Registration
No. 333- __________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
AMERICAN
BATTERY TECHNOLOGY COMPANY |
(Exact
name of registrant as specified in its charter) |
Nevada |
|
33-1227980 |
(State
or jurisdiction of
incorporation
or organization) |
|
(I.R.S.
Employer
Identification
No.) |
100
Washington Street, Suite 100,
Reno,
NV 89503 |
Tel:
(775) 473-4744 |
(Address,
including zip code, and telephone number,
including
area code, of registrant’s principal executive offices) |
|
Ryan
Melsert |
Chief
Executive Officer |
100
Washington Street, Suite 100, |
Reno,
NV 89503 |
Tel:
(775) 473-4744 |
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service) |
With
a copy to:
Amy
Bowler
Holland
& Hart LLP
555
17th Street, Suite 3200
Denver,
CO 80202
(303)
295-8000
From
time to time after the effective date of this registration statement
(Approximate
date of commencement of proposed sale to the public)
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following: ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering: ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering: ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I. D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
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. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
☐ |
Large
accelerated filer |
|
☐ |
Accelerated
filer |
☒ |
Non-accelerated
filer |
|
☒ |
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 accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
The
information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell and we are not soliciting offers
to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED MAY 15, 2023
PROSPECTUS
AMERICAN
BATTERY TECHNOLOGY COMPANY
11,000,000
Shares of Common Stock
This
prospectus relates to the offer and sale from time to time by the selling stockholder named in this prospectus (the “Selling Stockholder”)
of up to 11,000,000 shares of our common stock (the “Shares”) issued to the Selling Stockholder in connection with the Purchase
Agreement (defined below). We are not selling any common stock under this prospectus and will not receive proceeds from the sale of the
Shares by the Selling Stockholder pursuant to this prospectus; provided that the Selling Stockholder is required to deliver $1,500,000
of the net proceeds it receives from the sale of the Shares to fund an indemnity escrow to satisfy certain of its (or its affiliates’)
indemnification obligations to us, including indemnification obligations under the Purchase Agreement.
We
are registering the Shares for resale pursuant to the Selling Stockholder’s registration rights granted under the Second Amended
and Restated Membership Interest Purchase Agreement, dated April 21, 2023, by and between LiNico Corporation, a Nevada corporation (“LiNico”)
and the Company, as subsequently amended by that certain First Amendment to Second Amended and Restatement Membership Interest Purchase
Agreement, dated May 11, 2023 (as amended, the “Purchase Agreement”), pursuant to which the Shares were issued.
The
Shares may be sold by the Selling Stockholder to or through underwriters or dealers, directly to purchasers or through agents designated
from time to time. For additional information regarding the methods of sale, you should refer to the section of this prospectus entitled
“Plan of Distribution.”
We
may amend or supplement this prospectus from time to time by filing amendments or supplements as required. You should carefully read
this prospectus and any amendments or supplements, together with the additional information described under the heading “Where
You Can Find More Information,” before you invest.
Our
common stock is traded on the OTCQX marketplace maintained by OTC Markets Group, Inc. (“OTC Markets”), under the symbol “ABML.”
On May 12, 2023, the last reported sale price of our common stock on OTC Markets was $0.759 per share.
Investing
in our securities involves risks. You should carefully read and consider the risk factors included below, in any prospectus supplement,
and in our periodic reports and other information filed with the Securities and Exchange Commission before investing in our securities.
See “Risk Factors” beginning on page 7 of this prospectus for information on certain risks related to the purchase of
our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is May 15, 2023.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission (the “SEC”)
using a “shelf” registration process. Under this process, the Selling Stockholder may, from time to time, sell the Shares
described in this prospectus in one or more offerings or resales.
You
should assume that the information appearing in this prospectus and any applicable prospectus supplement is accurate only as of the date
on its respective cover, and that any information incorporated by reference is accurate only as of the date of the document incorporated
by reference, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed since
those dates. Neither we nor any agent or the Selling Stockholder has authorized any person to give any information or to make any representation
other than those contained or incorporated by reference in this prospectus or any applicable prospectus supplement prepared by or on
behalf of us or to which we have referred you. You should read this prospectus and any applicable prospectus supplement together with
additional information described below under the heading “Where You Can Find More Information” before you decide to invest
in our securities.
We
may amend or supplement this prospectus from time to time by filing amendments or supplements as required. You should carefully read
this prospectus and any amendments or supplements, together with the additional information described under the heading “Where
You Can Find More Information,” before you invest.
When
we refer to “American Battery Technology Company,” “we,” “our,” “us” and the “Company”
in this prospectus, we mean American Battery Technology Company and its consolidated subsidiaries, unless otherwise specified.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus forms part of a registration statement on Form S-3 filed by us with the SEC under the Securities Act of 1933, as amended (the
“Securities Act”). As permitted by the SEC, this prospectus does not contain all the information set forth in the registration
statement filed with the SEC. This prospectus incorporates important business and financial information about us that is not included
in or delivered with this prospectus. You should refer to the complete registration statement, including the exhibits thereto, that may
be obtained as described below. Statements contained or incorporated by reference in this prospectus or any prospectus supplement about
the contents of any contract or other document are not necessarily complete. If we have filed any contract or other document as an exhibit
to the registration statement or any other document incorporated by reference in the registration statement of which this prospectus
forms a part, you should read the exhibit for a more complete understanding of the document or matter involved. Each statement regarding
a contract or other document is qualified in its entirety by reference to the actual document.
We
are subject to the informational requirements of the Exchange Act of 1934, as amended (the “Exchange Act”), and we file annual,
quarterly and other reports and other information with the SEC. Our SEC filings are available to the public from commercial retrieval
services and at the website maintained by the SEC at www.sec.gov. The reports and other information filed by us with the SEC are
also available at our website. The address of the Company’s website is americanbatterytechnology.com. Information contained
on our website or that can be accessed through our website is not incorporated by reference into this prospectus.
INCORPORATION
BY REFERENCE
The
SEC’s rules allow us to “incorporate by reference” information into this prospectus, which means that we can disclose
important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference
is deemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede
that information. Any statement contained in this prospectus or a previously filed document incorporated by reference will be deemed
to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or a subsequently
filed document incorporated by reference modifies or replaces that statement.
