UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-K

x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2018

or

o TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                     to                

Commission file number: 001-37515

Aqua Metals, Inc.

(Exact name of registrant as specified in its charter)

Delaware	47-1169572
(State or Other Jurisdiction of Incorporation or Organization)	(I.R.S. Employer Identification Number)

2500 Peru Dr.

McCarran, Nevada 89437

(Address of principal executive offices)

(775) 525-1936

(Registrant’s telephone number, including area code)

Securities registered pursuant to Section 12(b) of the Act:	Name of Each Exchange on Which Registered:
Common Stock	The Nasdaq Capital Market

Securities registered pursuant to Section 12(g) of the Act:

None

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No x

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Exchange Act. Yes o No x

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the past 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x  No o

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes x  No o

Indicate by check mark if disclosure of delinquent filers in response to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.  x

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company (as defined in Rule 12b-2 of the Act):

Large accelerated filer o	Accelerated filer  x
Non-accelerated filer o	Smaller reporting company  x
	Emerging Growth Company x

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 13(a) of the Exchange Act. x

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act)

Yes o No x

State the aggregate market value of voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was last sold, or the average bid and asked price of such common equity, as of the last business day of the registrant’s most recently completed second fiscal quarter: $100,626,250.

The number of shares of the registrant’s common stock outstanding as of February 26, 2019 was 44,354,852.

DOCUMENTS INCORPORATED BY REFERENCE

Portions of the registrant’s definitive proxy statement for the registrant’s 2019 Annual Meeting of Stockholders to be filed pursuant to Regulation 14A within 120 days of the registrant’s year ended December 31, 2018 are incorporated herein by reference into Part III of this Annual Report on Form 10-K.

TABLE OF CONTENTS

		Page
	PART I
Item 1.	Business	3
Item 1A.	Risk Factors	12
Item 1B.	Unresolved Staff Comments	20
Item 2.	Properties	20
Item 3.	Legal Proceedings	21
Item 4.	Mine Safety Disclosures	21
	PART II
Item 5.	Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Repurchases of Equity Securities	22
Item 6.	Selected Financial Data	23
Item 7.	Management’s Discussion and Analysis of Financial Condition and Results of Operations	25
Item 7A.	Quantitative and Qualitative Disclosures About Market Risk	34
Item 8.	Financial Statements and Supplementary Data	35
Item 9.	Changes in and Disagreements with Accountants on Accounting and Financial Disclosure	69
Item 9A.	Controls and Procedures	69
Item 9B.	Other Information	69
	PART III
Item 10.	Directors, Executive Officers and Corporate Governance	71
Item 11.	Executive Compensation	71
Item 12.	Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters	71
Item 13.	Certain Relationships and Related Transactions and Director Independence	71
Item 14.	Principal Accountant Fees and Services	71
	PART IV
Item 15.	Exhibits and Financial Statement Schedules	72
Signatures		76

CAUTIONARY NOTICE

This annual report on Form 10-K contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Those forward-looking statements include our expectations, beliefs, intentions and strategies regarding the future. Such forward-looking statements relate to, among other things,

• our future financial and operating results;

• our intentions, expectations and beliefs regarding anticipated growth, market penetration and trends in our business;

• the timing and success of the roll-out of our first 16 Aqua refining modules; 

• the ability to maximize selling value from the broken lead-acid batteries, or LABs;

• the timing and success of our plan of commercialization;

• our ability to operate our AquaRefining process on a commercial scale;

• our ability to realize the expected benefits of our strategic partnership with Johnson Controls;

• our ability to procure LABs in sufficient quantities at competitive prices;

• the success of our first LAB recycling facility near Reno, Nevada;

• the availability of working capital to pursue the development of additional recycling centers;

• the effects of the putative class action and shareholder derivative lawsuits filed against us;

• the timing and success of our development of additional recycling facilities;

• the effects of market conditions on our stock price and operating results;

• our ability to maintain our competitive technological advantages against competitors in our industry;

• our ability to have our technology solutions gain market acceptance;

• our ability to maintain, protect and enhance our intellectual property;

• the effects of increased competition in our market and our ability to compete effectively;

• costs associated with defending intellectual property infringement and other claims;

• our expectations concerning our relationships with suppliers, partners and other third parties; and

• our ability to comply with evolving legal standards and regulations, particularly concerning requirements for being a public company and environmental regulations.

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These and other factors that may affect our financial results are discussed more fully in “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included in this report. Market data used throughout this report is based on published third party reports or the good faith estimates of management, which estimates are presumably based upon their review of internal surveys, independent industry publications and other publicly available information. Although we believe that such sources are reliable, we do not guarantee the accuracy or completeness of this information, and we have not independently verified such information. We caution readers not to place undue reliance on any forward-looking statements. We do not undertake, and specifically disclaim any obligation, to update or revise such statements to reflect new circumstances or unanticipated events as they occur, and we urge readers to review and consider disclosures we make in this and other reports that discuss factors germane to our business. See in particular our reports on Forms 10-K, 10-Q, and 8-K subsequently filed from time to time with the Securities and Exchange Commission.

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PART I

Item 1. Business

Background

We were formed as a Delaware corporation on June 20, 2014 for the purpose of engaging in the business of recycling lead through a novel, proprietary and patent-pending process that we developed and named “AquaRefining”. Since our formation, we have focused our efforts on the development and testing of our AquaRefining process, the development of our business plan, the raise of our present working capital and the development of our initial lead acid battery, or LAB, recycling facility in the Tahoe Regional Industrial Center, McCarran, Nevada (“TRIC”).

We completed the development of our first LAB recycling facility at TRIC and commenced production of battery breaking and limited operations during the first quarter of 2017. The TRIC facility now produces varying products for commercial sales primarily consisting of ingoted AquaRefined lead, lead compounds, ingoted hard lead and as well as plastic. In April 2017, we commenced the shipment of products for sale, consisting of lead compounds as well as plastics. In April 2018, we commenced the limited production of lead bullion, including AquaRefined lead. In July 2018, we commenced the sale of pure AquaRefined lead in the form of two tonne blocks, and in October 2018, we commenced the sale of AquaRefined lead in the form of battery manufacturing ready ingots. In November 2018, we received official vendor certification from Johnson Controls for our AquaRefined lead and in December 2018, we commenced shipments directly to Johnson Controls owned and partner battery manufacturing facilities.

After several months of engaging in extensive diligence and engineering evaluations, on February 28, 2019, we has entered into an Operations, Management and Maintenance Agreement with Veolia North America Regeneration Services LLC (Veolia) to provide operations, maintenance and management services at our Aqua Metals' AquaRefining facility in McCarran, Nevada.

Veolia is expected to contribute operational and technological expertise and organizational capabilities in aqueous based process chemistries and electrolysis along with taking on responsibility for operations, supply chain, offtake and management of the plant. Veolia employees will begin working onsite starting March 4, 2019 at the McCarran facility. In addition to receiving expertise and support from Veolia North America resources overall, this Agreement provides for Veolia to relocate up to six (6) full time employees with strong operations, process engineering, management expertise to join the Aqua Metals team at our AquaRefinery in McCarran, Nevada. Veolia North America will take over the primary responsibility for scaling the facility through the remainder of 2019 to CP1-16 (Commercial Plant 1, 16 AquaRefining modules) of capacity. The Agreement also provides for Veolia and Aqua Metals to work together to plan in 2019 and complete the expansion of the TRIC facility to 32 AquaRefining modules.

We believe the Agreement will allow us to leverage off Veolia’s supply chain and offtake and waste stream buying power and expertise. The intention of the parties is to grow the relationship where Veolia will serve as Aqua Metals’ go to market execution partner to staff and manage AquaRefining facilities with mutually agreed performance metrics for Aqua Metals and our partners. We expect this will begin with the first facility we deploy with Johnson Controls Power Systems Division (being transitioned to Brookfield Asset Management, which has over $350B of assets under management) as a part of our efforts to complete the Joint Development Agreement with them by June 2019, with the blueprint for deploying AquaRefining upgrades to existing battery recycling facilities. A more complete summary of the terms of the Agreement is set forth in Part II, Item 9.B. "Other Information."

Veolia North America Regeneration Services, LLC is the wholly-owned subsidiary of Veolia Environnement S. A. (Paris Euronext: VIE). Veolia​ Environnement is the global leader in optimized resource management. With nearly 169,000 employees worldwide, Veolia Environnement designs and provides water, waste and energy management solutions that contribute to the sustainable development of communities and industries. Through its three complementary business activities, Veolia Environnement helps to develop access to resources, preserve available resources, and to replenish them. In 2017, Veolia Environnement supplied 96 million people with drinking water and 62 million people with wastewater service, produced nearly 55 million megawatt hours of energy and converted 47 million metric tons of waste into new materials and energy. Veolia Environnement recorded consolidated revenue of USD 30.1 billion in 2017. www.veolia.com.

Unless otherwise indicated, the terms “Aqua Metals”, “Company”, “we,” “us,” and “our” refer to Aqua Metals, Inc. and its wholly-owned subsidiaries.

All references in this report to “ton” or “tonne” refer to a metric ton, which is equal to approximately 2,204.6 pounds.

Since our organization in 2014, we have engaged in several capital raising transactions, the most recent of which are summarized below in “Management’s Discussion and Analysis of Financial Condition and Results of Operations - General.”

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Overview

Aqua Metals is seeking to reinvent lead recycling with its patented and patent-pending AquaRefining^™ technology. Unlike smelting, AquaRefining is a room temperature, water-based process. It is deployed as a factory built modular system which allows the lead-acid battery industry to simultaneously improve environmental impact and scale production to meet demand. Aqua Metals has built its first recycling facility in Nevada’s Tahoe Reno Industrial Complex. Lead is a globally traded commodity with a worldwide market value in excess of $20 billion. Lead acid batteries (LABs) are the primary consumer use of all lead produced in the world. Because the chemical and metallurgical properties of lead allow it to be recycled and reused indefinitely, LABs are also the dominant feed source for lead production across the world. As such, LABs are almost 100% recycled for purposes of capturing the lead contained therein for re-use. We believe that our proprietary and patented AquaRefining process will provide for the existing LAB recycling facility to leverage our capabilities for expanded production of a much higher purity lead with fewer environmental and regulatory issues than is possible with the current conventional methods of lead production.

In recent years, recycled lead has become increasingly important to LAB production. Recycled lead surpassed mined lead in the 1990s and now represents more than 60% of the lead content in new LABs. Whether it is produced from lead ore or recycled LABs, lead has historically been produced by smelting. Smelting is a high-temperature, metallurgical/chemical reduction, energy intensive and often a highly polluting process. As a consequence of the environmental and health issues, lead smelting has become increasingly regulated in many countries. In the U.S., regulatory non-compliance has forced the closure of large lead smelters in Vernon, California, Frisco, Texas and Herculaneum, Missouri over the last several years. In response to increasing environmental regulation over the past three decades, there has been an expansion of LAB smelting capacity in Mexico and other less regulated countries. The resulting transportation of used LABs from where they originate in the U.S. to smelters in Mexico, South Korea, the Philippines and elsewhere is an increasingly significant logistical and global environmental cost.

AquaRefining uses a bio-degradable aqueous solvent and a novel ambient temperature electro-chemical process to produce lead suitable for use in LAB production. Our AquaRefining process produces lead with a purity that is equivalent to primary lead (i.e., higher than 99.99% purity). We believe that AquaRefining can provide a more efficient production process as compared with alternative methods of producing equivalent grades of lead. We also have the potential to locate AquaRefining facilities closer to the source of used LABs, thereby reducing transport costs and supply chain bottlenecks. On this basis, we believe that AquaRefining reduces environmental plant emissions, health concerns and permitting needs compared with lead smelting. We believe that the combined advantages offered by AquaRefining represent a potential step change in lead recycling technology that includes improved product quality, advantages in footprint and logistics as well as reduced environmental impact.

The modular nature of AquaRefining makes it possible both to start LAB recycling at a smaller scale than is possible with a typical smelter setup, and to add AquaRefining to existing battery recycling operations to expand production capacity or to reduce smelting processes. Our plan is to pursue two complementary business streams. The first is to supply AquaRefining and supporting equipment to third parties to supplement or replace smelting in their battery recycling operations. We intend to pursue this at least initially through our relationship with Johnson Controls Inc., with which we have entered exploratory discussions centered on the addition of AquaRefining to one of its existing battery recycling operations. We also intend to pursue similar arrangements with other companies operating recycling operations. The second is to expand our own lead recycling operations at our plant in McCarran, Nevada, subject to our receipt of additional capital.

Our Markets

The Lead Market

Lead is a globally traded metal commodity and is the essential component of over 80% of the world’s rechargeable batteries. Lead is globally traded primarily on the London Metals Exchange, or LME, although the smaller Shanghai Metals Exchange (SHME) in China also trades the element. Conventionally in the industry, there are two separate groupings of lead: i) primary lead which refers to lead produced at primary smelters that use mined lead concentrates (generally lead sulfide) as their major feedstock, and ii) secondary lead which refers to lead smelters utilizing LABs as their main feed source.

Originally, the majority of the lead used in batteries was sourced from primary smelters but in recent decades, secondary lead has grown to become the dominate product used. Industry data shows that six million metric tons of lead was produced in 1995 of which approximately 45% was primary and 55% was from secondary sources. Twenty years later, by 2015, global lead production had increased to approximately 11 million metric tons, of which more than 65% was secondary. Importantly, primary lead production had increased only marginally during this period. This marginal increase is partially due to lead-zinc mine deposits are being depleted across the globe in existing mines. As such, an increasing quantity of primary lead is now the predominate byproduct of zinc mining.

In 2005, secondary lead traded on the LME in a range of $1,000 to $1,200 per metric ton. During 2018, secondary lead traded in a range of approximately $1,900 to $2,700 per metric ton.

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As noted above, although lead is traded as a commodity on the LME/SHME, the major sales are the sales directly between producers/ traders and users (whom are typically battery manufacturers). The LME daily price is used as the benchmark in forming the basis of physical trades, forward contracts and hedge strategies for both primary and secondary lead. Based on market and product knowledge with buyers of lead in the U.S. and Global lead markets, different grades (termed alloys) of lead are traded at a premium to the base LME price. Lead alloys, which are generally specifically designed for the customer, are also sold at a premium above the base LME, whereas by-products (generally lead compounds or scrap) are traded at a discount to the LME as they are based on the lead content and its form.

Lead Smelting

Currently, smelters produce virtually all the world’s mined and recycled lead. Smelting is an energy intensive and, in some poorly managed plants, a highly polluting process. At its core, smelting is a relatively high temperature (excess of 900°C) metallurgical reduction process in which lead compounds are heated and reacted with various reducing agents to remove the oxygen, sulfur, and other impurities. The process leaves behind bullion lead and waste slag. In smelting, depending upon the operation, 0.5% to 5% of the lead can be lost to the “slag”, with the resultant lead bullion containing both wanted and unwanted impurities.

In developed countries, there is both increased environmental regulation and enforcement of such, including monitoring of permissible blood lead levels in employees and local populations. These regulations and the increasing enforcement have made it more expensive to operate smelters. According to a report titled “Hazardous Trade?” produced by the Secretariat of the Commission for Environmental Cooperation in 2013, this has led to a decline of lead smelters in the U.S., an expansion of smelting operations in Mexico and a resultant increase in the export of used LABs from the U.S. followed by the re-import of recycled lead. This trade is believed to be largely driven by the lower costs related to the less stringent environmental standards and enforcement in Mexico. For the foregoing reasons, we believe that lead smelting facilities are increasingly located in less regulated areas remote from both the source of used LABs and the demand for lead. We believe that the remote location of smelting increases the transport costs to the production of recycled lead.

Lead Acid Batteries

Although the LAB is one of the earliest battery technologies, in terms of energy capacity deployed and installed manufacturing capacity, it still dominates the battery industry today. Historically, the largest market for LABs has been as starter batteries for vehicles. However, with the increasing electrical load on modern vehicles and the adoption of “Stop-Start” conventional 12V “starter batteries”, LABs are evolving into more capable and higher value products. At the same time, large new markets such as Cell Tower, Data Center and Industrial back-up are adding to demand. Consequently, existing LAB production facilities are being expanded and new facilities are being built.

