POS AM

As filed with the Securities and Exchange Commission on November 10, 2021

Registration No. 333-258322

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

POST-EFFECTIVE AMENDMENT NO. 1 TO

FORM S-3 REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

AEMETIS, INC.

(Exact name of registrant as specified in its charter)

Delaware	26-1407544
(State or other jurisdiction of incorporation or organization)	(IRS Employer Identification Number)

20400 Stevens Creek Blvd., Suite 700

Cupertino, CA 95014

(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 Blvd., Suite 700

Cupertino, CA 95014

(408) 213-0940

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

Chris Forrester

Shearman & Sterling LLP

1460 El Camino Real, Second Floor

Menlo Park, CA 94025

(650) 838-3600

 Approximate date of commencement of proposed sale to the public: From time to time after the effectiveness of the Registration Statement.

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, 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, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Securities Exchange Act of 1934, as amended.

Large accelerated filer	☐	Accelerated filer	☐
Non-accelerated filer	☐	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.          ☐

        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.

CALCULATION OF REGISTRATION FEES

Title of each class of securities to be registered	Amount to be registered	Proposed maximum offering price per share	Proposed maximum aggregate offering price	Amount of registration fee
No additional securities are to be registered and registration fees were paid upon the filing of the original Registration Statement No. 333-258322. Therefore, no further registration fee is required.	N/A	N/A	N/A	N/A

EXPLANATORY NOTE

This Post-Effective Amendment to Registration Statement No. 333-258322 on Form S-3 (the "Registration Statement") is being filed pursuant to Rule 414 under the Securities Act of 1933, as amended (the "Securities Act") by Aemetis, Inc., a Delaware corporation ("Aemetis-DE" or the “Company”), which is the successor to Aemetis, Inc., a Nevada corporation ("Aemetis-NV"), following a reincorporation. The reincorporation was effected by a plan of conversion, which provided that the Company: (1) file with the Secretary of State of the State of Nevada articles of conversion, and (2) file with the Secretary of State of the State of Delaware (i) a certificate of conversion, (ii) a certificate of incorporation and (iii) a certificate of designation for the Company’s Series B Preferred Stock.

Following the reincorporation, all of the rights, privileges and powers of Aemetis-NV, all property owned by Aemetis-NV, all debts due to Aemetis-NV and all other causes of action belonging to Aemetis-NV immediately prior to the reincorporation remain vested in Aemetis-DE. In addition, by virtue of the reincorporation, all debts, liabilities and duties of Aemetis-NV immediately prior to the reincorporation remain attached to Aemetis-DE following the reincorporation. Aemetis-DE remains the same entity following the reincorporation, and the reincorporation has not effected any change in the Company’s business, management or operations or the location of principal executive offices.

Following the reincorporation, (i) all issued and outstanding shares of common stock of Aemetis-NV were automatically converted into issued and outstanding shares of common stock of Aemetis-DE, without any action on the part of the Company’s stockholders, (ii) all issued and outstanding shares of Series B Preferred Stock of Aemetis-NV were automatically converted into issued and outstanding shares of Series B Preferred Stock of Aemetis-DE on substantially identical terms, including conversion into common stock of Aemetis-DE and (iii) each outstanding option or warrant to purchase a share of Aemetis-NV common stock or Aemetis-NV preferred stock (collectively, the “Aemetis-NV stock”), and other equity awards relating to Aemetis-NV stock, was deemed to constitute an option or warrant to purchase one share of common stock, preferred stock or equity award, as applicable, of Aemetis-DE at an exercise price per full share equal to the stated exercise price or other terms or provisions of the option, warrant or equity award. Additionally, each outstanding unit comprised of Aemetis-NV stock, warrants or rights related to Aemetis-NV stock was deemed to be comprised of corresponding Aemetis-DE common stock or Aemetis-DE preferred stock, warrants or other rights, as applicable.

In accordance with Rule 414(d) of the Securities Act, Aemetis-DE, as successor issuer to Aemetis-NV, hereby expressly adopts the Registration Statement as its own for all purposes under the Securities Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act").

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 15. Indemnification of Directors and Officers

Article 7 of the Company’s Certificate of Incorporation authorizes the Company to indemnify its directors to the fullest extent permitted by the Delaware General Corporation Law. Article 7 also requires indemnification of present and past directors, as well as any person who, while a director, also was serving at the request of the Company as an officer, employee or agent of the Company or as a director, officer, employee or agent of another entity (each, an "Indemnitee"), who was or is made a party, or is threatened to be made a party to, or is involved in any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a "Proceeding"), because such Indemnitee is or was a director of the Company. Article 7 of the Certificate of Incorporation also requires the Company, to the fullest extent permitted by law, to indemnify and advance expenses to any Indemnitee made or threatened to be made a party to any Proceeding, by reason of the fact that he or she is or was a director or officer of the Company or any predecessor of the Company, or, while serving as a director or officer of the Company, serves or served at any other enterprise as a director or officer at the request of the Company or any predecessor to the Company.

