Filed Pursuant to Rule 424(b)(5)
Registration No. 333-258322
AMENDMENT NO. 1 DATED NOVEMBER 30, 2021
To Prospectus Supplement Dated August 18, 2021
(To Prospectus dated July 30, 2021)
$300,000,000
Aemetis, Inc.
Common Stock
_________
This
Amendment No. 1 to Prospectus Supplement, or this amendment, amends
our prospectus supplement dated August 18, 2021 (as amended by the
amendment, the prospectus supplement). This amendment should be
read in conjunction with the prospectus supplement and the
prospectus dated July 30, 2021, each of which are to be delivered
with this amendment. This amendment amends and/or supplements only
those sections of the prospectus supplement listed in this
amendment; all other sections of the prospectus supplement remain
as is.
We have
entered into an At Market Issuance Sales Agreement, or the sales
agreement, with H.C. Wainwright & Co., LLC, or the distribution
agent, dated January 26, 2021, as amended by that certain amendment
agreement, dated as of August 18, 2021, relating to the sale of our
common stock offered by the prospectus supplement, as amended by
this amendment. In accordance with the terms of the sales
agreement, under the prospectus supplement we may offer and sell
shares of our common stock, $0.001 par value per share, having an
aggregate offering price of up to $300,000,000 from time to time
through the distribution agent, acting as our agent. Sales of our
common stock, if any, under the prospectus supplement will be made
by any method permitted that is deemed an “at the market
offering” as defined in Rule 415 under the Securities Act of
1933, as amended, or the Securities Act. The distribution agent is
not required to sell any specific amount, but will act as our
distribution agent using commercially reasonable efforts consistent
with its normal trading and sales practices.
The
distribution agent will be entitled to compensation at a commission
rate of up to 3.0% of the gross sales price per share sold under
the sales agreement. The
net proceeds, if any, that we receive from the sales of our common
stock will depend on the number of shares actually sold and the
offering price for such shares. See “Plan of
Distribution” beginning on page S-12 for additional
information regarding the compensation to be paid to the
distribution agent. In connection with the sale of the common stock
on our behalf, the distribution agent will be deemed to be an
“underwriter” within the meaning of the Securities Act
and the compensation of the distribution agent will be deemed to be
underwriting commissions or discounts. We have also agreed to
provide indemnification and contribution to the distribution agent
with respect to certain liabilities, including liabilities under
the Securities Act.
You
should read the prospectus supplement in conjunction with the
accompanying base prospectus, including any supplements and
amendments thereto. The prospectus supplement is qualified by
reference to the accompanying base prospectus except to the extent
that the information in the prospectus supplement supersedes and
updates the information contained in the accompanying base
prospectus. The prospectus supplement is not complete without, and
may not be delivered or utilized except in connection with, the
accompanying base prospectus, including any supplements and
amendments thereto.
Our
common stock is listed on The Nasdaq Stock Market under the symbol
“AMTX.” On November 24, 2021, the last reported sale
price of our common stock on The Nasdaq Stock Market was $18.51 per
share.
________________________________________
Investing in our securities involves a high
degree of risk. See the “Risk
Factors” section
beginning on page S-7 of the prospectus supplement and the
corresponding sections in the accompanying base prospectus and in
our Annual Report on Form 10-K for the year ended December 31,
2020, as well as our subsequent filings with the Securities and
Exchange Commission under the Securities Exchange Act of 1934,
which are incorporated by reference into the prospectus
supplement.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
determined if this amendment, the prospectus supplement or the
accompanying base prospectus is truthful or complete. Any
representation to the contrary is a criminal
offense.
________________________________________
H.C. Wainwright & Co.
The date of this Amendment No. 1 to prospectus supplement is
November 30, 2021
Table of Contents
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AMENDMENT NO. 1 TO PROSPECTUS SUPPLEMENT
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Page
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ABOUT THIS AMENDMENT TO PROSPECTUS SUPPLEMENT
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ii
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PROSPECTUS SUPPLEMENT SUMMARY
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3
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RISK FACTORS
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4
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DILUTION
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5
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CAPITALIZATION
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6
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LEGAL MATTERS
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8
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ABOUT THIS AMENDMENT TO PROSPECTUS SUPPLEMENT
You should carefully read this entire prospectus supplement and the
accompanying base prospectus, including the information included
and referred to under “Risk Factors” below, the
information incorporated by reference in the prospectus supplement
and in the accompanying base prospectus, and the financial
statements and the other information incorporated by reference in
the accompanying base prospectus, before making an investment
decision.
