,
Inc. by resolution reasonably determines not to be of material
importance to the total business conducted by us and our Restricted
Subsidiaries.
“Person”
means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
“Restricted
Subsidiary” means any Subsidiary of us (i) substantially all
of the property of which is located, or substantially all of the
business of which is carried on, within the United States, and (ii)
which owns or is the lessee of any Operating Property.
“Subsidiary”
means (1) any corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power
for the election of directors of such corporation (irrespective of
whether or not at the time stock of any other class or classes of
such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time directly or
indirectly owned by us or by one or more other Subsidiaries
and (2) any other Person in which we or one or more other
Subsidiaries, directly or indirectly, at the date of determination,
(x) own at least a majority of the outstanding ownership interests
or (y) have the power to elect or direct the election of, or to
appoint or approve the appointment of, at least the majority of the
directors, trustees or managing members of, or other persons
holding similar positions with, such Person.
Restrictions on Sale and Leaseback Transactions
We will
not, and will not permit any Restricted Subsidiary to, enter into
any Sale and Leaseback Transaction unless:
(1)
we or such
Restricted Subsidiary would be entitled to create, incur, issue,
assume or guarantee indebtedness secured by a Mortgage upon such
property at least equal in amount to the Attributable Debt in
respect of such arrangement without equally and ratably securing
the debt securities; provided, however, that from and after the
date on which such arrangement becomes effective, the Attributable
Debt in respect of such arrangement shall be deemed, for all
purposes described under “—Restrictions on Liens”
above, to be Secured Debt subject to the provisions of the
covenants described therein;
(2)
since the original
date of the indenture and within a period commencing twelve months
prior to the consummation of such Sale and Leaseback Transaction
and ending twelve months after the consummation of such Sale and
Leaseback Transaction, we or any Restricted Subsidiary, as the case
may be, has expended or will expend for the Operating Property an
amount equal to (A) the net proceeds of such Sale and Leaseback
Transaction, and we elect to designate such amount as a credit
against such Sale and Leaseback Transaction, or (B) a part of the
net proceeds of such Sale and Leaseback Transaction and we elect to
designate such amount as a credit against such Sale and Leaseback
Transaction and apply an amount equal to the remainder of the net
proceeds as provided in the following paragraph; or
(3)
such Sale and
Leaseback Transaction does not come within the exceptions provided
by the first paragraph above under “—Restrictions on
Sale and Leaseback Transactions” and we do not make the
election permitted by the second paragraph under
“—Restrictions on Sale and Leaseback
Transactions” or make such election only as to a part of such
net proceeds, in either of which events we shall apply an amount in
cash equal to the Attributable Debt in respect of such arrangement
(less any amount elected under the second paragraph under
“—Restrictions on Sale and Leaseback
Transactions”) to the retirement, within 360 days of the
effective date of any such arrangement, of indebtedness for
borrowed money of we or any Restricted Subsidiary (other than
indebtedness for borrowed money of Aemetis, Inc. which is
subordinated to the debt securities) which by its terms matures at
or is extendible or renewable at the sole option of the obligor
without requiring the consent of the obligees to a date more than
twelve months after the date of the creation of such indebtedness
for borrowed money (it being understood that such retirement may be
made by prepayment of such indebtedness for borrowed money, if
permitted by the terms thereof, as well as by payment at maturity,
and that at our option and pursuant to the terms of the indenture,
such indebtedness may include the debt securities).
“Attributable
Debt” under the indenture means the present value (discounted
at the interest rate inherent in the lease, compounded annually) of
the obligation of a lessee for net rental payments during the
remaining term of any lease (including any period for which such
lease has been extended).
“Sale
and Leaseback Transaction” means any arrangement with any
person providing for the leasing by us or any Restricted Subsidiary
of any Operating Property, whether such Operating Property is now
owned or hereafter acquired (except for temporary leases for a
term, including renewals at the option of the lessee, of not more
than three years and except for leases between us and a Restricted
Subsidiary or between Restricted Subsidiaries), which property has
been or is to be sold or transferred by us or such Restricted
Subsidiary to such person with the intention of taking back a lease
of such property.
Events of Default
An
event of default with respect to the debt securities of any series
is defined in the indenture as:
(a)
default for 30 days
in payment of any interest on the debt securities of such series
when it becomes due and payable;
(b)
default in payment
of principal of or any premium on the debt securities of such
series at maturity or upon redemption or repayment when the same
becomes due and payable;
(c)
default by us in
the performance of any other covenant contained in the applicable
indenture for the benefit of the debt securities of such series
that has not been remedied by the end of a period of 90 days after
notice is given as specified in the indenture;
(d)
default in the
payment of principal or an acceleration of other indebtedness for
borrowed money of Aemetis, Inc. where the aggregate principal
amount with respect to which the default or acceleration has
occurred exceeds $25 million and such acceleration has not been
rescinded or annulled or such indebtedness repaid within a period
of 30 days after written notice to us by the trustee or to us and
the trustee by the holders of at least 25% in principal amount of
all outstanding debt securities under the indenture, provided that
if any such default is cured, waived, rescinded or annulled, then
the event of default by reason thereof would be deemed not to have
occurred; and
(e)
certain events of
bankruptcy, insolvency and reorganization of Aemetis,
Inc.
The
indenture provides that:
●
if an event of
default described in clause (a), (b), (c) or (d) above has occurred
and is continuing, either the trustee or the holders of not less
than 25% in aggregate principal amount of the debt securities of
the applicable series may declare the principal amount of the debt
securities then outstanding, and any accrued and unpaid interest
through the date of such declaration, to be due and payable
immediately;
●
upon certain
conditions such declarations may be annulled and past defaults
(except for defaults in the payment of principal of, or any premium
or interest on the debt securities and in compliance with certain
covenants) may be waived by the holders of a majority in aggregate
principal amount of the debt securities of the applicable series;
and
●
if an event of
default described in clause (e) occurs and is continuing, then the
principal amount of all debt securities issued under the indenture,
together with any accrued interest through the occurrence of such
event, shall become and be due and payable immediately, without any
declaration or other act by the trustee or any other
holder.
