As
filed with the Securities and Exchange Commission on February 6, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
AmpliTech Group, Inc.
(Exact name of registrant as specified in its charter)
Nevada |
|
27-4566352 |
(State
or other jurisdiction of
incorporation or organization) |
|
(I.R.S.
Employer
Identification No.) |
155
Plant Avenue
Hauppauge,
NY |
|
11788 |
(Address
of Principal Executive Offices) |
|
(Zip
Code) |
Amended
and Restated 2020 Equity Incentive Plan
|
(Full
title of the plan)
|
Fawad
Maqbool
155
Plant Avenue
Hauppauge,
NY 11788
(631)-521-7831
(Name,
address and telephone number, including area code,
of
agent for service) |
|
Copy
to:
Gregory
Sichenzia, Esq.
Avital
Perlman, Esq.
Sichenzia
Ross Ference Carmel LLP
1185
Avenue of the Americas, 31st Floor
New
York, NY 10036
(212)
930-970 |
Indicate
by check mark whether the Company is a large, accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company,
or an emerging growth company. See definitions of “large, accelerated filer,” “accelerated filer”, “small
reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one)
Large,
accelerated filer |
☐ |
Accelerated
filer |
☐ |
Non-accelerated
filer |
☒ |
Smaller
reporting company |
☒ |
|
|
Emerging
growth company |
☐ |
EXPLANATORY
NOTE
This
registration statement on Form S-8 (the “Registration Statement”) relates to an additional 1,000,000 shares of common stock,
par value $0.001 per share of AmpliTech Group, Inc. (the “Registrant,” the “Company,” “we,” “us”
or “our”), which are issuable pursuant to awards that may be granted under our Amended and Restated 2020 Equity Incentive
Plan (the “Plan”). Under the Plan, a total of 2,250,000 shares of common stock have been reserved for issuance upon the grant
of awards and exercise of options to directors, officers, employees and consultants of the Company and of the Company’s affiliates,
of which 1,250,000 shares (adjusted to reflect our 1 for 20 reverse stock split effective February 17, 2021) have been registered pursuant
to the Registrant’s previously filed Registration Statement on Form S-8 (File No. 333-251332) filed on December 14, 2020.
Pursuant to General Instruction E to Form S-8, Part I and Items 4-7 and 9 of Part II of the Registrant’s Registration Statement
on Form S-8 (File No. 333-251332) are incorporated herein by reference except to the extent supplemented, amended or superseded by the
information set forth herein. Only those items of Form S-8 containing new information not contained in the earlier registration statement
are presented herein.
This
Registration Statement also includes a reoffer prospectus prepared in accordance with General Instruction C of Form S-8 and in accordance
with the requirements of Part I of Form S-3, to be used in connection with resales of securities registered hereunder by selling stockholders
(the “Selling Stockholders”), some of whom may be considered affiliates of the Company, as defined in Rule 405 under the
Securities Act of 1933, as amended. The Selling Stockholders may be selling up to an aggregate of 870,000 shares of common stock that
constitute “restricted securities” and “control securities” which have been issued by the Registrant pursuant
to the Plan, prior to the filing of this Registration Statement.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
documents containing the information specified in Part I, and the Note to Part I of Form S-8 will be delivered to each of the participants
in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), but these documents and
the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement,
taken together, constitute a Prospectus that meets the requirements of Section 10(a) of the Securities Act.
Item
2. Registrant Information and Employee Annual Information.
Upon
written or oral request, any of the documents incorporated by reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus) and other documents required to be delivered to eligible employers, non-employee
directors and consultants pursuant to Rule 428(b) are available without charge by contacting: Secretary, AmpliTech Group, Inc., 155 Plant
Avenue, Hauppauge, New York, 11788 at (631) 521-7831.
REOFFER
PROSPECTUS
870,000
Shares
AmpliTech
Group, Inc.
Common
Stock
This
reoffer prospectus relates to the public resale, from time to time, of an aggregate of 870,000 shares (the “Shares”) of our
common stock, $0.001 par value per share, by certain security holders identified herein in the section entitled “Selling Stockholders”.
Such Shares have been or may be acquired in connection with awards granted under the Amended and Restated 2020 Equity Incentive Plan
(the “Plan”) of AmpliTech Group, Inc. (the “Company”). You should read this prospectus carefully before you invest
in the common stock.
Such
resales shall take place on the Nasdaq Capital Market, or such other stock market or exchange on which our common stock may be listed
or quoted, in negotiated transactions or otherwise, at market prices prevailing at the time of the sale or at prices otherwise negotiated
(see “Plan of Distribution” starting on page 6 of this prospectus). We will receive no part of the proceeds from sales
made under this reoffer prospectus. The Selling Stockholders will bear all sales commissions and similar expenses. Any other expenses
incurred by us in connection with the registration and offering and not borne by the Selling Stockholders will be borne by us.
This
reoffer prospectus has been prepared for the purposes of registering the Shares under the Securities Act to allow for future sales by
the Selling Stockholders on a continuous or delayed basis to the public without restriction. We have not entered into any underwriting
arrangements in connection with the sale of the Shares covered by this reoffer prospectus. The Selling Stockholders identified in this
reoffer prospectus, or their pledgees, donees, transferees or other successors-in-interest, may offer the Shares covered by this reoffer
prospectus from time to time through public or private transactions at prevailing market prices, at prices related to prevailing market
prices or at privately negotiated prices.
Investing
in our common stock involves risks. See “Risk Factors” beginning on page 4 of this reoffer prospectus. These are speculative
securities.
Our
common stock and tradable warrants are listed on the Nasdaq Capital Market under the symbols “AMPG” and “AMPGW,”
respectively, and the last reported sale prices of our common stock and warrants on February 2, 2024 was $2.20 and $0.17,
respectively.
