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-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

  

AEMETIS, INC.

(Exact name of registrant as specified in its charter)

 

Nevada		26-1407544
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)
20400 Stevens Creek Blvd., Suite 700 Cupertino, California		95014
(Address of Principal Executive Offices)		(Zip Code)

 

Aemetis, Inc. Amended and Restated 2019 Stock Plan

(Full title of the plan(s))

  

Eric A. McAfee

Chief Executive Officer and Chairman of the Board

AEMETIS, INC.

20400 Stevens Creek Blvd., Suite 700, Cupertino, California 95014

(Name and address of agent for service)

 

(408) 213-0940

(Telephone number, including area code, of agent for service)

  

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer	☐	Accelerated filer	☐
Non-accelerated filer	☐ (Do not check if a smaller reporting company)	Smaller reporting company	☒
		Emerging growth company	☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered	Amount to be Registered (1)	Proposed Maximum Offering Price Per Share (3)	Proposed Maximum Aggregate Offering Price	Amount of  Registration Fee
Common Stock, par value $0.001 per share, to be issued pursuant to the Aemetis, Inc. Amended and Restated 2019 Stock Plan (the “2019 Plan”)	1,525,500(2)	$1.89	$2,883,195	$374.24
TOTAL	1,525,500			$374.24

 

 

 

 

EXPLANATORY NOTE

This Registration Statement is filed by Aemetis, Inc. (the “Registrant”) for the purpose of registering pursuant to General Instruction E to Form S-8, 1,525,500 shares of the Registrant’s common stock, $0.001 par value per share (the “Common Stock”) under the 2019 Plan. The total number of shares of the Registrant’s Common Stock issuable under the 2019 Plan, as of August 28, 2020, is 2,541,823 shares, plus an additional number of shares of Common Stock subject to options or other awards granted under the Registrant’s Second Amended and Restated 2007 Stock Plan, as amended, that were outstanding as of the effective date of the 2019 Plan and that on or after the effective date of the 2019 Plan, are forfeited, cancelled, returned to the Company for failure to satisfy vesting requirements, settled for cash or otherwise terminated without payment being made thereunder (the “Additional Shares”). The Additional Shares referred to in the previous sentence were registered on registration statements on Forms S-8 (333-237101, 333-230293, 333-224002, 333-216762, 333-209620, 333-202327, 333-194429 and 333-159556) filed with the Commission on March 12, 2020, March 15, 2019, March 29, 2018, March 17, 2017, February 19, 2016, February 26, 2015, March 7, 2014 and May 28, 2009. Pursuant to General Instruction E to Form S-8, the contents of such earlier registration statements are incorporated by reference into this registration statement, except that the provisions contained in Part II of such earlier registration statements are modified as set forth in this registration statement.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act and the “Note” to Part I of Form S-8.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

The following documents previously filed by the Registrant with the Commission, are incorporated by reference in this Registration Statement:

 

 

 

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all of the shares of Common Stock offered have been sold or which deregisters all of such shares then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing of such documents, except as to any portion of any future annual or quarterly report to stockholders or document that is not deemed filed under such provisions.

For purposes of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

Nevada Revised Statutes (“NRS”) Sections 78.7502 and 78.751 authorizes a corporation’s board of directors to grant indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act.

The Registrant’s Articles of Incorporation (as amended and restated from time to time, the “Articles of Incorporation”) and Bylaws grant it the power to indemnify any of its directors and officers. The director or officer must have acted in good faith and in a manner which he or she reasonably believed to be in, or not opposed to, the best interests of the Registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful.

Under NRS Section 78.751, advances for expenses of officers and directors incurred in defending a civil or criminal action, suit or proceeding may be made by the Registrant upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that the director or officer is not entitled to be indemnified by the Registrant.

The Registrant’s Articles of Incorporation include an indemnification provision under which the Registrant is required to indemnify its directors and officers and may indemnify any other person (including employees and former directors, officers and employees (including heirs and personal representatives)) to the fullest extent permitted under Nevada law.

As permitted by the NRS, the Registrant’s Articles of Incorporation include a provision that provides that no director or officer shall be personally liable to the Registrant or its stockholders for damages as a result of any act or failure to act in his or her capacity as a director or officer unless it is proven that:

 

The indemnification provision in the Registrant’s Articles of Incorporation may be sufficiently broad to permit indemnification of the Registrant’s directors and officers for liabilities arising under the Securities Act. The Registrant has directors’ and officers’ liability insurance for securities matters.