Under
the indenture, the trustee must give to the holders of debt
securities of any series notice of all uncured defaults known to it
with respect to the debt securities of such series within 90 days
after such a default occurs (the term default to include the events
specified above without notice or grace periods); provided that,
except in the case of default in the payments of principal of or
any premium or interest on any of the debt securities of such
series, the trustee will be protected in withholding such notice if
it in good faith determines that the withholding of such notice is
in the best interest of the holders of such debt
securities.
No
holder of any debt securities may institute any action under the
indenture unless:
●
such holder has
given the trustee written notice of a continuing event of default
with respect to the debt securities;
●
the holders of not
less than 25% in aggregate principal amount of the debt securities
of the applicable series have requested the trustee to institute
proceedings in respect of such event of default;
●
such holder or
holders have offered the trustee such reasonable indemnity as the
trustee may require;
●
the trustee has
failed to institute an action for 60 days thereafter;
and
●
no inconsistent
direction has been given to the trustee during such 60-day period
by the holders of a majority in aggregate principal amount of such
debt securities.
The
holders of a majority in aggregate principal amount of the debt
securities of any series will have the right, subject to certain
limitations, to direct the time, method and place of conducting any
proceeding for any remedy available to the trustee or exercising
any trust or power conferred on the trustee with respect to the
debt securities of such series. The indenture provides that, if an
event of default occurs and is continuing, the trustee, in
exercising its rights and powers under the indenture, will be
required to use the degree of care of a prudent man in the conduct
of his own affairs. The indenture further provides that the trustee
shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its
duties under the indenture unless it has reasonable grounds for
believing that repayment of such funds or adequate indemnity
against such risk or liability is reasonably assured to
it.
We must
furnish to the trustee within 120 days after the end of each fiscal
year a statement signed by an officer thereof to the effect that a
review of our activities during such year and our performance under
the indenture and the terms of the debt securities has been made,
and, to the knowledge of the signatories based on such review, we
have complied with all conditions and covenants of the indenture
or, if we are in default, specifying such default.
Modification of the Indenture
We and
the trustee may, without the consent of the holders of the debt
securities issued under such indenture, enter into supplemental
indentures for, among others, one or more of the following
purposes:
●
to evidence the
succession of another corporation to us and the assumption by such
successor of its obligations under the indenture and the debt
securities;
●
to add covenants of
Aemetis, Inc. or surrender of any of its rights, or add any rights
for the benefit of the holders of debt securities;
●
to cure any
ambiguity, omission, defect or inconsistency in such
indenture;
●
to establish the
form or terms of any other series of debt securities, including any
subordinated securities;
●
to evidence and
provide the acceptance of any successor trustee with respect to the
debt securities or one or more other series of debt securities
under the indenture or to facilitate the administration of the
trusts thereunder by one or more trustees in accordance with the
indenture; and
●
to provide any
additional events of default.
With
certain exceptions, the indenture or the rights of the holders of
the debt securities may be modified by us and the trustee with the
consent of the holders of a majority in aggregate principal amount
of the debt securities then outstanding affected thereby, but no
such modification may be made without the consent of the holder of
each outstanding note affected thereby that would:
●
change the maturity
of the principal of, or any premium on, or any installment of
principal of or interest on any debt securities, or reduce the
principal amount or any premium or the rate or manner of
calculating interest or any premium payable upon redemption or
repayment of any debt securities, or change the dates or periods
for any redemption or repayment or change any place of payment
where, or the coin or currency in which, any principal, premium or
interest is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the maturity thereof
(or, in the case of redemption or repayment, on or after the
redemption or repayment date);
●
reduce the
percentage in principal amount of the outstanding debt securities,
the consent of whose holders is required for any such modification,
or the consent of whose holders is required for any waiver of
compliance with certain provisions of the indenture or certain
defaults thereunder and their consequences provided for in the
indenture; or
●
modify any of the
provisions of certain sections of the indenture, including the
provisions summarized in this paragraph, except to increase any
such percentage or to provide that certain other provisions of the
indenture cannot be modified or waived without the consent of the
holder of each of the outstanding debt securities affected
thereby.
Defeasance
The
following provisions will be applicable to each series of debt
securities unless we state in the applicable prospectus supplement
or term sheet that the provisions of covenant defeasance and full
defeasance will not be applicable to that series.
Covenant Defeasance
Under
current United States federal tax law, we can make the deposit
described below and be released from some of the restrictive
covenants in the indenture under which the particular series was
issued. This is called “covenant defeasance.” In that
event, you would lose the protection of those restrictive covenants
but would gain the protection of having money and government
securities set aside in trust to repay your debt securities. In
order to achieve covenant defeasance, we must do the
following:
●
Deposit in trust
for the benefit of all holders of such debt securities a
combination of money and government or government agency debt
securities or bonds in the relevant currency that will generate
enough cash to make interest, principal and any other payments on
the debt securities of such series in the relevant currency on
their various due dates.
●
Deliver to the
trustee a legal opinion of our counsel confirming that, under
current United States federal income tax law, we may make the above
deposit without causing you to be taxed on the debt securities of
such series any differently than if we did not make the deposit and
just repaid such debt securities ourselves at
maturity.
If we
accomplish covenant defeasance, you can still look to us for
repayment of the debt securities if there were a shortfall in the
trust deposit or the trustee is prevented from making payment. In
fact, if one of the remaining Events of Default occurred (such as
our bankruptcy) and the debt securities became immediately due and
payable, there might be a shortfall. Depending on the event causing
the default, you may not be able to obtain payment of the
shortfall.