According to CHR Metals, total lead output in 2017 was expected to be 20% higher than it was in 2012. Similar prospects for healthy growth in the lead industry continue to be published and support continued growth in demand for lead for at least the next 20 years. We believe that grid storage and other energy storage applications linked to renewable energy (solar and wind) will also generate increased demand for LABs, where low cost, safety and reliability will make them attractive options.

The increase in LAB manufacturing in general and particularly in China, India and Southeast Asia, has increased demand for lead, putting pressure on global recycling networks to meet this demand. At present, we believe that much of the LAB recycling performed outside of the U.S., Canada, the EU, Japan, and Australia is carried out in outdated facilities with poor environmental standards and insufficient enforcement. China, India, Pakistan and South America appear to be moving toward tougher regulation and enforcement. We believe that this will drive a demand in foreign markets for more less polluting LAB recycling processes.

AquaRefining Process

We developed AquaRefining to be a less expensive, cleaner and modular alternative to smelting. Our process has two key elements, both of which are integral to our issued patents and pending-patent applications. The first is our use of a proprietary, non-toxic solvent that dissolves lead compounds. The second is a proprietary electro-chemical process and electrolyzer that converts the dissolved lead compounds into high purity lead suitable for use in LAB production.

Similar to conventional LAB smelter recycling, our AquaRefining process begins with the crushing of used LABs and the separation of the metallic lead, active material (lead compounds), sulfuric acid and plastic for recycling. The active material (lead compounds) are first processed to remove sulfur and then dissolved in our solvent. Lead is then plated from the solvent using our patented and patent-pending process allowing the solvent to be reused.

Our AquaRefining process can generate the following outputs:

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• Lead and lead-based products, including high purity lead, lead alloys and lead compounds which are primarily intended for the LAB industry. We are also exploring higher value lead-based products which may offer performance and life-cycle benefits to the LAB industry; and

• Recovered plastic chips, intended for re-use in the manufacture of battery casings and other recycled plastic products.

We expect to derive revenue primarily from the sale of lead-based products, with additional revenue derived from the sale of plastic chips.

A significant benefit of our AquaRefining process is that it is capable of producing higher purity product than that derived from primary smelters with product from secondary sources. As indicated above, primary grade lead is generally sold directly to battery companies.

Another significant benefit of our process is that we designed our AquaRefining equipment to be manufactured on a purpose-built production line in standard sized modules. This is not possible with the smelting process, as smelters need to be constructed on site. This gives us the ability to provide AquaRefining systems with capacities ranging from four metric tons per day to more than 400 metric tons per day all based on our standard module.

Lead recycling is subject to a variety of domestic and international regulations related to hazardous materials, emissions, employee safety and other matters. While our operations will be subject to these regulations, we believe that one of our potential advantages will be our ability to conduct lead recycling operations with less regulatory cost and burden than smelting operators due to the nature of our process. One of our key objectives will be to educate regulators and the public as to the environmental benefits of AquaRefining. We believe that we have the potential to develop a business model that offers the opportunity to conduct, in an environmentally friendly manner, an important recycling activity that historically has been conducted in an often highly polluting manner.

Our Business Model

Overall, our objective is to progress the lead recycling industry from one which is based primarily on smelting to one which is based on AquaRefining. Our expectation is that this will be a moderately paced process of evolution in which multiple business models will be evaluated. The two business models that we are currently most focused on are:

1) the supply of AquaRefining and supporting equipment and services to third parties to use in their recycling operations on a licensing model. We are currently focused on exploring this business stream through our relationship with Johnson Controls;

2) the expansion of our own AquaRefining capacity and facilities, subject to our receipt of additional capital.

The market for lead is global in scale but local in nature and execution, with large differences in local regulation, custom and practice. In some regions, it is highly regulated, and in others it is not. Consequently, we are evolving our business model to commercialize our technology optimally across multiple locations.

Lead recycling is subject to a variety of domestic and international regulations related to hazardous materials, emissions, employee safety and other matters. While our operations will be subject to these regulations, we believe that one of our potential advantages will be our ability to conduct lead recycling operations with less regulatory cost and burden than smelting operators. One of our key objectives will be to educate regulators and the public as to the environmental benefits of AquaRefining. We believe we have the potential to develop a business model that offers less regulatory cost and burden and the opportunity to conduct business in a socially responsible manner.

In the U.S. and similarly regulated countries, our plan is to build and operate LAB recycling facilities, both directly and in association with third parties through joint ventures, licensing and direct sales. As an example, on February 7, 2017, we entered into a series of agreements with Johnson Controls Inc., (Johnson Controls), pursuant to which, among other things, we agreed to work with Johnson Controls on the development of a program for upgrades of Johnson Controls’ and certain strategic partners’ of Johnson Controls existing lead smelters throughout North and South America, China and Europe to a lead recycling process utilizing our proprietary and patented AquaRefining technology and equipment, know-how and services.

Competition

At the present time, our primary competition in the production of lead comes from operators of existing smelters and other parties heavily invested in the existing supply chain for smelting. Our approach to this competition is to make AquaRefining available for the conversion of existing smelter-based facilities. However, it is prudent to assume that outside of our strategic relationships, a conversion to AquaRefining may be resisted by some of the incumbent lead producers. Competition in the supply of lead from such incumbents may come in the form of price competition for lead produced. However, to the extent we are successful in being a producer of high quality

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lead without the regulatory costs or burden associated with smelting, we should be able to compete effectively with smelting as the preferred method of recycling lead, at least in the more regulated jurisdictions.

Another area where incumbents may seek to compete is in controlling access to used LABs. The market for used LABs is made up of the members of the LAB reverse supply chains, including auto repair shops, auto parts stores and auto dealers, LAB manufacturers who operate their own smelting operations and third parties who engage in the purchase and sale of used LABs. We believe that some LAB manufacturers who maintain their own smelting operations may feel threatened by our AquaRefining process. Such parties may attempt to restrict our access to used LABs. We have assumed at least some level of interference by incumbents, however, based on our operations to date, including our discussions and arrangements with certain suppliers of used LABs, we do not view access to used LABs be a significant risk to our LAB recycling operations.

Our business plan is not dependent on the acceptance of our process by lead smelters. We still intend to initially focus on operating our own AquaRefining facilities directly and working with Johnson Controls to implement Aqua Refining in a nominated lead smelting facility followed by deployments with additional 3rd parties to propagate AquaRefining as the technology of choice for recycling LABs.

We do not expect to experience significant competition in connection with our sale of lead. We believe that the market for lead is established, fluid and effective; and like the markets for other natural resources, such as oil, gas, gold, silver, etc., we do not expect to encounter any issues, conditions or qualifications for the sale of our lead production at prevailing market prices set by the LME. The vertically integrated LAB manufacturers who conduct smelting operations also are buyers of lead from third parties. We believe that they will still purchase lead from us if we are able to offer it at the market price.

Our First Recycling Facility: McCarran, Nevada

In May 2015, we purchased 11.73 acres of undeveloped land in the Tahoe Reno Industrial Center (TRIC), at McCarran, Nevada where we subsequently built a 136,750 square foot LAB recycling facility.

The building phase was completed by August 2016, at which time we started installing and commissioning equipment. We installed and commissioned the first production AquaRefining module in October 2016 and produced our first lead ingot using electrolyte we produced on-site using materials supplied by a third party, which were recovered from recycled batteries. We verified that the lead we produced by this method was over 99.99 percent pure.

We commenced initial battery breaking during December 2016 and progressed to regular single shift operation of the battery breaker in January 2017. From late 2016 through the date of this report, we implemented a number of upgrades to the facility, the battery breaking and separation processes and other more conventional aspects of our process.

As of December 2017, we had installed 16 AquaRefining modules at TRIC.  To date, we have operated the first four of the 16 modules and have made continuous improvements which have led to individual modules running in a steady state producing 100Kg/hour for several days at a time. As we bring the modules into commercial operation, we expect to continue to adjust the modules to further enhance operation. Although we staffed the facility and ran one or two AquaRefining Modules on a 24x7 basis from October to December 2018, we are currently running one or two modules 24-hours a day, four days a week to allow safe times for some of the key work to be completed for our contribution margin improvement projects. Subject to key work being completed in the first quarter of 2019, we intend to re-instate 24‑hour, seven days a week, continuous operations shortly thereafter and scale to running all four of the initial four modules before bringing the next four modules on line. We believe this operational strategy will allow us to maximize lead production, while enabling the remaining components of the plant to be synchronized in support of increased AquaRefining. Once we are satisfied with the operation of the first four modules, additional modules will be brought into production. This process will be repeated until full production is reached with all 16 modules. Our goal is to operate all 16 modules on a 24/7 continuous basis by the end of 2019. However, due to the delays and unforeseen issues in the completion of the AquaRefining production line we have experienced to date, there can be no assurance that we will not encounter additional delays and issues. 

Supply, Off-Take and Other Strategic Agreements

In support of our first facility, we have entered into a series of agreements and relationships providing for our supply of LABs and the off-take of the recycled lead we produce. As described in more detail below, Interstate Battery has agreed to supply us with LABs pursuant to a written agreement entered into in May 2016. In addition, we have established an important relationship with Battery Systems. Inc., an independent LAB distributor with a distribution facility located next to our TRIC facility, for Battery Systems’ supply of used LABS to us. We have also entered into an agreement with Johnson Controls pursuant to which Johnson Controls has agreed to purchase from us, recycled lead on both a tolling (fee to convert used LABs to recycled materials) and merchanting (sale of recycled materials) basis. We have made progress in diversifying our feedstock supply through various sources at more favorable pricing. Consequently, we believe that we have secured an ample supply of used LABs and demand for our lead-based products for the foreseeable future.

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Johnson Controls Agreements

Equipment Supply Agreement. We entered into an equipment supply agreement dated February 7, 2017 with Johnson Controls pursuant to which we agreed to collaborate on the development of a program for the installation of new greenfield builds and conversion of existing Johnson Controls and certain strategic partners of Johnson Controls’ existing lead smelters to a lead recycling process utilizing our proprietary and patent-pending AquaRefining technology and equipment, know-how and services. We have agreed with Johnson Controls to develop an appropriate program blueprint, and enter into a definitive development program agreement reflecting that blueprint, pursuant to which we will provide to Johnson Controls and certain strategic partners of Johnson Controls, by way of licensing or sale, the following products and services in the regions of North and South America, Europe and China:

• AquaRefining technology and the related equipment, engineering and systems integration support sufficient to convert or retrofit existing smelter-based operations and/or the construction of new Johnson Controls and Johnson Controls’ strategic partners’ battery recycling facilities based on our AquaRefining technology;

• Training, evaluation and certification of Johnson Controls’ operations personnel sufficient for such personnel to competently operate our AquaRefining technology and equipment; and

• Ongoing technical support, maintenance services and warranties.

We plan to provide the above services and equipment to Johnson Controls in conjunction with our partner, Veolia North America Regeneration Services, LLC, on a serviced license basis, including Johnson Controls’ ongoing licensing fees payable to us based on the operational capacity of the AquaRefining equipment supplied by us. We have agreed not to license our AquaRefining technology and equipment to third parties in the aforementioned regions until such time as we and Johnson Controls have agreed on certain matters relating to the initial conversion of a Johnson Controls facility. Johnson Controls and we have agreed to use good faith, commercial best-efforts to conclude the discussion and negotiation of the development program agreement no later than April 30, 2019, and to enter into a definitive development program agreement no later than June 30, 2019. The equipment supply agreement may be terminated by either party upon 60 days’ prior written notice if the parties have not entered into the development program agreement by June 30, 2019, of which there can be no assurance. The equipment supply agreement allows each party the right to seek early termination based on a material breach by the other party that goes uncorrected for 30 days following notice of breach. The equipment supply agreement contains representations, warranties and indemnities that are customary to commercial agreements of this nature.

Tolling/Lead Purchase Agreement. We have entered into a tolling/lead purchase agreement dated February 7, 2017 with Johnson Controls pursuant to which we have agreed to sell to Johnson Controls, and Johnson Controls has agreed to purchase from us, recycled lead on both a tolling (fee to convert used LABs to recycled materials) and merchanting (sale of recycled materials) basis.

Pursuant to the agreement, Johnson Controls has agreed to purchase from us, and we have agreed to sell to Johnson Controls, up to 100% of the recycled lead we produce for automotive applications, other than by way of tolling arrangements, on a monthly basis, unless we receive notice from Johnson Controls six months advance of its intention to purchase less than 100% of our output in any given month. Our agreement with Johnson Controls excludes, and we are free to manufacture and sell to third parties, recycled lead for non-automotive uses, such as stationery batteries for back-up power systems for Internet/Cloud applications or grid scale storage applications. During fiscal year 2018 and 2017, approximately 88% and 96% of our revenues, respectively, were derived from sales to Johnson Controls.

We have also agreed to provide tolling services to Johnson Controls whereby Johnson Controls will deliver to us used lead acid batteries, or LABs, and we will recycle the used LABs and return the recycled lead to Johnson Controls for a fee. Johnson Controls has agreed to send to us for tolling, and we have agreed to toll for Johnson Controls, used LABs representing a significant allocation of the production capacity of our initial recycling facility in McCarran, Nevada. To date, none of our sales to Johnson Controls have been from tolling.

The tolling/lead purchase agreement has a minimum term of five years and upon the expiration of the initial term the agreement, either party can terminate the agreement upon three years prior written notice. Either party may elect to terminate the agreement for any reason after the second anniversary of the agreement, which termination shall be effective on the third anniversary of the notice of termination. Either party may terminate the agreement on ten days’ prior written notice of breach that goes uncorrected during the notice period. The tolling/lead purchase agreement contains representations, warranties and indemnities that are customary to commercial agreements of this nature.

In the fourth quarter of 2018, Johnson Controls International announced that it would sell its power solutions business, which makes, distributes and recycles automotive batteries, to the investment firm Brookfield Business Partners L.P., in a cash deal valued at $13.2 billion. The deal is expected to close in mid-2019. We have received no indication from Johnson Controls or Brookfield that their current strategies relating to Aqua Metals may change.

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Interstate Battery Partnership

On May 18, 2016, we entered into a supply agreement with Interstate Battery pursuant to which Interstate Battery agreed to sell to us, and we agreed to buy from Interstate Battery, used LABs. Interstate Battery will sell us used LABs on a cost-plus basis and the agreement subjects us and Interstate Battery to certain minimum purchase and sale requirements. We have granted Interstate Battery limited rights of first refusal to supply our future AquaRefineries. Our agreement with Interstate Battery is for an initial term of 18 months from the date of first delivery of used LABs to us and will be subject to automatic renewals thereafter unless either party elects to terminate the agreement. The agreement allows each party the right to seek early termination based on certain commercial contingencies. The supply agreement contains representations, warranties and indemnities that are customary to commercial agreements of this nature. In June 2018, we reinvigorated our partnership and established an Omnibus Agreement with Interstate Battery in consideration of adjusting the terms of a warrant to purchase 702,247 shares of our common stock from $7.12 per share to $3.33 per share and extending the expiration date of the warrant from May 2018 to June 2020. Interstate Battery materially improved our feedstock supply pricing and agreed to waive alleged violations of a negative covenant related to our purchase of Ebonex as well as the Clark Key Man event. Interstate Battery also reworked the Mould Key Man event to allow us to pay $500,000 for the transfer of the Key Man event to a Cotton Key Man event rather than paying $2,000,000 for a Mould Key Man event as previously specified in the Investor Rights Agreement. We opted for this transfer and subsequently paid Interstate Battery the $500,000 transfer fee in February 2019. In January 2019, we also repaid Interstate Battery the outstanding principal and interest on the convertible debt in the amount of $6.7 million.

Intellectual Property Rights

We regard the protection of our technologies and intellectual property rights as an important element of our business operations and crucial to our success. We endeavor to generate and protect our intellectual property assets through a series of patents, trademarks, internal and external policy and procedures and contractual provisions.

Patent Portfolio

Currently, we have secured one US patent, 13 international patents, and two allowances (one US and one international). In addition to the US patent, we have international patents/allowances in the European Union, Korea, Japan, China, Australia, Canada, African Intellectual Property Organization, Mexico, South Africa and the Ukraine. We also have 90 patent applications pending in the United States and numerous corresponding patent applications pending in 20 additional jurisdictions across seven distinct patent applications relating to certain elements of the technology underlying our AquaRefining process and related apparatus and chemical formulations. The claims of the granted patents substantially address the same subject matter and are drawn to various aspects of processing lead materials using an aqua refining process. Differences in the claim number and scope are due to local rules and practice.