We
incorporate by reference the following documents in this prospectus, which you should review in connection with this prospectus, as well
as each of the documents that we file with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, between the date of
this prospectus and the termination of the offering of the securities described in this prospectus. We are not, however, incorporating
by reference any documents or portions thereof, whether specifically listed below or filed in the future, that are not deemed “filed”
with the SEC, including any information furnished pursuant to Item 2.02 or 7.01 of Form 8-K or related exhibits furnished pursuant to
Item 9.01 of Form 8-K.
This
prospectus and any accompanying prospectus supplement incorporate by reference the documents set forth below that have previously been
filed with the SEC:
|
● |
Our Annual Report on Form 10-K for the annual period ended
June 30, 2022, filed with the SEC on September 12, 2022; |
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Our Quarterly Reports on Form 10-Q for the quarterly periods ended September 30, 2022, December 31, 2022 and March 31, 2023, filed with
the SEC on November 14, 2022, February 14, 2023 and May 15, 2023, respectively; |
|
|
|
|
● |
Our Current Reports on Form 8-K filed on the following dates: July 15, 2022, August 5, 2022, September 2, 2022, September 14, 2022, October 14, 2022, October 31, 2022, January 11, 2023, January 24, 2023, February 28, 2023, March 7, 2023, March 8, 2023, March 10, 2023, March 27, 2023, April 4, 2023, April 7, 2023 and April 27, 2023; and |
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● |
The description of our capital stock in our Form 8-A filed with the SEC on October 17, 2013, and any amendment or report filed with
the SEC for the purpose of updating the description. |
You
may request a copy of any of the documents incorporated by reference in this prospectus, at no cost to you, by writing or telephoning
us at the following address:
American
Battery Technology Company
100
Washington Street, Suite 100
Reno,
Nevada 89503
Tel:
(775) 473-4744
Exhibits
to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference in this prospectus or
any accompanying prospectus supplement.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus contains, in addition to historical information, certain forward-looking statements within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act. These statements involve known and unknown risks, uncertainties and other factors
which may cause our actual results, performance or achievements to be materially different from any future results, performances or achievements
expressed or implied by the forward-looking statements. In some cases, you can identify forward-looking statements by terms such as “anticipates,”
“believes,” “seeks,” “could,” “estimates,” “expects,” “intends,”
“may,” “plans,” “potential,” “predicts,” “projects,” “should,”
“would,” and similar expressions intended to identify forward-looking statements. Accordingly, these statements involve estimates,
assumptions and uncertainties that could cause actual results to differ materially from those expressed in them. Forward-looking statements
reflect our current views with respect to future events and are based on assumptions and subject to risks and uncertainties. Given these
uncertainties, you should not place undue reliance on these forward-looking statements. Such statements may include, but are not limited
to, information related to: anticipated operating results; relationships with our customers; consumer demand; financial resources and
condition; changes in revenues; changes in profitability; changes in accounting treatment; cost of sales; selling, general and administrative
expenses; interest expense; the ability to produce the liquidity or enter into agreements to acquire the capital necessary to continue
our operations and take advantage of opportunities; and legal proceedings and claims.
You
should read this prospectus and the documents we have filed as exhibits to the registration statement, of which this prospectus is part,
completely and with the understanding that our actual future results may be materially different from our expectations. You should not
assume that the information contained in this prospectus or any prospectus supplement is accurate as of any date other than the date
on the front cover of such documents.
PROSPECTUS
SUMMARY
American
Battery Technology Company is a startup company in the lithium–ion battery industry that is working to increase the domestic US
production of battery materials, such as lithium, nickel, cobalt, and manganese through its engagement in the exploration of new primary
resources of battery metals, in the development and commercialization of new technologies for the extraction of these battery metals
from primary resources, and in the commercialization of an internally developed integrated process for the recycling of lithium–ion
batteries. Through this three–pronged approach the Company is working to both increase the domestic production of these battery
materials, and to ensure spent batteries have their elemental battery metals returned to the domestic manufacturing supply chain in an
economical, environmentally-friendly, closed–loop fashion.
To
implement this business strategy, the Company is currently constructing its first integrated lithium–ion battery recycling facility,
which will take in waste and end–of–life battery materials from the electric vehicle, stationary storage, and consumer electronics
industries. The construction, commissioning, and operations of this facility are of the highest priority to the Company, and as such
it has significantly increased the resources devoted to its execution including the further internal hiring of technical staff, expansion
of laboratory facilities, and purchasing of equipment. The Company has been awarded a competitively bid grant from the US Advanced Battery
Consortium to accelerate the development and demonstration of this pre–commercial scale integrated lithium–ion battery recycling
facility. The Company has been notified that it has been selected for an additional grant award under the Bipartisan Infrastructure Law
to validate, test, and deploy three disruptive advanced separation and processing technologies in its existing lithium-ion battery recycling
Pilot Plant.
Additionally,
the Company is accelerating the demonstration and commercialization of its internally developed low–cost and low–environmental
impact processing train for the manufacturing of battery grade lithium hydroxide from Nevada–based sedimentary claystone resources.
The Company has been awarded a grant cooperative agreement from the US Department of Energy’s Advanced Manufacturing Office through
the Critical Materials Innovation program to support the construction and operation of a multi–ton per day integrated continuous
demonstration system to support the scale–up and commercialization of these technologies. The Company has been notified that it
has been selected for an additional grant award under the Bipartisan Infrastructure Law to design, construct, and commission a first-of-kind
commercial manufacturing facility to produce battery-grade lithium hydroxide from this resource.
The
Company’s corporate headquarters are in Reno, Nevada, USA. It is also constructing the ABTC Pilot Plant (“ABTC Pilot Plant”
or “Pilot Plant”) for recycling lithium-ion batteries in Fernley, Nevada, USA, and its exploration office is located in Tonopah,
Nevada, USA.