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 February 6, 2024
TABLE
OF CONTENTS
CAUTIONARY
NOTE REGARDING FORWARD LOOKING STATEMENTS
This
prospectus, any accompanying prospectus supplement and the documents incorporated by reference herein may contain forward looking statements
within the meaning of Section 27A of the Securities Act of 1933 (the “Securities Act”), and Section 21E of the Securities
Exchange Act of 1934 (the “Exchange Act”) that involve risks and uncertainties. All statements other than statements of historical
fact contained in this prospectus, any accompanying prospectus supplement and the documents incorporated by reference herein, including
statements regarding future events, our future financial performance, business strategy, and plans and objectives of management for future
operations, are forward-looking statements. We have attempted to identify forward-looking statements by terminology including “anticipates,”
“believes,” “can,” “continue,” “could,” “estimates,” “expects,”
“intends,” “may,” “plans,” “potential,” “predicts,” “should,”
or “will” or the negative of these terms or other comparable terminology. Although we do not make forward looking statements
unless we believe we have a reasonable basis for doing so, we cannot guarantee their accuracy. These statements are only predictions
and involve known and unknown risks, uncertainties and other factors, including the risks outlined under “Risk Factors” or
elsewhere in this prospectus, any accompanying prospectus supplement and the documents incorporated by reference herein, which may cause
our or our industry’s actual results, levels of activity, performance or achievements expressed or implied by these forward-looking
statements. Moreover, we operate in a highly regulated, very competitive, and rapidly changing environment. New risks emerge from time
to time and it is not possible for us to predict all risk factors, nor can we address the impact of all factors on our business or the
extent to which any factor, or combination of factors, may cause our actual results to differ materially from those contained in any
forward-looking statements.
We
have based these forward-looking statements largely on our current expectations and projections about future events and financial trends
that we believe may affect our financial condition, results of operations, business strategy, short term and long-term business operations,
and financial needs. These forward-looking statements are subject to certain risks and uncertainties that could cause our actual results
to differ materially from those reflected in the forward-looking statements. Factors that could cause or contribute to such differences
include, but are not limited to, those discussed in this this prospectus, any accompanying prospectus supplement and the documents incorporated
by reference herein, and in particular, the risks discussed below and under the heading “Risk Factors” and those discussed
in other documents we file with the Securities and Exchange Commission, or the SEC. We undertake no obligation to revise or publicly
release the results of any revision to these forward-looking statements, except as required by law. In light of these risks, uncertainties
and assumptions, the forward-looking events and circumstances discussed in this prospectus, any accompanying prospectus supplement and
the documents incorporated by reference herein may not occur and actual results could differ materially and adversely from those anticipated
or implied in the forward-looking statement.
You
should not place undue reliance on any forward-looking statement, each of which applies only as of the date of this prospectus. Except
as required by law, we undertake no obligation to update or revise publicly any of the forward-looking statements after the date of this
prospectus to conform our statements to actual results or changed expectations.
PROSPECTUS
SUMMARY
This
summary highlights selected information contained elsewhere in this prospectus. This summary does not contain all the information that
you should consider before investing in our Company. You should carefully read the entire prospectus, including all documents incorporated
by reference herein. In particular, attention should be directed to our “Risk Factors,” “Management’s Discussion
and Analysis of Financial Condition and Results of Operations” and the financial statements and related notes thereto contained
herein or otherwise incorporated by reference hereto, before making an investment decision.
Our
Corporate History and Structure
AmpliTech
Group Inc. (“AMPG,” “AmpliTech” or the “Company”), was incorporated under the laws of the State of
Nevada on December 30, 2010. On August 13, 2012, the Company acquired AmpliTech Inc., by issuing 833,750 shares of the Company’s
common stock to the shareholders of AmpliTech Inc. in exchange for 100% of the outstanding shares of AmpliTech Inc. (the “Share
Exchange”). After the Share Exchange, the selling shareholders owned 60,000 shares of the outstanding 893,750 shares of Company
common stock, resulting in a change in control. Accordingly, the transaction was accounted for as a reverse acquisition in which AmpliTech,
Inc. was deemed to be the accounting acquirer, and the operations of the Company were consolidated for accounting purposes. The capital
balances have been retroactively adjusted to reflect the reverse acquisition.
On
September 12, 2019, AmpliTech Group Inc. acquired substantially all the assets of Specialty Microwave Corporation, a privately held company
based in Ronkonkoma, NY. The purchase included all inventory, orders, customers, property and equipment, and goodwill. Following the
closing of the asset purchase, we hired all eight team members of SMW. In connection with the acquisition, the Company began using the
trade name “Specialty Microwave”. The total consideration paid was $1,143,633, consisting of $668,633 in cash and a $475,000
promissory note with an interest rate of 6%.
On
February 17, 2021, AmpliTech Group Inc.’s common stock and warrants commenced trading on NASDAQ under the symbols “AMPG”
and “AMPGW,” respectively. A reverse split of the outstanding common stock at a 1-for-20 ratio became effective February
17, 2021, as of 12:01 a.m., Eastern Time. All share amounts have been retroactively re-stated to reflect the reverse split.
On
November 19, 2021, AmpliTech Group, Inc. entered into an Asset Purchase Agreement with SSM, pursuant to which AmpliTech would acquire
substantially all of the assets of SSM. The aggregate purchase price for the acquisition was $10,123,276, subject to certain working
capital and other adjustments. $665,200 of the aggregate purchase price was paid by the issuance of 188,442 unregistered shares of AmpliTech
common stock at the closing of the acquisition. The Acquisition was completed on December 15, 2021.