We intend to continue to prepare and file domestic and foreign patent applications covering expanding aspects and applications of our technology, as circumstances warrant.

There can be no assurance that any patents will issue from any of our current or any future applications. Also, any patents that may issue may not survive a legal challenge to their scope, validity or enforceability, or provide significant protection for us. Competitors may work around our patents so they are not infringing. Our patent portfolio and our existing policy and procedures safeguarding our trade secrets nonetheless may face challenges so that our competitors can copy our AquaRefining process.

Trademark Portfolio

We have filed for trademark registration in the US and foreign countries for the following trademarks:

• AQUA METALS (US and 15 foreign countries)

• AQUAREFINING (US and 11 foreign countries)

• AQUAREFINE (US only)

Trade Secrets and Contract Protection

We have developed our internal policy and procedures in safeguarding our trade secrets and proprietary information. Our procedures generally require our employees, consultants and advisors to enter into confidentiality agreements. These agreements provide that all confidential information developed or made known to the individual during the course of the individual’s relationship with us is to be kept confidential and not disclosed to third parties except under specific circumstances. In the case of our employees, the agreements provide that all of the technology that is conceived by the individual during the course of employment is our exclusive property. The

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development of our technology and many of our processes are dependent upon the knowledge, experience and skills of key scientific and technical personnel.

Government Regulation

Our operations in the United States will be subject to the Federal, state and local environmental, health and safety laws applicable to the reclamation of LABs. While the lead reclamation process itself is generally not subject to Federal permitting requirements, depending on how any particular operation is structured, our facilities may have to obtain environmental permits or approvals from Federal, state or local regulators to operate, including permits or regulatory approvals related to air emissions, water discharges, waste management, and the storage of LABs on-site should that become necessary. We may face opposition from local residents or public interest groups to the installation and operation of our facilities. Failure to secure (or significant delays in securing) the necessary approvals could prevent us from pursuing some of our planned operations and adversely affect our business, financial results and growth prospects.

In addition to permitting requirements, our operations are subject to environmental health, safety and transportation laws and regulations that govern the management of and exposure to hazardous materials such as the lead and acids involved in LAB reclamation. These include hazard communication and other occupational safety requirements for employees, which may mandate industrial hygiene monitoring of employees for potential exposure to lead. Failure to comply with these requirements could subject our business to significant penalties (civil or criminal) and other sanctions that could adversely affect our business. Changes to these regulatory requirements in the future could also increase our costs, require changes in or cessation of certain activities, and adversely affect the business.

The nature of our operations involves risks, including the potential for exposure to hazardous materials such as lead, that could result in personal injury and property damage claims from third parties, including employees and neighbors, which claims could result in significant costs or other environmental liability. Our operations also pose a risk of releases of hazardous substances, such as lead or acids, into the environment, which can result in liabilities for the removal or remediation of such hazardous substances from the properties at which they have been released, liabilities which can be imposed regardless of fault, and our business could be held liable for the entire cost of cleanup even if we were only partially responsible. Like any manufacturer, we are also subject to the possibility that we may receive notices of potential liability in connection with materials that were sent to third-party recycling, treatment, and/or disposal facilities under the Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (“CERCLA”), and comparable state statutes, which impose liability for investigation and remediation of contamination without regard to fault or the legality of the conduct that contributed to the contamination, and for damages to natural resources. Liability under CERCLA is retroactive, and, under certain circumstances, liability for the entire cost of a cleanup can be imposed on any responsible party.

As our business expands outside of the United States, our operations will be subject to the environmental, health and safety laws of the countries where we do business, including permitting and compliance requirements that address the similar risks as do the laws in the United States, as well as international legal requirements such as those applicable to the transportation of hazardous materials. Depending on the country or region, these laws could be as stringent as those in the US, or they could be less stringent or not as strictly enforced. In some countries in which we are interested in expanding our business, such as Mexico and China, the relevant environmental regulatory and enforcement frameworks are in flux and subject to change. Therefore, while compliance with these requirements will cause our business to incur costs, and failure to comply with these requirements could adversely affect our business, it is difficult to evaluate such potential costs or adverse impacts until such time as we decide to initiate operations in particular countries outside the United States.

Employees

As of the date of this report, we employ 76 people on a full-time basis. None of our employees are represented by a labor union.

Financial and Segment Information

We operate our business as a single segment, as defined by generally accepted accounting principles. Our financial information is included in the consolidated financial statements and the related notes.

Available Information

Our website is located at www.aquametals.com and our investor relations website is located at https://ir.aquametals.com/. Copies of our Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Reports on Form 8-K, and amendments to these reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, are available, free of charge, on our investor relations website as soon as reasonably practicable after we file such material electronically with or furnish it to the Securities and Exchange Commission, or the SEC. The SEC also maintains a website that contains our SEC filings. The address of the site is www.sec.gov. Further, a copy of this Annual Report on Form 10-K is located at the SEC’s Public Reference Room at 100 F Street, NE, Washington, D.C. 20549. Information on the operation of the Public Reference Room can be obtained by

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calling the SEC at 1-800-SEC-0330. The contents of our website are not intended to be incorporated by reference into this Annual Report on Form 10-K or in any other report or document we file with the SEC, and any references to our websites are intended to be inactive textual references only.

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Item 1A. Risk Factors

There are numerous and varied risks, known and unknown, that may prevent us from achieving our goals. If any of these risks actually occur, our business, financial condition or results of operation may be materially adversely affected.  In such case, the trading price of our common stock could decline and investors could lose all or part of their investment.

Risks Relating to Our Business

Since we have a limited operating history and have only recently commenced revenue producing operations, it is difficult for potential investors to evaluate our business. We formed our corporation in June 2014 and only commenced revenue producing operations in the first quarter of 2017. From inception through December 31, 2018, we generated a total of $6.5 million of revenue, all of which was derived primarily from the sale of lead compounds and plastics and, to a lesser extent, the sale of lead bullion, including Aqua Refined lead. To date, our operations have primarily consisted of the development and testing of our AquaRefining process, the construction of our initial LAB recycling facility at TRIC, the continuing development of our LAB recycling operations at TRIC and limited revenue producing operations as we bring those LAB recycling operations online. Our limited operating history makes it difficult for potential investors to evaluate our technology or prospective operations. As an early stage company, we are subject to all the risks inherent in the initial organization, financing, expenditures, complications and delays in a new business, including, without limitation:

• the timing and success of our plan of commercialization and the fact that we continue to experience delays in ramping up our LAB recycling operations at TRIC;

• our ability to bring modules online and ramp up production on a commercial scale.

• our ability to profitably operate our AquaRefining process on a commercial scale;

• our ability to realize the expected benefits of our strategic partnership with Johnson Controls;

• our ability to procure LABs in sufficient quantities at competitive prices; and

• our ability to receive proper certification from and meet the requirements of our customers regarding the purity of our AquaRefined lead.

Investors should evaluate an investment in us in light of the uncertainties encountered by developing companies in a competitive environment. There can be no assurance that our efforts will be successful or that we will ultimately be able to attain profitability.

Our business is dependent upon our successful implementation of novel and unproven technologies and processes and there can be no assurance that we will be able to implement such technologies and processes in a manner that supports the successful commercial roll-out of our business model. While much of the technology and processes involved in our lead recycling operations are widely used and proven, the AquaRefining component of our lead recycling operations is largely novel and unproven. While we have shown that our proprietary technology can produce AquaRefined lead on a small scale, we have only recently completed, and put into limited operation, the processes that we believe will support the production of AquaRefined lead on a commercial scale. Further, as we complete our AquaRefining production line, we continue to encounter unforeseen complications that have delayed the ramping up of our AquaRefining modules and the integration of our AquaRefining process with the traditional lead recycling operations. There can be no assurance that we will be able to overcome these production and performance issues in a timely manner or that we will not encounter additional unforeseen complications that will cause further delays in our planned commercial roll-out of all 16 AquaRefining modules installed at TRIC and to ramp up the production of AquaRefined lead.

We will need additional financing to execute our business plan and fund operations, which additional financing may not be available on reasonable terms or at all. As of December 31, 2018, we had total cash of $20.9 million and working capital of $11.0 million, which gives no effect to a January 2019 public offering of our common shares from which we received approximately $9.1 million of net proceeds. As of the date of this report, we believe that we have working capital sufficient to fund our current plan of operations at TRIC over the next twelve months. However, we will require additional capital in order to increase production of AquaRefined lead at TRIC beyond that planned for 16 modules, to work with Johnson Controls on equipment integration and licensing to third parties, to fund working capital needs related to the ramp-up of our operations and to fund our continued losses from operations until such time as we are able to achieve positive cash flow from operations. There can be no assurance that we will be able to acquire the necessary funding on commercially reasonable terms or at all.  There can also be no assurance we will be able to conclude the proposed development agreement with Johnson Controls. We intend to seek additional funds through various financing sources, including the sale of our equity and debt securities, licensing fees for our technology, joint ventures with capital partners and/or project financing of our recycling facilities. However, there can be no assurance that such funds will be available on commercially reasonable terms, if at all. If such funding is not available on satisfactory terms, we may be unable to further pursue our business plan and we may be unable to continue operations, in which case you may lose your entire investment.

We have assigned the operation and management of our TRIC facility and any future facilities we may develop directly to Veolia, and there can be no assurance that we will realize the intended benefits of our relationship with Veolia or, if we do, that we will not develop a dependency on Veolia. In February 2018, we entered into an Operations, Management and Maintenance Agreement

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with Veolia North America Regeneration Services, LLC, or Veolia. Pursuant to the Agreement, Veolia will provide operations, maintenance and management services at our AquaRefining facility at TRIC. We expect Veolia to contribute operational and technological expertise and organizational capabilities in aqueous based process chemistries and electrolysis along with taking on responsibility for operations, supply chain, offtake and management of the plant. While we believe the Agreement will allow us to leverage Veolia’s operations and process engineering expertise and supply chain, offtake and waste stream buying power and expertise, there can be no assurance that we will realize the expected benefits our agreement with Veolia. In addition, we have agreed to grant Veolia the right of first refusal to operate and manage any future facilities developed or licensed by us. It is our expectation that Veolia will serve as our go-to-market execution partner to staff and manage AquaRefining facilities with mutually agreed performance metrics for Aqua Metals and our partners. In the event, Veolia is successful in operating and managing the recycling facilities developed by us and our licensees, there is a risk that we will become dependent on Veolia for the operational and managerial expertise and labor. There can be no assurance that Veolia will be able successfully in managing our recycling facilities and those of our partners. There can also be no assurance that Veolia will continue to provide such services in the future, in which case the loss of Veolia as our service provider could cause a serious disruption in our operations.

There can be no assurance that we will be able to negotiate a long-term agreement with Veolia, in which case we may lose Veolia’s services at the end of the two-year term of our initial agreement. Our Operations, Management and Maintenance Agreement with Veolia is for a two-year term. Pursuant to the Agreement, we have agreed to enter into good faith negotiations for a longer-term version of the Agreement that will provide for Veolia’s management and operation of the TRIC facility for a ten-year term. We have agreed with Veolia to use our good faith commercial best-efforts to conclude negotiations for the long-term agreement by September 30, 2020. We have also agreed to enter into good faith negotiations with Veolia for a long-term agreement concerning Veolia’s participation in the commercial licensing and management of our future AquaRefining facilities developed by licensees of Aqua Metals. We have agreed with Veolia to use our good faith commercial best-efforts to conclude negotiations for the long-term licensing and future facilities agreement by June 30, 2020. There can be no assurance that we will be able to negotiate and conclude a definitive long-term agreement with Veolia on commercially reasonable terms, or at all. If we are unable to conclude long-term agreements with Veolia by the designated dates, it is likely that we will lose Veolia as the operator and manager of our TRIC facility.

We are subject to restrictive debt covenants that may limit our ability to run our business, finance our capital needs and pursue business opportunities and activities. As of the date of this report, we are indebted to Green Bank for approximately $9.5 million, which is secured by liens on substantially all of our assets. The credit agreement governing such indebtedness contains covenants that limit our ability to take certain actions. These covenants could limit our ability to finance our future operations and capital needs and our ability to pursue business opportunities and activities that may be in our interest. If we breach any of these covenants, the debt holder could declare a default under the credit agreement, in which case all of the indebtedness may then become immediately due and payable. If the debt under the credit agreement is accelerated, we may not have, or be able to obtain, sufficient funds to make these accelerated payments. In addition, since all of the indebtedness to Green Bank is secured by substantially all of our assets, a default under the credit facility could enable the debtholder to foreclose on its security interest and attempt to seize our assets. The affirmative and negative debt covenants could materially adversely impact our ability to operate and finance our business. In addition, our default under any of these covenants could subject us to accelerated debt payments or foreclosure proceedings that could threaten our ability to continue as a going concern.

In the event of the acceleration of the Green Bank loan, we will need additional financing to satisfy our obligations under the loan, which additional financing may not be available on reasonable terms or at all. As noted above, as of the date of this report, we are indebted to Green Bank for approximately $9.5 million. The credit agreement governing such indebtedness contain various affirmative and negative covenants and if we breach any of these covenants, the debt holder could declare a default under the credit agreement, in which case all of the indebtedness may then become immediately due and payable. If the debt under the credit agreement is accelerated, we may not have sufficient funds to make the accelerated payments, in which case we would be required to seek additional funds through various financing sources, most likely through the sale of our equity or debt securities. However, there can be no assurance that such funds will be available on commercially reasonable terms, if at all. Further, any sale of our equity or equity-linked securities will result in additional dilution to our stockholders.

Our outstanding debt may make it difficult for us obtain additional financing using our future operating cash flow.We currently owe approximately $9.5 million to Green Bank as of the date of this report. Such indebtedness could limit our ability to borrow additional funds to fund operations or expansion or increase the cost of any such borrowing, or both. Our inability to conduct additional debt financing could:

• limit our flexibility in developing our business operations and planning for, or reacting to, changes in our business;

• increase our vulnerability to, and reduce our flexibility to respond to, general adverse economic and industry conditions; and

• place us at a competitive disadvantage as compared to our competitors that are not as highly leveraged.

Any of these or other consequences or events could have a material adverse effect on our ability to finance our business and our operations.

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We may be required to pay up to $2.0 million of key-man payments as the result of the resignations of our chief executive officer and chief operating officer. On April 19, 2018, Stephen Clarke resigned as our president and chief executive officer and on December 3, 2018 Selwyn Mould resigned as our chief operating officer.  As a result of their resignations, we may be obligated to pay up to $2 million to Johnson Controls, payable, at our option, in cash or shares of our common stock, unless Johnson Controls approves the successor to Mr. Clarke and Mr. Mould.  Following the December 3, 2018 resignation of Mr. Mould, Johnson Controls delivered to us its claim for payment of the key-man penalties for Messrs. Clarke and Mould in the total amount of $2 million. We believe, however, that Johnson Controls’ demand was premature as it had not considered the adequacy of the replacements for Mr. Clarke or Mr. Mould and that any such claim can be asserted only after their replacements have been appointed and considered in good faith. We intend to dispute Johnson Controls’ claims for the key-man payments, however there can be no assurance we will be successful in doing so. If we are unsuccessful in doing so, we may be obligated to pay Johnson Controls up to $2 million payable in cash or, at our option, shares of our common stock having a market value of $2 million.

Our business model is new and has not been proven by us or anyone else. We are engaged in the business of producing recycled lead through a novel and unproven technology. While the production of recycled lead is an established business, to date all recycled lead has been produced by way of traditional smelting processes. To our knowledge, no one has successfully produced recycled lead in commercial quantities other than by way of smelting. In addition, our lead recycling production line at TRIC is the first-of-its-kind and neither we nor anyone else has ever successfully built a production line that commercially recycles LABs without smelting. While we have commenced limited lead recycling operations at our TRIC facility, through December 31, 2018 all of our revenues have been derived primarily from the sale of lead compounds and plastics and to a lesser extent, the sale of lead bullion, including Aqua Refined lead. We began shipments of lead bullion, which included AquaRefined lead in April 2018. In addition to the general risks associated with a novel and unproven technology, our business model is subject to a number of related risks, including:

• our ability to acquire sufficient quantities of used LABs at competitive prices;

• our ability to produce AquaRefined lead that is priced competitively with lead produced by traditional smelting;

• our ability to produce AquaRefined lead on a commercial scale and at an adequate gross profit; and

• our ability to sell our AquaRefined lead at prices and in quantities that provide an adequate net profit from operations.

