amtx_posam
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)
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Delaware
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26-1407544
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(State or other jurisdiction of incorporation or
organization)
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(IRS Employer Identification Number)
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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.
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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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☐
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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 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
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Title of each class of securities to be registered
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Amount to be registered
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Proposed maximum offering price per share
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Proposed maximum aggregate offering price
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Amount of registration fee
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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.
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N/A
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N/A
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N/A
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N/A
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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
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Incorporated by Reference
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Exhibit No.
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Description
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Form
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File No.
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Exhibit
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Filing Date
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Filed Herewith
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Certificate
of Incorporation of Aemetis, Inc.
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8-K
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001-36475
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3.1
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November
2, 2021
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By-laws
of Aemetis, Inc.
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8-K
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001-36475
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3.3
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November
2, 2021
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Plan of
Conversion
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8-K
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001-36475
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99.1
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November
2, 2021
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Articles
of Conversion of Aemetis, Inc.
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8-K
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001-36475
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99.2
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November
2, 2021
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Certificate
of Conversion of Aemetis, Inc.
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8-K
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001-36475
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99.3
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November
2, 2021
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Certificate
of Designation of Series B Preferred Stock of
Aemetis, Inc.
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8-K
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001-36475
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3.2
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November
2, 2021
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5.1
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Opinion
of Shearman & Sterling LLP
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X
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23.1
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Consent
of RSM US LLP
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X
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23.2
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Consent
of Shearman & Sterling LLP (See Exhibit 5.1)
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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.
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AEMETIS, INC.
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By:
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/s/ Eric McAfee
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Name:
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Eric McAfee
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Title:
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Chief Executive Officer
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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.
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Signature
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Title
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Date
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/s/ Eric
McAfee
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Chief
Executive Officer and Director
(Principal
Executive Officer)
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November
10, 2021
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Eric
McAfee
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/s/ Todd
Waltz
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Chief
Financial Officer and Executive Vice President
(Principal
Accounting and Financial Officer)
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November
10, 2021
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Todd
Waltz
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*
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Director
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November
10, 2021
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Fran
Barton
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*
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Director
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November
10, 2021
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John
Block
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*
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Director
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November
10, 2021
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Naomi
Boness
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*
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Director
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November
10, 2021
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Lydia
I. Beebe
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* By:
/s/ Todd
Waltz
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Todd
Waltz
Attorney-in-fact
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