In
2021, the Company opened a MMIC chip design center in Texas and has started to implement several of its proprietary amplifier designs
into MMIC components. MMICs are semiconductor chips used in high-frequency communications applications. MMICs are widely desired for
power amplification solutions to service emerging technologies, such as phased array antennas and quantum computing. MMICs carry a smaller
footprint enabling them to be incorporated into a broader array of systems while reducing costs.
In
August 2022, TGSS division was formed to enable “true G speeds” to the industry. TGSS’ main function will be to plan
and configure 5G radio systems and make them O-RAN compliant. TGSS will implement AmpliTech’s low noise amplifier devices in these
systems to promote greater coverage, longer range and faster speeds.
Our
principal executive offices are located at 155 Plant Avenue, Hauppauge, NY 11788. Our telephone number is (631) 521-7831. Our corporate
website is www.amplitechinc.com. The information on our website is not a part of, or incorporated in, this prospectus.
Business
Overview
The
Company is the parent company of AmpliTech, Inc., and also operates through its divisions Specialty Microwave, Spectrum Semiconductor
Materials, AmpliTech Group MMIC Design Center (“AGMDC”) and AmpliTech Group True G Speed Services (“TGSS”).
AmpliTech,
Inc. designs, engineers and assembles micro-wave component-based amplifiers that meet individual customer specifications. Our products
consist of Radio Frequency (“RF”) amplifiers and related subsystems, operating at multiple frequencies from 50kHz to 44GHz,
including low noise amplifiers (“LNA”), medium power amplifiers, cryogenic amplifiers, and custom assembly designs for the
global satellite communications, telecom (5G & IoT), space, defense, and quantum computing markets. We also offer non-recurring engineering
services on a project-by-project basis, for a predetermined fixed contractual amount, or on a time plus material basis. We have both
domestic and international customers in such industries as aerospace, governmental, defense and commercial satellite.
Specialty
Microwave designs and manufactures state-of- the-art precision SATCOM microwave components, RF subsystems and specialized electronic
assemblies for the military and commercial markets, flexible and rugged waveguides, wave guide adapters and more.
On
November 19, 2021, AMPG entered into an Asset Purchase Agreement with Spectrum Semiconductor Materials Inc. (“SSM”), a globally
authorized distributor of integrated circuit (IC) packaging and lids for semiconductor device assembly, prototyping, testing, and production
requirements founded in 1990 and headquartered in San Jose, CA, pursuant to which AMPG acquired substantially all the assets of the Company
(the Acquisition). The Acquisition was completed on December 15, 2021.
In
2021, the Company opened AGMDC, a monolithic microwave integrated circuits (“MMIC”) chip design center, in Texas and has
started to implement several of its proprietary amplifier designs into MMIC components. MMICs are semiconductor chips used in high-frequency
communications applications. MMICs are widely desired for power amplification solutions to service emerging technologies, such as phased
array antennas and quantum computing. MMICs carry a smaller footprint enabling them to be incorporated into a broader array of systems
while reducing costs. AGMDC designs, develops and manufactures state-of-the-art signal processing components for satellite and 5G communications
networks, defense, space and other commercial applications, allowing the Company to market its products to wider base of customers requiring
high technology in smaller packages.
In
August 2022, AmpliTech Group True G Speed Services (“TGSS”) division was formed to enable “true G speeds” to
the industry. TGSS’ main function will be to plan and configure 5G radio systems and make them O-RAN compliant. TGSS will implement
AmpliTech’s low noise amplifier devices in these systems to promote greater coverage, longer range and faster speeds.
Our
mission is to patent our proprietary IP and trade secrets that were used in small volume niche markets and expand our capabilities through
strategic partnerships, joint ventures, mergers/acquisitions with key industry leaders in the 5G/6G, quantum computing, and cybersecurity
markets. We believe this will enable us to scale up our products and revenue by developing full systems and subsystems with our unique
technology as a core component, which we expect will position us as a global leader in these rapidly emerging technology sectors and
addresses large volume markets as well, such as cellphone handsets, laptops, server networks, and many other applications that improve
everyday quality of life.
The
Company’s research and development initiative to expand its product line of low noise amplifiers to include its new 5G and wireless
infrastructure products and MMIC designs is progressing significantly. Our combined engineering and manufacturing resources are expected
to complement the development of new subsystems for satellite, wireless, and 5G infrastructures, as well as advanced military and commercial
markets.
RISK
FACTORS
An
investment in our common stock involves risks. Prior to deciding about investing in our common stock, you should consider carefully all
of the information contained or incorporated by reference in this prospectus, including any risks in the section entitled “Risk
Factors” contained in any supplements to this prospectus and in our Annual Report on Form 10-K for the fiscal year ended December
31, 2022, as amended to date, and in our subsequent filings with the SEC. Each of the referenced risks and uncertainties could adversely
affect our business, operating results and financial condition, as well as adversely affect the value of an investment in our securities.
Additional risks not known to us or that we believe are immaterial may also adversely affect our business, operating results and financial
condition and the value of an investment in our securities.
USE
OF PROCEEDS
The
shares which may be sold under this reoffer prospectus will be sold for the respective accounts of each of the Selling Stockholders listed
herein (which includes our officers and directors). Accordingly, we will not realize any proceeds from the sale of the Shares. We will
receive proceeds from the exercise of the options; however, no assurance can be given as to when or if any or all of the options will
be exercised. If any options are exercised, the proceeds derived therefrom will be used for working capital and general corporate purposes.
All expenses of the registration of the Shares will be paid by us. See “Selling Stockholders” and “Plan of Distribution.”
SELLING
STOCKHOLDERS
We
are registering for resale the Shares covered by this reoffer prospectus to permit the Selling Stockholders identified below and their
pledgees, donees, transferees and other successors-in-interest that receive their securities from a Selling Stockholder as a gift, partnership
distribution or other non-sale related transfer after the date of this prospectus to resell the Shares when and as they deem appropriate.