We are
filing this amendment in connection with our reincorporation from
Nevada to Delaware in connection with a plan of conversion. Unless
the context otherwise requires, the terms “Aemetis,
Inc.,” “Company,” “our company,”
“we,” “us,” or “our” refer to
Aemetis, Inc., a Delaware corporation, and its subsidiaries. When
we refer to “you” we mean the purchaser or potential
purchaser of the shares of common stock offered
hereby.
The
prospectus supplement and the accompanying base prospectus form
part of a registration statement on Form S-3 that we filed with the
Securities and Exchange Commission, or SEC, using a
“shelf” registration process. This document contains
two parts. The first part consists of the prospectus supplement,
which provides you with specific information about this offering.
The second part, the accompanying base prospectus, provides more
general information, some of which may not apply to this offering.
Generally, when we refer only to the “prospectus,” we
are referring to both parts combined. The prospectus supplement may
add, update, or change information contained in the accompanying
base prospectus. To the extent that any statement we make in the
prospectus supplement is inconsistent with statements made in the
accompanying base prospectus or any documents incorporated by
reference herein or therein, the statements made in the prospectus
supplement will be deemed to modify or supersede those made in the
accompanying base prospectus and such documents incorporated by
reference herein and therein.
The
prospectus supplement and the accompanying base prospectus relate
to the offering of common stock. Before buying any securities
offered hereby, we urge you to carefully read the prospectus
supplement and the accompanying base prospectus, together with the
information incorporated herein and therein by reference as
described under the headings “Where You Can Find More
Information” and “Incorporation of Certain Information
by Reference.” These documents contain important information
that you should consider when making your investment decision. The
prospectus supplement may add, update, or change information in the
accompanying base prospectus.
You
should rely only on the information contained in or incorporated by
reference in the prospectus supplement, the accompanying base
prospectus and any free writing prospectus that we may authorize
for use in connection with this offering. We have not, and the
distribution agent has not, authorized anyone to provide you with
different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not,
and the distribution agent is not, making an offer to sell these
securities in any jurisdiction where the offer or sale is not
permitted or in which the person making that offer or solicitation
is not qualified to do so or to anyone to whom it is unlawful to
make an offer or solicitation. You should assume that the
information appearing in the prospectus supplement, the
accompanying base prospectus, the documents incorporated by
reference herein and therein and any free writing prospectus that
we have authorized for use in connection with this offering is
accurate only as of the date of those respective documents. Our
business, financial condition, results of operations and prospects
may have changed since those dates. You should carefully read this
entire prospectus supplement and the accompanying base prospectus,
including the information included and referred to under
“Risk Factors” below, the information incorporated by
reference in the prospectus supplement and in the accompanying base
prospectus, and the financial statements and the other information
incorporated by reference in the accompanying base prospectus,
before making an investment decision. You should also read and
consider the information in the documents to which we have referred
you in the section of the prospectus supplement entitled
“Incorporation of Certain Information by
Reference.”
The
prospectus supplement and the accompanying base prospectus contain
summaries of certain provisions contained in some of the documents
described herein, but reference is made to the actual documents for
complete information. All of the summaries are qualified in their
entirety by the actual documents. Copies of some of the documents
referred to herein have been or will be filed as exhibits to the
registration statement of which the prospectus supplement is a part
or as exhibits to documents incorporated by reference herein, and
you may obtain copies of those documents as described below under
the headings “Where You Can Find More Information” and
“Incorporation of Certain Information by Reference.” We
note that the representations, warranties and covenants made by us
in any agreement that is filed as an exhibit to any document that
is incorporated by reference herein were made solely for the
benefit of the parties to such agreement, including, in some cases,
for the purpose of allocating risk among the parties to such
agreement, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations,
warranties or covenants were accurate only as of the date when
made. Accordingly, such representations, warranties and covenants
should not be relied on as accurately representing the current
state of our affairs.
The industry and market data and
other statistical information contained in the documents we
incorporate by reference are based on our own estimates,
independent publications, government publications, reports by
market research firms or other published independent sources, and,
in each case, are believed by us to be reasonable estimates.
Although we believe these sources are reliable, we have not
independently verified the information.
Securities offered pursuant to the registration
statement to which the prospectus supplement relates may only be
offered and sold if not more than three years have elapsed since
the initial effective date of the registration statement, subject
to the extension of this period in compliance with applicable SEC
rules.