The
Company was incorporated as Oroplata Resources, Inc. under the laws of the State of Nevada on October 6, 2011, for the purpose of acquiring
rights to mineral properties with the eventual objective of being a producing mineral company. On August 8, 2016, the Company formed
Lithortech Resources Inc. as a wholly owned subsidiary of the Company to serve as its operating subsidiary for lithium resource exploration
and development. On June 29, 2018, the Company changed the name of Lithortech Resources to LithiumOre Corp. (“LithiumOre”);
on May 3, 2019, the Company changed its name to American Battery Metals Corporation; and on August 12, 2021, the Company changed its
name to American Battery Technology Company, which better aligns with the Company’s current business activities and future objectives.
The Company has limited operating history and has not yet generated or realized revenues from its primary business activities.
Our
mailing address and telephone number of our principal executive offices are:
American
Battery Technology Company
100
Washington Street, Suite 100
Reno,
Nevada 89503
Tel:
(775) 473-4744
RISK
FACTORS
An
investment in our securities is subject to numerous risks, including the risk factors described below. You should carefully consider
the risks, uncertainties and other factors described below, in addition to the other information set forth in this prospectus, before
making an investment decision with regard to our securities. Any of these risks, uncertainties and other factors could materially and
adversely affect our business, financial condition, results of operations, cash flows or prospects. In that case, the trading price of
our Common Stock could decline, and you may lose all or part of your investment. See also “Cautionary Note Regarding Forward-Looking
Statements.”
RISKS
RELATING TO OUR COMPANY
Since
we have a limited operating history and have not commenced revenue-producing operations, it is difficult for potential investors to evaluate
our business.
Since
formation, we have not commenced revenue-producing operations. To date, our operations have consisted of the prior exploratory activities,
development and limited testing of our recycling process and the development of our business plan. 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. 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.
We
may need additional financing to execute our business plan and fund operations, which additional financing may not be available on reasonable
terms or at all.
We
believe that we require a minimum of $4,000,000 of working capital over the next 12 months in order to fund our current operations,
excluding the construction of our initial recycling facility near Reno, Nevada. We may need to raise capital over the next 12 months
to satisfy such requirements, the receipt of which cannot be assured. We will also require capital in order to fully develop our recycling
facilities. We intend to seek additional funds through various financing sources, including the private sale of our equity and debt securities,
joint ventures with capital partners and project financing of our recycling facilities. In addition, we will consider alternatives to
our current business plan that may enable to us to achieve revenue producing operations and meaningful commercial success with a smaller
amount of capital. 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, in which case you may lose your entire investment.
Our independent auditors have expressed doubt
regarding out liquidity and capital resources. If we do not continue as a going concern, investors will lose their entire investment.
The
condensed consolidated financial statements included in the Company’s most recent Quarterly Report on Form 10-Q for the quarter
ended March 31, 2023, were prepared in conformity with accounting principles generally accepted in the United States of America (GAAP),
on a going concern basis which assumes that the Company will be able to realize its assets and discharge its liabilities in the normal
course of business for the foreseeable future. As of March 31, 2023, the Company had cash of $12.6 million, an accumulated deficit of
$152.9 million, negative cash flow from operations, and limited business operations. The Company expects to begin its recycling operations
in the quarter ended September 30, 2023. Without additional financing, the Company will be unable fund remaining capital expenditures
to achieve operations and fund general and administrative expenses and working capital requirements for the next 12 months. These material
uncertainties raise substantial doubt as to the Company’s ability to continue as a going concern. The Company is evaluating financing
its future requirements through a combination of debt, equity and/or asset sales. There is no assurance that the Company will be able
to obtain such financing or obtain them on favorable terms. The condensed consolidated financial statements included in the Company’s
most recent Quarterly Report on Form 10-Q for the quarter ended March 31, 2023 do not reflect the adjustments to the carrying values
of assets and liabilities and the reported expenses and statement of financial position classifications that would be necessary were
the going concern assumption deemed to be inappropriate. These adjustments could be material. If we do not continue as a going concern,
investors may lose their entire investment.
We
must effectively manage the growth of our operations, or our company will suffer.
Our
ability to successfully implement our business plan requires an effective planning and management process. If funding is available, we
may elect to increase the scope of our operations and acquire complementary businesses. Implementing our business plan will require significant
additional funding and resources. If we grow our operations, we will need to hire additional employees and make significant capital investments.
If we grow our operations, it will place a significant strain on our existing management and resources. Additionally, we will need to
improve our financial and managerial controls and reporting systems and procedures, and we will need to expand, train and manage our
workforce. Any failure to manage any of the foregoing areas efficiently and effectively would cause our business to suffer.
We
may be unable to maintain an effective system of internal control over financial reporting, and as a result we may be unable to accurately
report our financial results.
Our
reporting obligations as a public company place a significant strain on our management, operational and financial resources and systems.
We do not currently have effective internal controls. If we fail to maintain an effective system of internal control over financial reporting,
we could experience delays or inaccuracies in our reporting of financial information, or non-compliance with the Commission, reporting
and other regulatory requirements. This could subject us to regulatory scrutiny and result in a loss of public confidence in our management,
which could, among other things, cause our stock price to drop.
We
have been and expect to be significantly dependent on consulting agreements for the development of our battery recycling facilities,
which exposes us to the risk of reliance on the performance of third parties.
In
developing our battery recycling technology, we rely to some extent on consulting agreements with third parties as the Company does not
have the resources to employ all the necessary staff required for such activities. The failure to obtain and maintain such consulting
agreements would substantially disrupt or delay our battery recycling activities. Any such loss would likely increase our expenses and
materially harm our business, financial condition and results of operation.
If
we are not successful in attracting and retaining highly qualified personnel, we may not be able to successfully implement our business
strategy. In addition, the loss of the services of certain key employees would adversely impact our business prospects.