The Selling Stockholders may acquire these Shares from us pursuant to the Plan. The Shares may not be sold or otherwise transferred by
the Selling Stockholders unless and until the applicable awards vest and are exercised, as applicable, in accordance with the terms and
conditions of the Plan.
The
following table sets forth:
|
● |
the
name of each Selling Stockholder; |
|
|
|
|
● |
the
number and percentage of shares of our common stock that each Selling Stockholder beneficially owned as of February 2, 2024 prior
to the offering for resale of the Shares under this prospectus; |
|
|
|
|
● |
the
number of Shares that may be offered for resale for the account of each Selling Stockholder under this prospectus; and |
|
|
|
|
● |
the
number and percentage of shares of our common stock to be beneficially owned by each Selling Stockholder after the offering of the
resale Shares (assuming all of the offered resale Shares are sold by such Selling Stockholder). |
Information
with respect to beneficial ownership is based upon information obtained from the Selling Stockholders. Because the Selling Stockholders
may offer all or part of the Shares, which they own pursuant to the offering contemplated by this reoffer prospectus, and because its
offering is not being underwritten on a firm commitment basis, no estimate can be given as to the amount of Shares that will be held
upon termination of this offering. Except where indicated, all options and warrants held by the selling stockholders are exercisable
within 60 days of February 2, 2024.
The
number of shares in the column “Number of Shares Being Offered Hereby” represents all of the Shares of our common stock that
each Selling Stockholder may offer under this prospectus. We do not know how long the Selling Stockholders will hold the Shares before
selling them or how many Shares they will sell. The Shares of our common stock offered by this prospectus may be offered from time to
time by the Selling Stockholders listed below. We cannot assure you that any of the Selling Stockholders will offer for sale or sell
any or all of the Shares of common stock offered by them by this prospectus.
| |
Number of | |
| |
Number of | |
Percentage of |
| |
Shares | |
| |
Shares | |
Shares to be |
| |
Beneficially | |
Number of | |
Beneficially | |
Beneficially |
| |
Owned | |
Shares | |
Owned Upon | |
Owned Upon |
Name of Selling | |
Prior to | |
Being Offered | |
Completion of | |
Completion of |
Stockholder | |
the Offering(1) | |
Hereby (2) | |
the
Offering (3) | |
the Offering (4) |
Fawad Maqbool | |
| 2,819,504 | (5) | |
| 400,000 | | |
| 2,649,504 | | |
| 27.34 | % |
Louisa Sanfratello | |
| 95,000 | (6) | |
| 200,000 | | |
| 10,000 | | |
| * | |
Jorge Flores | |
| 79,418 | (7) | |
| 180,000 | | |
| 14,000 | | |
| * | |
Daniel Mazziota | |
| 237,618 | (8) | |
| 55,000 | | |
| 203,243 | | |
| 2.45 | % |
Andrew Lee | |
| 43,750 | (9) | |
| 17,500 | | |
| 30,000 | | |
| * | |
Matthew Kappers | |
| 43,750 | (9) | |
| 17,500 | | |
| 30,000 | | |
| * | |
|
(1) |
Includes
shares noted under “Number of Shares Being Offered Hereby” and represents the total number of shares that a Selling Stockholder
currently owns or has the right to acquire within sixty (60) days of February 2, 2024. |
|
(2) |
Represents
shares of stock issuable upon exercise of outstanding stock options. |
|
(3) |
Represents
the total number of shares that a Selling Stockholder currently owns or has the right to acquire within sixty (60) days of February
2, 2024, assuming all of the offered resale Shares are sold. |
|
(4) |
Based
on shares 9,689,613issued and outstanding as of February 2, 2024. |
|
(5) |
Includes
170,000 options to purchase shares of common stock. |
|
(6) |
Includes
85,000 options to purchase shares of common stock. |
|
(7) |
Includes
65,418 options to purchase shares of common stock. |
|
(8) |
Includes
34,375 options to purchase shares of common stock. |
|
(9) |
Includes
13,750 options to purchase shares of common stock. |
PLAN
OF DISTRIBUTION
Our
common stock is quoted on the Nasdaq Capital Market under the symbol “AMPG.”
The
selling stockholders will act independently of us in making decisions with respect to the timing, manner and size of each and any sale.
The
Selling Stockholders may, from time to time, sell all or a portion of the Shares on any market where our common stock may be listed or
quoted (currently the Nasdaq Capital Market), in privately negotiated transactions or otherwise. Such sales may be at fixed prices prevailing
at the time of sale, at prices related to the market prices or at negotiated prices. The Shares being offered for resale by this Prospectus
may be sold by the Selling Stockholders by one or more of the following methods:
|
● |
block
trades in which the broker or dealer so engaged 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 broker or dealer as principal and resale by the broker or dealer for its account pursuant to this prospectus; |
|
● |
an
exchange distribution in accordance with the rules of the applicable exchange; |
|
● |
ordinary
brokerage transactions and transactions in which the broker solicits purchasers; |
|
● |
privately
negotiated transactions; |
|
● |
market
sales (both long and short to the extent permitted under the federal securities laws); |
|
● |
at
the market to or through market makers or into an existing market for the Shares; |
|
● |
through
transactions in options, swaps or other derivatives (whether exchange listed or otherwise); and |
|
● |
a
combination of any of the aforementioned methods of sale. |
The
selling stockholders may from time to time pledge or grant a security interest in some or all of the shares of common stock owned by
them and, if they default in the performance of their secured obligations, the pledge or secured parties may offer and sell the shares
of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or any
other applicable provision of the Securities Act amending the list of stockholders to include the pledge, transferee or other successors
in interest as selling stockholders under this prospectus.