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PROSPECTUS SUPPLEMENT SUMMARY
The following summary of our business
highlights some of the information contained elsewhere in or
incorporated by reference into the prospectus supplement or the
accompanying base prospectus. Because this is only a summary,
however, it does not contain all of the information that may be
important to you. You should carefully read the prospectus
supplement and the accompanying base prospectus, including the
documents incorporated by reference, which are described under
“Incorporation of Certain Information by Reference” in
the prospectus supplement and the accompanying base prospectus. You
should also carefully consider the matters discussed in the section
in the prospectus supplement entitled “Risk Factors”
and in the accompanying base prospectus and in other documents
incorporated herein by reference. Moreover, the information
contained in the prospectus supplement includes
“forward-looking statements,” which are based on
current expectations and beliefs concerning future developments and
their potential effects on us. There can be no assurance that
future developments actually affecting us will be those
anticipated. See the prospectus supplement for cautionary
information regarding forward-looking
statements.
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Our History
We were
incorporated in Nevada in 2006 under the name American Ethanol,
Inc. We completed a reverse merger of American Ethanol, Inc. with
Marwich II, Ltd., a public shell company, on December 7, 2007. For
accounting purposes, the reverse merger was treated as a reverse
acquisition with American Ethanol as the acquirer and Marwich as
the acquired party. After consummation of the reverse merger, we
changed our name to AE Biofuels, Inc.
In
2011, we acquired Zymetis, Inc., a biotechnology company with a
patented organism that enables the production of renewable advanced
biofuels and biochemicals. As a part of the acquisition, we changed
our name to Aemetis, Inc. In 2012, we acquired all of the
outstanding shares of Cilion, Inc., and thereby acquired the Keyes
plant.
In
2021, we entered into a plan of conversion, pursuant to which we
reincorporated from Nevada to Delaware. Following the
reincorporation, we continued our existence as Aemetis, Inc., a
Delaware corporation. Other than the jurisdiction of incorporation,
we remained the same entity following the reincorporation, and the
reincorporation did not effect any change in our business,
management or operations or the location of our principal executive
offices.
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An investment in our securities involves a
high degree of risk. Before deciding whether to invest in our
securities, you should carefully consider the risks described
below, together with the other information in the prospectus
supplement and the accompanying base prospectus and the information
contained in our other filings with the SEC as well as any
amendment or update to our risk factors reflected in subsequent
filings with the SEC, which are incorporated by reference in the
prospectus supplement and the accompanying base prospectus in their
entirety, together with other information in the prospectus
supplement, the accompanying base prospectus, the information and
documents incorporated by reference herein and therein, and in any
free writing prospectus that we have authorized for use in
connection with this offering. If any of these risks actually
occurs, our business, financial condition, results of operations,
or cash flow could be seriously harmed. This could cause the
trading price of our securities to decline, resulting in a loss of
all or part of your investment.
Risks Related to This Offering
You may experience immediate and substantial
dilution.
The
offering price per share in this offering may exceed the net
tangible book value per share of our common stock. Assuming that an
aggregate of 16,207,455 shares of our common stock are sold at a
price of $18.51 per share pursuant to the prospectus supplement
which was the last reported sale price of our common stock on
Nasdaq on November 24, 2021, for aggregate net proceeds of
approximately $291.0 million after deducting commissions and
estimated aggregate offering expenses payable by us, you would
experience immediate dilution of approximately $15.25 per share.
See the section entitled “Dilution” on page 6 of this
amendment for a more detailed illustration of the dilution you
would incur if you participate in this offering.
If you
invest in our common stock, your interest will be diluted to the
extent of the difference between the price per share you pay in
this offering and the net tangible book value or deficit per share
of our common stock immediately after this offering. Our historical
net tangible book deficit of our common stock as of September 30,
2021 was approximately $132.1 million, or $4.06 per share of our
common stock based upon 32,564,085 shares outstanding. Historical
net tangible book value or deficit per share is equal to our total
tangible assets, less our total liabilities, divided by the total
number of shares of our common stock outstanding as of September
30, 2021.
Dilution per share
to new investors represents the difference between the amount per
share paid by purchasers for our common stock in this offering and
the as adjusted net tangible book value per share of our common
stock immediately following the completion of this
offering.
After
giving effect to the sale of our common stock in the aggregate
amount of $300.0 million at an assumed offering price of $18.51 per
share, being the last reported sale price of our common stock on
The Nasdaq Stock Market on November 24, 2021 and after deducting
commissions and estimated offering expenses payable by us, our as
adjusted net tangible book value as of September 30, 2021 would
have been approximately $158.9 million, or $3.26 per share of
common stock. This represents an increase in net tangible book
value compared to the net tangible book deficit as of September 30,
2021 of $7.32 per share to our existing stockholders and an
immediate dilution of $15.25 per share to new investors in this
offering.