Further, there can be no assurance that we will be able to produce AquaRefined lead in commercial quantities at a cost of production that will provide us with an adequate profit margin. The uniqueness of our AquaRefining process and our production line at TRIC presents potential risks associated with the development of a business model that is untried and unproven. As of the date of this report, we have begun to ramp up our existing AquaRefining modules into commercial operation, however we continue to experience performance and production issues. There can be no assurance that we will be able to overcome these production and performance issues in a timely manner or that we will not encounter additional unforeseen complications that will cause further delays in our planned commercial roll-out of our AquaRefining modules and the ramp up the production of AquaRefined lead.

Certain industry participants may have the ability to restrict our access to used LABs and otherwise focus significant competitive pressure on us. We believe that our primary competition will come from operators of existing smelters and other parties invested in the existing supply chain for smelting, both of which may resist the change presented by our AquaRefining process. Competition from such incumbents may come in the form of restricted access to used LABs. We believe that LAB manufacturers who also maintain their own smelting operations control a significant part of the market for used LABs. We will require access to used LABs at market prices in order to carry out our business plan. If those LAB manufacturers and others involved in the reverse supply chain for used LABs attempt to restrict our access to used LABs, that may adversely affect our prospects and future growth. There can be no assurance that we will be able to effectively withstand the pressures applied by our competition.

Even if we are successful in recycling lead using our processes, there can be no assurance that the AquaRefined lead will meet the certification and purity requirements of our potential customers. A key component of our business plan is to produce recycled lead through our AquaRefining process of the highest purity (at least 99.99% pure lead), which we refer to as AquaRefined lead. We believe that our AquaRefined lead will provide us with a revenue premium over the market price of lead on the London Metal Exchange, or LME, and, more importantly, our ability to produce AquaRefined lead will be vital to confirming the efficacy and relevancy of our proprietary technology. Our customers will require that our AquaRefined lead meet certain minimum purity standards and, in all likelihood, require independent assays to confirm the lead’s purity. As of the date of this report, we have produced limited quantities of AquaRefined lead and in November 2018 Johnson Controls confirmed its approval of the purity of our AquaRefined lead by providing to us official vendor approval to receive finished lead at its manufacturing facilities. However, we have not produced AquaRefined lead in commercial quantities and there can be no assurance that we will be able to do so or, if we are able to produce AquaRefined lead in commercial quantities, that such lead will continue to meet the required purity standards of our customers. If we are unable to commercially produce AquaRefined lead that meets the purity standards established by our customers, our entire business plan may be invalidated and you may suffer the loss of your entire investment.

While we have been successful in producing AquaRefined lead in small volumes, there can be no assurance that we will be able to replicate the process, along with all of the expected economic advantages, on a large commercial scale either for us or our

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prospective licensees. As of the date of this report, our commercial operations have primarily involved the production of lead compounds and plastics from recycled LABs and, in April 2018, we commenced the limited production of lead bullion, including AquaRefined lead. While we believe that our development, testing and limited production to date has validated the concept of our AquaRefining process, the limited nature of our operations to date are not sufficient to confirm the economic returns on our production of recycled lead. There can be no assurance that the commencement of commercial production of AquaRefined lead at our TRIC facility will not incur unexpected costs or setbacks that might restrict the desired scale of our intended operations or that we will be to produce AquaRefined lead in commercial quantities at a cost of production that will provide us with an adequate profit margin.

We have completed the construction of our initial LAB recycling facility at TRIC, however we have been delayed in the ramping up of our lead recycling operations at TRIC and we may encounter further delays. We completed the construction of our initial LAB recycling facility at TRIC in August 2016 and commenced the limited production of recycled lead in the first quarter of 2017. However, as of the date of this report, our commercial operations have primarily involved the production of lead compounds and plastics from recycled LABs and we only recently commenced the limited commercial production of AquaRefined lead. However, we have encountered production and performance issues that have impaired and delayed our ability to ramp up the production of AquaRefined lead. There can be no assurance that we will be able to overcome these production and performance issues in a timely manner. In addition, since our lead recycling production line at TRIC is the first-of-its-kind, neither we nor anyone else has ever built a facility of this nature and there can be no assurance that we will not experience additional operational delays and issues, including significant downtime from time to time, as we progress into the commercial production of AquaRefined lead. There can be no assurance that the commencement of commercial AquaRefining operations at our TRIC facility will not incur unexpected costs or hurdles that might restrict the desired scale of our intended operations or negatively impact our projected gross profit margin.

Our business may be negatively affected by labor issues and higher labor costs. Our ability to maintain our workforce depends on our ability to attract and retain new and existing employees. As of the date of this report, none of our employees are covered by collective bargaining agreements and we consider our labor relations to be acceptable. However, we could experience workforce dissatisfaction which could trigger bargaining issues, employment discrimination liability issues as well as wage and benefit consequences, especially during critical operation periods. We could also experience a work stoppage or other disputes which could disrupt our operations and could harm our operating results. In addition, legislation or changes in regulations could result in labor shortages and higher labor costs. There can be no assurance that we may not experience labor issues that negatively impact our operations or results of operations.

Our intellectual property rights may not be adequate to protect our business. As of the date of this report, we have secured granted/allowed patents in the following countries/regions: U.S. (9837689, allowed 14/957026), Canada (2930945), China (105981212), Europe (3072180), Eurasia (allowed 201691047), South Africa (2016-04083), Korea (101739414, 101882932, 101926033), Japan (6173595), Mexico (357027), OAPI (17808), Ukraine (118037), and Australia (2014353227, 2015350562).

We also have further patent applications pending in the United States and numerous corresponding patent applications pending in 20 additional jurisdictions relating to certain elements of the technology underlying our AquaRefining process and related apparatus and chemical formulations. However, no assurances can be given that any patent issued, or any patents issued on our current and any future patent applications, will be sufficiently broad to adequately protect our technology. In addition, we cannot assure you that any patents issued now or in the future will not be challenged, invalidated, or circumvented.

Even patents issued to us may not stop a competitor from illegally using our patented processes and materials. In such event, we would incur substantial costs and expenses, including lost time of management in addressing and litigating, if necessary, such matters. Additionally, we rely upon a combination of trade secret laws and nondisclosure agreements with third parties and employees having access to confidential information or receiving unpatented proprietary know-how, trade secrets and technology to protect our proprietary rights and technology. These laws and agreements provide only limited protection. We can give no assurance that these measures will adequately protect us from misappropriation of proprietary information.

Our processes may infringe on the intellectual property rights of others, which could lead to costly disputes or disruptions. The applied science industry is characterized by frequent allegations of intellectual property infringement. Though we do not expect to be subject to any of these allegations, any allegation of infringement could be time consuming and expensive to defend or resolve, result in substantial diversion of management resources, cause suspension of operations or force us to enter into royalty, license, or other agreements rather than dispute the merits of such allegation. If patent holders or other holders of intellectual property initiate legal proceedings, we may be forced into protracted and costly litigation. We may not be successful in defending such litigation and may not be able to procure any required royalty or license agreements on acceptable terms or at all.

Our business strategy includes licensing arrangements and entering into joint ventures and strategic alliances, however as of the date of this report we have no such agreements in place and there can be no assurance we will be able to do so. Failure to successfully integrate such licensing arrangements, joint ventures, or strategic alliances into our operations could adversely affect our business. We propose to commercially exploit our AquaRefining process, in part, by licensing our technology to third parties and entering into joint ventures and strategic relationships with parties involved in the manufacture and recycling of LABs, including Johnson

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Controls, among others. However, as of the date of this report, we have not entered into any such licensing, joint venture or strategic alliance agreements, apart from our equipment supply agreement with Johnson Controls, and there can be no assurance that we will be able to do so on terms that benefit us, if at all. In addition, licensing programs, joint ventures and strategic alliances may involve significant other risks and uncertainties, including distraction of management’s attention away from normal business operations, insufficient revenue generation to offset liabilities assumed and expenses associated with the transaction, and unidentified issues not discovered in our due diligence process, such as product quality, technology issues and legal contingencies. In addition, we may be unable to effectively integrate any such programs and ventures into our operations. Our operating results could be adversely affected by any problems arising during or from any licenses, joint ventures or strategic alliances.

There can be no assurance that we will be able to negotiate our key agreement with Johnson Controls on commercially reasonable terms, or at all. In February 2017, we entered into a series of agreements with Johnson Controls, including an equipment supply agreement pursuant to which, among other things, we agreed to work with Johnson Controls on the development of a program for the conversion of Johnson Controls and certain strategic partners of Johnson Controls’ existing lead smelters throughout North and South America, China and Europe to a lead recycling process utilizing our AquaRefining technology and equipment, know-how and services. The equipment supply agreement discusses the development of the conversion program in general terms and contemplates that the parties will enter into a definitive development program agreement that is based on the general terms set forth in the equipment supply agreement and provides more detailed terms and conditions, including the economic obligations and rights of each party. We have agreed not to license our AquaRefining technology and equipment to third parties in the aforementioned regions until such time as we and Johnson Controls have agreed on certain matters relating to the initial conversion of a Johnson Controls facility. Johnson Controls and we have agreed to use good faith, commercial best-efforts to conclude the discussion and negotiation of the development program agreement no later than April 30, 2019, and to enter into a definitive development program agreement no later than June 30, 2019. The equipment supply agreement may be terminated by either party upon 60 days’ prior written notice if the parties have not entered into the development program agreement by June 30, 2019. There can be no assurance that we will be able to negotiate and conclude a definitive development program agreement with Johnson Controls on commercially reasonable terms, or at all.

We are dependent on a limited number of suppliers of certain materials used in our AquaRefining process and our inability to obtain these materials as and when needed could cause a material disruption in our operations. Our AquaRefining process involves a significant number of elements, chemicals, solvents and other materials, in addition to used LABs. There are a limited number of suppliers of certain materials used in our AquaRefining process and we have no agreements in place for our supply of such materials. Our ability to conduct our AquaRefining process on a commercial scale will depend significantly on obtaining timely and adequate supply of these materials on competitive terms. Our inability to source these materials on a timely and cost-efficient manner could interrupt our operations, significantly limit our revenue sales and increase our costs. This factor could also impair our ability to meet our commitments to supply our customers. Our inability to obtain these materials as and when needed could cause a material disruption in our operations.

If we are unable to manage future expansion effectively, our business, operations and financial condition may suffer significantly, resulting in decreased productivity. If our AquaRefining process proves to be commercially viable, growth and expansion activities could place a significant strain on our managerial, administrative, technical, operational and financial resources. Our organization, procedures and management may not be adequate to fully support the expansion of our operations or the efficient execution of our business strategy. If we are unable to manage future expansion effectively, our business, operations and financial condition may suffer significantly, resulting in decreased productivity.

We may experience significant fluctuations in raw material prices and the price of our principal product, either of which could have a material adverse effect on our liquidity, growth prospects and results of operations. Used LABs are our primary raw material and we believe that in recent years the cost of used LABs has been volatile at times. In addition, we believe that the cost of used LABs can be seasonal, with prices trending lower in the winter months (as automobile owners increase their purchase of new LABs, thereby putting a greater number of used LABs on the market) and trend higher in the spring (as the purchase of new LABs, and supply of used LABs, decreases). Our principal product, recycled lead, has also experienced price volatility from time to time as well. For example, the market price of lead on the LME during 2018 ranged from approximately $1,900 to $2,700 per tonne. While we intend to pursue supply and tolling arrangements as appropriate to offset any price volatility, the volatile nature of prices for used LABs and recycled lead could have an adverse impact on our liquidity, growth prospects and results of operations.

Global economic conditions could negatively affect our prospects for growth and operating results. Our prospects for growth and operating results will be directly affected by the general global economic conditions of the industries in which our suppliers, partners and customer groups operate. We believe that the market price of our principal product, recycled lead, is relatively volatile and reacts to general global economic conditions. Lead prices decreased from $2,139 per tonne on May 5, 2015 to a low of $1,554 per tonne on November 23, 2015 because of fluctuations in the market. A month later, the price per tonne increased back up to $1,801 per tonne; the price per tonne was $2,008 on December 31, 2018. Our business will be highly dependent on the economic and market conditions in each of the geographic areas in which we operate. These conditions affect our business by reducing the demand for LABs and decreasing the price of lead in times of economic down turn and increasing the price of used LABs in times of increasing demand of LABs and

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recycled lead. There can be no assurance that global economic conditions will not negatively impact our liquidity, growth prospects and results of operations.

We are subject to the risks of conducting business outside the United States. A part of our strategy involves our pursuit of growth opportunities in certain international market locations. We intend to pursue licensing or joint venture arrangements with local partners who will be primarily responsible for the day-to-day operations. Any expansion outside of the US will require significant management attention and financial resources to successfully develop and operate any such facilities, including the sales, supply and support channels, and we cannot assure you that we will be successful or that our expenditures in this effort will not exceed the amount of any resulting revenues. Our international operations expose us to risks and challenges that we would otherwise not face if we conducted our business only in the United States, such as:

• increased cost of enforcing our intellectual property rights;

• heightened price sensitivities from customers in emerging markets;

• our ability to establish or contract for local manufacturing, support and service functions;

• localization of our LABs and components, including translation into foreign languages and the associated expenses;

• compliance with multiple, conflicting and changing governmental laws and regulations;

• foreign currency fluctuations;

• laws favoring local competitors;

• weaker legal protections of contract terms, enforcement on collection of receivables and intellectual property rights and mechanisms for enforcing those rights;

• market disruptions created by public health crises in regions outside the United States;

• difficulties in staffing and managing foreign operations, including challenges presented by relationships with workers’ councils and labor unions;

• issues related to differences in cultures and practices; and

• changing regional economic, political and regulatory conditions.

U.S. Government regulation and environmental, health and safety concerns may adversely affect our business. Our operations in the United States will be subject to the Federal, State and local environmental, health and safety laws applicable to the reclamation of lead acid batteries. Our facilities will have to obtain environmental permits or approvals to operate, including those associated with air emissions, water discharges, and waste management and storage. We may face opposition from local residents or public interest groups to the installation and operation of our facilities. In addition to permitting requirements, our operations are subject to environmental health, safety and transportation laws and regulations that govern the management of and exposure to hazardous materials such as the lead and acids involved in battery reclamation. These include hazard communication and other occupational safety requirements for employees, which may mandate industrial hygiene monitoring of employees for potential exposure to lead. Failure to comply with these requirements could subject our business to significant penalties (civil or criminal) and other sanctions that could adversely affect our business.

In the event we are unable to present and operate our AquaRefining process and operations as safe and environmentally responsible, we may face opposition from local governments, residents or public interest groups to the installation and operation of our facilities.

The development of new AquaRefining facilities by us or our partners or licensees, and the expansion of our operations at TRIC, will depend on our ability to acquire necessary permits and approvals, of which there can be no assurance. As noted above, our AquaRefining facilities will have to obtain environmental permits or approvals to operate, including those associated with air emissions, water discharges, and waste management and storage. In addition, we expect that our planned expansion of AquaRefining operations at TRIC will require additional permitting and approvals. Failure to secure (or significant delays in securing) the necessary permits and approvals could prevent us and our partners and licensees from pursuing additional AquaRefining facilities or expanding operations at TRIC, and otherwise adversely affect our business, financial results and growth prospects. Further, the loss of any necessary permit or approval could result in the closure of an AquaRefining facility and the loss of our investment associated with such facility.