Full Defeasance
If
there is a change in United States federal tax law, as described
below, we can legally release ourselves from all payment and other
obligations on the debt securities of a particular series (called
“full defeasance”) if we put in place the following
other arrangements for you to be repaid:
●
We must deposit in
trust for the benefit of all holders of the debt securities of such
series a combination of money and government or government agency
debt securities or bonds in the relevant currency that will
generate enough cash to make interest, principal and any other
payments on the debt securities of such series in the relevant
currency on their various due dates.
●
We must deliver to
the trustee a legal opinion confirming that there has been a change
in current United States federal tax law or an Internal Revenue
Service ruling that allows us to make the above deposit without
causing you to be taxed on the debt securities of such series any
differently than if we did not make the deposit and just repaid
such debt securities ourselves at maturity. Under current United
States federal tax law, the deposit and our legal release from the
debt securities of such series would be treated as though we paid
you your share of the cash and debt securities or bonds at the time
the cash and debt securities or bonds were deposited in trust in
exchange for your debt securities and you would recognize gain or
loss on your debt securities at the time of the
deposit.
If we
ever did accomplish full defeasance, as described above, you would
have to rely solely on the trust deposit for repayment of the debt
securities of such series. You could not look to us for repayment
in the unlikely event of any shortfall. Conversely, the trust
deposit would most likely be protected from claims of our lenders
and other creditors if we ever became bankrupt or
insolvent.
Legal
defeasance and full defeasance are both subject to certain
conditions, such as no default or event of default occurring and
continuing, and no breach of any material agreement.
Discharge of the Indenture
We may
satisfy and discharge our obligations under the indenture by
delivering to the trustee for cancellation all outstanding debt
securities or by depositing with the trustee or the paying agent
after the debt securities have become due and payable, whether at
stated maturity, or any redemption or repayment date, or otherwise,
cash sufficient to pay all of the outstanding debt securities and
paying all other sums payable under the indenture.
Form, Exchange and Transfer of Certificated Debt
Securities
If
registered debt securities cease to be issued in book-entry form,
they will be issued:
●
only in fully
registered certificated form,
●
without interest
coupons, and
●
unless we indicate
otherwise in the prospectus supplement or term sheet, in a minimum
denomination of $2,000 and amounts above the minimum denomination
that are integral multiples of $1,000.
Holders
may exchange their certificated debt securities of smaller
denominations or combined into fewer debt securities of larger
denominations, as long as the total principal amount is not
changed.
Holders
may exchange or transfer their certificated debt securities at the
office of the trustee. We have appointed the trustee to act as our
agent for registering debt securities in the names of holders
transferring debt securities. We may appoint another entity to
perform these functions or perform them ourselves.
Holders
will not be required to pay a service charge to transfer or
exchange their certificated securities, but they may be required to
pay any tax or other governmental charge associated with the
transfer or exchange. The transfer or exchange will be made only if
our transfer agent is satisfied with the holder’s proof of
legal ownership.
If we
have designated additional transfer agents for your debt security,
they will be named in the applicable prospectus supplement or term
sheet. We may appoint additional transfer agents or cancel the
appointment of any particular transfer agent. We may also approve a
change in the office through which any transfer agent
acts.
If any
certificated debt securities of a particular series are redeemable
and we redeem less than all the debt securities of that series, we
may block the transfer or exchange of those debt securities during
the period beginning 15 days before the day we mail the notice of
redemption and ending on the day of that mailing, in order to
freeze the list of holders to prepare the mailing. We may also
refuse to register transfers or exchanges of any certificated debt
securities selected for redemption, except that we will continue to
permit transfers and exchanges of the unredeemed portion of any
debt security that will be partially redeemed.
If a
registered debt security is issued in book−entry form, only
the depositary will be entitled to transfer and exchange the debt
security as described in this subsection, since it will be the sole
holder of the debt security.
Resignation of Trustee
The
trustee may resign or be removed at any time with respect to one or
more series of indenture securities provided that a successor
trustee is appointed to act with respect to these series. In the
event that two or more persons are acting as trustee with respect
to different series of indenture securities under the indenture,
each of the trustees will be a trustee of a trust separate and
apart from the trust administered by any other
trustee.
The Trustee Under the Indenture
The
trustee may be one of a number of banks with which we maintain
ordinary banking relationships and from which we may obtain credit
facilities and lines of credit in the future. The trustee may also
serve as trustee under other indentures under which we are the
obligor in the future.
General
We may
issue warrants to purchase debt securities, common stock, preferred
stock or any combination of these securities. We may issue the
warrants independently or together with any underlying securities,
and the warrants may be attached or separate from the underlying
securities. We may also issue a series of warrants under a separate
warrant agreement to be entered into between us and a warrant
agent. The warrant agent will act solely as our agent in connection
with the warrants of such series and will not assume any obligation
or relationship of agency for or with holders or beneficial owners
of warrants.
The
following description is a summary of selected provisions relating
to the warrants that we may issue. The summary is not complete.
When warrants are offered in the future, a prospectus supplement,
information incorporated by reference or related free writing
prospectus, as applicable, will explain the particular terms of
those securities and the extent to which these general provisions
may apply. The specific terms of the warrants as described in a
prospectus supplement information, incorporated by reference or
related free writing prospectus will supplement and, if applicable,
may modify or replace the general terms described in this
section.
This
summary and any description of warrants in the applicable
prospectus supplement, information incorporated by reference or
related free writing prospectus is subject to and is qualified in
its entirety by reference to all the provisions of any specific
warrant document or agreement, which we will file with the SEC for
incorporation by reference into this prospectus. See
“Available Information” and “Incorporation of
Certain Information by Reference” for information on how to
obtain a copy of a warrant document when it is filed.
When we
refer to a series of warrants, we mean all warrants issued as part
of the same series under the applicable warrant
agreement.
