8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): August 18, 2021

Aemetis, Inc.

(Exact name of registrant as specified in its charter)

Nevada	001-36475	26-1407544
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

20400 Stevens Creek Blvd., Suite 700

Cupertino, California 95014

(Address of Principal Executive Office) (Zip Code)

(408) 213-0940

(Registrant’s telephone number, including area code)

N/A

(Former name or former address, if changed since last report)

Title of class of registered securities	Ticker Symbol	Name of exchange on which registered
Common Stock, par value $0.001 per share	AMTX	NASDAQ

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

☐     Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐     Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐     Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐     Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01 Entry into a Material Definitive Agreement.

On August 18, 2021, Aemetis, Inc. (the “Company”) entered into a letter agreement amending that certain At Market Issuance Sales Agreement (as amended, the “Agreement”) with H.C. Wainwright & Co., LLC (the ”Distribution Agent”). In accordance with the terms of the Agreement, the Company may offer and sell from time to time through the Distribution Agent the Company’s common stock having an aggregate offering price of up to $300,000,000 (the “Placement Shares”). The Placement Shares will be issued pursuant to the Company’s shelf registration statement on Form S-3 (Registration No. 333-258322). The Company filed a prospectus supplement dated August 18, 2021, with the Securities and Exchange Commission in connection with the offer and sale of the Placement Shares.

Sales of the Placement Shares, if any, will be made by means of ordinary brokers’ transactions on the NASDAQ Stock Market at market prices, in block transactions or as otherwise agreed by the Company and the Distribution Agent. The Company shall pay to the Distribution Agent in cash, upon each sale of Placement Shares pursuant to the Agreement, an amount up to 3.0% of the gross proceeds from each sale of Placement Shares.

Under the terms of the Agreement, the Company may also sell Placement Shares from time to time to the Distribution Agent as principal for its own account at a price negotiated at the time of sale. Any sale of Placement Shares to the Distribution Agent as principal would be pursuant to the terms of a separate agreement between the Company and the Distribution Agent.

This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.

The summary of the Agreement in this report does not purport to be complete and is qualified by reference to such agreement, which is filed as Exhibit 1.1 hereto. The legal opinion relating to the Placement Shares is filed as Exhibit 5.1 hereto.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

Exhibit Number	Description of the Exhibit
1.1	At Market Issuance Sales Agreement, dated January 26, 2021 between the Company and H.C. Wainwright & Co., LLC (incorporated by reference to Exhibit 1.1 of the Current Report on Form 8-K filed by the Company on January 27, 2021)
1.2	Letter Agreement, dated August 18, 2021 between the Company and H.C. Wainwright & Co., LLC
5.1	Opinion of Nevada Legal Counsel to the Company.
23.1	Consent of Nevada Legal Counsel (included in Exhibit 5.1).

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	AEMETIS, INC.
	By:	/s/ Eric A. McAfee
	Name:	Eric A. McAfee
	Title:	Chief Executive Officer
August 18, 2021		(Principal Executive Officer)

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EX-1.1

EXHIBIT 1.2

August 18, 2021

Aemetis, Inc.

20400 Stevens Creek Blvd, Suite 700

Cupertino, California 95014

Attention: Eric McAfee

Dear Mr. McAfee:

Reference is made to the At Market Issuance Sales Agreement, dated as of January 26, 2021 (the “ATM Agreement”), between Aemetis, Inc. (the “Company”) and H.C. Wainwright & Co., LLC (“Wainwright”). This letter (the “Amendment”) constitutes an agreement between the Company and Wainwright to amend the ATM Agreement as set forth herein. Defined terms that are used but not defined herein shall have the meanings ascribed to such terms in the ATM Agreement.

1. The defined term “Agreement” in the ATM Agreement is amended to mean the ATM Agreement as amended by this Amendment.

2. The first sentence in the second paragraph of Section 1 in the ATM Agreement is amended and restated as follows:

“The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3 (File No. 333-248492), which was replaced and superseded by a registration statement on Form S-3 (File No. 333-258322) on and after August 18, 2021 (and all references to “such registration statement” in this Agreement shall mean the registration statement on Form S-3 (File No. 333-248492) prior to August 18, 2021 and the registration statement on Form S-3 (File No. 333-258322) on and after August 18, 2021), including a base prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”).”

3. Schedule 2 (Compensation) in the ATM Agreement is amended and restated as follows:

“The Company shall pay to the Distribution Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount equal to up to 3% of the gross proceeds from each sale of Placement Shares.”