Article 7 of the Certificate of Incorporation also authorizes the Company, to the fullest extent permitted by law, to indemnify and advance expenses to any person made or threatened to be made a party to a Proceeding, by reason of the fact that he or she is or was an employee or agent of the Company or any predecessor of the Company, or serves or served at any other enterprise as an employee or agent at the request of the Company or any predecessor to the Company.

As permitted by the Delaware General Corporation Law, the Company’s Bylaws authorize the Company to advance expenses (including attorneys’ fees) incurred by a director or officer in defending any Proceeding in advance of the final disposition 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 Company.

Notwithstanding the foregoing, no advance shall be made by the Company to an officer of the Company in any Proceeding, if a determination is reasonably and promptly made by a majority vote of disinterested directors that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the Company.

The Company is authorized under the Delaware General Corporation Law to purchase and maintain insurance or make other financial arrangements on behalf of any person who is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, for any liability asserted against him or her and liability and expenses incurred by him or her in his or her capacity as a director, officer, employee or agent, or arising out of his or her status as such, whether or not the Registrant has the authority to indemnify him or her against such liability and expenses.

Item 16. Exhibits

		Incorporated by Reference
Exhibit No.	Description	Form	File No.	Exhibit	Filing Date	Filed Herewith
3.1	Certificate of Incorporation of Aemetis, Inc.	8-K	001-36475	3.1	November 2, 2021
3.2	By-laws of Aemetis, Inc.	8-K	001-36475	3.3	November 2, 2021
3.3	Plan of Conversion	8-K	001-36475	99.1	November 2, 2021
3.4	Articles of Conversion of Aemetis, Inc.	8-K	001-36475	99.2	November 2, 2021
3.5	Certificate of Conversion of Aemetis, Inc.	8-K	001-36475	99.3	November 2, 2021
3.6	Certificate of Designation of Series B Preferred Stock of Aemetis, Inc.	8-K	001-36475	3.2	November 2, 2021
5.1	Opinion of Shearman & Sterling LLP					X
23.1	Consent of RSM US LLP					X
23.2	Consent of Shearman & Sterling LLP (See Exhibit 5.1)

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:

(a)

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

(b)

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 a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;

(c)

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)(a), (1)(b) and 1(c) 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 Exchange Act 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, 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 to any purchaser:

(a)

Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

(b)

Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.

(5)            

That, for the purpose of determining liability of the registrant under the Securities Act 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 the 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:

(a)

Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

(b)

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;

(c)

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

(d)

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, 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.

(7)            

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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Post-Effective Amendment to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cupertino, State of California, on November 10, 2021.

AEMETIS, INC.
By:	/s/ Eric McAfee
Name:	Eric McAfee
Title:	Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, as amended, this Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 has been signed by the following persons in the capacity and on the dates indicated.

Signature	Title	Date
/s/  Eric McAfee	Chief Executive Officer and Director (Principal Executive Officer)	November 10, 2021
Eric McAfee
/s/  Todd Waltz	Chief Financial Officer and Executive Vice President (Principal Accounting and Financial Officer)	November 10, 2021
Todd Waltz
*	Director	November 10, 2021
Fran Barton
*	Director	November 10, 2021
John Block
*	Director	November 10, 2021
Naomi Boness
*	Director	November 10, 2021
Lydia I. Beebe
* By: /s/  Todd Waltz
Todd Waltz Attorney-in-fact

EX-5.1

1460 EL CAMINO REAL2ND FLOORMENLO PARK, CA 94025-4110

+1.650.838.3600

Exhibit 5.1

November 10, 2021

Aemetis, Inc.

20400 Stevens Creek Blvd., #700

Cupertino, California 95014

Aemetis, Inc.

Registration Statement/Form S-3

Ladies and Gentlemen:

We have acted as counsel to Aemetis, Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a post-effective amendment to Registration Statement on Form S-3, registration number 333-258322 (such post-effective amendment, the “Post-Effective Amendment,” and such registration statement as amended by the Post-Effective Amendment, including the documents incorporated by reference therein, the “Registration Statement”), including the base prospectus contained therein and any subsequent prospectus supplements and any free writing prospectuses relating thereto, relating to the registration under the Securities Act of 1933 (“Act”), as amended, of the issuance and sale from time to time by the Company, on a delayed or continuous basis pursuant to Rule 415 promulgated under the Act, of an indeterminate number of the following securities (collectively, the “Securities”), the aggregate initial offering price of which will not exceed $300,000,000: (i) shares of common stock, par value $0.001 per share (“Common Stock”); (ii) shares of preferred stock, par value $0.001 per share (“Preferred Stock”); (iii) debt securities, in one or more series that may be convertible into or exchangeable for shares of Common Stock or Preferred Stock (“Debt Securities”); (iv) warrants to purchase Common Stock, Preferred Stock or Debt Securities (“Warrants”); (v) rights to purchase Common Stock, Preferred Stock, Debt Securities or Warrants (“Rights”); (vi) units composed of any combination of Debt Securities, Common Stock, Preferred Stock or Warrants (“Units”); and (vii) such indeterminate amount of shares of Common Stock and Preferred Stock as may be issued upon conversion, exchange or exercise of the Securities registered pursuant to the Registration Statement.