Terms
The
applicable prospectus supplement, information incorporated by
reference or related free writing prospectus, may describe the
terms of any warrants that we may offer, including but not limited
to the following:
●
the title of the
warrants;
●
the total number of
warrants;
●
the price or prices
at which the warrants will be issued;
●
the currency or
currencies that investors may use to pay for the
warrants;
●
the date on which
the right to exercise the warrants will commence and the date on
which the right will expire;
●
whether the
warrants will be issued in registered form or bearer
form;
●
information with
respect to book-entry procedures, if any;
●
if applicable, the
minimum or maximum amount of warrants that may be exercised at any
one time;
●
if applicable, the
designation and terms of the underlying securities with which the
warrants are issued and the number of warrants issued with each
underlying security;
●
if applicable, the
date on and after which the warrants and the related underlying
securities will be separately transferable;
●
if applicable, a
discussion of material United States federal income tax
considerations;
●
if applicable, the
terms of redemption of the warrants;
●
the identity of the
warrant agent, if any;
●
the procedures and
conditions relating to the exercise of the warrants;
and
●
any other terms of
the warrants, including terms, procedures, and limitations relating
to the exchange and exercise of the warrants.
Warrant Agreements
We may
issue the warrants in one or more series under one or more warrant
agreements, each to be entered into between us and a bank, trust
company, or other financial institution as warrant agent. We may
add, replace, or terminate warrant agents from time to time. We may
also choose to act as our own warrant agent or may choose one of
our subsidiaries to do so.
The
warrant agent under a warrant agreement will act solely as our
agent in connection with the warrants issued under that agreement.
The warrant agent will not assume any obligation or relationship of
agency or trust for or with any holders of those warrants. Any
holder of warrants may, without the consent of any other person,
enforce by appropriate legal action, on its own behalf, its right
to exercise those warrants in accordance with their terms. Until
the warrant is properly exercised, no holder of any warrant will be
entitled to any rights of a holder of the warrant property
purchasable upon exercise of the warrant.
Form, Exchange, and Transfer
We may
issue the warrants in registered form or bearer form. Warrants
issued in registered form, i.e., book-entry form, will be
represented by a global security registered in the name of a
depository, which will be the holder of all the warrants
represented by the global security. Those investors who own
beneficial interests in a global warrant will do so through
participants in the depository’s system, and the rights of
these indirect owners will be governed solely by the applicable
procedures of the depository and its participants. In addition, we
may issue warrants in non-global form, i.e., bearer form. If any warrants are
issued in non-global form, warrant certificates may be exchanged
for new warrant certificates of different denominations, and
holders may exchange, transfer, or exercise their warrants at the
warrant agent’s office or any other office indicated in the
applicable prospectus supplement, information incorporated by
reference or related free writing prospectus.
Prior
to the exercise of their warrants, holders of warrants exercisable
for debt securities will not have any of the rights of holders of
the debt securities purchasable upon such exercise and will not be
entitled to payments of principal (or premium, if any) or interest,
if any, on the debt securities purchasable upon such exercise.
Prior to the exercise of their warrants, holders of warrants
exercisable for shares of preferred stock or common stock will not
have any rights of holders of the preferred stock or common stock
purchasable upon such exercise and will not be entitled to dividend
payments, if any, or voting rights of the preferred stock or common
stock purchasable upon such exercise.
Exercise of Warrants
A
warrant will entitle the holder to purchase for cash an amount of
securities at an exercise price that will be stated in, or that
will be determinable as described in, the applicable prospectus
supplement, information incorporated by reference or related free
writing prospectus. Warrants may be exercised at any time up to the
close of business on the expiration date set forth in the
applicable prospectus supplement, information incorporated by
reference or related free writing prospectus. After the close of
business on the expiration date, unexercised warrants will become
void. Warrants may be redeemed as set forth in the applicable
prospectus supplement, information incorporated by reference or
related free writing prospectus.
Warrants
may be exercised as set forth in the applicable prospectus
supplement, information incorporated by reference or related free
writing prospectus. Upon receipt of payment and the warrant
certificate properly completed and duly executed at the corporate
trust office of the warrant agent or any other office indicated in
the prospectus supplement, information incorporated by reference or
related free writing prospectus, we will forward, as soon as
practicable, the securities purchasable upon such exercise. If less
than all of the warrants represented by such warrant certificate
are exercised, a new warrant certificate will be issued for the
remaining warrants.
We may
issue rights to purchase our debt securities, common stock or
preferred stock. These rights may be issued independently or
together with any other security offered hereby and may or may not
be transferable by the stockholder receiving the rights in such
offering. In connection with any offering of such rights, we may
enter into a standby arrangement with one or more underwriters or
other purchasers pursuant to which the underwriters or other
purchasers may be required to purchase any securities remaining
unsubscribed for after such offering.
Each
series of rights will be issued under a separate rights agreement
which we will enter into with a bank or trust company, as rights
agent, all which will be set forth in the relevant offering
material. The rights agent will act solely as our agent in
connection with the certificates relating to the rights and will
not assume any obligation or relationship of agency or trust with
any holders of rights certificates or beneficial owners of
rights.
The
following description is a summary of selected provisions relating
to rights that we may offer. The summary is not complete. When
rights are offered in the future, a prospectus supplement,
information incorporated by reference or related free writing
prospectus, as applicable, will explain the particular terms of
those securities and the extent to which these general provisions
may apply. The specific terms of the rights as described in a
prospectus supplement, information incorporated by reference, or
related free writing prospectus will supplement and, if applicable,
may modify or replace the general terms described in this
section.
This
summary and any description of rights in the applicable prospectus
supplement, information incorporated by reference or related free
writing prospectus is subject to and is qualified in its entirety
by reference to the rights agreement and the rights certificates.
We will file each of these documents, as applicable, with the SEC
and incorporate them by reference as an exhibit to the registration
statement of which this prospectus is a part on or before the time
we issue a series of rights. See “Available
Information” and “Incorporation of Certain Documents by
Reference” above for information on how to obtain a copy of a
document when it is filed.