Our business involves the handling of hazardous materials and we may become subject to significant fines and other liabilities in the event we mishandle those materials. The nature of our operations involves risks, including the potential for exposure to hazardous materials such as lead, that could result in personal injury and property damage claims from third parties, including employees and neighbors, which claims could result in significant costs or other environmental liability. Our operations also pose a risk of releases of hazardous substances, such as lead or acids, into the environment, which can result in liabilities for the removal or remediation of such hazardous substances from the properties at which they have been released, liabilities which can be imposed regardless of fault, and our business could be held liable for the entire cost of cleanup even if we were only partially responsible. We are also subject to the possibility that we may receive notices of potential liability in connection with materials that were sent to third-party recycling, treatment, and/or disposal facilities under the Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (“CERCLA”), and comparable state statutes, which impose liability for investigation and remediation of contamination without regard

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to fault or the legality of the conduct that contributed to the contamination, and for damages to natural resources. Liability under CERCLA is retroactive, and, under certain circumstances, liability for the entire cost of a cleanup can be imposed on any responsible party. Any such liability could result in judgments or settlements that restrict our operations in a manner that materially adversely effects our operations and could result in fines, penalties or awards that could materially impair our financial condition and even threaten our continued operation as a going concern.

We will be subject to foreign government regulation and environmental, health and safety concerns that may adversely affect our business. As our business expands outside of the United States, our operations will be subject to the environmental, health and safety laws of the countries where we do business, including permitting and compliance requirements that address the similar risks as do the laws in the United States, as well as international legal requirements such as those applicable to the transportation of hazardous materials. Depending on the country or region, these laws could be as stringent as those in the US, or they could be less stringent or not as strictly enforced. In some countries in which we are interested in expanding our business, such as Mexico and China, the relevant environmental regulatory and enforcement frameworks are in flux and subject to change. Compliance with these requirements will cause our business to incur costs, and failure to comply with these requirements could adversely affect our business.

In the event we are unable to present and operate our AquaRefining process and operations as safe and environmentally responsible, we may face opposition from local governments, residents or public interest groups to the installation and operation of our facilities.

Risks Related to Owning Our Common Stock

A securities class action lawsuit and shareholder derivative lawsuit are pending against us and could have a material adverse effect on our business, results of operations and financial condition. A putative consolidated class action lawsuit and shareholder derivative lawsuit are pending against us and certain of our directors and officers. These lawsuits may divert financial and management resources that would otherwise be used to benefit our operations. Although we deny the material allegations in the lawsuits and intend to defend ourselves vigorously, defending the lawsuits could result in substantial costs. No assurances can be given that the results of these matters will be favorable to us. An adverse resolution of any of these lawsuits could have a material adverse effect on our results of operations and financial condition. In addition, we may be the target of securities-related litigation in the future, both related and unrelated to the existing class action and shareholder derivative lawsuits. Such litigation could divert our management’s attention and resources, result in substantial costs, and have an adverse effect on our business, results of operations and financial condition.

We maintain director and officer insurance that we regard as reasonably adequate to protect us from potential claims; however, we are responsible for meeting certain deductibles under the policies and, in any event, we cannot assure you that the insurance coverage will adequately protect us from claims made. Further, as a result of the pending litigation the costs of insurance may increase and the availability of coverage may decrease. As a result, we may not be able to maintain our current levels of insurance at a reasonable cost, or at all, which might make it more difficult to attract qualified candidates to serve as executive officers or directors.

Our common stock is thinly traded and our share price has been volatile. Our common stock has traded on the Nasdaq Capital Market, under the symbol “AQMS”, since July 31, 2015. Since that date, our common stock has at times been relatively thinly traded and subject to price volatility. There can be no assurance that we will be able to successfully maintain a liquid market for our common shares. The stock market in general, and early stage public companies in particular, has experienced extreme price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of such companies. If we are unable to develop and maintain a liquid market for our common shares, you may not be able to sell your common shares at prices you consider to be fair or at times that are convenient for you, or at all. In addition, following periods of volatility in the market price of a company's securities, litigation has often been brought against that company and we may become the target of litigation as a result of price volatility. Litigation could result in substantial costs and divert our management's attention and resources from our business. This could have a material adverse effect on our business, results of operations and financial condition.

We are an “emerging growth company” under the JOBS Act of 2012 and we cannot be certain if the reduced disclosure requirements applicable to emerging growth companies will make our common stock less attractive to investors. We are an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”), and we may take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not “emerging growth companies” including, but not limited to:

• not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act;

• reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements;

• exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments; and

• extended transition periods available for complying with new or revised accounting standards.

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We have chosen to “opt out” of the extended transition periods available for complying with new or revised accounting standards, but we intend to take advantage of all of the other benefits available under the JOBS Act, including the exemptions discussed above. We cannot predict if investors will find our common stock less attractive because we may rely on these exemptions. If some investors find our common stock less attractive as a result, there may be a less active trading market for our common stock and our stock price may be more volatile.

We will remain an “emerging growth company until 2020, although we will lose that status sooner if our revenues exceed $1.07 billion, if we issue more than $1.07 billion in non-convertible debt in a three-year period, or if the market value of our common stock that is held by non-affiliates exceeds $700 million as of any June 30.

Our status as an “emerging growth company” under the JOBS Act may make it more difficult to raise capital as and when we need it. Because of the exemptions from various reporting requirements provided to us as an “emerging growth company,” we may be less attractive to investors and it may be difficult for us to raise additional capital as and when we need it. Investors may be unable to compare our business with other companies in our industry if they believe that our reporting is not as transparent as other companies in our industry. If we are unable to raise additional capital as and when we need it, our financial condition and results of operations may be materially and adversely affected.

We have not paid dividends in the past and have no plans to pay dividends. We plan to reinvest all of our earnings, to the extent we have earnings, in order to develop our recycling centers and cover operating costs and to otherwise become and remain competitive. We do not plan to pay any cash dividends with respect to our securities in the foreseeable future. We cannot assure you that we would, at any time, generate sufficient surplus cash that would be available for distribution to the holders of our common stock as a dividend. Therefore, you should not expect to receive cash dividends on our common stock.

Shares eligible for future sale may adversely affect the market for our common stock. Of the 44,354,852 shares of our common stock outstanding as of the date of this report, approximately 40,422,488 shares are held by “non-affiliates” and are freely tradable without restriction pursuant to Rule 144. In addition, in August 2016, we filed with the SEC a Registration Statement on Form S-3 for purposes of registering the resale of 3,711,872 shares of restricted common stock sold to Interstate Battery in May 2016, including 3,009,625 shares of common stock issuable to Interstate Battery upon exercise of its warrants and conversion of its convertible note, and in February 2017, we filed with the SEC a Registration Statement on Form S-3 for purposes of registering the resale of the 939,005 shares of restricted common stock we sold to Johnson Controls in February 2017. Both registration statements were declared effective by the SEC and the shares registered thereunder are eligible for sale without restriction. Any substantial sale of our common stock pursuant to Rule 144 or pursuant to any resale prospectus may have a material adverse effect on the market price of our common stock.

Our charter documents and Delaware law may inhibit a takeover that stockholders consider favorable. Provisions of our certificate of incorporation and bylaws and applicable provisions of Delaware law may delay or discourage transactions involving an actual or potential change in control or change in our management, including transactions in which stockholders might otherwise receive a premium for their shares, or transactions that our stockholders might otherwise deem to be in their best interests. The provisions in our certificate of incorporation and bylaws:

• limit who may call stockholder meetings;

• do not permit stockholders to act by written consent;

• do not provide for cumulative voting rights;

• establish an advance notice procedure for stockholders' proposals to be brought before an annual meeting, including proposed nominations of persons for election to our board of directors, and

• provide that all vacancies may be filled by the affirmative vote of a majority of directors then in office, even if less than a quorum.

In addition, Section 203 of the Delaware General Corporation Law may limit our ability to engage in any business combination with a person who beneficially owns 15% or more of our outstanding voting stock unless certain conditions are satisfied. This restriction lasts for a period of three years following the share acquisition. These provisions may have the effect of entrenching our management team and may deprive you of the opportunity to sell your shares to potential acquirers at a premium over prevailing prices. This potential inability to obtain a control premium could reduce the price of our common stock.

Our bylaws designate the Court of Chancery of the State of Delaware as the sole and exclusive forum for certain litigation that may be initiated by our stockholders, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with the Company. Our bylaws provide that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of fiduciary duty owed by any of our directors, officers or other employees to us or our stockholders, (iii) any action asserting a claim against us or any our directors, officers or other employees arising pursuant to any provision of the Delaware General Corporation Law or our certificate of incorporation or bylaws, or (iv) any action asserting a claim

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against us or any our directors, officers or other employees governed by the internal affairs doctrine. This forum selection provision in our bylaws may limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or any our directors, officers or other employees.

Item 1B. Unresolved Staff Comments

Not applicable.

Item 2. Properties

Our executive offices are presently located in 14,016 square feet of mixed office and warehouse space in McCarran, Nevada. We lease these facilities at a lease rate of approximately $10,000 per month. The lease term began in July 2018 and expires December 31, 2021.

Our executive offices were previously located in 21,697 square feet of office and industrial space in a multi-building commercial project known as “Marina Village” located in Alameda, California. The lease term is 76 months, commencing February 1, 2016 and expiring May 31, 2022. Subsequent to year end we sublet the property with the sublease commencing February 2019, and expiring May 31, 2022.

We have developed and own a 136,750 square foot LAB recycling facility on 11.73 acres of land located in TRIC, a 107,000-acre park located nine miles east of Reno, Nevada on I-80.

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Item 3. Legal Proceedings

Beginning on December 15, 2017, three purported class action lawsuits were filed in the United Stated District Court for the Northern District California against us, Stephen Clarke, Thomas Murphy and Mark Weinswig.  On March 23, 2018, the cases were consolidated under the caption In Re: Aqua Metals, Inc. Securities Litigation Case No 3:17-cv-07142. On May 23, 2018, the Court appointed lead plaintiffs and approved counsel for the lead plaintiffs.  On July 20, 2018, the lead plaintiffs filed a consolidated amended complaint (“Amended Complaint”), on behalf of a class of persons who purchased our securities between May 19, 2016 and November 9, 2017, against us, Stephen Clarke, Thomas Murphy and Selwyn Mould.  The Amended Complaint alleges the defendants made false and misleading statements concerning our lead recycling operations in violation of Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 10b-5 promulgated thereunder and seeks to hold the individual defendants as control persons pursuant to Section 20(a) of the Exchange Act.  The Amended Complaint also alleges a violation of Section 11 of the Securities Act of 1933 (“Securities Act”) based on alleged false and misleading statements concerning our lead recycling operations contained in, or incorporated by reference in, our Registration Statement on Form S-3 filed in connection with our November 2016 public offering.   That claim is asserted on behalf of a class of persons who purchased shares pursuant to, or that are traceable to, that Registration Statement.  The Amended Complaint seeks to hold the individual defendants liable as control persons pursuant to Section 15 of the Securities Act.  The Amended Complaint seeks unspecified damages and plaintiffs’ attorneys’ fees and costs. On September 18, 2018, the defendants filed a motion to dismiss the Amended Complaint in its entirety and the plaintiff subsequently filed its opposition to the motion.  In January 2019, the court notified the parties that it will rule on the motion to dismiss without a hearing. We deny that the claims in the Amended Complaint have any merit and we intend to vigorously defend the action.

Beginning on February 2, 2018, five purported shareholder derivative actions were filed in the United States District Court for the District of Delaware against us and certain of our current and former executive officers and directors, Stephen R. Clarke, Selwyn Mould, Thomas Murphy, Mark Weinswig, Vincent DiVito, Mark Slade and Mark Stevenson.  On May 3, 2018, the cases were consolidated under the caption In re Aqua Metals, Inc. Stockholder Derivative Litigation, Case No. 1:18-cv-00201-LPS (D. Del.). The complaints were filed by persons claiming to be stockholders of Aqua Metals and generally allege that certain of our officers and directors breached their fiduciary duties to us by violating the federal securities laws and exposing us to possible financial liability.  The complaints seek unspecified damages and plaintiffs’ attorneys’ fees and costs.  The parties have entered into a stipulation staying the action until 30 days after a decision on our motion to dismiss the Amended Complaint in the class action described above.  The individual defendants deny that the claims in the shareholder derivative action have any merit and intend to vigorously defend the action.

We are not party to any other legal proceedings.  We may, from time to time, be party to litigation and subject to claims incident to the ordinary course of business.  As our growth continues, we may become party to an increasing number of litigation matters and claims.  The outcome of litigation and claims cannot be predicted with certainty, and the resolution of any future matters could materially affect our future financial position, results of operations or cash flows. 

Item 4. Mine Safety Disclosures

Inapplicable.

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PART II

Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Repurchases of Equity Securities

Market Information

Our common stock has traded on the NASDAQ Capital Market under the symbol “AQMS,” since our initial public offering on July 31, 2015. Since then, our common stock has been relatively thinly traded at times and has experienced, and is expected to experience in the future, significant price and volume volatility. The following table shows the reported high and low closing prices per share for our common stock based on information provided by the NASDAQ Capital Market for the periods indicated.  

	2018				2017				2016
	High		Low		High		Low		High		Low
First Quarter	$	3.00	$	1.59	$	21.89	$	10.68	$	6.65	$	4.51
Second Quarter	$	4.14	$	2.26	$	18.56	$	10.44	$	12.92	$	7.15
Third Quarter	$	3.11	$	2.24	$	12.55	$	5.49	$	12.73	$	8.18
Fourth Quarter	$	2.92	$	1.55	$	6.91	$	1.88	$	13.66	$	8.62

Holders of Record

As of February 26, 2019, there were 10 holders of record of our common stock.

Dividend Policy

We have never declared or paid cash dividends on our common stock. We presently intend to retain earnings, if any, to finance the operation and expansion of our business.

Equity Compensation Plan Information

We have adopted the Aqua Metals, Inc. 2014 Stock Incentive Plan providing for the grant of non-qualified stock options and incentive stock options to purchase shares of our common stock and for the grant of restricted and unrestricted share grants.  We have reserved 2,113,637 shares of our common stock under the plan.  All of our officers, directors, employees and consultants are eligible to participate under the plan.  The purpose of the plan is to provide eligible participants with an opportunity to acquire an ownership interest in our company.

The following table sets forth the number and weighted-average exercise price of securities to be issued upon exercise of outstanding options and warrants, and the number of securities remaining available for future issuance, under our equity compensation plan at December 31, 2018.

Plan Category	Number of Securities to be Issued Upon Exercise of Outstanding Options, Warrants and Rights		Weighted-Average Exercise Price of Outstanding Options and Warrants		Number of Securities Remaining Available for Future Issuance Under Equity compensation Plans
Equity compensation plans approved by stockholders	950,691	(1)	$	4.18	805,749
Equity compensation plans not approved by stockholders	3,180,828	(2)	$	6.57	—

(1) Includes 854,068 shares relating to outstanding options and 96,623 relating to restricted stock units under our Amended and Restated 2014 Stock Incentive Plan.

(2) Consists of warrants issued in connection with financing activities and 840,000 shares relating to outstanding options granted in reliance on Nasdaq Rule 5635(c)(4) .

Unregistered Sales of Equity Securities and Use of Proceeds

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None.

Item 6. Selected Financial Data

Set forth below is selected consolidated financial data of Aqua Metals, Inc. as of and for the years ended December 31, 2018, 2017, 2016, 2015 and the period from June 2014 (inception) to December 31, 2014. The financial data has been obtained or derived from our audited consolidated financial statements. The information below is not necessarily indicative of the results of future operations and should be read in conjunction with Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and Item 1A, “Risk Factors,” of this Annual Report on Form 10-K, and the consolidated financial statements and related notes thereto included in Item 8, “Financial Statements and Supplementary Data”, of this Annual Report on Form 10-K, in order to fully understand factors that may affect the comparability of the information presented below.

