S-8 1 amtx_s8.htm FORM S-8 amtx_s8.htm


As filed with the Securities and Exchange Commission on March 7, 2014.
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)
 
Zymetis, Inc. 2006 Stock Incentive 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 o
Accelerated filer o
Non-accelerated filer o (Do not check if a smaller reporting company)
Smaller reporting company þ
 
 
 
 
 
 

CALCULATION OF REGISTRATION FEE
Title of Securities
 to be Registered
 
Amount to be Registered (1)
   
Proposed Maximum Offering Price Per Share
   
Proposed Maximum Aggregate
 Offering Price
   
Amount of
 Registration Fee (4)
 
Common Stock, par value $0.001 per share, to be issued pursuant to the Zymetis, Inc. 2006 Stock Incentive Plan (the “2006 Plan”)
    519,063 (2)   $ 1.50 (3)   $ 778,595.00 (3)   $ 100.28  
TOTAL
    519,063                     $ 100.28  
(1)         Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement includes an indeterminate number of additional shares which may be offered to prevent dilution from stock splits, stock dividends, recapitalization or other similar transactions effected without consideration that results in an increase in the number of the Registrant’s outstanding Common Stock.
(2)         The number of shares of the Registrant’s Common Stock represents the aggregate number of shares of Common Stock subject to outstanding stock options issued under the 2006 Plan, which outstanding stock options were assumed by the Registrant in connection with the merger of AE Biofuels Americas, Inc., a wholly owned subsidiary of the Registrant, with and into Zymetis, Inc. (“Zymetis”), pursuant to that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of June 30, 2011, by and among the Registrant (at the time known as “AE Biofuels, Inc.”), AE Biofuels Americas, Inc., and Zymetis. The number of shares of Common Stock of the Registrant issuable by the Registrant in connection with the assumed stock options has been calculated pursuant to the exchange ratio set forth in the Merger Agreement.  No more awards will be made under the 2006 Plan. To the extent outstanding awards under the 2006 Plan are forfeited, terminate, or expire unexercised and would otherwise have been returned to the share reserve under the 2006 Plan, the shares of common stock subject to such awards instead will be available for future issuance under the Aemetis, Inc. (formerly AE Biofuels, Inc.) Amended and Restated 2007 Stock Plan.
(3)         Computed based on the exercise price of options to purchase 519,063 shares of common stock of Aemetis, Inc.  The exercise price of the options is $1.50 per share pursuant to the computation set forth in the Merger Agreement.
(4)         Calculated by multiplying 0.0001288 by the proposed maximum aggregate offering price.
 



 
 
 
 
 
 
PART I
 
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
 
The documents containing the information specified in this Part I of Form S-8 (plan information and registrant information and employee plan annual information) will be sent or given to employees as specified by Securities and Exchange Commission Rule 428(b)(1).  Such documents need not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424.  These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act of 1933, as amended (the “Securities Act”).
 
PART II
 
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
 
Item 3.                      Incorporation of Documents by Reference.
 
The following documents previously filed by Aemetis, Inc. (the “Company” or “Registrant”) with the Commission, are incorporated by reference in this Registration Statement:
 
(a) The Registrant’s annual report on Form 10-K for the fiscal year ended December 31, 2012 filed with the Commission on April 16, 2013, which includes audited financial statements for the Registrant’s latest fiscal year;
(b) All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, since the end of the fiscal year covered by the audited financial statements described in (a) above; and
(c) The description of the Company’s common stock, par value $0.001 per share, contained in the Company’s Current Report on Form 8-K filed with the Commission on December 13, 2007, and any amendment or report filed for the purpose of updating such description.

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (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.
 
Item 4.                      Description of Securities.
 
Not applicable.
 
 
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Item 5.                      Interests of Named Experts and Counsel.
 
Not applicable.
 
Item 6.                      Indemnification of Directors and Officers.
 
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.
 
Registrant’s Articles of Incorporation and Bylaws grant it the power to indemnify any of its directors and officers. The director or officer must have conducted himself/herself in good faith and reasonably believe that his/her conduct was in, or not opposed to our best interests. In a criminal action, the director, officer, employee or agent must not have had reasonable cause to believe his/her conduct was unlawful.
 
Under NRS Section 78.751, advances for expenses may be made by agreement if the director or officer affirms in writing that he/she believes he/she has met the standards and will personally repay the expenses if it is determined such officer or director did not meet the standards.
 
Our articles of incorporation include an indemnification provision under which we are required to indemnify our directors, officers, employees and former directors, officers and employees (including heirs and personal representatives) to the fullest extent permitted under Nevada law.
 
Our articles of incorporation provide a limitation of liability in that no director or officer shall be personally liable to the Company or any of its shareholders for damages for breach of fiduciary duty as director or officer involving any act or omission of any such director or officer, provided there was no intentional misconduct, fraud or a knowing violation of the law, or payment of dividends in violation of NRS Section 78.300.
 
As permitted by the Nevada Revised Statutes, the Registrant’s articles of incorporation includes a provision that eliminates the personal liability of its directors for damages as a result of any act or failure to act in his capacity as a director or officer unless it is proven that:
 
  
His act or failure to act constituted a breach of his fiduciary duties as a director or officer; and
 
  
His breach of those duties involved intentional misconduct, fraud or a knowing violation of law,
 
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 our current directors and officers has entered into, and we expect that our 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 restated certificate 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.

 
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Item 7.                 Exemption From Registration Claimed.
 
Not applicable.
 
Item 8.                 Exhibits.
 
Exhibit Number
 
Description of Exhibit
     
 
Opinion of Nevada Legal counsel regarding the legality of the securities being registered
     
10.1(1)
 
Aemetis Amended and Restated 2007 Stock Plan
     
10.2(2)
 
Zymetis, Inc. 2006 Stock Incentive Plan
     
 
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)
     
(1)      Incorporated by reference from Aemetis’ Schedule 14A, filed with the Commission on April 15, 2008.
(2)      Incorporated by reference to Exhibit 10.31 from Aemetis’ Annual Report on Form 10-K, filed with the Commission on October 31, 2012.

 
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Item 9.                      Undertakings.

(a) The undersigned Registrant hereby undertakes:

1.      To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i)      To include any prospectus required by Section 10(a)(3) of the Securities Act;
(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 Securities Exchange Act of 1934 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.

 
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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 6th day of March, 2014.
 
 
AEMETIS, INC.
 
   
By:/s/ Eric A. McAfee
 
Eric A. McAfee
 
    Chief Executive Officer
 
 
 
 
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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 resubstitution, for him and in his 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 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
 
March 6, 2014
Eric A. McAfee
 
and Director (Principal Executive Officer)
   
         
         
/s/ Todd Waltz
 
Executive Vice President and Chief Financial Officer
 
March 6, 2014
Todd Waltz
 
(Principal Financial Officer)
   
         
         
/s/ Harold Sorgenti
 
Director
 
March 6, 2014
Harold Sorgenti
       
         
/s/ John R. Block
       
John R. Block
 
Director
 
March 6, 2014
         
         
/s/ Steven W. Hutcheson
       
Steven W. Hutcheson
 
Director
 
March 6, 2014
         
         
/s/ Francis P. Barton
       
Francis P. Barton
 
Director
 
March 6, 2014
         
         
 

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