4. The Company and Wainwright hereby agree that the date of this Amendment shall be a Representation Date under the ATM Agreement, the Company shall deliver the deliverables required by Section 7(l), Section 7(m) and Section 7(n) of the ATM Agreement on the date of this Amendment, and the Company shall file a Prospectus Supplement with the Commission on the date hereof.

5. Except as expressly set forth herein, all of the terms and conditions of the ATM Agreement shall continue in full force and effect after the execution of this Amendment and shall not be in any way changed, modified or superseded by the terms set forth herein.

6. This Amendment may be executed in two or more counterparts and by facsimile or “.pdf” signature or otherwise, and each of such counterparts shall be deemed an original and all of such counterparts together shall constitute one and the same agreement.

[remainder of page intentionally left blank]

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In acknowledgment that the foregoing correctly sets forth the understanding reached by the Company and Wainwright, please sign in the space provided below, whereupon this Amendment shall constitute a binding amendment to the ATM Agreement as of the date indicated above.

Very truly yours,
H.C. WAINWRIGHT & CO., LLC
By:	/s/ Edward D. Silvera
Name:	Edward D. Silvera
Title:	Chief Operating Officer

Accepted and Agreed:
AEMETIS, INC.
By:	/s/ Eric McAfee
	Name: Eric McAfee
	Title: CEO

[SIGNATURE PAGE TO AMTX AMENDMENT TO ATM AGREEMENT]

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EX-5.1

EXHIBIT 5.1, 23.1

Reply to Las Vegas Office

August 18, 2021

Aemetis, Inc.

20400 Stevens Creek Blvd., #700

Cupertino, California 95014

Gentlemen:

We have acted as counsel to Aemetis, Inc., a Nevada corporation (the “Company”), in connection with the issuance and sale, from time to time, of shares of common stock of the Company, $0.001 par value per share, having an aggregate sale price of up to $300,000,000 (the “Placement Shares”), pursuant to the At Market Issuance Sales Agreement, dated January 26, 2021, between the Company and H.C. Wainwright & Co., LLC, as amended by that certain letter agreement by and among the forgoing parties dated as of August 18, 2021 (the “Agreement”). The Placement Shares will be issued pursuant to the Company’s registration statement on Form S-3 (File No. 333-258322), as filed with the Securities and Exchange Commission (at the time it became effective, the “Registration Statement”), under the Securities Act of 1933, as amended (the “Securities Act”) and the related prospectus dated July 30, 2021 and the prospectus supplement dated August 18, 2021 (collectively, the “Prospectus”).

We have examined the Registration Statement, the Prospectus and other instruments, certificates, records and documents, matters of fact and questions of law that we have deemed necessary for the purposes of this opinion. In our examination, we have assumed the authenticity of documents submitted to us as originals and the genuineness of all signatures, the conformity to the original documents of all documents submitted to us as copies, and the truth, accuracy and completeness of the information, representations and warranties contained in the instruments, certificates, records and documents we have reviewed.

Based upon the foregoing, we are of the opinion that the Placement Shares have been duly authorized by all necessary corporate action on the part of the Company and, when issued in accordance with the terms of the Agreement and the Registration Statement, the Placement Shares will be validly issued, and the Placement Shares will be fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Company’s Current Report on Form 8-K to be filed on August 18, 2021.

Very truly yours,

McDONALD CARANO LLP

mcdonaldcarano.com

2300 West Sahara Avenue, Suite 1200 ■ Las Vegas, Nevada 89102 ■ 702.873.4100

 100 West Liberty Street, Tenth Floor ■ Reno, Nevada 89501 ■ 775.788.2000

Mailing Address: P.O. Box 2670 ■ Reno, Nevada 89505

XML

Cover	Aug. 18, 2021
Cover [Abstract]
Entity Registrant Name	Aemetis, Inc.
Entity Central Index Key	0000738214
Document Type	8-K
Amendment Flag	false
Entity Emerging Growth Company	false
Document Period End Date	Aug. 18, 2021
Entity Incorporation State Country Code	NV
Entity File Number	001-36475
Entity Tax Identification Number	26-1407544
Entity Address Address Line 1	20400 Stevens Creek Blvd
Entity Address Address Line 2	Suite 700
Entity Address City Or Town	Cupertino
Entity Address State Or Province	CA
Entity Address Postal Zip Code	95014
City Area Code	408
Local Phone Number	213-0940
Security 12b Title	Common Stock, par value $0.001 per share
Trading Symbol	AMTX
Security Exchange Name	NASDAQ
Written Communications	false
Soliciting Material	false
Pre Commencement Tender Offer	false
Pre Commencement Issuer Tender Offer	false