If
we are not successful in attracting and retaining highly qualified personnel, we may not be able to successfully implement our business
strategy. In addition, the loss of the services of certain key employees, including our Chief Executive Officer and our Chief Technology
Officer, would adversely impact our business prospects. Our ability to compete in the highly competitive battery recycling technology
business depends in large part upon our ability to attract highly qualified managerial, scientific, and engineering personnel. In order
to induce valuable employees to remain with us, we intend to provide employees with stock grants that vest over time. The value to employees
of stock grants that vest over time will be significantly affected by movements in our stock price that we will not be able to control
and may at any time be insufficient to counteract more lucrative offers from other companies. Other technology companies with which we
compete for qualified personnel have greater financial and other resources, different risk profiles, and a longer history in the industry
than we do. They also may provide more diverse opportunities and better chances for career advancement. Some of these characteristics
may be more appealing to high-quality candidates than what we have to offer. If we are unable to continue to attract and retain high-quality
personnel, the rate and success at which we can develop and commercialize products would be limited.
RISKS
RELATING TO OUR BUSINESS AND INDUSTRY
Battery
recycling is a highly competitive and speculative business and we may not be successful in seeking available opportunities.
The
process of battery recycling is a highly competitive and speculative business. In seeking available opportunities, we will compete with
a number of other companies, including established, multi-national companies that have more experience and resources than we do. There
also may be other small companies that are developing similar processes and are farther along than the Company. Because we may not have
the financial and managerial resources to compete with other companies, we may not be successful in our efforts to develop technology
which is commercially viable.
Our
new business model has not been proven by us or anyone else.
We
intend to engage in the business of lithium recycling through a proprietary recycling technology. While the production of lithium-ion
recycling is an established business, to date most lithium-ion recycling has been produced by way of performing bulk high temperature
calcinations or bulk acid dissolutions. We have developed a highly strategic recycling processing train that does not employ any high
temperature operations or any bulk chemical treatments of the full battery. We have tested our recycling process on a small scale and
to a limited degree; however, there can be no assurance that we will be able to produce battery metals in commercial quantities at a
cost of production that will provide us with an adequate profit margin. The uniqueness of our process presents potential risks associated
with the development of a business model that is untried and unproven.
While
the testing of our recycling process has been successful to date, 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.
As
of the date of this prospectus, we have built and operated our recycling process on a very small scale. While we believe that our development
and testing to date has proven the concept of our recycling process, we have not undertaken the build-out or operation of a large-scale
facility capable of recycling large commercial quantities. There can be no assurance that as we commence large scale manufacturing or
operations that we 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
intellectual property rights may not be adequate to protect our business.
We
currently do not hold any patents for our products. Although we expect to file applications related to our technology, no assurances
can be given that any patent will be issued on such patent applications or that, if such patents are issued, they will be sufficiently
broad to adequately protect our technology. In addition, we cannot assure you that any patents that may be issued to us will not be challenged,
invalidated, or circumvented. Even if we are issued patents, they 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 entering into joint ventures and strategic alliances. Failure to successfully integrate such joint ventures
or strategic alliances into our operations could adversely affect our business.
We
propose to commercially exploit our recycling process, in part, by entering into joint ventures and strategic relationships with parties
involved in the manufacture and recycling of lithium-ion products. 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 joint ventures or strategic alliances.
If
we are unable to manage future expansion effectively, our business, operations and financial condition may suffer significantly, resulting
in decreased productivity.
If
our recycling process proves to be commercially valuable, it is likely that we will experience a rapid growth phase that 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.
The
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 lithium- ion,
is relatively volatile and reacts to general global economic conditions. A decline in the price of lithium-ion resulting from over supply
or a global economic slowdown and the other global economic conditions could negatively affect our business. There can be no assurance
that global economic conditions will not, at times, negatively impact our liquidity, growth prospects and results of operations.
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 lithium-ion batteries. Depending on how any particular operation is structured, our facilities will probably 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.
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 heavy metals 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 hazardous materials.
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.
The
nature of our operations involves risks, including the potential for exposure to hazardous materials such as heavy metals, 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 heavy
metals 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.
In
the event we are unable to present and operate our recycling 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.
Control
by management may limit your ability to influence the outcome of director elections and other transactions requiring stockholder approval.
As
of May 12, 2023, our directors and executive officers beneficially own approximately 3.2% of our outstanding common stock. In addition to control exercised by their board seats and officer
positions, such persons will have significant influence over corporate actions requiring stockholder approval, including the following
actions:
|
● |
to elect
or defeat the election of our directors; |
|
|
|
|
● |
to
amend or prevent amendment of our articles of incorporation or bylaws; |
|
|
|
|
● |
to
effect or prevent a merger, sale of assets or other corporate transaction; and |
|
|
|
|
● |
to control
the outcome of any other matter submitted to our stockholders for vote. |
Such
persons’ stock ownership may discourage a potential acquirer from making a tender offer or otherwise attempting to obtain control
of our company, which in turn could reduce our stock price or prevent our stockholders from realizing a premium over our stock price.
RISKS
RELATED TO AN INVESTMENT IN OUR SECURITIES
We
expect to experience volatility in the price of our Common Stock, which could negatively affect stockholders’ investments.
The
trading price of our Common Stock may be highly volatile and could be subject to wide fluctuations in response to various factors, some
of which are beyond our control. The stock market in general has experienced extreme price and volume fluctuations that have often been
unrelated or disproportionate to the operating performance of companies with securities traded in those markets. Broad market and industry
factors may seriously affect the market price of companies’ stock, including ours, regardless of actual operating performance.
All of these factors could adversely affect your ability to sell your shares of Common Stock or, if you are able to sell your shares,
to sell your shares at a price that you determine to be fair or favorable.
The
relative lack of public company experience of our management team could adversely impact our ability to comply with the reporting requirements
of U.S. securities laws.
Our
management team lacks significant public company experience, which could impair our ability to comply with legal and regulatory requirements
such as those imposed by the Sarbanes-Oxley Act of 2002. Our senior management has little experience in managing a publicly traded company.
Such responsibilities include complying with federal securities laws and making required disclosures on a timely basis. Our senior management
may not be able to implement programs and policies in an effective and timely manner that adequately respond to such increased legal,
regulatory compliance and reporting requirements, including the establishing and maintaining of internal controls over financial reporting.
