As filed with the Securities and Exchange Commission on August 25, 2017
Registration No. ______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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 No.) |
1010 Atlantic Avenue Alameda, California | 94501 |
| (Address of Principal Executive Offices) | (Zip Code) |
Officer and Director Share Purchase Plan
(Full title of the plan)
Mark Weinswig
Chief Financial Officer
Aqua Metals, Inc.
1010 Atlantic Avenue
Alameda, California 95401
(Name and address of agent for service)
(510) 479-7635
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filter, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging company” in Rule 12b-2 of the Exchange Act.:
| Large accelerated filer ☐ | Accelerated filer ☒ |
| Non-accelerated filer ☐ | Smaller reporting company ☐ |
| (Do not check if a smaller reporting company) | Emerging growth company ☒ |
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 or accounting standards pursuant to Section 7(a)(2)(B) of the Securities Act. ☒
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered | Amount to be
Registered (1) | Proposed Maximum Offering Price per Share | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee |
| Common Stock | 250,000 shares | $7.57(2) | $1,892,500(2) | $219.35 |
| (1) | In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement includes an indeterminate number of additional shares which may be offered and sold as a result of anti-dilution provisions described in the above-referenced plan. |
| (2) | Estimated solely for the purpose of calculating the amount of the registration fee and calculated pursuant to Rule 457(h)(1) and Rule 457(c) under the Securities Act. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Aqua Metals, Inc. (the “Company”) has adopted its Officer and Director Share Purchase Plan (“Plan”). The maximum number of shares of common stock of the Company that are available for issuance under the Plan is 250,000 shares. This Registration Statement on Form S-8 is filed with the Securities and Exchange Commission (“Commission”) for the purposes of registering the 250,000 shares of the Company’s common stock issuable under the Plan.
The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants in the Plan as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not being filed with the Commission, but constitute, along with the documents incorporated by reference into this Registration Statement, a prospectus that meets the requirements of Section 10(a) of the Securities Act.
| Item 2. | Registrant Information and Employee Plan Annual Information |
The Company will furnish without charge to each person to whom the prospectus is delivered, upon the written or oral request of such person, a copy of any and all of the documents incorporated by reference in Item 3 of Part II of this Registration Statement and incorporated by reference in the Section 10(a) prospectus, other than exhibits to such documents (unless such exhibits are specifically incorporated by reference to the information that is incorporated). Written requests should be made to Investor Relations of Aqua Metals, Inc. at 1010 Atlantic Avenue, Alameda, California 95401 or to the email address at investor@aquametals.com.
PartII
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Certain Documents by Reference |
The following documents filed by the Company with the Commission are incorporated by reference into this Registration Statement:
| (a) | The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016, which was filed on March 2, 2017; |
| (b) | The Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2017 and June 30, 2017, which were filed on May 10, 2017 and August 9, 2017, respectively; |
| (c) | The Company’s Current Reports on Form 8-K, which were filed on April 18, 2017, April 21, 2017, May 24, 2017, June 15, 2017, July 31, 2017 and August 11, 2017; |
| (d) | The description of the Company’s common stock in its Form 8-A12B, which was filed on July 24, 2015, and any amendments or reports filed for the purpose of updating this description; and |
| (e) | All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold. |
| Item 4. | Description of Securities |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel |
The validity of the issuance of the shares of the Company’s common stock offered by this Registration Statement has been passed upon by Greenberg Traurig, LLP, Irvine, California.
| Item 6. | Indemnification of Directors and Officers |
Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”) permits a Delaware corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful.
In the case of an action by or in the right of the corporation, Section 145 of the DGCL permits a Delaware corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses that the Court of Chancery or such other court shall deem proper.
Section 145 of the DGCL also permits a Delaware corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under Section 145 of the DGCL.