The
applicable prospectus supplement, information incorporated by
reference or related free writing prospectus may
describe:
●
in the case of a
distribution of rights to our stockholders, the date of determining
the stockholders entitled to the rights distribution;
●
in the case of a
distribution of rights to our stockholders, the number of rights
issued or to be issued to each stockholder;
●
the exercise price
payable for the underlying debt securities, common stock or
preferred stock upon the exercise of the
rights;
●
the number and
terms of the underlying debt securities, common stock or
preferred stock which may be purchased per each
right;
●
the extent to which
the rights are transferable;
●
the date on which
the holder’s ability to exercise the rights shall commence,
and the date on which the rights shall expire;
●
the extent to which
the rights may include an over-subscription privilege with respect
to unsubscribed securities;
●
if applicable, the
material terms of any standby underwriting or purchase arrangement
entered into by us in connection with the offering of such rights;
and
●
any other terms of
the rights, including, but not limited to, the terms, procedures,
conditions and limitations relating to the exchange and exercise of
the rights.
The
provisions described in this section, as well as those described
under “—Description of Debt Securities” and
“—Description of Capital Stock” above, will
apply, as applicable, to any rights we offer.
General
We may
issue units composed of any combination of our debt securities,
common stock, preferred stock and warrants. We will issue each unit
so that the holder of the unit is also the holder of each security
included in the unit. As a result, 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.
The
following description is a summary of selected provisions relating
to units that we may offer. The summary is not complete. When units
are offered in the future, a prospectus supplement, information
incorporated by reference or related free writing prospectus, as
applicable, will explain the particular terms of those securities
and the extent to which these general provisions may apply. The
specific terms of the units as described in a prospectus supplement
or information incorporated by reference will supplement and, if
applicable, may modify or replace the general terms described in
this section.
This
summary and any description of units in the applicable prospectus
supplement, information incorporated by reference or related free
writing prospectus is subject to and is qualified in its entirety
by reference to the unit agreement, collateral arrangements and
depositary arrangements, if applicable. We will file these
documents with the SEC for incorporation by reference into this
prospectus, as applicable. See “Available Information”
and “Incorporation of Certain Information by Reference”
for information on how to obtain a copy of a document when it is
filed.
The
applicable prospectus supplement, information incorporated by
reference or related free writing prospectus may
describe:
●
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 for
the issuance, payment, settlement, transfer, or exchange of the
units or of the securities composing the units;
●
whether the units
will be issued in fully registered or global form; and
●
any other terms of
the units.
The
applicable provisions described in this section, as well as those
described under “Description of Debt Securities,”
“Description of Capital Stock” and “Description
of Warrants,” will apply to each unit and to each security
included in each unit, respectively.
Unless
otherwise indicated in the applicable prospectus supplement,
information incorporated by reference or related free writing
prospectus, we intend to use the net proceeds from the sale of
securities for general corporate purposes.
We may
sell the securities through underwriters or dealers, through
agents, directly to one or more purchasers, through a rights
offering, or otherwise. We will describe the terms of the offering
of the securities in a prospectus supplement, information
incorporated by reference or related free writing prospectus,
including:
●
the name or names
of any underwriters, if any;
●
the purchase price
of the securities and the proceeds we will receive from the
sale;
●
any underwriting
discounts and other items constituting underwriters’
compensation;
●
any initial public
offering price;
●
any discounts or
concessions allowed or reallowed or paid to dealers;
and
●
any securities
exchange or market on which the securities may be
listed.
Only
underwriters we name in the prospectus supplement, information
incorporated by reference or related free writing prospectus are
underwriters of the securities offered thereby.
The
distribution of securities may be effected, from time to time, in
one or more transactions, including:
●
block transactions
(which may involve crosses) and transactions on the NASDAQ Global
Market or any other organized market where the securities may be
traded;
●
purchases by a
broker-dealer as principal and resale by the broker-dealer for its
own account pursuant to a prospectus supplement;
●
ordinary brokerage
transactions and transactions in which a broker-dealer solicits
purchasers;
●
sales “at the
market” to or through a market maker or into an existing
trading market, on an exchange or otherwise; and
●
sales in other ways
not involving market makers or established trading markets,
including direct sales to purchasers.
The
securities may be sold at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at
prices relating to the prevailing market prices or at negotiated
prices. The consideration may be cash or another form negotiated by
the parties. Agents, underwriters or broker-dealers may be paid
compensation for offering and selling the securities. That
compensation may be in the form of discounts, concessions or
commissions to be received from us or from the purchasers of the
securities. Dealers and agents participating in the distribution of
the securities may be deemed to be underwriters, and compensation
received by them on resale of the securities may be deemed to be
underwriting discounts and commissions under the Securities Act. If
such dealers or agents were deemed to be underwriters, they may be
subject to statutory liabilities under the Securities
Act.
We may
also make direct sales through subscription rights distributed to
our existing stockholders on a pro rata basis, which may or may not
be transferable. In any distribution of subscription rights to our
stockholders, if all of the underlying securities are not
subscribed for, we may then sell the unsubscribed securities
directly to third parties or may engage the services of one or more
underwriters, dealers or agents, including standby underwriters, to
sell the unsubscribed securities to third parties.
Some or
all of the securities that we offer though this prospectus may be
new issues of securities with no established trading market. Any
underwriters to whom we sell our securities for public offering and
sale may make a market in those securities, but they will not be
obligated to do so and they may discontinue any market making at
any time without notice. Accordingly, we cannot assure you of the
liquidity of, or continued trading markets for, any securities that
we offer.
Agents
may, from time to time, solicit offers to purchase the securities.
If required, we will name in the applicable prospectus supplement,
document incorporated by reference or related free writing
prospectus, as applicable, any agent involved in the offer or sale
of the securities and set forth any compensation payable to the
agent. Unless otherwise indicated, any agent will be acting on a
best efforts basis for the period of its appointment. Any agent
selling the securities covered by this prospectus may be deemed to
be an underwriter, as that term is defined in the Securities Act,
of the securities.