Any such deficiencies, weaknesses or lack of compliance could have a materially adverse effect on our ability to comply with the reporting
requirements of the Exchange Act, which is necessary to maintain our public company status. If we were to fail to fulfill those obligations,
our ability to continue as a U.S. public company would be in jeopardy, we could be subject to the imposition of fines and penalties and
our management would have to divert resources from attending to our business plan.
Our
Common Stock is categorized as “penny stock,” which may make it more difficult for investors to sell their shares of Common
Stock due to suitability requirements.
Our
Common Stock is categorized as “penny stock.” The SEC has adopted Rule 15g-9 which generally defines “penny stock”
to be any equity security that has a market price (as defined therein) of less than $5.00 per share or an exercise price of less than
$5.00 per share, subject to certain exceptions. The price of our Common Stock is significantly less than $5.00 per share, and is therefore
considered “penny stock.” This designation imposes additional sales practice requirements on broker-dealers who sell to persons
other than established customers and accredited investors. The penny stock rules require a broker-dealer buying our securities to disclose
certain information concerning the transaction, obtain a written agreement from the purchaser and determine that the purchaser is reasonably
suitable to purchase the securities given the increased risks generally inherent in penny stocks. These rules may restrict the ability
or willingness of brokers or dealers to buy or sell our Common Stock, either directly or on behalf of their clients, may discourage potential
stockholders from purchasing our Common Stock, or may adversely affect the ability of stockholders to sell their shares.
Financial
Industry Regulatory Authority, Inc. (“FINRA”) sales practice requirements may also limit a stockholder’s ability to
buy and sell our Common Stock, which could depress the price of our Common Stock.
In
addition to the “penny stock” rules described above, FINRA has adopted rules that require a broker-dealer to have reasonable
grounds for believing that the investment is suitable for that customer before recommending an investment to a customer. Prior to recommending
speculative low-priced securities to their non-institutional customers, broker-dealers must make reasonable efforts to obtain information
about the customer’s financial status, tax status, investment objectives and other information. Under interpretations of these
rules, FINRA believes that there is a high probability that speculative low-priced securities will not be suitable for at least some
customers. Thus, the FINRA requirements make it more difficult for broker-dealers to recommend that their customers buy our Common Stock,
which may limit your ability to buy and sell our shares of Common Stock, have an adverse effect on the market for our shares of Common
Stock, and thereby depress our price per share of Common Stock.
The
elimination of monetary liability against our directors, officers and employees under Nevada law and the existence of indemnification
rights for or obligations to our directors, officers and employees may result in substantial expenditures by us and may discourage lawsuits
against our directors, officers and employees.
Our
Articles of Incorporation contain a provision permitting us to eliminate the personal liability of our directors to us and our stockholders
for damages for the breach of a fiduciary duty as a director or officer to the extent provided by Nevada law. We may also have contractual
indemnification obligations under any future employment agreements with our officers. The foregoing indemnification obligations could
result in us incurring substantial expenditures to cover the cost of settlement or damage awards against directors and officers, which
we may be unable to recoup. These provisions and the resulting costs may also discourage us from bringing a lawsuit against directors
and officers for breaches of their fiduciary duties, and may similarly discourage the filing of derivative litigation by our stockholders
against our directors and officers even though such actions, if successful, might otherwise benefit us and our stockholders.
We
may issue additional shares of Common Stock or preferred stock in the future, which could cause significant dilution to all stockholders.
Our
Articles of Incorporation authorize the issuance of up to 1,200,000,000 shares of Common Stock with a par value of $0.001 per share.
As of May 12, 2023, we had 680,361,529 shares of Common Stock outstanding; however, we may issue additional shares of Common Stock
in the future in connection with a financing or an acquisition. Such issuances may not require the approval of our stockholders. In addition,
certain of our outstanding rights to purchase additional shares of Common Stock or securities convertible into our Common Stock are subject
to some form of anti-dilution protection, which could result in the right to purchase significantly more shares of Common Stock being
issued or a reduction in the purchase price for any such shares or both. Any issuance of additional shares of our Common Stock, or equity
securities convertible into our Common Stock, including but not limited to, preferred stock, warrants and options, will dilute the percentage
ownership interest of all stockholders, may dilute the book value per share of our Common Stock, and may negatively impact the market
price of our Common Stock.
Anti-takeover
effects of certain provisions of Nevada state law hinder a potential takeover of us.
Certain
provisions of the Nevada Revised Statutes have anti-takeover effects and may inhibit a non-negotiated merger or other business combination.
These provisions are intended to encourage any person interested in acquiring us to negotiate with, and to obtain the approval of, our
board of directors in connection with such a transaction. However, certain of these provisions may discourage a future acquisition of
us, including an acquisition in which the stockholders might otherwise receive a premium for their shares. As a result, stockholders
who might desire to participate in such a transaction may not have the opportunity to do so.
USE
OF PROCEEDS
We
are registering the Shares on behalf of the Selling Stockholder, to be offered and sold by the Selling Stockholder from time to time
and we will not receive proceeds from the sale of the Shares from time to time by the Selling Stockholder; provided that the Selling
Stockholder is required to deliver $1,500,000 of the net proceeds it receives from the sale of the Shares to fund an indemnity escrow
to satisfy certain of its (or its affiliates’) indemnification obligations to us, including indemnification obligations under the
Purchase Agreement.
We
have agreed to pay all costs, expenses and fees relating to the registration of the Shares covered by this prospectus. These may include,
without limitation, all registration and filing fees, fees and expenses of our counsel and accountants, and blue sky fees and expenses.
The Selling Stockholder will pay any underwriting discounts and commissions and expenses incurred for brokerage, accounting, tax or legal
services or any other expenses incurred in disposing of the Shares covered hereby.
DETERMINATION
OF OFFERING PRICE
We
cannot currently determine the price or prices at which the Shares may be sold by the Selling Stockholder under this prospectus as the
price will be determined by the prevailing public market price for our common stock, by negotiations between the Selling Stockholder
and the buyers of common shares in private transactions or as otherwise described in “Plan of Distribution.”
DILUTION
The
Selling Stockholder is offering for sale shares of common stock of the Company that are currently outstanding.