													Period from Inception
	Year Ended December 31,												(June 20, 2014) to
	2018			2017			2016			2015			December 31, 2014
				(in thousands, except share and per share data)
Consolidated Statements of Operations:
Product sales	$	4,449		$	2,088		$	—		$	—		—
Operating cost and expense
Cost of product sales	22,761			9,541			—			—			—
Research and development cost	4,502			8,103			6,348			2,280			231
General and administrative expense	14,214			6,891			6,610			3,171			1,176
Impairment charge	—			2,411			—			—			—
Total operating expense	41,477			26,946			12,958			5,451			1,407
Loss from operations	(37,028		)	(24,858		)	(12,958		)	(5,451		)	(1,407		)
Other income and expense
Increase in fair value of derivative liabilities	—			—			—			(5,776		)	(1,172		)
Interest expense	(3,447		)	(1,761		)	(639		)	(1,128		)	(217		)
Interest and other income	223			41			41			26			1
Total other income (expense), net	(3,224		)	(1,720		)	(598		)	(6,878		)	(1,388		)
Loss before income tax expense	(40,252		)	(26,578		)	(13,556		)	(12,329		)	(2,795		)
Income tax expense	(2		)	(2		)	(1		)	(3		)	421
Net loss	$	(40,254	)	$	(26,580	)	$	(13,557	)	$	(12,332	)	$	(2,374	)
Weighted average shares outstanding, basic and diluted	34,154,826			20,293,100			15,267,233			8,404,311			4,363,641
Basic and diluted net loss per share	$	(1.18	)	$	(1.31	)	$	(0.89	)	$	(1.47	)	$	(0.54	)

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	As of December 31,
	2018			2017
Selected Consolidated Balance Sheet Data:
Cash, cash equivalents	$	20,892		$	22,793
Total assets	71,371			74,442
Working capital	10,953			21,850
Current liabilities	11,799			3,834
Long-term obligations, less current portion	9,482			11,643
Common stock and additional paid-in capital	145,186			113,807
Accumulated deficit	(95,096		)	(54,842		)
Total stockholders’ equity	$	50,090		$	58,965

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Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations

General

Aqua Metals (NASDAQ: AQMS) is engaged in the business of lead recycling through its novel, proprietary and patented AquaRefining^™ technology. AquaRefining is a near room temperature, water and organic acid-based process that greatly reduces environmental emissions. We believe our suite of patented and patent pending AquaRefining technologies will allow the lead-acid battery industry to simultaneously improve the environmental impact of lead recycling and scale recycling production to meet demand. Furthermore, our AquaRefining technologies result in high purity lead. We were formed as a Delaware corporation on June 20, 2014 and since our formation, we have focused our efforts on the development and testing of our AquaRefining process, the construction of our initial lead acid battery, or LAB, recycling facility at the Tahoe-Reno Industrial Center, or TRIC, located in McCarran, Nevada and commercializing the AquaRefining process.

We completed the development of our first LAB recycling facility at TRIC and commenced production of battery breaking and limited operations during the first quarter of 2017. The TRIC facility now produces varying products for commercial sales primarily consisting of ingoted AquaRefined lead, lead compounds, ingoted hard lead and as well as plastic. In April 2017 we commenced the shipment of products for sale, consisting of lead compounds as well as plastics. In April 2018 we commenced the limited production of lead bullion, including AquaRefined lead. In July 2018 we commenced the sale of pure AquaRefined lead in the form of two tonne blocks and in October 2018 we commenced the sale of AquaRefined lead in the form of battery manufacturing ready ingots. In November 2018 we received official vendor certification from Johnson Controls for our AquaRefined lead and in December 2018 we commenced shipments directly to Johnson Controls owned and partner battery manufacturing facilities.

As of December 2017, we had installed 16 AquaRefining modules at TRIC.  To date, we have operated the first four of the 16 modules and have made continuous improvements which have led to individual modules running in a steady state producing 100Kg/hour for several days at a time. As we bring the modules into commercial operation, we expect to continue to adjust the modules to further enhance operation. Although we staffed the facility and ran one or two AquaRefining Modules on a 24x7 basis from October to December of 2018, we are currently running one or two modules 24-hours a day, four days a week to allow safe times for some of the key work to be completed for our contribution margin improvement projects. Subject to key work being completed in the first quarter of 2019, we intend to re-instate 24‑hour, seven days a week, continuous operations shortly thereafter and scale to running all four of the initial four modules before bringing the next four modules on line. In addition, we believe this operational strategy will allow us to maximize lead production, while enabling the remaining components of the plant to be synchronized in support of increased AquaRefining. Once we are satisfied with the operation of the first four modules, additional modules will be brought into production. This process will be repeated until full production is reached with all 16 modules. Our goal is to operate all 16 modules on a 24/7 continuous basis by the end of 2019. However, due to the delays and unforeseen issues in the completion of the AquaRefining production line we have experienced to date, there can be no assurance that we will not encounter additional delays and issues.

Upon completing and commissioning the infrastructure and operational improvements already underway in the facility which are intended to result in positive contribution margin for AquaRefined lead product, we will then scale the plant and bring additional modules on line.  These infrastructure and operational improvements are expected to allow us to recover and recycle our chemical feedstock much more efficiently thus improving our contribution margin. In December 2018, we announced that we were nearing completion of Phase One of our two-phase capital improvement program. Specifically, electrolyte recovery is critical to achieving positive contribution margin and, as of the date of this report, we are now conserving 67% of our target for electrolyte recovery. We expect to conserve 75% of our target for electrolyte recovery when we complete Phase One of the program during the first half of 2019 and conserve 100% when we complete Phase Two. We are already running a successful pilot program for the Phase Two solution of our capital improvement program, which, along with conserving additional electrolyte, should generate higher lead yields for our AquaRefining process, further improving contribution margin.

Ultimately, our goal is to operate all 16 modules running on a continuous basis, however we have decided that the initial operation of fewer modules continuously will allow us to reach full scale operations in a more cost-effective manner.  In addition, we believe this operational strategy will allow us to synchronize the remaining components of the plant in support of increased AquaRefining.  Once we have achieved positive contribution margin and are satisfied with the operation of the first four modules and the supporting infrastructure, additional modules will be brought into production.  This process will be repeated until full production is reached with all 16 modules. However, due to the delays and unforeseen operational issues we have experienced to date, there can be no assurance that we will be able to overcome the current production and performance issues in a timely manner or that we will not encounter additional delays and issues.

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Since January 1, 2018, we have engaged in the following financing transactions:

Amendments of Interstate Battery agreements. On June 24, 2018, we entered into a series of agreements with Interstate Battery International, Inc. and its wholly-owned subsidiary (“Interstate Battery”), including an amendment to the Investor Rights Agreement dated May 18, 2016 with Interstate Battery pursuant to which, among other things, we agreed to compensate Interstate Battery should either Stephen Clarke, our former chief executive officer, or Selwyn Mould, our former chief operating officer, no longer hold such positions or no longer devote substantially all of their business time and attention to our company, whether as a result of resignation, death, disability or otherwise (such an event referred to as a “key-man event”). Pursuant to the Investor Rights Agreement, we agreed to pay Interstate Battery $2,000,000, per occurrence, if either officer was subject to a key-man event during the two years following May 18, 2016. We also agreed to pay Interstate Battery $2,000,000 if either or both officers are subject to a key-man event during the third year following May 18, 2016. Pursuant to the amendment to the Investor Rights Agreement, Interstate Battery agreed to waive all payments under the key-man provisions of the Investor Rights Agreement with respect to the resignation of our former chief executive officer, Stephen Clarke. In addition, the parties agreed that we, at our option, can elect to eliminate the key-man event and all related key-man payments associated with Mr. Mould by (i) paying Interstate Battery a one-time fee of $0.5 million, payable by us in cash and (ii) agreeing to pay Interstate Battery $2.0 million, payable at our election in cash or shares of our common stock, should our current president, Steve Cotton no longer serve as our president during the period ending May 18, 2019. Additionally:

• With respect to a Credit Agreement dated May 18, 2016 between us and Interstate Battery, Interstate Battery waived the alleged breach of the Credit Agreement based on our acquisition of Ebonex IPR, Ltd.;

• We adjusted the terms of a warrant to purchase 702,247 shares of its common stock issued to Interstate Battery in May 2016, pursuant to which the exercise price of the warrant was decreased from $7.12 per share to $3.33 per share and the expiration date of the warrant was extended to June 23, 2020; and

• Interstate Battery agreed to provide us with more favorable pricing and payment terms under the Supply Agreement dated May 18, 2016 pursuant to which we buy used lead acid batteries from Interstate Battery.

Public Offering. On June 18, 2018, we completed a public offering of 10,085,500 shares of our common stock, at the price of $2.85 per share, for gross proceeds of $28.7 million. After the payment of underwriter discounts and offering expenses we received net proceeds of approximately $26.6 million.

In January 2019, we completed a public offering of 5,175,000 shares of our common stock, at the price of $1.90 per share, for gross proceeds of $9.8 million. After the payment of underwriter discounts and offering expenses, we received net proceeds of approximately $9.1 million.

Plan of Operations

Our plan of operations for the 12-month period following the date of this report, and upon the satisfactory operation of the first four modules, is to complete the commercial roll-out of all 16 AquaRefining modules installed at TRIC and to ramp up the production of AquaRefined lead. We may also install an additional 16 AquaRefining modules at TRIC, subject to the receipt of additional capital and any design improvements that are recommended based on the operation of the first 16 modules.

On February 28, 2019, after engaging in extensive diligence and engineering evaluations, we signed a long-term contract with Veolia North America Regeneration Services LLC (Veolia), to provide operations, maintenance and management services at Aqua Metals’ AquaRefining facility in McCarran, Nevada.

Veolia will contribute operational and technological expertise and organizational capabilities in aqueous based process chemistries and electrolysis along with taking on responsibility for operations, supply chain, offtake and management of the plant. Veolia employees will begin working onsite starting March 4, 2019 at the McCarran facility. In addition to receiving expertise and support from Veolia North America resources overall, this Agreement provides for Veolia to relocate up to six (6) full time employees with strong operations, process engineering, management expertise to join the Aqua Metals team at AquaRefinery in McCarran, NV. Veolia North America will take over the primary responsibility for scaling the facility through the remainder of 2019 to CP1-16 (Commercial Plant 1, 16 AquaRefining Modules) of capacity. The Agreement also provides for Veolia and Aqua Metals to work together to plan in 2019 and complete the expansion of the TRIC facility to 32 AquaRefining Modules.

We are now receiving the full previously negotiated premium value for ongoing shipments of AquaRefined lead from our partner Johnson Controls. As previously announced in October 2018, we have our ingot casting line in production, which enables us to ship our key product in final ingot form directly to battery manufacturing facilities and be compatible with the equipment in those facilities. We are also working with other prospective buyers in the lead industry who are seeking ultra-pure lead for both offtake diversity and an average higher premium than we’ve negotiated with Johnson Controls. In 2019, in addition to batteries being made from AquaRefined lead, we are also exploring non-battery products incorporating AquaRefining technologies.

Additionally, we plan to further improve the plant economics by processing a growing proportion of the metallic lead we recover from breaking batteries within the AquaRefinery and have begun to commission the third of our six kettles in the refining area. We anticipate the success of this planned program will unlock additional contribution margin in early 2019 by enabling us to

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finish a growing proportion of these materials in-house, thus realizing a continually improving margin and positioning us for earning a premium later in 2019 by refining alloys in-house. We are in the process of commissioning the third of the already purchased kettles as a key part of our project to enable our capability to process this material. We are also developing what we believe to be industry leading know-how and other intellectual property that we are making every effort to secure and add to our suite of smelting-free lead recycling technologies that we believe we can in turn monetize by licensing.

In parallel with our efforts to commercialize our existing AquaRefining operations and test further the premiums we can receive for our ultra-pure AquaRefined lead, our 12-month plan of operations also includes our proposal to license our technology and to provide planning, engineering, technical assistance, equipment and other services in support of the addition of an AquaRefining facility to a battery recycling facility owned by Johnson Controls. Licensing could take the form of either a co-processing arrangement whereby we operate our technology in conjunction with an existing smelter or our licensee operates directly utilizing our technology. The proposed work with Johnson Controls is expected to produce a blueprint for further additions of AquaRefining facilities under a proposed definitive development agreement with Johnson Controls. Pursuant to this proposed definitive development agreement, we will collaborate with Johnson Controls for the deployment of AquaRefining technologies within Johnson Controls’ and certain strategic partners of Johnson Controls existing lead smelters to implement a lead recycling process utilizing our proprietary AquaRefining technology and equipment, know-how and services. However, there can be no assurance that we will be able to conclude a definitive development agreement with Johnson Controls on terms that benefit us, if at all.

Our 12-month plan of operations also includes the pursuit and evaluation of additional strategic relationships, including our recently announced relationship with Veolia and the licensing of our technology and the provision of equipment and services to other potential strategic partners. However, there can be no assurance that we will be able to effect any of these additional partnerships in the future on commercially reasonable terms, or at all.

Results of Operations for the Fiscal Year Ended December 31, 2018 Compared to the Fiscal Year Ended December 31, 2017

We were formed on June 20, 2014 and did not commence revenue producing operations until January 2017. During the second quarter of 2017, we began shipments of lead compounds and plastics to customers. During the second quarter of 2018, we began shipments of lead bullion in addition to lead compounds and plastics to customers. The following table summarizes results of operations with respect to the items set forth below for the year ended December 31, 2018 and 2017 together with the percentage change in those items (in thousands).

	Year ended December 31,
	2018		2017		Favorable (Unfavorable)			% Change
Product sales	$	4,449	$	2,088	$	2,361		113	%
Cost of product sales	22,761		9,541		(13,220		)	(139	)%
Research and development cost	4,502		8,103		3,601			44	%
General and administrative expense	14,214		6,891		(7,323		)	(106	)%
Impairment charge	—		2,411		2,411			100	%
Total operating expense	$	41,477	$	26,946	$	(14,531	)	(54	)%

As mentioned above, product sales, consisting of lead compounds and plastics began in April 2017. Cost of product sales consists of all operating costs incurred at TRIC following the commencement of product sales. Costs incurred at TRIC prior to commencement of sales are included in research and development costs. Cost of product sales includes raw materials, supplies and related costs, salaries and benefits, consulting and outside services costs, depreciation and amortization costs and insurance, travel and overhead costs.

Revenue for the year ended December 31, 2018 doubled compared to the year ended December 31, 2017. This increase is due to increased sales of AquaRefined lead in our product mix as well as having a full year of operations in 2018 versus approximately eight months during 2017. AquaRefined lead sales comprised 16% and 9% of total revenue during the three and twelve months ended December 31, 2018, respectively. At full capacity, we expect AquaRefined lead sales to reach approximately 50% of total revenue. Prior to the increased sales of AquaRefined lead, including during the three months ended March 31, 2018, we ran the balance of the plant at a high level to pressure test the non-AquaRefining infrastructure and sold the constituent components of LABs, lead compounds and plastics, with little or no additional processing.

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Cost of product sales remains high and can be attributed to a number of items, including but not limited to the cost of filling the AquaRefining system with electrolyte for our AquaRefining process, greater loss of electrolyte in the process than we expect to achieve following certain additional process improvements expected to be brought on-line over the next 12 months, increase in maintenance costs as we continue to adjust the modules as we increase operating time and hiring and training of personnel to run continuous operations of all 16 modules in advance of reaching continuous operations. At December 31, 2018, we had 61 employees in the TRIC facility versus 41 at December 31, 2017 due to increased level of operations and commissioning of our plant.

Research and development cost in 2017 included TRIC operating cost prior to the commencement of product sales, including the cost incurred to prepare our TRIC plant for operations. During the year ended December 31, 2018, research and development costs decreased by 44% over the comparable period in 2017. The decline in research and development expense is primarily associated with the cost of the TRIC facility being included in cost of product sales rather than research and development subsequent to the commencement of product sales during the second quarter of 2017 as well as an overall shift to production and commercial activities by the Company.

General and administrative expense has increased for the year ended December 31, 2018 versus December 31, 2017, primarily due to a $2.5 million accrual of key man penalties associated with our Interstate Battery Credit Agreement and Johnson Controls Investor Rights Agreement due to the resignations of Dr. Clarke and Mr. Mould; $0.6 million increased legal fees associated with shareholder lawsuits; $0.9 million in legal, proxy and solicitation fees associated with the efforts to address activist investors; $0.3 million in patent related legal fees; a $0.9 million severance accrual for our former chief executive officer; a $0.9 million severance accrual for our former chief operating officer; a net $0.4 million non-cash charge associated with modifying a warrant for 702,247 shares of common stock in connection with our settlement agreement with Interstate Battery (see Note 13 in the Consolidated Financial Statements for a more detailed description); a $0.8 million non-cash write-off of leasehold improvements at our former California location; as well as other increases in other professional fees. General and administrative expense during the year ended December 31, 2017 included a $0.6 million accrual for estimated costs to resolve a claim of breach of a negative covenant in our convertible loan agreement with Interstate Battery.