If
underwriters are used in an offering, securities will be acquired
by the underwriters for their own account and may be resold, from
time to time, in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices
determined at the time of sale, or under delayed delivery contracts
or other contractual commitments. Securities may be offered to the
public either through underwriting syndicates represented by one or
more managing underwriters or directly by one or more firms acting
as underwriters. If an underwriter or underwriters are used in the
sale of securities, an underwriting agreement will be executed with
the underwriter or underwriters at the time an agreement for the
sale is reached. The applicable prospectus supplement will set
forth the managing underwriter or underwriters, as well as any
other underwriter or underwriters, with respect to a particular
underwritten offering of securities, and will set forth the terms
of the transactions, including compensation of the underwriters and
dealers and the public offering price, if applicable. The
prospectus, and the applicable prospectus supplement and any
applicable free writing prospectus will be used by the underwriters
to resell the securities.
If a
dealer is used in the sale of the securities, we or an underwriter
will sell the securities to the dealer, as principal. The dealer
may then resell the securities to the public at varying prices to
be determined by the dealer at the time of resale. To the extent
required, we will set forth in the prospectus supplement, document
incorporated by reference or related free writing prospectus, as
applicable, the name of the dealer and the terms of the
transactions.
We may
directly solicit offers to purchase the securities and may make
sales of securities directly to institutional investors or others.
These persons may be deemed to be underwriters within the meaning
of the Securities Act with respect to any resale of the securities.
To the extent required, the prospectus supplement, document
incorporated by reference or related free writing prospectus, as
applicable, will describe the terms of any such sales, including
the terms of any bidding or auction process, if used.
Agents,
underwriters and dealers may be entitled under agreements which may
be entered into with us to indemnification against specified
liabilities, including liabilities incurred under the Securities
Act, or to contribution to payments they may be required to make in
respect of such liabilities. If required, the prospectus
supplement, document incorporated by reference or related free
writing prospectus, as applicable, will describe the terms and
conditions of such indemnification or contribution. Some of the
agents, underwriters or dealers, or their affiliates may be
customers of, engage in transactions with or perform services for
us, our subsidiaries or affiliates in the ordinary course of
business.
Under
the securities laws of some states, the securities offered by this
prospectus may be sold in those states only through registered or
licensed brokers or dealers.
Any
person participating in the distribution of common stock registered
under the registration statement that includes this prospectus will
be subject to applicable provisions of the Exchange Act, and the
applicable SEC rules and regulations, including, among others,
Regulation M, which may limit the timing of purchases and sales of
any of our common stock by any such person. Furthermore, Regulation
M may restrict the ability of any person engaged in the
distribution of our common stock to engage in market-making
activities with respect to our common stock. These restrictions may
affect the marketability of our common stock and the ability of any
person or entity to engage in market-making activities with respect
to our common stock.
Certain
persons participating in an offering may engage in over-allotment,
stabilizing transactions, short-covering transactions and penalty
bids in accordance with Regulation M under the Exchange Act that
stabilize, maintain or otherwise affect the price of the offered
securities. If any such activities will occur, they will be
described in the applicable prospectus supplement.
To the
extent required, this prospectus may be amended or supplemented
from time to time to describe a specific plan of
distribution.
All
securities we offer other than common stock will be new issues of
securities with no established trading market. Any underwriters may
make a market in these securities, but will not be obligated to do
so and may discontinue any market making at any time without
notice. We cannot guarantee the liquidity of the trading markets
for any securities.
VALIDITY OF THE SECURITIES
McDonald
Carano LLP will pass upon the validity of the securities offered
pursuant to this prospectus for us. With respect to matters of New
York law, the validity of the securities to be issued by the
Registrant will be passed upon by Shearman & Sterling
LLP.
The
consolidated financial statements incorporated in this Prospectus
by reference to the Registrant’s Annual Report on Form 10-K
for the year ended December 31, 2019, have been audited by RSM US
LLP, an independent registered public accounting firm, as stated in
their reports incorporated by reference herein, and have been so
incorporated in reliance upon such reports and upon the authority
of such firm as experts in accounting and auditing.
PART II. INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The
following table sets forth all expenses to be paid by the
Registrant in connection with this offering.
|
|
SEC registration
fee
|
$12,980
|
FINRA filing
fee
|
$15,500
|
Nasdaq listing
fee
|
*
|
Printing
|
*
|
Legal fees and
expenses
|
*
|
Accounting fees and
expenses
|
*
|
Transfer agent and
registrar fees
|
*
|
Miscellaneous
|
*
|
Total
|
$*
|
* Fees
and expenses (other than the SEC registration fee to be paid upon
filing of this registration statement and the FINRA filing
fee) will depend on the securities offered, the number of issuances
and the nature of the offerings, and cannot be estimated at this
time.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Nevada
Revised Statutes (“NRS”) 78.138(7) provides that,
subject to limited statutory exceptions and unless the Articles of
Incorporation or an amendment thereto (in each case filed on or
after October 1, 2003) provide for greater individual liability, a
director or officer is not individually liable to a corporation or
its stockholders or creditors for any damages as a result of any
act or failure to act in his or her capacity as a director or
officer unless determined that the presumption that directors and
officers are presumed to act in good faith, on an informed basis
and with a view to the interest of the corporation has been
rebutted and it is proven that: (i) the act or failure to act
constituted a breach of his or her fiduciary duties as a director
or officer and (ii) the breach of those duties involved intentional
misconduct, fraud or a knowing violation of law.