Description
of Registrant’s Securities
The
following description of our capital stock is not complete and may not contain all the information you should consider before investing
in our capital stock. This description is summarized from, and qualified in its entirety by reference to, our Articles of Incorporation
and Bylaws which have been publicly filed with the SEC. See “Where You Can Find More Information” and “Incorporation
by Reference.”
Authorized
and Outstanding Securities
The
Company is authorized to issue two classes of shares, designated “Common Stock” and “Preferred Stock.” The total
number of shares that the Company is authorized to issue is 1,225,000,000. The Company is authorized to issue 25,000,000 shares of Preferred
Stock, of which the Company has designated 500,000 shares of Series A Preferred Stock with a $0.001 par value per share, 2,000,000 shares
of Series B Preferred Stock with a $0.001 par value per share, and 2,000,000 shares of Series C Preferred Stock with a $0.001 par value
per share. The number of shares of Common Stock which the Company is authorized to issue is 1,200,000,000 with a $0.001 par value
per share. As of May 12, 2023, there were 0 shares of Series A Preferred Stock, 0 shares of Series B Preferred Stock, 0 shares of Series
C Preferred Stock, and 680,361,529 shares of Common Stock issued and outstanding.
Common
Stock
The
holders of our Common Stock are entitled to one vote per share on all matters requiring a vote of the stockholders, including the election
of directors. Holders of Common Stock do not have cumulative voting rights. Holders of Common Stock are entitled to share ratably in
dividends, if any, as may be declared from time to time by the Board in its discretion from funds legally available therefor, subject
to preferences that may be applicable to preferred stock, if any, then outstanding. At present, we have no plans to issue dividends.
See “Dividend Policy” for additional information. In the event of a liquidation, dissolution or winding up of the Company,
the holders of Common Stock are entitled to share pro rata all assets remaining after payment in full of all liabilities, subject to
prior distribution rights of preferred stock, if any, then outstanding. The Common Stock has no preemptive or conversion rights or other
subscription rights. There are no redemption or sinking fund provisions applicable to the Common Stock.
Preferred
Stock
Our
amended and restated articles of incorporation authorize shares of preferred stock and provide that shares of preferred stock may be
issued from time to time in one or more series. Our board of directors will be authorized to fix the voting rights, if any, designations,
powers, preferences, the relative, participating, optional or other special rights and any qualifications, limitations and restrictions
thereof, applicable to the shares of each series. Our board of directors will be able to, without stockholder approval, issue shares
of preferred stock with voting and other rights that could adversely affect the voting power and other rights of the holders of the common
stock and could have anti-takeover effects. The ability of our board of directors to issue shares of preferred stock without stockholder
approval could have the effect of delaying, deferring or preventing a change of control of us or the removal of existing management.
Anti-Takeover
Effects of Nevada Law and Our Charter Documents
Certain
provisions of Nevada law and our Articles of Incorporation and Bylaws could make more difficult the acquisition of us by means of a tender
offer or otherwise, and the removal of incumbent officers and directors. These provisions are expected to discourage certain types of
coercive takeover practices and inadequate takeover bids and to encourage persons seeking to acquire control of us.
Transfer
Agent
The
transfer agent for our Common Stock is Securities Transfer Corporation at 2901 N. Dallas Parkway, Suite 380, Plano, TX 75093. The
transfer agent’s telephone number is (469) 633-0101.
SELLING
STOCKHOLDER
Pursuant
to the Purchase Agreement, we agreed to acquire 100% of the ownership interests in Aqua Metals Transfer, LLC in exchange for a combination
of cash and 11,000,000 shares of our common stock. We also agreed to prepare and file a registration statement, of which this prospectus
is a part, with the SEC to register the resale of the Shares, which will be held by an affiliate of LiNico, Comstock Inc., a Nevada corporation
(the “Selling Stockholder”).
The
Selling Stockholder agreed to resell the Shares in accordance with the Purchase Agreement after this Registration Statement is declared
effective, including that the Selling Stockholder may not sell more than 500,000 Shares per trading day or 20% of the daily trading volume,
whichever is higher. The Selling Stockholder may transfer all or part of the Shares in an amount greater than 500,000 Shares to one or
more broker-dealers or intermediaries in one or more transactions, so long as such broker-dealers or intermediaries collectively do not
sell more than 500,000 Shares per trading day or 20% of the daily trading volume, whichever is higher.
Pursuant
to the Purchase Agreement, LiNico has an obligation to indemnify us for certain matters and to fund an escrow account for purposes of
such indemnification obligation. The Selling Stockholder is required to contribute $1,500,000 of the net proceeds it receives from its
sale of Shares to fund indemnification obligations for indemnification claims, if any, made by the Company pursuant to Article VIII of
the Purchase Agreement and Article VIII of that certain Asset Purchase Agreement dated March 1, 2023, between LiNico and the Company.
The
table below sets forth information as of May 15, 2023, with respect to the Selling Stockholder for whom we are registering the Shares
for sale to the public, the number of shares of common stock owned by the Selling Stockholder prior to this offering, the percentage
of our common stock beneficially owned by the Selling Stockholder prior to this offering, the number of shares of our common stock owned
by the Selling Stockholder upon completion of this offering, assuming all Shares are sold, and the percentage of our common stock beneficially
owned by the Selling Stockholder after this offering, assuming all Shares are sold.
In
the table below, the number of shares of common stock that may be offered pursuant to this prospectus is the number of shares of common
stock issued pursuant to the Purchase Agreement. This prospectus also covers any additional shares of our common stock that may be issued
by reason of a stock dividend, stock split or other similar transaction effected without our receiving any cash or other value, which
results in an increase in the number of shares of our common stock outstanding.
The
number of shares in the column “Shares Offered for Resale” represents all of the shares of common stock that the Selling
Stockholder may offer under this prospectus. The Selling Stockholder may sell some, all or none of the Shares. The Selling Stockholder
may sell or transfer all or a portion of the Shares pursuant to an available exemption from the registration requirements of the Securities
Act. We do not know how long the Selling Stockholder will hold the Shares before selling them, and, other than the Purchase Agreement,
we currently have no agreements, arrangements or other understandings with the Selling Stockholder regarding the sale of any of the Shares.