The Debt Securities will be issued pursuant to an indenture (the “Indenture”) between the Company and a trustee (the “Trustee”), a form of which is filed as an exhibit to the Registration Statement. A particular series of Debt Securities will be established either by a supplement to the Indenture or by an Officer’s Certificate thereunder (an “Indenture Document”). Any Indenture supplement will be in a form to be filed as an exhibit to a post-effective amendment to the Registration Statement or a current report on Form 8-K, incorporated in such Registration Statement by reference.

The Warrants will be issued under one or more warrant agreements (each, a “Warrant Agreement”), each to be entered into between the Company and a financial institution identified therein as the warrant agent (each, a “Warrant Agent”). Any Warrant Agreement will be in a form to be filed as an exhibit to a post-effective amendment to the Registration Statement or a current report on Form 8-K, incorporated in such Registration Statement by reference.

The Rights will be issued under one or more rights agreements (each, a “Rights Agreement”), each to be entered into between the Company and a financial institution identified therein as the rights agent (each, a “Rights Agent”). Any Rights Agreement will be in a form to be filed as an exhibit to a post-effective amendment to the Registration Statement or a current report on Form 8-K, incorporated in such Registration Statement by reference.

The Units will be issued under one or more unit agreements (each, a “Unit Agreement”), each to be entered into between the Company and a financial institution identified therein as the unit agent (each, a “Unit Agent”). Any Unit Agreement will be in a form to be filed as an exhibit to a post-effective amendment to the Registration Statement or a current report on Form 8-K, incorporated in such Registration Statement by reference.

The Indenture, any Indenture Documents, any Warrant Agreements, any Rights Agreements, any Unit Agreements and any applicable underwriting or purchase agreement are hereinafter referred to as the “Securities Documents.”

In connection with such matters, we have reviewed originals or copies of the following documents:

(a) 

The Registration Statement, including the base prospectus contained therein;

(b) 

Originals or copies of the amended and restated certificate of incorporation and amended and restated bylaws of the Company, as amended through the date hereof;

(c)           The Form of the Indenture; and

(d) 

Originals or copies of such other corporate records of the Company, certificates of public officials and of officers of the Company and agreements and other documents as we have deemed necessary as a basis for the opinions expressed below.

In our review, we have assumed:

(a)           The genuineness of all signatures.

(b)           The authenticity of the originals of the documents submitted to us.

(c)            

The conformity to authentic originals of any documents submitted to us as copies.

(d) 

As to matters of fact, the truthfulness of the representations made in the certificates of public officials and officers of the Company.

(e) 

That each of the Securities Documents will be governed by New York law.

In our opinions stated below, we assume that all of the following (collectively, the “general conditions”) shall have occurred prior to the issuance of the Securities referred to therein:

(a) the Registration Statement, as finally amended (including all necessary post-effective  amendments), has become effective under the Securities Act;

(b) an appropriate prospectus supplement or term sheet with respect to such Securities has been prepared, delivered and filed in compliance with the Securities Act;

(c) the applicable Securities Documents shall have been duly authorized, executed and delivered by the Company and the other parties thereto, including, if such Securities are to be sold or otherwise distributed pursuant to a firm commitment underwritten offering, the underwriting agreement or purchase agreement with respect thereto; and

1

(d) the terms of the applicable Securities Documents and the issuance and sale of such Securities do not and will not:

i. contravene the amended and restated certificate of incorporation, or amended and restated bylaws of the Company;

ii. violate any law, rule or regulation applicable to the Company; or

iii. result in any conflict with or breach of any agreement or document binding on the Company.

(e) no authorization, approval, consent or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery or performance by the Company of any of the Securities Documents to which the Company is a party or, if any such authorization, approval, consent, action, notice or filing is required, it has been duly obtained, taken, given or made and is in full force and effect.

We have not independently established the validity of the foregoing assumptions.