As described in Note 6 to the Consolidated Financial Statements, in April 2017, we acquired all of the capital shares of Ebonex IPR Limited for consideration of $2.5 million, consisting of cash, transaction costs and 123,776 shares of our common stock. The principal asset of Ebonex IPR Limited consisted of a patent portfolio with an independent fair value of $112,000. Included in the purchase were certain fixed assets that have been determined by management to have no immediate value and were not considered in the valuation of Ebonex IPR.

Due to the fair value of the patent portfolio being significantly less than total consideration, the early development stage of the technology acquired and the uncertainties inherent in research and development, we recorded a non-cash impairment charge of $2.4 million during the year ended December 31, 2017.

The following table summarizes our other income and interest expense for the year ended December 31, 2018 and 2017 together with the percentage change in those items (in thousands).

	Year ended December 31,
	2018			2017			Favorable (Unfavorable)			% Change
Other (expense) income
Interest expense	$	(3,447	)	$	(1,761	)	$	(1,686	)	96	%
Interest and other income	$	223		$	41		$	182		444	%

Interest during the year ended December 31, 2018 and 2017 relates primarily to the $5.0 million Interstate Battery convertible note and the $10.0 million notes payable, amortization of debt issuance costs incurred in connection with both of these notes, as well as an accrual for the USDA guarantee fee on the $10.0 million note to Green Bank.

The note discount associated with the Interstate Battery convertible note is amortized using the effective interest method over the three-year term of the note, maturing on May 24, 2019. Using the effective interest method results in higher expense in later periods. Thus, non-cash interest expense associated with the note discount amortization was $0.4 million in 2017, $2.0 million in 2018 and will be $2.6 million in 2019.

Results of Operations for the Fiscal Year Ended December 31, 2017 Compared to the Fiscal Year Ended December 31, 2016

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As mentioned above, we did not commence revenue producing operations until January 2017. During the second quarter of 2017, we began shipments of lead compounds and plastics to customers. Prior to that, our operations consisted of the development and limited testing of our AquaRefining process, the development of our business plan, the raise of our working capital and the development of our initial lead acid battery, or LAB, recycling facility near Reno, Nevada. The following table summarizes our results of operations with respect to the items set forth below for the years ended December 31, 2017 and 2016 together with the percentage change in those items (in thousands).

	Year Ended December 31,
	2017		2016		Favorable (Unfavorable)			% Change
Product sales	$	2,088	$	—	$	2,088		—	%
Cost of product sales	9,541		—		(9,541		)	—	%
Research and development cost	8,103		6,348		(1,755		)	(28	)%
General and administrative expense	6,891		6,610		(281		)	(4	)%
Impairment charge	2,411		—		(2,411		)	—	%
Total operating expense	$	26,946	$	12,958	$	(13,988	)	(108	)%

As mentioned above, product sales, consisting of lead compounds and plastics began in April 2017. Cost of product sales consists of all operating costs incurred at TRIC following the commencement of product sales. Costs incurred at TRIC prior to commencement of sales are included in research and development costs. Cost of product sales includes raw materials, supplies and related costs, salaries and benefits, consulting and outside services costs, depreciation and amortization costs and insurance, travel and overhead costs. There are no comparatives for the previous periods.

Research and development cost included TRIC operating cost prior to the commencement of product sales, including cost incurred to prepare our TRIC plant for operations. During the year ended December 31, 2017, research and development costs increased by 28% over the comparable period in 2016. At December 31, 2016, we had 30 employees in the TRIC facility and we focused on building the plant (cost included in research and development expense). At December 31, 2017, we had 41 employees at the TRIC facility and were focused on recycling lead operations as well as continuing to commission various processes within the plant (cost included in research and development expense until product sales began, at which point forward they were included in cost of product sales). The increase in research and development cost during the year ended December 31, 2017 versus the prior period is due to increased level of operations and commissioning of our plant in TRIC.

General and administrative expense was relatively consistent during the years ended December 31, 2017 and December 31, 2016. The small increase is primarily due to our $0.6 million accrual for estimated costs to resolve a claim of breach of a negative covenant in our convertible loan agreement with Interstate Battery.

As described above and in Note 6 to the Consolidated Financial Statements, in April 2017, we recorded a non-cash impairment charge of $2.4 million on our Ebonex IPR Limited acquisition during the year ended December 31, 2017.

The following table summarizes our other income and interest expense for the year ended December 31, 2017 and 2016 together with the percentage change in those items (in thousands).

	Year Ended December 31,
	2017			2016			Favorable (Unfavorable)		% Change
Other (expense) income
Interest expense	$	(1,761	)	$	(639	)	$	1,122	(175.59	)%
Interest income	$	41		$	41		$	—	—	%

Interest during the year ended December 31, 2017 relates primarily to the $5.0 million Interstate Battery convertible note and the $10.0 million notes payable, amortization of debt issuance costs incurred in connection with both of these notes, as well as an

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accrual for the USDA guarantee fee on the $10.0 million note to Green Bank. Interest relating to the $10.0 million notes payable during the year ended December 31, 2016 and 2015 was capitalized as part of the building cost of the TRIC facility in the amount of $0.5 million and $0.1 million, respectively. Interest capitalization ceased upon completion of the building in November 2016.

The note discount associated with the Interstate Battery convertible note is amortized using the effective interest method over the three-year term of the note, maturing on May 24, 2019. Using the effective interest method results in higher expense in later periods. Thus, non-cash interest expense associated with the note discount amortization was $0.4 million in 2017.

Liquidity and Capital Resources

As of December 31, 2018, we had total assets of $71.4 million and working capital of $11.0 million, which gives no effect to a January 2019 public offering of our common shares from which we received approximately $9.1 million of net proceeds.

The following table summarizes our cash used in operating, investing and provided by financing activities (in thousands):

	Year ended December 31,
	2018			2017			2016
Net cash used in operating activities	$	(26,318	)	$	(19,002	)	$	(11,121	)
Net cash used in investing activities	$	(3,929	)	$	(9,775	)	$	(29,606	)
Net cash provided by financing activities	$	28,346		$	24,988		$	35,501

Net cash used in operating activities

Net cash used in operating activities for the year ended December 31, 2018, 2017 and 2016 was $26.3 million, $19.0 million and $11.1 million, respectively. Net cash used in operating activities during each of these periods consisted primarily of our net loss adjusted for non-cash items such as depreciation, amortization, stock-based compensation charges, warrant modification charges (2018), loss on disposal of leasehold improvements (2018) and non-cash charges related the impairment charge (2017), as well as net changes in working capital.

Net cash used in investing activities

Net cash used in investing activities for the year ended December 31, 2018, 2017 and 2016 was $3.9 million, $9.8 million and $29.6 million, respectively. Net cash used in investing activities during each of these periods consists primarily of purchases of fixed assets related to the build out of our TRIC recycling facility in Nevada, and, to a lesser extent, our corporate headquarters during 2016.

Net cash provided by financing activities

Net cash provided by financing activities for the year ended December 31, 2018 consisted of $26.6 million net proceeds from our June 2018 public offering and $2.1 million net proceeds from underwriters’ exercise, in January 2018, of their overallotment option related to our December 2017 public offering partially offset by lease and debt payments. Net cash provided by financing activities for the year ended December 31, 2017 primarily consisted of $13.8 million net proceeds from the issuance of common stock in our December 2017 public offering, $10.5 million net proceeds from the issuance of common stock to Johnson Controls and $1.1 million proceeds from the exercise of stock options partially offset by lease and debt payments.

Net cash provided by financing activities for the year ended December 31, 2016 primarily consisted of $21.5 million net proceeds from the issuance of common stock in our November 2016 public offering; $9.1 million net proceeds from the issuance of common stock to Interstate Battery and other investors through our placement agent, National Securities Corporation; and $4.9 million net proceeds from the Interstate Battery convertible note.

As of the date of this report, and after giving effect to a January 2019 public offering of our common shares from which we received approximately $9.1 million of net proceeds, we believe that our working capital is sufficient to fund our current plan of operations at TRIC over the next twelve months. However, we will require additional capital in order to increase production of AquaRefined lead at TRIC beyond that planned for 16 modules, and to fund our continued losses from operations until such time as we are able to achieve positive cash flow from operations. We intend to seek additional funds through various financing sources, includin

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g the sale of our equity and debt securities, licensing fees for our technology, joint ventures with capital partners and/or project financing of our recycling facilities. However, there can be no guarantees that such funds will be available on commercially reasonable terms, if at all. If such financing is not available on satisfactory terms, we may be unable to further pursue our business plan and we may be unable to continue operations. Additionally, Aqua Metals Reno, or AMR, was not in compliance with its the minimum debt service coverage ratio covenant on its loan from Green Bank as of the fiscal quarter ends between March 31, 2017 and December 31, 2018. AMR received a waiver for the minimum debt service coverage ratio covenant for those periods. While we expect to continue to receive waivers from Green Bank for non-compliance with such covenant, there is no guarantee that we will receive such waivers. If Green Bank determines not to grant us a waiver for non-compliance in the future, we would be in default of the loan and Green Bank would be able to accelerate the payment of all amounts under the loan.

Off-Balance Sheet Arrangements

We do not have any off-balance sheet financing arrangements.

Critical Accounting Policies and Significant Judgments and Estimates

Our management’s discussion and analysis of our financial condition and results of operations is based on our consolidated financial statements, which have been prepared in accordance with U.S. generally accepted accounting principles, or U.S. GAAP. The preparation of our consolidated financial statements requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the consolidated financial statements, and the reported amounts of expenses during the period. Significant items subject to such estimates and assumptions include the carrying amount and valuation of long-lived assets, the valuation of conversion features of convertible debt, valuation allowances for deferred tax assets, the determination of estimated asset retirement obligations, the determination of stock option expense, and the determination of the fair value of stock warrants issued. Our actual results could differ from these estimates under different assumptions or conditions.

While our significant accounting policies are more fully described in Note 2 to the consolidated financial statements included in Item 8 of this Annual Report on Form 10-K, we believe that the following accounting policies are the most critical to assist stockholders and investors reading the consolidated financial statements in fully understanding and evaluating our financial condition and results of operations.

Accounts receivable

We sell our products to large well-established companies and extend credit without requiring collateral, based on an ongoing evaluation of the customer’s business prospects and financial condition. In the event that payment of a customer’s account receivable is doubtful, we would reserve the receivable under an allowance for doubtful accounts.

Inventory

Inventory is stated as the lower of cost or net realizable value. Inventory cost is recorded on a first-in, first-out basis using the weighted average method. Net realizable value is determined as the estimated selling price in the ordinary course of business, less reasonably predictable costs of completion, disposal, and transportation.

Property and equipment

Property and equipment are stated at cost net of accumulated depreciation. Depreciation on property and equipment is calculated on the straight-line basis over the estimated useful lives of the assets. Leasehold improvements are depreciated over the shorter of the life of the asset or the remaining term of the lease.

Intangible and other long-lived assets

The intangible assets consist of a patent application contributed to us by five founding stockholders, patent applications for technology developed by us and trademark applications. The useful life of the intangible assets has been determined to be ten years and the assets are being amortized. We periodically evaluate our intangible and other long-lived assets for indications that the carrying amount of an asset may not be recoverable. In reviewing for impairment, we compare the carrying value of such assets to the estimated undiscounted future cash flows expected from the use of the assets and their eventual disposition. When the estimated undiscounted future cash flows are less than their carrying amount, an impairment loss is recognized equal to the difference between the assets’ fair value and their carrying value. In addition to the recoverability assessment, we routinely review the remaining estimated lives of our long-lived assets. Any reduction in the useful life assumption will result in increased depreciation and amortization expense in the

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period when such determination is made, as well as in subsequent periods. We evaluate the need to record impairment during each reporting period. No impairment has been recorded. We determined that the estimated life of the intellectual property properly reflected the current remaining economic life of the asset.

Asset retirement obligations

We record the fair value of estimated asset retirement obligations associated with tangible long-lived assets in the period incurred. Retirement obligations associated with long-lived assets are those for which there is an obligation for closures and/or site remediation at the end of the assets’ useful lives. These obligations are initially estimated based on discounted cash flow estimates and are accreted to full value over time through charges to operating expense. In addition, asset retirement costs are capitalized as part of the related asset’s carrying value and are depreciated on a straight-line basis over the assets’ respective useful lives.

Revenue Recognition

The Company records revenue recognition in accordance with ASC 606, Revenue from Contracts with Customers. ASC 606 provides a single comprehensive model for the recognition of revenue arising from contracts with customers and supersedes most current revenue recognition guidance, including industry-specific guidance. It requires an entity to recognize revenue when the entity transfers promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. ASC 606 creates a five-step model that requires entities to exercise judgment when considering the terms of contract(s), which includes (1) identifying the contract(s) with the customer, (2) identifying the separate performance obligations in the contract, (3) determining the transaction price, (4) allocating the transaction price to the separate performance obligations, and (5) recognizing revenue as each performance obligation is satisfied. ASC 606 requires additional disclosure about the nature, amount, timing and uncertainty of revenue and cash flows arising from customer contracts, including qualitative and quantitative information about contracts with customers, significant judgments and changes in judgments and assets recognized from costs incurred to obtain or fulfill a contract.

Research and development

Research and development expenditures are expensed as incurred.

Income taxes

We account for income taxes in accordance with the liability method of accounting for income taxes. Under the liability method, deferred assets and liabilities are recognized based upon anticipated future tax consequences attributable to differences between financial statement carrying amounts of assets and liabilities and their respective tax bases. The provision for income taxes is comprised of the current tax liability and the changes in deferred tax assets and liabilities. We established a valuation allowance to the extent that it is more likely than not that deferred tax assets will not be recoverable against future taxable income.

We recognize the effect of uncertain income tax positions only if those positions are more likely than not of being sustained. Recognized income tax positions are measured at the largest amount that is greater than 50% likely of being realized. Changes in recognition or measurement are reflected in the period in which the change in judgment occurs.

Stock-based compensation

We recognize compensation expense for stock-based compensation in accordance with ASC 718 “Compensation – Stock Compensation.” For employee stock-based awards, we calculate the fair value of the award on the date of grant using the Black-Scholes-Merton method for stock options; the expense is recognized over the service period for awards to vest.

The estimation of stock-based awards that will ultimately vest requires judgment and to the extent actual results or updated estimates differ from the original estimates, such amounts are recorded as a cumulative adjustment in the period estimates are revised. The Company considers many factors when estimating expected forfeitures, including types of awards, employee class and historical experience.

Recent accounting pronouncements

See recent accounting pronouncements in Note 2 of the Consolidated Financial Statements located in Item 8 in this Annual Report.

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Contractual Obligations and Commitments

The following table summarizes our contractual obligations as of December 31, 2018 and the effect such obligations are expected to have on our liquidity and cash flow in the future years (in thousands):

	Total		Less than 1 year		1 to 3 years		3 to 5 years		More than 5 years
Operating lease obligations	$	2,156	$	624	$	1,305	$	227	—
Capital lease obligations	39		16		12		11		—
Convertible debt	6,651		6,651		—		—		—
Notes payable	9,506		295		648		737		7,826
	$	18,352	$	7,586	$	1,965	$	975	$	7,826

Operating lease obligations

We lease our Alameda, California and McCarran, Nevada spaces under non-cancelable operating leases, expiring in 2022 and 2021, respectively. On February 4, 2019, we entered into a sublease agreement effective as of February 1, 2019 for the Alameda, California facility. The term of the sublease commenced in February 2019, and ends on May 1, 2022. The above obligations do not include partially offsetting sublease income of approximately $1.5 million.

Capital lease obligations

We financed certain of our lab equipment purchases through the use of capital leases. The lease terms are between 24 and 36 months with an option to purchase the asset at the end of the lease term for $1.

Convertible debt

Our convertible debt bears interest at 11% per annum and both interest and principal are due at maturity on May 25, 2019. Interest is not convertible. See Note 10 in the accompanying notes to the consolidated financial statements for further description. In January 2019, this note was paid in full.