Beneficial
ownership is determined in accordance with Rule 13d-3(d) promulgated by the SEC under the Exchange Act. The percentage of shares beneficially
owned prior to the offering is based on 680,361,529 shares of our common stock outstanding as of May 12, 2023.
| |
Shares Beneficially
Owned Prior to
Resale | | |
Shares
Offered | | |
Shares
Beneficially
Owned After
Resale | |
Selling Stockholder | |
Number | | |
% | | |
for Resale | | |
Number | | |
% | |
| |
| | | |
| | | |
| | | |
| | | |
| | |
Comstock Inc.(1) | |
| 11,000,000 | | |
| 1.6
| % | |
| 11,000,000 | | |
| 0 | | |
| 0 | % |
(1) |
The
business address of Comstock Inc. is 117 American Flat Road, Virginia City, Nevada 89440. |
PLAN
OF DISTRIBUTION
We
are registering the Shares to permit the resale of the Shares by the Selling Stockholder from time to time after the date of this prospectus.
We will not receive any of the proceeds from the sale of the Shares by the Selling Stockholder; provided that the Selling Stockholder
is required to deliver $1,500,000 of the net proceeds it receives from the sale of the Shares to fund an indemnity escrow to satisfy
certain of its (or its affiliates’) indemnification obligations to us, including indemnification obligations under the Purchase
Agreement. We will bear all fees and expenses incident to our obligation to register the Shares.
The
Selling Stockholder, which, as used herein, includes any of its pledgees, donees, transferees, assignees and successors, may from time
to time offer and sell some or all of the Shares covered by this prospectus. To the extent required, this prospectus may be amended and
supplemented from time to time to describe a specific plan of distribution.
The
Selling Stockholder may offer the Shares from time to time, either in increments or in a single transaction. The Selling Stockholder
may also decide not to sell all the Shares it is allowed to sell under this prospectus. The Selling Stockholder will act independently
of us in making decisions with respect to the timing, manner and size of each sale.
The
Selling Stockholder may, from time to time, sell any or all of its Shares on any stock exchange, market or trading facility on which
the Shares are traded or quoted, in the over-the-counter market or in private transactions. These sales may be at market prices prevailing
at the time of sale, at prices related to such prevailing market prices, at fixed prices or negotiated prices. The Selling Stockholder
may use any one or more of the following methods when selling the Shares:
● | ordinary
brokerage transactions and transactions in which a broker-dealer solicits purchasers; |
| |
● |
block trades in which a broker-dealer will attempt to sell
the Shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
|
|
● |
purchases by a broker-dealer as principal and resale by the
broker-dealer for its account; |
|
|
● |
an exchange distribution in accordance with the rules of the
applicable exchange; |
|
|
● |
privately negotiated transactions; |
|
|
● |
to cover short sales made after the date that this registration
statement becomes effective; |
|
|
● |
an agreement with broker-dealers to sell as agent for the Selling
Stockholder a specified number of the Shares at a stipulated price per share or otherwise at the prevailing market price; |
|
|
● |
through put or call options, including the writing of exchange-traded
call options, or other hedging transactions related to common shares, including the issuance by the Selling Stockholder of derivative
securities, whether the options or such other derivative securities are listed on an options exchange or otherwise; |
|
|
● |
through the distribution of the Shares by the Selling Stockholder
to its partners, members or stockholders; |
|
|
● |
a combination of any such methods of sale; and |
|
|
● |
any other method permitted pursuant to applicable law. |
The
Selling Stockholder may also sell the Shares under Rule 144 or any other exemption from registration under the Securities Act, if available,
rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholder may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Stockholder (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser)
in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction not in
excess of a customary brokerage commission in compliance with FINRA Rule 2440; and in the case of a principal transaction a markup or
markdown in compliance with FINRA IM-2440-1.
In
connection with the sale of the Shares, the Selling Stockholder may enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the shares in the course of hedging the positions they assume. The Selling Stockholder
may also sell shares short and deliver Shares to close out its short positions, or loan or pledge the Shares to broker-dealers that in
turn may sell these shares. The Selling Stockholder may also enter into option or other transactions with broker-dealers or other financial
institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution
of Shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus
(as supplemented or amended to reflect such transaction).
The
Selling Stockholder and any broker-dealers or agents that are involved in selling the Shares may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the Shares purchased by them may be deemed to be underwriting commissions or discounts under
the Securities Act. We are requesting that the Selling Stockholder inform us that it does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the Shares. We will pay certain fees and expenses incurred by us incident to the
registration of the Shares.
Because
the Selling Stockholder may be deemed to be an “underwriter” within the meaning of the Securities Act, it may be subject
to the prospectus delivery requirements of the Securities Act, including Rule 172 thereunder.
Under
applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously
engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M,
prior to the commencement of the distribution. In addition, the Selling Stockholder will be subject to applicable provisions of the Exchange
Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the common
stock by the Selling Stockholder or any other person. We will make copies of this prospectus available to the Selling Stockholder and
are informing the Selling Stockholder of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the
sale (including by compliance with Rule 172 under the Securities Act).
LEGAL
MATTERS
Certain
legal matters in connection with the securities will be passed upon for us by Holland & Hart LLP, Denver, Colorado.
PART
II INFORMATION NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following is an estimate of the expenses (all of which are to be paid by the registrant) that we may incur in connection with the securities
being registered hereby.
SEC registration fee | |
$ |
922.48 | |
Printing expenses | |
$ |
800 | |
Legal fees and expenses | |
$ |
15,000.00 | |
Auditor fees | |
$ |
6,500.00 | |
Miscellaneous | |
$ |
0 | |
Total | |
$ |
22,422.48 | |
Item
15. Indemnification of Directors and Officers
Nevada
Law
Section
78.7502 of the Nevada Revised Statutes permits a 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,
except an action by or in the right of the corporation, by reason of the fact that he 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 him in connection with the action, suit or proceeding if he:
(a)
is not liable pursuant to Nevada Revised Statute 78.138, or (b) acted in good faith and in a manner which he 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 his conduct was unlawful.