“Generally Applicable Law” means the federal law of the United States of America, and the law of the State of New York (including the rules or regulations promulgated thereunder or pursuant thereto), that a New York lawyer exercising customary professional diligence would reasonably be expected to recognize as being applicable to the Company, the Securities Documents or the transactions governed by the Securities Documents, and, for purposes of our opinions in paragraphs 1 and 2 below, the General Corporation Law of the State of Delaware. Without limiting the generality of the foregoing definition of Generally Applicable Law, the term “Generally Applicable Law” does not include any law, rule or regulation that is applicable to the Company, the Securities Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Securities Documents or any of its affiliates due to the specific assets or business of such party or such affiliate.

Based upon the foregoing and upon such other investigation as we have deemed necessary and subject to the qualifications set forth below, we are of the opinion that:

1.           When the general conditions have been satisfied and (i) the final terms of issuance and sale of the applicable shares of Common Stock have been duly approved by the Company in conformity with the Company’s amended and restated certificate of incorporation, (ii) all corporate action necessary for issuance of the Common Stock has been taken, and (iii) such shares of Common Stock are issued and delivered to the purchasers thereof against payment of the consideration therefor duly approved by the Company, such shares of Common Stock will be duly authorized, validly issued, fully paid and non-assessable.

2.           When the general conditions have been satisfied and (i) the final terms of the Preferred Stock have been duly established and approved by the Company in conformity with the Company’s amended and restated certificate of incorporation, (ii) certificates representing the Preferred Stock have been duly executed by the Company and delivered to the purchasers thereof against payment of the consideration therefor duly approved by the Company, and (iii) all corporate action necessary for issuance of the Preferred Stock has been taken, including the adoption and filing of a certificate of designations relating thereto, the Preferred Stock will be duly authorized, validly issued, fully paid and non-assessable.

3.           When the general conditions have been satisfied and (i) the Debt Securities and Indenture have been duly authorized, (ii) the final terms thereof have been duly established and approved and (iii) the Debt Securities have been duly executed by the Company and authenticated by the Trustee in accordance with the Indenture and delivered to the purchasers thereof against payment of the consideration therefor duly approved by the Company, the Debt Securities will be the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture.

4.           When the general conditions have been satisfied and (i) the Warrants and the applicable Warrant Agreement have been duly authorized, (ii) the final terms of the Warrants have been duly established and approved and (iii) certificates representing the Warrants have been duly executed by the Company and countersigned by the applicable Warrant Agent in accordance with the applicable Warrant Agreement and delivered to and paid for by the purchasers thereof, the Warrants will be the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the applicable Warrant Agreement, and the applicable Warrant Agreement will be the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.

5.           When the general conditions have been satisfied and (i) the Rights and the applicable Rights Agreement have been duly authorized, (ii) the final terms of the Rights have been duly established and approved and (iii) certificates representing the Rights have been duly executed by the Company and countersigned by the applicable Rights Agent in accordance with the applicable Rights Agreement and delivered to and paid for by the purchasers thereof, the Rights will be the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the applicable Rights Agreement, and the applicable Rights Agreement will be the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.

6.           When the general conditions have been satisfied and (i) the Units and the applicable Unit Agreement have been duly authorized, (ii) the final terms of the Units have been duly established and approved and (iii) certificates representing the Units have been duly executed by the Company and countersigned by the applicable Units Agent in accordance with the applicable Unit Agreement and delivered to and paid for by the purchasers thereof, the Units will be the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the applicable Unit Agreement, and the applicable Unit Agreement will be the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.

Our opinions expressed above are subject to the following qualifications:

(a)           Our opinions in paragraphs 2, 3, 4, 5 and 6 are subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally (including without limitation all laws relating to fraudulent transfers).

(b)           Our opinions in paragraphs 2, 3, 4, 5 and 6 are also subject to the effect of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law).

(c)           Our opinions are limited to Generally Applicable Law, and we do not express any opinion herein concerning any other law.

This opinion letter is rendered to you in connection with the preparation and filing of the Post-Effective Amendment. This opinion letter may not be relied upon by you for any other purpose without our prior written consent.

This opinion letter speaks only as of the date hereof. We expressly disclaim any responsibility to advise you of any development or circumstance of any kind, including any change of law or fact, that may occur after the date of this opinion letter that might affect the opinion expressed herein.

We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name therein and in the base prospectus under the caption “Legal Matters.” In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act and the rules and regulations of the Commission promulgated thereunder.

Very truly yours,

/s/ Shearman & Sterling LLP

CMF/yh/gm

SHEARMAN.COM

Shearman & Sterling LLP is a limited liability partnership organized in the United States under the laws of the state of Delaware, which laws limit the personal liability of partners.

EX-23.1

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in this Post-Effective Amendment No. 1 to the Registration Statement (No. 333-258322) on Form S-3 and related Prospectus of Aemetis, Inc. of our report dated March 14, 2021, 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, 2020.

We also consent to the reference to our firm under the heading “Experts.”

/s/ RSM US LLP

Des Moines, Iowa

November 10, 2021