In
effecting sales, brokers and dealers engaged by the Selling Stockholders may arrange for other brokers or dealers to participate. Brokers
or dealers may receive commissions or discounts from a Selling Stockholder or, if any of the broker-dealers act as an agent for the purchaser
of such Shares, from a purchaser in amounts to be negotiated which are not expected to exceed those customary in the types of transactions
involved. Broker-dealers may agree with a Selling Stockholder to sell a specified number of the Shares at a stipulated price per Share.
Such an agreement may also require the broker-dealer to purchase as principal any unsold Shares at the price required to fulfill the
broker-dealer commitment to the Selling Stockholder if such broker-dealer is unable to sell the Shares on behalf of the Selling Stockholder.
Broker-dealers who acquire Shares as principal may thereafter resell the Shares from time to time in transactions which may involve block
transactions and sales to and through other broker-dealers, including transactions of the nature described above. Such sales by a broker-dealer
could be at prices and on terms then prevailing at the time of sale, at prices related to the then-current market price or in negotiated
transactions. In connection with such resales, the broker-dealer may pay to or receive from the purchasers of the Shares commissions
as described above.
The
Selling Stockholders and any broker-dealers or agents that participate with the Selling Stockholders in the sale of the Shares may be
deemed to be “underwriters” within the meaning of the Securities Act in connection with these sales. In that event, any commissions
received by the 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.
From
time to time, any of the Selling Stockholders may pledge its Shares pursuant to the margin provisions of customer agreements with brokers.
Upon a default by a Selling Stockholder, their broker may offer and sell the pledged Shares from time to time. Upon a sale of the Shares,
the Selling Stockholders intend to comply with the Prospectus delivery requirements under the Securities Act by delivering a Prospectus
to each purchaser in the transaction. We intend to file any amendments or other necessary documents in compliance with the Securities
Act which may be required in the event any of the Selling Stockholders defaults under any customer agreement with brokers.
To
the extent required under the Securities Act, a post-effective amendment to this Registration Statement will be filed disclosing the
name of any broker-dealers, the number of Shares, the price at which the Shares are to be sold, the commissions paid or discounts or
concessions allowed to such broker-dealers, where applicable, that such broker-dealers did not conduct any investigation to verify the
information set out or incorporated by reference in this Prospectus and other facts material to the transaction. We and the Selling Stockholders
will be subject to applicable provisions of the Exchange Act and the rules and regulations under it, including, without limitation, Rule
10b-5 and, insofar as a Selling Stockholder is a distribution participant and we, under certain circumstances, may be a distribution
participant, under Regulation M.
All
of the foregoing may affect the marketability of the common stock.
Any
commissions, discounts or other fees payable to brokers or dealers in connection with any sale of the Shares will be borne by the Selling
Stockholders, the purchasers participating in such transaction, or both.
Any
Shares covered by this Prospectus which qualify for sale pursuant to Rule 144 under the Securities Act, as amended, may be sold under
Rule 144 rather than pursuant to this Prospectus.
LEGAL
MATTERS
The
validity of the issuance of the Shares described in this Prospectus will be passed upon for us by Sichenzia Ross Ference Carmel LLP,
New York, NY 10036.
EXPERTS
Our
financial statements as of December 31, 2022 and December 31, 2021 have been incorporated by reference in reliance on the report of Sadler,
Gibb & Associates, LLC, an independent registered public accounting firm, as stated in its report incorporated by reference herein,
and have been so incorporated by reference in reliance upon such report and upon the authority of such firm as experts in accounting
and auditing.
INCORPORATION
OF DOCUMENTS BY REFERENCE
We
are “incorporating by reference” in this Prospectus certain documents we file with the SEC, which means that we can disclose
important information to you by referring you to those documents. The information in the documents incorporated by reference is considered
to be part of this Prospectus. Statements contained in documents that we file with the SEC and that are incorporated by reference in
this Prospectus will automatically update and supersede information contained in this Prospectus, including information in previously
filed documents or reports that have been incorporated by reference in this Prospectus, to the extent the new information differs from
or is inconsistent with the old information. We incorporate by reference the following information or documents that we have filed with
the SEC (excluding those portions of any Form 8-K that are not deemed “filed” pursuant to the General Instructions of Form
8-K):
|
● |
Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March 31, 2023 and our amended Annual
Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on August 9, 2023; |
|
● |
Our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, filed with the SEC on May 15, 2023; |
|
● |
Our
Quarterly Report on Form 10-Q for the quarter ended June 30, filed with the SEC on August 14, 2023; |
|
● |
Our
Quarterly Report on Form 10-Q for the quarter ended September 30, 2023, filed with the SEC on November 14, 2023; |
|
● |
Our
Definitive Proxy Statement filed with the SEC on October 23, 2023; |
|
● |
Our
Current Reports on Form 8-K filed with the SEC on April 17, 2023 and December 12, 2023; |
|
● |
The
description of certain capital stock contained in our Registration Statement 8-A filed on February 16, 2021, as it may further be
amended from time to time. |
Any
information in any of the foregoing documents will automatically be deemed to be modified or superseded to the extent that information
in this Prospectus supplement or the accompanying prospectus or in a later filed document that is incorporated or deemed to be incorporated
herein by reference modifies or replaces such information.
We
also incorporate by reference any future filings (excluding information furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits
filed on such form that are related to such items) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
until we sell all of the securities offered by this Prospectus supplement. Information in such future filings updates and supplements
the information provided in this Prospectus supplement. Any statements in any such future filings will automatically be deemed to modify
and supersede any information in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein
by reference to the extent that statements in the later filed document modify or replace such earlier statements.
You
may request a copy of any or all of these filings, at no cost, by writing or telephoning us at: AmpliTech Group, Inc., 155 Plant Avenue,
Hauppauge, NY 11788, (631) 521-7831. Our corporate website is www.amplitechinc.com. The information on our website is not a part of,
or incorporated in, this prospectus.