The
following table illustrates this calculation on a per share basis.
The as adjusted information is illustrative only and will adjust
based on the actual price to the public, the actual number of
shares sold and other terms of the offering determined at the time
shares of our common stock are sold pursuant to the prospectus
supplement. The as adjusted information assumes that all of our
common stock in the aggregate amount of $300.0 million is sold at
the assumed offering price of $18.51 per share, being the last
reported sale price of our common stock on The Nasdaq Stock Market
on November 24, 2021. The shares sold in this offering, if any,
will be sold from time to time at various prices.
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Assumed public
offering price per share
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$18.51
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Historical net
tangible book value (deficit) per share as of September 30,
2021
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$(4.06)
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Increase in net
tangible book value (deficit) per share attributable to new
investors in this offering
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7.32
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As adjusted net
tangible book value (deficit) per share immediately after this
offering
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3.26
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Dilution per share
to new investors in this offering
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$15.25
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The foregoing
table is based upon 32,564,085 shares outstanding, which excludes
663,500 shares of common stock issued pursuant to our existing
at-the-market program from August 19, 2021 through November 24,
2021, and does not give effect to the exercise of any outstanding
options or warrants. To the extent options and warrants are
exercised, there may be further dilution to new
investors.
The
shares subject to the sales agreement with the distribution agent
are being sold from time to time at various prices. An increase of $1.00 per share in the
price at which the shares are sold from the assumed offering price
of $18.51 per share shown in the table above, assuming an adjusted
15,376,730 aggregate number of shares sold pursuant to this
offering, would increase our adjusted net tangible book value per
share after the offering to $3.31 per share and would increase the
dilution per share to new investors in this offering to
$16.20 per share,
after deducting commissions and estimated aggregate offering
expenses payable by us. A decrease of $1.00 per share in the price
at which the shares are sold from the assumed offering price of
$17.51 per share shown in the table above, assuming an adjusted
17,133,067 aggregate number of shares sold pursuant to this
offering, would decrease our adjusted net tangible book value per
share after the offering to $3.20 per share and would decrease the
dilution per share to new investors in this offering to $14.31 per
share, after deducting commissions and estimated aggregate offering
expenses payable by us. This information is supplied for
illustrative purposes only.
In addition, we may choose to raise additional capital due to
market conditions or strategic considerations even if we believe we
have sufficient funds for our current or future operating plans. To
the extent that additional capital is raised through the sale of
equity or convertible debt securities, the issuance of these
securities could result in further dilution to our
stockholders.
The
following table sets forth our cash and cash equivalents and
capitalization as of September 30, 2021 on an actual basis, and on
an adjusted basis to give effect to the sale of shares of common
stock in this offering, the effect of sales of common stock
pursuant to our existing at-the-market program between August 18,
2021 through November 24, 2021, and the use of funds for the
capital expenditures. You should read this table in conjunction
with our consolidated financial statements and the related notes
thereto, “Management’s Discussion and Analysis of
Financial Condition and Results of Operations,” and the other
financial information incorporated by reference into this
prospectus supplement and the accompanying base
prospectus.
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In thousands,
except for par value
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Cash and cash
equivalents
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6,389
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154,697
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Long-term
debt:
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Current portion of
long-term debt
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23,863
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9,786
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Long-term
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204,467
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75,852
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Total long-term
debt
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228,330
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85,638
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Shareholders’
equity:
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Series B
convertible preferred stock, $0.001 par value; 7,235 authorized;
1,323 shares issued and outstanding (aggregate liquidation
preference of $3,969)
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1
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1
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Common stock,
$0.001 par value; 40,000 authorized; 32,564 and 22,830 shares
issued and outstanding, respectively
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33
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50
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Additional paid-in
capital
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192,520
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483,504
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Accumulated
deficit
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(320,346)
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(320,346)
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Accumulated other
comprehensive loss
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(4,301)
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(4,301)
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Total
stockholders’ equity (deficit) attributable to Aemetis,
Inc.
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(132,093)
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158,908
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Total
capitalization
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96,237
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244,546
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DESCRIPTION OF CAPITAL STOCK
General
The
following summary of the material features of our capital stock
does not purport to be complete and is subject to, and qualified in
its entirety by, the provisions of our certificate of incorporation
(“Certificate of Incorporation”), the Certificate of
Designation of Series B Preferred Stock, our bylaws
(“Bylaws”) and other applicable law.