Article Sixth of the Company’s First Amended and Restated Certificate of Incorporation states that to the fullest extent permitted by the DGCL the Company’s directors shall not be personally liable to the Company or to its stockholders for monetary damages for breach of fiduciary duty as a director. If the DGCL is amended after the date hereof to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of the Company’s directors shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
Article Sixth of the Company’s First Amended and Restated Certificate of Incorporation provides that the Company may, to the fullest extent permitted by applicable law, to provide indemnification of (and advancement of expenses to) its directors and officers, and authorizes the Company, to the fullest extent permitted by applicable law, to provide indemnification of (and advancement of expenses to) to other employees and agents (and any other persons to which the DGCL permits the Company to provide indemnification) through bylaw provisions, agreements with such directors, officers, employees, agents or other persons, vote of stockholders or disinterested directors or otherwise, subject only to limits created by the DGCL with respect to actions for breach of duty to our corporation, our stockholders and others.
Article Sixth of the Company’s First Amended and Restated Certificate of Incorporation provides that the Company may maintain insurance, at its expense, to protect the Company and any of its directors, officers, employees or agents against any such expense, liability or loss, whether or not we have the power to indemnify such person.
Insofar as indemnification for liabilities arising under the Securities Act, may be permitted to the Company’s directors, officers or persons controlling the Company pursuant to the provisions contained in the Company’s Amended and Restated Certificate of Incorporation, Bylaws, the DGCL or otherwise, the Company has been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. If a claim for indemnification against such liabilities, other than the payment by the Company of expenses incurred or paid by one of its directors, officers or controlling persons in the successful defense of any action, suit, or proceeding, is asserted by such director, officer or controlling person, the Company will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by the Company is against public policy as expressed in the Securities Act and will be governed by the final adjudication of this issue.
| Item 7. | Exemption from Registration Claimed |
Not applicable.
| Exhibit No. | | Description of Exhibits | | |
| | | | | |
Exhibit No. | | Description | | Method of Filing |
| | | | | |
| 5.1 | | Opinion and Consent of Greenberg Traurig, LLP | | Filed electronically herewith |
| | | | | |
| 23.1 | | Consent of Armanino LLP | | Filed electronically herewith |
| | | | | |
| 23.4 | | Consent of Greenberg Traurig, LLP | | Included in Exhibit 5.1 |
| | | | | |
| 24.1 | | Power of Attorney | | Included on the signature page to this registration statement |
| 99.1 | | Aqua Metals, Inc. Officer and Director Share Purchase Plan | | Filed electronically herewith |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements of filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Alameda, California on August 25, 2017.
| | AQUA METALS, INC. |
| | | |
| | By: | /s/ Stephen R. Clarke |
| | | Stephen R. Clarke |
| | | Chief Executive Officer |
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Stephen R. Clarke and Mark Weinswig, and each of them, as such person’s true and lawful attorney-in-fact and agent, each with full powers of substitution and re-substitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign any or all amendments (including post effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his or her substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on August 25, 2017 by the following persons in the capacities indicated.
| Signature | | Title |
| | | |
| /s/ Stephen R. Clarke | | President, Chief Executive Officer and Director (Principal Executive Officer) |
| Stephen R. Clarke | |
| | | |
| /s/ Mark Weinswig | | Chief Financial Officer (Principal Financial and Accounting Officer) |
| Mark Weinswig | |
| | | |
| /s/ Thomas Murphy | | Director |
| Thomas Murphy | | |
| | | |
| /s/ Vincent L. DiVito | | Director |
| Vincent L. Divito | | |
| | | |
| /s/ Mark Slade | | Director |
| Mark Slade | | |
| | | |
| /s/ Mark Stevenson | | Director |
| Mark Stevenson | | |
INDEX TO EXHIBITS
| No. | Item | Method of Filing |
| | | |
| 5.1 | Opinion and Consent of Greenberg Traurig, LLP | Filed electronically herewith |
| | | |
| 23.1 | Consent of Armanino LLP | Filed electronically herewith |
| | | |
| 23.4 | Consent of Greenberg Traurig, LLP | Included in Exhibit 5.1 |
| | | |
| 24.1 | Power of Attorney | Included on the signature page to this registration statement |
| | | |
| 99.1 | Aqua Metals, Inc. 2014 Officer and Director Share Purchase Plan | Filed electronically herewith |