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION
FOR
SECURITIES ACT LIABILITIES
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the
registrant, the registrant 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.
WHERE
YOU CAN FIND MORE INFORMATION
We
have filed with the SEC under the Securities Act a Registration Statement on Form S-8, of which this Prospectus forms a part, with respect
to the Shares being offered in this offering. This Prospectus does not contain all of the information set forth in the Registration Statement,
certain items of which are omitted in accordance with the rules and regulations of the SEC. The omitted information may be inspected
and copied at the Public Reference Room maintained by the SEC at 100 F. Street, N.E., Washington, D.C. 20549. You can obtain information
about operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document we
file with the SEC (including exhibits to such documents) at the SEC’s Public Reference Room at 100 F. Street, N.E., Room 1580,
Washington, D.C. 20549. You may obtain additional information about the Public Reference Room by calling the SEC at 1-800-SEC-0330. In
addition, the SEC maintains a site on the Internet at http://www.sec.gov/ that contains reports, proxy statements and other information
that we file electronically with the SEC.
Statements
contained in this Prospectus as to the contents of any contract or other document filed as an exhibit to the Registration Statement are
not necessarily complete and in each instance reference is made to the copy of the document filed as an exhibit to the Registration Statement,
each statement made in this Prospectus relating to such documents being qualified in all respect by such reference. For further information
with respect to us and the securities being offered hereby, reference is hereby made to the Registration Statement, including the exhibits
thereto.
REOFFER
PROSPECTUS
AmpliTech
Group, Inc.
870,000
shares of
Common
Stock
February
6, 2024
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
We
are “incorporating by reference” in this Prospectus certain documents we file with the SEC, which means that we can disclose
important information to you by referring you to those documents. The information in the documents incorporated by reference is considered
to be part of this Prospectus. Statements contained in documents that we file with the SEC and that are incorporated by reference in
this Prospectus will automatically update and supersede information contained in this Prospectus, including information in previously
filed documents or reports that have been incorporated by reference in this Prospectus, to the extent the new information differs from
or is inconsistent with the old information. We incorporate by reference the following information or documents that we have filed with
the SEC (excluding those portions of any Form 8-K that are not deemed “filed” pursuant to the General Instructions of Form
8-K):
|
● |
Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March 31, 2023 and our amended Annual
Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on August 9, 2023; |
|
● |
Our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, filed with the SEC on May 15, 2023; |
|
● |
Our
Quarterly Report on Form 10-Q for the quarter ended June 30, filed with the SEC on August 14, 2023; |
|
● |
Our
Quarterly Report on Form 10-Q for the quarter ended September 30, 2023, filed with the SEC on November 14, 2023; |
|
● |
Our
Definitive Proxy Statement filed with the SEC on October 23, 2023; |
|
● |
Our
Current Reports on Form 8-K filed with the SEC on April 17, 2023 and December 12, 2023; |
|
● |
The
description of certain capital stock contained in our Registration Statement 8-A filed on February 16, 2021, as it may further be
amended from time to time. |
Any
information in any of the foregoing documents will automatically be deemed to be modified or superseded to the extent that information
in this Prospectus supplement or the accompanying prospectus or in a later filed document that is incorporated or deemed to be incorporated
herein by reference modifies or replaces such information.
We
also incorporate by reference any future filings (excluding information furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits
filed on such form that are related to such items) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
until we sell all of the securities offered by this Prospectus supplement. Information in such future filings updates and supplements
the information provided in this Prospectus supplement. Any statements in any such future filings will automatically be deemed to modify
and supersede any information in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein
by reference to the extent that statements in the later filed document modify or replace such earlier statements.
You
may request a copy of any or all of these filings, at no cost, by writing or telephoning us at: AmpliTech Group, Inc., 155 Plant Avenue,
Hauppauge, NY 11788, (631) 521-7831. Our corporate website is www.amplitechinc.com. The information on our website is not a part of,
or incorporated in, this prospectus.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
The
NRS empower us to indemnify our directors and officers against expenses relating to certain actions, suits or proceedings as provided
for therein. In order for such indemnification to be available, the applicable director or officer must not have acted in a manner that
constituted a breach of his or her fiduciary duties and involved intentional misconduct, fraud or a knowing violation of law, or must
have acted in good faith and reasonably believed that his or her conduct was in, or not opposed to, our best interests. In the event
of a criminal action, the applicable director or officer must not have had reasonable cause to believe his or her conduct was unlawful.
Pursuant
to our articles, we may indemnify each of our present and future directors, officers, employees or agents who becomes a party or is threatened
to be made a party to any suit or proceeding, whether pending, completed or merely threatened, and whether said suit or proceeding is
civil, criminal, administrative, investigative, or otherwise, except an action by or in the right of the Company, by reason of the fact
that he is or was a director, officer, employee, or agent of the Company, 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, but not limited to, attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred
by him in connection with the action, suit, proceeding or settlement, provided such person acted in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interest of the Company, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful.
The
expenses of directors, officers, employees or agents of the Company incurred in defending a civil or criminal action, suit, or proceeding
may be paid by the Company as they are incurred and in advance of the final disposition of the action, suit, or proceeding, if and only
if the director, officer, employee or agent undertakes to repay said expenses to the Company if it is ultimately determined by a court
of competent jurisdiction, after exhaustion of all appeals therefrom, that he is not entitled to be indemnified by the corporation.
No
indemnification shall be applied, and any advancement of expenses to or on behalf of any director, officer, employee or agent must be
returned to the Company, if a final adjudication establishes that the person’s acts or omissions involved a breach of any fiduciary
duties, where applicable, intentional misconduct, fraud or a knowing violation of the law which was material to the cause of action.