In
addition, Section 78.7502 permits a 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 or in the right of the corporation to procure a judgment in its favor by reason
of the fact that he 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 amounts paid in settlement and attorneys’ fees actually and reasonably incurred by him in connection with the defense
or settlement of the action or suit if he:
(b)
is not liable pursuant to Nevada Revised Statute 78.138; or (b) acted in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the corporation.
Section
78.751 of the Nevada Revised Statutes provides that to the extent that a director, officer, employee or agent of a corporation has been
successful on the merits or otherwise in defense of any action, suit or proceeding referred to above (or in defense of any claim, issue
or matter therein), the corporation is required to indemnify him against expenses, including attorneys’ fees, actually and reasonably
incurred by him in connection with the defense.
Section
78.751 of the Nevada Revised Statutes also provides that (unless otherwise restricted by the articles of incorporation, the bylaws or
an agreement made by the corporation) such indemnification may also include payment by the corporation of expenses incurred in defending
a civil or criminal action or proceeding as they are incurred and in advance of the final disposition of such action or proceeding upon
receipt of an undertaking by(or on behalf of) a director or officer to repay such payment if he shall be ultimately found not to be entitled
to indemnification by the corporation. Indemnification may be provided even though the person to be indemnified is no longer a director,
officer, employee or agent of the corporation or such other entities.
Section
78.752 of the Nevada Revised Statutes allows a corporation to purchase and maintain insurance or make other financial arrangements 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 for
any liability asserted against him and liability and expenses incurred by him in his capacity as a director, officer, employee or agent,
or arising out of his status as such, whether or not the corporation has the authority to indemnify him against such liability and expenses.
Other
financial arrangements made by the corporation pursuant to Section 78.752 may include the following:
(a)
the creation of a trust fund;
(b)
the establishment of a program of self-insurance;
(c)
the securing of its obligations of indemnification by granting a security interest or other lien on any assets of the corporation; and
(d)
the establishment of a letter of credit, guaranty or surety.
No
financial arrangement made pursuant to Section 78.752 may provide protection for a person adjudged by a court of competent jurisdiction,
after exhaustion of all appeals, to be liable for intentional misconduct, fraud or a knowing violation of law, except with respect to
the advancement of expenses of indemnification ordered by a court.
Any
discretionary indemnification pursuant to Section 78.7502 of the Nevada Revised Statutes, unless ordered by a court or advanced pursuant
to an undertaking to repay the amount if it is determined by a court that the indemnified party is not entitled to be indemnified by
the corporation, may be made by the corporation only as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper under the circumstances. The determination must be made by:
(a)
the stockholders;
(b)
the board of directors by a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding;
(c)
independent legal counsel in a written opinion if a majority vote of a quorum consisting of directors who were not parties to the action,
suit or proceeding so orders; or
(d)
independent legal counsel in a written opinion if a quorum consisting of directors who were not parties to the action, suit or proceeding
cannot be obtained.
Subsection
7 of Section 78.138 of the Nevada Revised Statutes provides that, subject to certain very limited statutory exceptions or unless the
articles of incorporation or an amendment thereto provide for greater individual liability, a director or officer is not individually
liable to the corporation or its stockholders or creditors for any damages as a result of any act or failure to act in his or her capacity
as a director or officer, unless it is proven that the act or failure to act constituted a breach of his or her fiduciary duties as a
director or officer and such breach of those duties involved intentional misconduct, fraud or a knowing violation of law.
Charter
Provisions and Other Arrangements
Pursuant
to the provisions of Nevada Revised Statutes, we have adopted the following indemnification provisions in our Articles of Incorporation
for our directors and officers:
Officers
and directors shall have no personal liability to the corporation of its stockholders for damages for breach of fiduciary duty as an
officer or director. This provision does not eliminate or limit the liability of an officer or director for acts or omissions which involve
intentional misconduct, fraud or a knowing violation of law or the payment of distributions in violation of the NRS 78.300.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Item
16. Exhibits
The
following exhibits are included as part of this Registration Statement by reference:
Item
17. Undertakings
(a)The
undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission
by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration
statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be anew registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act to any purchaser:
(i)
each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such
document immediately prior to such effective date.
(5)
That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution
of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by
such undersigned Registrant;
(iii)
the portion of any other free writing prospectus relating to the offering containing material information about such undersigned Registrant
or its securities provided by or on behalf of the undersigned Registrant; and
(iv)
any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Reno, State of Nevada, on May 15, 2023.
|
AMERICAN
BATTERY TECHNOLOGY COMPANY |
|
a
Nevada corporation |
|
|
|
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By: |
/s/
Ryan Melsert |
|
|
Ryan
Melsert |
|
|
Chairman
of the Board, Chief Executive Officer and Chief Technology Officer |
We,
the undersigned officers and directors of American Battery Technology Company, hereby severally constitute and appoint Ryan Melsert,
our true and lawful attorney-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and
stead, and in any and all capacities, to sign for us and in our names in the capacities indicated below any and all amendments (including
post-effective amendments) to this registration statement (or any other registration statement for the same offering that is to be effective
upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended), 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 full to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact
and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities
held on the dates indicated.
/s/
Ryan Melsert |
|
Chairman
of the Board, Chief Executive Officer and |
|
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Ryan
Melsert |
|
Chief
Technology Officer (Principal Executive Officer) |
|
May
15, 2023 |
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|
|
|
/s/
Elizabeth Lowery, by Power of Attorney |
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Director |
|
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Elizabeth
Lowery |
|
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May
15, 2023 |
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|
|
|
/s/
Julie Blunden |
|
Director |
|
|
Julie
Blunden |
|
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May
15, 2023 |
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|
|
/s/
Richard Fezell |
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Director |
|
|
Richard
Fezell |
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May
15, 2023 |
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/s/
Sherif Marakby |
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Director |
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Sherif
Marakby |
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|
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May
15, 2023 |
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|
|
|
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/s/
Kimberly Eckert |
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Chief
Financial Officer (Principal Accounting Officer and |
|
|
Kimberly
Eckert |
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Principal
Financial Officer) |
|
May
15, 2023 |
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