Long-term debt

AMR entered into a $10,000,000 loan with Green Bank on November 3, 2015. The term of the loan is twenty-one years. For the first twelve months only interest was payable; thereafter monthly payments of interest and principal are due. The interest rate adjusts on the first day of each calendar quarter equal to the greater of six percent (6%) or two percent (2%) per annum above the minimum prime lending rate charged by large U.S. money center commercial banks as published in the Wall Street Journal. See Note 12 in the accompanying notes to the consolidated financial statements for further description.

33

Item 7A. Quantitative and Qualitative Disclosures About Market Risk

We do not enter into financial instruments for trading or speculative purposes. Our cash, cash equivalents and restricted cash balances as of December 31, 2018 consisted of cash and cash equivalents. Our primary exposure to market risk is interest expense related to our debt with Green Bank. The interest rate on this loan adjusts on the first day of each calendar quarter equal to the greater of six percent (6%) or two percent (2%) per annum above the minimum prime lending rate charged by large U.S. money center commercial banks as published by the Wall Street Journal. We experience market risk with respect to the volatility of lead commodity prices. The purchase price of our primary raw material used lead acid batteries (used LABs), and the sales price of our lead-based finished products are based on commodity pricing. Due to the relatively short turnaround between the purchase of used LABs and the sale of our finished goods, we believe the risk is minimized.

34

Item 8. Financial Statements and Supplementary Data

Index To Consolidated Financial Statements

	Page
Report of Independent Registered Public Accounting Firm	36
Consolidated Balance Sheets at December 31, 2018 and 2017	37
Consolidated Statements of Operations for the years ended December 31, 2018, 2017 and 2016	36
Consolidated Statements of Changes In Stockholders’ Equity for the years ended December 31, 2018, 2017 and 2016	39
Consolidated Statements of Cash Flows for the years ended December 31, 2018, 2017 and 2016	40
Notes to Consolidated Financial Statements	42

35

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors and 

Stockholders of Aqua Metals, Inc. and Subsidiaries:

Opinion on the Financial Statements

We have audited the accompanying consolidated balance sheets of Aqua Metals, Inc. and Subsidiaries (collectively the “Company”) as of December 31, 2018 and 2017, the related consolidated statements ofoperations, stockholders’ equity, and cash flows, for each of the three years in the period ended December 31, 2018, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2018 and 2017, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2018, in conformity with U.S. generally accepted accounting principles.

Basis for Opinion

These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.

Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.

We have served as the Company’s auditor since 2014.

/s/ Armanino LLP 

San Ramon, CA 

February 28, 2019

36

AQUA METALS, INC.

Consolidated Balance Sheets

(in thousands, except share and per share amounts)

ASSETS
	December 31, 2018			December 31, 2017
Current assets
Cash and cash equivalents	$	20,892		$	22,793
Accounts receivable	725			882
Inventory	765			1,239
Prepaid expenses and other current assets	370			770
Total current assets	22,752			25,684
Non-current assets
Property and equipment, net	45,548			45,733
Intellectual property, net	1,271			1,461
Other assets	1,800			1,564
Total non-current assets	48,619			48,758
Total assets	$	71,371		$	74,442
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities
Accounts payable	$	2,088		$	1,436
Accrued expenses	5,196			1,801
Deferred rent, current portion	8			192
Lease liability, current portion	121			—
Notes payable, current portion	311			405
Convertible note payable, current portion	4,075			—
Total current liabilities	11,799			3,834
Deferred rent, non-current portion	27			771
Lease liability, non-current portion	110			—
Asset retirement obligation	745			701
Notes payable, non-current portion	8,600			8,839
Convertible note payable, non-current portion	—			1,332
Total liabilities	21,281			15,477
Commitments and contingencies
Stockholders’ equity
Common stock; $0.001 par value; 50,000,000 shares authorized; 38,932,437 and 27,554,076 shares issued and outstanding as of December 31, 2018 and December 31, 2017, respectively	39			27
Additional paid-in capital	145,147			113,780
Accumulated deficit	(95,096		)	(54,842		)
Total stockholders’ equity	50,090			58,965
Total liabilities and stockholders’ equity	$	71,371		$	74,442

The accompanying notes are an integral part of these consolidated financial statements.

37

AQUA METALS, INC.

Consolidated Statements of Operations

(in thousands, except share and per share amounts)

	Year ended December 31,
	2018			2017			2016
Product sales	$	4,449		$	2,088		$	—
Operating cost and expense
Cost of product sales	22,761			9,541			—
Research and development cost	4,502			8,103			6,348
General and administrative expense	14,214			6,891			6,610
Impairment charge	—			2,411			—
Total operating expense	41,477			26,946			12,958
Loss from operations	(37,028		)	(24,858		)	(12,958		)
Other income and expense
Interest expense	(3,447		)	(1,761		)	(639		)
Interest and other income	223			41			41
Total other expense, net	(3,224		)	(1,720		)	(598		)
Loss before income tax expense	(40,252		)	(26,578		)	(13,556		)
Income tax expense	(2		)	(2		)	(1		)
Net loss	$	(40,254	)	$	(26,580	)	$	(13,557	)
Weighted average shares outstanding, basic and diluted	34,154,826			20,293,100			15,267,233
Basic and diluted net loss per share	$	(1.18	)	$	(1.31	)	$	(0.89	)

The accompanying notes are an integral part of these consolidated financial statements.

38

AQUA METALS, INC.

Consolidated Statements of Stockholders’ Equity (Deficit)

(in thousands, except share amounts)

				Additional Paid-in Capital			Accumulated Deficit			Total Stockholders' Equity (Deficit)
	Common Stock
	Shares	Amount
December 31, 2015	14,137,442	$	14	$	48,356		$	(14,705	)	$	33,665
Stock-based compensation - stock options	—	—		1,060			—			1,060
Warrants issued for consulting services	—	—		138			—			138
Cashless exercise of warrant	15,203	—		—			—			—
Exercise of options to purchase common stock	4,500	—		19			—			19
Common stock issued in May 2016 Private Placement, net of $345 offering costs	719,333	1		4,777			—			4,778
Common stock issued for cash in May 2016 from Interstate Battery, net of $629 allocated transaction cost	702,247	1		4,369			—			4,370
Common stock issued in November 2016 public offering, net of $1,688 offering costs	2,300,000	2		21,540			—			21,542
Proceeds allocated to warrants issued and beneficial conversion feature in connection with Interstate Batteries Agreement	—	—		4,975			—			4,975
Net loss	—	—		—			(13,557		)	(13,557		)
December 31, 2016	17,878,725	$	18	$	85,234		$	(28,262	)	$	56,990
Stock-based compensation	—	—		1,081			—			1,081
Cashless exercise of warrants	1,173,296	1		(1		)	—			—
Exercise of warrants to purchase common stock	2,500	—		15			—			15
Exercise of options to purchase common stock	284,370	—		1,071			—			1,071
Common stock issued under Officers and Directors Purchase Plan	2,404	—		8			—			8
Common stock issued for cash in February 2017 from Johnson Controls, net of $167 transaction cost	939,005	1		10,471			—			10,472
Common stock issued for purchase of Ebonex IPR Limited	123,776	—		2,149			—			2,149
Common stock issued in December 2017 public offering, net of $1,256 transaction cost	7,150,000	7		13,752			—			13,759
Net loss	—	—		—			(26,580		)	(26,580		)
December 31, 2017	27,554,076	$	27	$	113,780		$	(54,842	)	$	58,965
Stock-based compensation	—	—		1,201			—			1,201
Common stock issued under Officers and Directors Purchase Plan	2,034	—		4			—			4
Common stock issued upon RSU vesting	65,600	—		—			—			—
Common stock issued for consulting services	152,727	—		423			—			423
Common stock issued in overallotment related to December 2017 Public Offering, net of $10 transaction cost	1,072,500	2		2,101			—			2,103
Common stock issued for cash in June 2018 Public Offering, net of $2,096 transaction cost	10,085,500	10		26,636			—			26,646
Modification of Interstate Batteries warrant #1	—	—		1,002			—			1,002
Net loss	—	—		—			(40,254		)	(40,254		)
Balances, December 31, 2018	38,932,437	$	39	$	145,147		$	(95,096	)	$	50,090

The accompanying notes are an integral part of these consolidated financial statements.

39

AQUA METALS, INC.

Consolidated Statements of Cash Flows

(in thousands)

	Year ended December 31,
	2018			2017			2016
Cash flows from operating activities:
Net loss	$	(40,254	)	$	(26,580	)	$	(13,557	)
Reconciliation of net loss to net cash used in operating activities
Depreciation	3,213			2,908			687
Amortization of intellectual property	190			163			128
Accretion of asset retirement obligation	—			—			—
Fair value of warrant modification, net	402			—			—
Fair value of warrants issued for consulting services	—			—			138
Fair value of common stock issued for consulting services	423			—			—
Stock-based compensation	1,201			1,081			1,060
Amortization of debt discount	2,006			360			54
Amortization of deferred financing costs	83			83			62
Non-cash convertible note interest expense	690			618			343
Lease liability, net of deferred rent write-off	(493		)	—			—
Amortization of lease liability	(80		)	—			—
Impairment of acquired intellectual property	—			2,411			—
Loss on sale of equipment	869			76			—
Inventory write down	179			456			—
Changes in operating assets and liabilities
Accounts receivable	157			(882		)	—
Inventory	295			(1,636		)	(59		)
Prepaid expenses and other current assets	400			236			(394		)
Accounts payable	472			926			(176		)
Accrued expenses	4,009			924			564
Deferred rent	(124		)	(177		)	—
Net cash used in operating activities	(26,318		)	(19,002		)	(11,121		)
Cash flows from investing activities:
Purchases of property and equipment	(3,693		)	(8,819		)	(29,156		)
Proceeds from sale of equipment	—			4			—
Other assets	(236		)	(345		)	(250		)
Intellectual property related expenditures	—			(615		)	(200		)
Net cash used in investing activities	(3,929		)	(9,775		)	(29,606		)
Cash flows from financing activities:
Proceeds from issuance of common stock, net of transaction costs	28,753			25,325			30,709
Payments on notes payable	(277		)	(201		)	(14		)
Payments on capital leases	(130		)	(136		)	(52		)
Proceeds from issuance of convertible notes payable, net of issuance costs	—			—			4,858
Net cash provided by financing activities	28,346			24,988			35,501
Net decrease in cash, cash equivalents and restricted cash	(1,901		)	(3,789		)	(5,226		)
Cash, cash equivalents and restricted cash at beginning of period	22,793			26,582			31,808
Cash, cash equivalents and restricted cash at end of period	$	20,892		$	22,793		$	26,582

(Continued)

40

AQUA METALS, INC.

Consolidated Statements of Cash Flows

(in thousands)

	Year ended December 31,
	2018			2017			2016
Supplemental disclosure of cash flow information:
Cash paid for interest, net of amounts capitalized	$	668		$	699		$	330
Cash paid for income taxes	$	2		$	2		$	1
Non-cash investing activities
Tenant improvement allowances	$	—		$	—		$	78
Non-cash financing activities
Capital lease	$	38		$	—		$	310
Fair value of consulting warrants	$	—		$	—		$	138
Fair value of financing warrants	$	—		$	—		$	229
Fair value of common stock issued to consultants	$	423		$	—		$	—
Total non-cash financing activities	$	461		$	—		$	677
Supplemental disclosure of non-cash transactions
Change in property and equipment resulting from change in accounts payable	$	180		$	(1,062	)	$	1,200
Change in property and equipment resulting from change in accrued expenses	$	(14	)	$	(1,098	)	$	1,330
Recognition of convertible debt discount	$	—		$	—		$	4,975
Asset retirement obligation offset with asset retirement cost (property and equipment)	$	—		$	670		$	—
Fair value of common stock issued for intellectual property	$	—		$	2,149		$	—
Reduction in accrued liabilities upon modification of Interstate Battery warrant #1	$	600		$	—		$	—

The accompanying notes are an integral part of these consolidated financial statements.

41

AQUA METALS, INC.

Notes to Consolidated Financial Statements 

1. Organization and Operations

Aqua Metals, Inc. (the “Company”) was incorporated in Delaware and commenced operations on June 20, 2014 (inception). On January 27, 2015, the Company formed two wholly-owned subsidiaries, Aqua Metals Reno, Inc. (“AMR”) and Aqua Metals Operations, Inc. (collectively, the “Subsidiaries”), both incorporated in Delaware. The Company is engaged in the business of lead recycling through its patented and patent-pending AquaRefining^TM technology. Unlike smelting, AquaRefining is a room temperature, water-based process that emits less pollution than smelting, the traditional method of lead recycling. The Company has built its first recycling facility in Nevada’s Tahoe Regional Industrial Complex (“TRIC”) in McCarran, Nevada and intends to pursue the development of additional lead acid battery recycling facilities based on the Company’s AquaRefining technology, likely through licensing or joint development arrangements. The Company commenced the shipment of products for sale, consisting of lead compounds and plastics, in April 2017, and through March 31, 2018, substantially all revenue was derived from the sale of lead compounds and plastics. In April 2018, the Company began shipping cast lead bullion (mixture of lead purchased to prime the kettles and AquaRefined lead from our AquaRefining process) blocks in addition to lead compounds and plastics and in June 2018, the Company began shipping high purity lead from its AquaRefining process.

Liquidity and Management Plans

The Company completed the development of its first LAB recycling facility at the Tahoe Reno Industrial Center (“TRIC”) and commenced production during the first quarter of 2017. The TRIC facility produces recycled lead, consisting of lead compounds, ingoted hard lead and ingoted AquaRefined lead as well as plastic.

The Company generated revenues of $4.4 million and $2.1 million during 2018 and 2017, had no revenue in 2016, and had net losses of $40.3 million, $26.6 million and $13.6 million for the years ended December 31, 2018, 2017 and 2016, respectively. As of December 31, 2018, the Company’s cash balance was $20.9 million. The Company believes that its working capital as of the date of this report is sufficient to fund the commissioning and commencement of commercial operations of 16 AquaRefining modules and its commercial operations at TRIC through, at least, April 2020, assuming the successful commercial rollouts of the 16 AquaRefining modules.

2. Summary of Significant Accounting Policies

Basis of presentation and consolidation

The accompanying consolidated financial statements include those of Aqua Metals, Inc. and its subsidiaries, after elimination of all intercompany accounts and transactions. We have prepared the accompanying consolidated financial statements in accordance with accounting principles generally accepted in the United States of America (“GAAP”) and pursuant to the rules and regulations of the United States Securities and Exchange Commission (the “SEC”).

Use of estimates

The preparation of the consolidated financial statements requires management of the Company to make a number of estimates and assumptions relating to the reported amount of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the consolidated financial statements, and the reported amounts of expenses during the period. Significant items subject to such estimates and assumptions include the carrying amount and valuation of long-lived assets, the valuation of conversion features of convertible debt, valuation allowances for deferred tax assets, the determination of fair value of estimated asset retirement obligations, the determination of stock option expense and the determination of the fair value of stock warrants issued. Actual results could differ from those estimates.

Cash and cash equivalents

The Company considers all highly liquid instruments with original or remaining maturities of ninety days or less at the date of purchase to be cash equivalents. The Company maintains its cash balances in large financial institutions. Periodically, such balances may be in excess of federally insured limits.

42

Restricted cash

Restricted cash was comprised of funds held in escrow at Green Bank for the purpose of paying for the construction of the lead recycling plant building in McCarran, Nevada. As of December 31, 2017, the building was complete and the funds had been dispersed.

In November 2016, the Financial Accounting Standards Board, FASB issued Accounting Standards Update ("ASU") No. 2016-18. The amendments in ASU 2016-18 require an entity to reconcile and explain the period-over-period change in total cash, cash equivalents and restricted cash within its statements of cash flows rather than reconciling and explaining the period-over-period change in total cash and cash equivalents (excluding restricted cash). The Company adopted this new ASU beginning January 1, 2018 using the required full retrospective approach. The adoption of this standard resulted in an increase in net cash used in investing activities of $1.1 million and $10.5 million in the consolidated statements of cash flows for the year ended December 31, 2017 and December 31, 2016, respectively. As there is no restricted cash at December 31, 2018 or 2017, there is no effect on the year ended December 31, 2018.

	December 31,
	2016		2015
Cash and cash equivalents	$	25,458	$	20,141
Restricted cash	1,124		11,667
Total cash, cash equivalents and restricted
cash shown in the statement of cash flows	$	26,582