The
NRS further provides that a corporation may 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. We
have secured a directors’ and officers’ liability insurance policy. We expect that we will continue to maintain such a policy.
Item
7. Exemption From Registration Claimed.
The
grant of our securities were issued as compensation awards or as enticement or incentive awards. These grants were exempt from registration
pursuant to Section 4(2) of the Securities Act.
Item
8. Exhibits.
Item
9. Undertakings.
(a)
The undersigned Company 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;
(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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement;
(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) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Company pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment 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.
(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.
(b)
The undersigned Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
Company’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 may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of
the Company 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 Company 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 Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements
for 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 Hauppauge, New York, on February 6, 2024.
AMPLITECH
GROUP, INC. |
|
|
|
|
By: |
/s/
Fawad Maqbool |
|
|
Fawad
Maqbool |
|
|
Chief
Executive Officer (Principal Executive Officer) |
|
POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Fawad Maqbool their true and lawful
attorneys-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments, to this Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the SEC granting unto said attorney-in-fact and agent full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that each of 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, this Registration Statement has been signed below by the following persons in the capacities
and on the dates indicated.
Name |
|
Position |
|
Date |
|
|
|
|
|
/s/
Fawad Maqbool |
|
President,
Chairman and Chief Executive Officer (Principal Executive Officer) |
|
February
6, 2024 |
Fawad
Maqbool |
|
|
|
|
|
|
|
|
|
/s/
Louisa Sanfratello |
|
Chief
Financial Officer (Principal Financial Officer and Principal Accounting Officer) and Director |
|
February
6, 2024 |
Louisa
Sanfratello |
|
|
|
|
|
|
|
|
|
/s/
Andrew Lee |
|
Director |
|
February
6, 2024 |
Andrew
Lee |
|
|
|
|
|
|
|
|
|
/s/
Daniel Mazziota |
|
Director |
|
February
6, 2024 |
Daniel
Mazziota |
|
|
|
|
|
|
|
|
|
/s/
Matthew Kappers |
|
Director |
|
February
6, 2024 |
Matthew
Kappers |
|
|
|
|
Exhibit
4.1
AMPLITECH
GROUP INC.
AMENDED
AND RESTATED 2020 EQUITY INCENTIVE PLAN
1.
Purposes of the Plan. The purposes of this Plan are:
● |
to
attract and retain the best available personnel for positions of substantial responsibility, |
|
|
● |
to
provide incentives to individuals who perform services for the Company, and |
|
|
● |
to
promote the success of the Company’s business. |
The
Plan permits the grant of Incentive Stock Options, Nonstatutory Stock Options, Stock Appreciation Rights, Restricted Stock, Restricted
Stock Units, Performance Units, Performance Shares and other stock or cash awards as the Administrator may determine.
2.
Definitions. As used herein, the following definitions will apply:
(a)
“Administrator” means the Board or any of its Committees as will be administering the Plan, in accordance with Section 4
hereof.
(b)
“Affiliate” means any corporation or any other entity (including, but not limited to, partnerships and joint ventures) controlling,
controlled by, or under common control with the Company.
(c)
“Applicable Laws” means the requirements relating to the administration of equity-based awards under U.S. federal and state
corporate laws, U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock is
listed or quoted and the applicable laws of any foreign country or jurisdiction where Awards are, or will be, granted under the Plan.
(d)
“Award” means, individually or collectively, a grant under the Plan of Options, Stock Appreciation Rights, Restricted Stock,
Restricted Stock Units, Performance Units, Performance Shares and other stock or cash awards as the Administrator may determine.
(e)
“Award Agreement” means the written or electronic agreement setting forth the terms and provisions applicable to each Award
granted under the Plan. The Award Agreement is subject to the terms and conditions of the Plan.
(f)
“Board” means the Board of Directors of the Company.
(g)
“Change in Control” means the occurrence of any of the following events:
(i)
A change in the ownership of the Company which occurs on the date that any one person, or more than one person acting as a group (“Person”),
acquires ownership of stock in the Company that, together with the stock already held by such Person, constitutes more than 50% of the
total voting power of the stock of the Company; provided, however, that for purposes of this subsection (i), the acquisition of
additional stock by any Person who is considered to own more than 50% of the total voting power of the stock of the Company before the
acquisition will not be considered a Change in Control; or
(ii)
A change in the effective control of the Company, which occurs on the date that a majority of the members of the Board are replaced during
any twelve (12) month period by Directors whose appointment or election is not endorsed by a majority of the members of the Board prior
to the date of the appointment or election. For purposes of this subsection (ii), if any Person is considered to effectively control
the Company, the acquisition of additional control of the Company by the same Person will not be considered a Change in Control;
or
(iii)
A change in the ownership of a substantial portion of the Company’s assets, which occurs on the date that any Person acquires (or
has acquired during the twelve (12) month period ending on the date of the most recent acquisition by such Person) assets from the Company
that have a total gross fair market value equal to or more than 50% of the total gross fair market value of all of the assets of the
Company immediately prior to such acquisition or acquisitions; provided, however, that for purposes of this subsection (iii), the
following will not constitute a change in the ownership of a substantial portion of the Company’s assets or a Change in Control:
(A) a transfer to an entity that is controlled by the Company’s stockholders immediately after the transfer, or (B) a transfer
of assets by the Company to: (1) a stockholder of the Company (immediately before the asset transfer) in exchange for or with respect
to the Company’s stock, (2) an entity, 50% or more of the total value or voting power of which is owned, directly or indirectly,
by the Company, (3) a Person that owns, directly or indirectly, 50% or more of the total value or voting power of all the outstanding
stock of the Company, or (4) an entity, at least 50% of the total equity or voting power of which is owned, directly or indirectly, by
a Person described in subsection (iii)(B)(3) above. For purposes of this subsection (iii), gross fair market value means the value of
the assets of the Company, or the value of the assets being disposed of, determined without regard to any liabilities associated with
such assets.