Authorized and Outstanding Capital Stock
Our
authorized capital stock consists of 80,000,000 shares of common
stock, $0.001 par value per share, and 65,000,000 shares of
preferred stock, $0.001 par value per share, of which 1,323,394
shares are designated as Series B Preferred Stock. As of November
24, 2021, there were 33,289,689 shares of common stock and
1,323,394 shares of
Series B Preferred Stock issued and outstanding. The following
description of our capital stock does not purport to be complete
and should be reviewed in conjunction with our Certificate of
Incorporation, including our Certificate of Designation of Series B
Preferred, and our Bylaws.
Common Stock
The
holders of our common stock are entitled to one vote for each share
held on all matters submitted to a vote of the stockholders. The
holders of our common stock do not have any cumulative voting
rights. Holders of our common stock are entitled to receive ratably
any dividends declared by the board of directors out of funds
legally available for that purpose, subject to any preferential
dividend rights of any outstanding preferred stock. Our common
stock has no preemptive rights, conversion rights or other
subscription rights or redemption or sinking fund
provisions.
In the
event of our liquidation, dissolution or winding up, holders of our
common stock will be entitled to share ratably in all assets
remaining after payment of all debts and other liabilities and any
liquidation preference of any outstanding preferred
stock.
Anti-Takeover Provisions
Certain
provisions of Delaware law, our Certificate of Incorporation and
our Bylaws may have the effect of delaying, deferring or
discouraging another person from acquiring control of the
Company.
Issuance of undesignated preferred stock
Our
board of directors has the ability to designate and issue preferred
stock with voting or other rights or preferences that could deter
hostile takeovers or delay changes in our control or
management.
Classified Board
Our
Certificate of Incorporation provides for a classified board of
directors consisting of three classes of directors. Directors of
each class are chosen for three-year terms upon the expiration of
their current terms and each year one class of our directors will
be elected by our stockholders. Additionally, there is no
cumulative voting in the election of directors. This classified
board provision could have the effect of making the replacement of
incumbent directors more time consuming and difficult. At least two
annual meetings of stockholders, instead of one, will generally be
required to effect a change in a majority of our board of
directors. Thus, the classified board provision could increase the
likelihood that incumbent directors will retain their positions.
The staggered terms of directors may delay, defer or prevent a
tender offer or an attempt to change control of us, even though a
stockholder might consider a tender offer or change in control to
be in its best interests.
In
addition, our Certificate of Incorporation and Bylaws provide that,
subject to the terms of any series of preferred stock, directors
may be removed only for cause and only by the affirmative vote of
the holders of at least a majority of the voting power of the
outstanding shares of capital stock of the Company entitled to vote
at an election of directors. Our Certificate of Incorporation and
Bylaws also provide that subject to the terms of any series of
preferred stock, any vacancy or newly created directorship in our
board of directors, however occurring, shall be filled only by vote
of a majority of the directors then in office, although less than a
quorum, and shall not be filled by the stockholders.
Ability of our Stockholders to Act
Our
Certificate of Incorporation and Bylaws do not permit our
stockholders to call special stockholders meetings; special
stockholders meetings may only be called by the board of directors,
the chairperson of the board of directors or the Chief Executive
Officer of the Company. Written notice of any special meeting so
called shall be given to each stockholder of record entitled to
vote at such meeting not less than 10 or more than 60 days before
the date of such meeting, unless otherwise required by law. No
action shall be taken by the stockholders of the Company except at
an annual or special meeting of stockholders called in accordance
with our Certificate of Incorporation or Bylaws, and no action
shall be taken by the stockholders by written consent; provided,
however, that any action required or permitted to be taken by the
holders of preferred stock, voting separately as a series or
separately as a class with one or more other such series, may be
taken without a meeting, without prior notice and without a vote,
to the extent expressly so provided by the applicable certificate
of designation relating to such series of preferred
stock.
Rights Plan
We have
a stockholder rights plan (the “Rights Plan”) designed
to preserve the value of certain tax assets primarily associated
with our net operating losses (“NOLs”) and built in
losses under Section 382. The use of such losses to offset
federal income tax would be limited if we experience an
“ownership change” under Section 382. This would
occur if stockholders owning (or deemed under Section 382 to
own) 5% or more of our stock by value increase their collective
ownership of the aggregate amount of our stock by more than 50
percentage points over a defined period of time. While the Rights
Plan is intended to protect our NOLs and built-in losses under
Section 382, it may also have an “anti-takeover”
effect of delaying or preventing beneficial takeover bids by third
parties.
The
validity of the shares of common stock offered hereby have been
passed upon for us by Shearman & Sterling LLP. Ellenoff
Grossman & Schole LLP is counsel for the distribution agent in
connection with this offering.
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