NRS
78.7502(1) provides that a corporation may indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation), 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, including attorneys’ fees,
judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with the action,
suit or proceeding if the person (i) is not liable pursuant to NRS
78.138 or (ii) acted in good faith and in a manner which he or she
reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the conduct was
unlawful. NRS 78.7502(2) provides that a corporation may indemnify
any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit 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, including amounts paid in
settlement and attorneys’ fees actually and reasonably
incurred by the person in connection with the defense or settlement
of the action or suit if the person (a) is not liable pursuant to
NRS 78.138 or (b) acted in good faith and in a manner which he or
she reasonably believed to be in or not opposed to the best
interests of the corporation. Any discretionary indemnification
pursuant to NRS 78.7502, unless ordered by a court or advanced
pursuant to NRS 78.751(2), may be made by the corporation only as
authorized in each specific case upon a determination that the
indemnification of a director, officer, employee or agent of a
corporation is proper under the circumstances. Such determination
must be made by the stockholders, the board of directors, by
majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding; or independent legal
counsel, in a written opinion, if (y) a majority vote of a
quorum consisting of directors who were not parties to the action,
suit or proceeding so orders; or (z) a quorum consisting of
directors who were not parties to the action, suit or proceeding
cannot be obtained. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, does not, of itself,
create a presumption that the person is liable pursuant to NRS
78.138 or 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 that, with respect to any criminal action or
proceeding, he or she had reasonable cause to believe that the
conduct was unlawful. Indemnification may not be made for any
claim, issue or matter as to which such a person has been adjudged
by a court of competent jurisdiction, after exhaustion of all
appeals therefrom, to be liable to the corporation or for amounts
paid in settlement to the corporation, unless and only to the
extent that the court in which the action or suit was brought or
other court of competent jurisdiction determines upon application
that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as
the court deems proper.
NRS
78.751, requiring mandatory indemnification of officers, directors,
employees, and agents, provides that a corporation shall indemnify
any person who is a director, officer, employee or agent to the
extent that the person is successful on the merits or otherwise in
defense of: (a) any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative, including, without limitation, an action by or in
the right of the corporation, 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; or
(b) any claim, issue or matter therein, against expenses
actually and reasonably incurred by the person in connection with
defending the action, including, without limitation,
attorney’s fees. NRS 78.751(2) provides that unless otherwise
restricted by the corporation’s articles of incorporation or
bylaws, or an agreement made by the corporation, the corporation
may pay expenses of officers and directors incurred in defending a
civil or criminal action, suit or proceeding as they are incurred
and in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of the
director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that the director
or officer is not entitled to be indemnified by the corporation.
The articles of incorporation, the bylaws or an agreement made by
the corporation may require the corporation to pay such expenses
upon receipt of such an undertaking.
Under
the NRS, the indemnification pursuant to NRS 78.7502 and
advancement of expenses authorized in or ordered by a court
pursuant to NRS 78.751:
●
Does not exclude
any other rights to which a person seeking indemnification or
advancement of expenses may be entitled under the articles of
incorporation or any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, for either an action in the
person’s official capacity or an action in another capacity
while holding office, except that indemnification, unless ordered
by a court pursuant to NRS 78.7502 or for the advancement of
expenses made pursuant to NRS 78.751(2), may not be made to or on
behalf of any director or officer finally adjudged by a court of
competent jurisdiction, after exhaustion of any appeals taken
therefrom, to be liable for intentional misconduct, fraud or a
knowing violation of the law, and such misconduct, fraud or
violation was material to the cause of action; and
●
Continues for a
person who has ceased to be a director, officer, employee or agent
and inures to the benefit of the heirs, executors and
administrators of such a person.
Unless
the articles of incorporation, the bylaws or an agreement made by a
corporation provide otherwise, if a person is entitled to
indemnification or the advancement of expenses from the corporation
and any other person, the corporation is the primary obligor with
respect to such indemnification or advancement. A right to
indemnification or to advancement of expenses arising under a
provision of the articles of incorporation or any bylaw is not
eliminated or impaired by an amendment to such provision after the
occurrence of the act or omission that is the subject of the civil,
criminal, administrative or investigative action, suit or
proceeding for which indemnification or advancement of expenses is
sought, unless the provision in effect at the time of such act or
omission explicitly authorizes such elimination or impairment after
such act or omission has occurred.
The
Articles of Incorporation provide that to the fullest extent
permitted under the NRS (including, without limitation, to the
fullest extent permitted under NRS 78.7502 and 78.751(3)) and other
applicable law, the Registrant shall indemnify directors and
officers of the Registrant in their respective capacities as such.
The Articles of Incorporation further provide that the liability of
its directors and officers shall be eliminated or limited to the
fullest extent permitted by the NRS.
Further,
the Registrant has entered into indemnification agreements with
each of its directors and executive officers that are broader than
the specific indemnification provisions contained in the NRS. Such
agreements require the Registrant, among other things, to advance
expenses and otherwise indemnify its executive officers and
directors against certain liabilities that may arise by reason of
their status or service as executive officers or directors, to the
fullest extent permitted by law. The Registrant intends to enter
into indemnification agreements with any new directors and
executive officers in the future.
The
Registrant has purchased and intends to maintain insurance on
behalf of the Registrant and any person who is or was a director or
officer against any loss arising from any claim asserted against
him or her and incurred by him or her in that capacity, subject to
certain exclusions and limits of the amount of
coverage.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Exhibits
Exhibit No.