The Registrant’s board of directors has approved a form of indemnification agreement for its directors and officers. Each of the Registrant’s current directors and officers has entered into, and the Registrant expects that its future directors and officers will enter into, indemnification agreements substantially in that form to give the Registrant’s directors and officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant’s Articles of Incorporation and to provide additional procedural protections. At present, there is no pending litigation or proceeding involving a director, officer or employee of the Registrant regarding which indemnification is sought, nor is the Registrant aware of any threatened litigation that may result in claims for indemnification.

The Registrant and its subsidiaries are covered by liability insurance policies which indemnify their directors and officers against loss arising from claims by reason of their legal liability for acts as such directors, officers or trustees, subject to limitations and conditions as set forth in the policies.

 

Exhibit Number		Description of Exhibit
5.1		Opinion of Nevada Legal Counsel regarding the legality of the securities being registered
10.1(1)		Aemetis, Inc. Amended and Restated 2019 Stock Plan
23.1		Consent of Independent Registered Public Accounting Firm
23.2		Consent of Nevada Legal Counsel (included in Exhibit 5.1)
24.1		Power of Attorney (included on the signature page included in this Part II)

 

 

(a) The undersigned Registrant hereby undertakes:

 

1.      To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

(i)      To include any prospectus required by Section 10(a)(3) of the Securities Act;

(ii)           To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement;

(iii)           To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that clauses (1)(i) and (1)(ii) of this section do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those clauses is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.

 

2.      That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

3.      To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cupertino, State of California on the 28th day of August, 2020.

 

	AEMETIS, INC.
Date: August 28, 2020	By:	/s/ Eric A. McAfee
		Eric A. McAfee
		Chief Executive Officer

 

 

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that the persons whose signatures appear below constitute and appoint Eric A. McAfee and Todd Waltz, and each of them, as true and lawful attorneys-in-fact and agents with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign the Form S-8 Registration Statement, and any or all amendments (including post-effective amendments) to said Form S-8 Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated. 

Signature		Title		Date
/s/ Eric A. McAfee		Chairman of the Board, Chief Executive Officer		August 28, 2020
Eric A. McAfee		and Director (Principal Executive Officer)
/s/ Todd Waltz		Executive Vice President and Chief Financial Officer		August 28, 2020
Todd Waltz		(Principal Financial and Accounting 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 Boness
Naomi Boness		Director		August 28, 2020

 

 

EXHIBIT 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of Aemetis, Inc. of our report dated March 12, 2020, relating to the consolidated financial statements of Aemetis, Inc., appearing in the Annual Report on Form 10-K of Aemetis, Inc. for the year ended December 31, 2019.

 

 

/s/ RSM US LLP

 

RSM US LLP

 

Des Moines, Iowa

August 28, 2020

 

EXHIBIT 5.1, 23.2

OPINION OF NEVADA LEGAL COUNSEL

August 28, 2020

 

 

 

Aemetis, Inc.

20400 Stevens Creek Blvd., #700

Cupertino, California 95014

 

Aemetis, Inc. 2019 Stock Plan

 

Gentlemen:

 

At your request, we have examined the Registration Statement on Form S-8 to be filed with the Securities and Exchange Commission (the “SEC”) by Aemetis, Inc., a Nevada corporation (the “Registrant”), in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 1,525,500 additional shares of the Registrant’s common stock, $0.001 par value (the “Plan Shares”), which will be issuable under the Registrant’s Amended and Restated 2019 Stock Plan (the “Plan”).

In connection with our review, we have examined the proceedings taken by the Registrant in connection with the adoption of the Plan and the authorization of the issuance of the Plan Shares, and such documents as we have deemed necessary to render this opinion, including the Registrant’s Bylaws and Articles of Incorporation, as amended. For the purpose of the opinion rendered below, we have assumed that in connection with the issuance of the Plan Shares, the Registrant will receive consideration in an amount not less than the aggregate par value of the Plan Shares covered by each such issuance.

Based upon and subject to the foregoing, it is our opinion that the Plan Shares, when issued and outstanding pursuant to the terms of the Plan, will be validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement.

Very truly yours,

 

/s/ McDonald Carano LLP

 

McDonald Carano LLP