|
|
Description
|
1.1*
|
|
Form of
Underwriting Agreement with respect to Debt Securities
|
1.2*
|
|
Form of
Underwriting Agreement with respect to Common Stock
|
1.3*
|
|
Form of
Underwriting Agreement with respect to Preferred Stock
|
1.4*
|
|
Form of
Underwriting Agreement with respect to Warrants
|
1.5*
|
|
Form of
Underwriting Agreement with respect to Units
|
3.1
|
|
Amended
and Restated Articles of Incorporation (incorporated by reference
to Exhibit 3.1 of Aemetis, Inc.’s Annual Report on Form 10-K,
filed with the SEC on March 16, 2018)
|
3.3
|
|
Certificate
of Designation of Series B Preferred Stock (incorporated by
reference to Exhibit 3.2 of Aemetis, Inc.’s Current Report on
Form 8-K, filed with the SEC on December 13, 2007)
|
3.7
|
|
Amended
and Restated Bylaws (incorporated by reference to Exhibit 3.7 of
Aemetis, Inc.’s Form S-3, filed with the SEC on May 15,
2018)
|
4.1
|
|
Form of
Indenture with respect to Debt Securities (incorporated by
reference to Exhibit 4.1 of Aemetis, Inc.’s Form S-3, filed
with the SEC on July 3, 2014)
|
4.2
|
|
Form of
Specimen Common Stock Certificate (incorporated by reference to
Exhibit 4.1 of Aemetis, Inc.’s Current Report on Form 8-K,
filed with the SEC on December 13, 2007)
|
4.3*
|
|
Form of
Specimen Preferred Stock Certificate
|
4.4*
|
|
Form of
Certificate of Designation of Preferred Stock
|
4.5*
|
|
Form of
Warrant Agreement (including Warrant Certificate) with respect to
Warrants to purchase Debt Securities
|
4.6*
|
|
Form of
Warrant Agreement (including Warrant Certificate) with respect to
Warrants to purchase Common Stock
|
4.7*
|
|
Form of
Warrant Agreement (including Warrant Certificate) with respect to
Warrants to purchase Preferred Stock
|
4.8*
|
|
Form of
Warrant Agreement (including Warrant Certificate) with respect to
Warrants to purchase Units
|
4.9*
|
|
Form of
Unit Agreement (including Unit Certificate)
|
4.10*
|
|
Form of
Rights Agreement (including Form of Rights
Certificate)
|
|
|
Opinion
of McDonald Carano LLP
|
|
|
Opinion
of Shearman & Sterling LLP
|
23.1
|
|
Consent
of McDonald Carano LLP (included in Exhibit 5.1)
|
|
|
Consent
of RSM US LLP
|
23.3
|
|
Consent
of Shearman & Sterling LLP (included in Exhibit
5.2)
|
24.1
|
|
Powers
of Attorney (included on applicable signature page to this
registration statement)
|
25.1**
|
|
Form
T-1 Statement of Eligibility under Trust Indenture Act of 1939 of
Debt Trustee (to be filed prior to any issuance of Senior Debt
Securities)
|
25.2**
|
|
Form
T-1 Statement of Eligibility under Trust Indenture Act of 1939 of
Debt Trustee (to be filed prior to any issuance of Subordinated
Debt Securities)
|
*
To be filed as an
amendment or as an exhibit to a document filed under the Exchange
Act and incorporated by reference into this registration
statement.
**
To be filed in
accordance with the requirements of Section 305(b)(2) of the
Trust Indenture Act of 1939.
ITEM 17. UNDERTAKINGS
The
undersigned Registrant hereby undertakes:
(1)
To file, during any
period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(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 a 20 percent 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 (1)(i), (1)(ii) and (1)(iii) above 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:
(i)
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
(ii)
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 the
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective
date.
(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.
(6)
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.
(7)
That, for purposes of determining any liability under the
Securities Act, (i) the information omitted from the form of
prospectus filed as part of the registration statement in reliance
upon Rule 430A and contained in the form of prospectus filed by the
registrant pursuant to Rule 424(b)(l) or (4) or 497(h) under
the Securities Act shall be deemed to be a part of the registration
statement as of the time it was declared effective; and
(ii) each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(8)
To supplement the
prospectus, after the expiration of the subscription period to set
forth the results of the subscription offer, the transactions by
the underwriters during the subscription period, the amount of
unsubscribed securities to be purchased by the underwriters, and
the terms of any subsequent reoffering thereof. If any public
offering by the underwriters is to be made on terms differing from
those set forth on the cover page of the prospectus, a
post-effective amendment will be filed to set forth the terms of
such offering.
(9)
(i) To use its best
efforts to distribute prior to the opening of bids, to prospective
bidders, underwriters, and dealers, a reasonable number of copies
of a prospectus which at that time meets the requirements of
Section 10(a) of the Act, and relating to the securities
offered at competitive bidding, as contained in the registration
statement, together with any supplements thereto, and (ii) to
file an amendment to the registration statement reflecting the
results of bidding, the terms of the reoffering and related matters
to the extent required by the applicable form, not later than the
first use, authorized by the issuer after the opening of bids, of a
prospectus relating to the securities offered at competitive
bidding, unless no further public offering of such securities by
the issuer and no reoffering of such securities by the purchasers
is proposed to be made.
(10)
To file an
application for the purpose of determining the eligibility of the
trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the
Trust Indenture Act.
(11)
That, 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 Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Cupertino, State of California, on this 28th day of August,
2020.
|
AEMETIS,
INC.
|
|
|
|
|
|
Date: August 28,
2020
|
By:
|
/s/ Eric A.
McAfee
|
|
|
|
Eric A.
McAfee
|
|
|
|
Chief Executive
Officer
|
|
Each
person whose signature appears below hereby constitutes and
appoints Eric A. McAfee and Todd Waltz, and each of them, as his or
her true and lawful attorney-in-fact and agent with full power of
substitution, for him or her in any and all capacities, to sign any
and all amendments to this registration statement (including
post-effective amendments or any abbreviated registration statement
and any amendments thereto filed pursuant to Rule 462(b) increasing
the number of securities for which registration is sought), and to
file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith, as fully for all
intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, 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/ Eric A.
McAfee
|
|
|
Eric A.
McAfee
|
Chief
Executive Officer
|
August
28, 2020
|
|
(Principal
Executive Officer)
|
|
/a/ Todd
Waltz
|
|
|
Todd
Waltz
|
Chief
Financial Officer and Executive Vice President
|
August
28, 2020
|
|
(Principal
Accounting and Financial Officer)
|
|
/s/ Francis P.
Barton
|
|
|
Francis
P. Barton
|
Director
|
August
28, 2020
|
|
|
|
/s/ Lydia I.
Beebe
|
|
|
Lydia
I. Beebe
|
Director
|
August
28, 2020
|
|
|
|
/s/ John R.
Block
|
|
|
John R.
Block
|
Director
|
August
28, 2020
|
|
|
|
/s/ Naomi L.
Boness
|
|
|
Naomi
L. Boness
|
Director
|
August
28, 2020
|
|
|
|
|
|
|
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