Notwithstanding
the foregoing, as to any Award under the Plan that consists of deferred compensation subject to Section 409A of the Code, the definition
of “Change in Control” shall be deemed modified to the extent necessary to comply with Section 409A of the Code.
For
purposes of this Section 2(g), persons will be considered to be acting as a group if they are owners of a corporation or other entity
that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with the Company.
(h)
“Code” means the Internal Revenue Code of 1986, as amended. Any reference to a section of the Code herein will be a reference
to any successor or amended section of the Code.
(i)
“Committee” means a committee of Directors or of other individuals satisfying Applicable Laws appointed by the Board in accordance
with Section 4 hereof.
(j)
“Common Stock” means the common stock, $.001 par value per share, of the Company.
(k)
“Company” means Amplitech Group Inc., a Nevada corporation, or any successor thereto.
(l)
“Consultant” means any person, including an advisor, engaged by the Company or a Parent, Subsidiary or Affiliate to render
services to the Company or a Subsidiary.
(m)
Intentionally omitted.
(n)
“Director” means a member of the Board.
(o)
“Disability” means permanent and total disability as defined in Section 22(e)(3) of the Code, provided that in the case of
Awards other than Incentive Stock Options, the Administrator in its discretion may determine whether a permanent and total disability
exists in accordance with uniform and non-discriminatory standards adopted by the Administrator from time to time.
(p)
“Employee” means any person, including Officers and Directors, employed by the Company or any Parent, Subsidiary or Affiliate
of the Company. Neither service as a Director nor payment of a director’s fee by the Company will be sufficient to constitute “employment”
by the Company.
(q)
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
(r)
“Exchange Program” means a program under which (i) outstanding Awards are surrendered or cancelled in exchange for Awards
of the same type (which may have lower exercise prices and different terms), Awards of a different type, and/or cash, (ii) Participants
would have the opportunity to transfer any outstanding Awards to a financial institution or other person or entity selected by the Administrator,
and/or (iii) the exercise price of an outstanding Award is reduced. The Administrator will determine the terms and conditions of any
Exchange Program in its sole discretion.
(s)
“Fair Market Value” means, as of any date, the value of the Common Stock determined as follows:
(i)
If the Common Stock is listed on any established stock exchange or a national market system, including without limitation the Nasdaq
Global Select Market, the Nasdaq Global Market or the Nasdaq Capital Market of The Nasdaq Stock Market, its Fair Market Value will be
the closing sales price for such stock (or if no closing sales price was reported on that date, as applicable, on the last trading date
such closing sales price was reported) as quoted on such exchange or system on the day of determination, as reported in The Wall Street
Journal or such other source as the Administrator deems reliable;
(ii)
If the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value
of a Share will be the mean between the high bid and low asked prices for the Common Stock on the day of determination (or, if no bids
and asks were reported on that date, as applicable, on the last trading date such bids and asks were reported), as reported in The Wall
Street Journal or such other source as the Administrator deems reliable; or
(iii)
In the absence of an established market for the Common Stock, or if such Common Stock is not regularly quoted or does not have sufficient
trades or bid prices which would accurately reflect the actual Fair Market Value of the Common Stock, the Fair Market Value will be determined
in good faith by the Administrator upon the advice of a qualified valuation expert.
(t)
“Fiscal Year” means the fiscal year of the Company.
(u)
“Incentive Stock Option” means an Option that by its terms qualifies and is otherwise intended to qualify as an incentive
stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder.
(v)
“Nonstatutory Stock Option” means an Option that by its terms does not qualify or is not intended to qualify as an Incentive
Stock Option.
(w)
“Officer” means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules
and regulations promulgated thereunder.
(x)
“Option” means a stock option granted pursuant to Section 6 hereof.
(y)
“Parent” means a “parent corporation,” whether now or hereafter existing, as defined in Section 424(e) of the
Code.
(z)
“Participant” means the holder of an outstanding Award.
(aa)
“Performance Objectives” has the meaning set forth in Section 10 hereof.
(bb)
“Performance Period” means any Fiscal Year of the Company or such other period as determined by the Administrator in its
sole discretion.
(cc)
“Performance Share” means an Award denominated in Shares which may be earned in whole or in part upon attainment of Performance
Objectives as the Administrator may determine pursuant to Section 10 hereof.
(dd)
“Performance Unit” means an Award which may be earned in whole or in part upon attainment of Performance Objectives as the
Administrator may determine and which may be settled for cash, Shares or other securities or a combination of the foregoing pursuant
to Section 10 hereof.
(ee)
“Period of Restriction” means the period during which transfers of Shares of Restricted Stock are subject to restrictions
and, therefore, the Shares are subject to a substantial risk of forfeiture. Such restrictions may be based on the passage of time, the
achievement of target levels of performance, or the occurrence of other events as determined by the Administrator.
(ff)
“Plan” means this 2020 Equity Incentive Plan.
(gg)
“Restricted Stock” means Shares issued pursuant to an Award of Restricted Stock under Section 8 hereof, or issued pursuant
to the early exercise of an Option.
(hh)
“Restricted Stock Unit” means a bookkeeping entry representing an amount equal to the Fair Market Value of one Share, granted
pursuant to Section 9 hereof. Each Restricted Stock Unit represents an unfunded and unsecured obligation of the Company.
(ii)
“Rule 16b-3” means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect when discretion is being exercised
with respect to the Plan. (jj) “Section 16(b)” means Section 16(b) of the Exchange Act.
(kk)
“Service Provider” means an Employee, Director, or Consultant.
(ll)
“Share” means a share of the Common Stock, as adjusted in accordance with Section 15 hereof.
(mm)
“Stock Appreciation Right” means an Award, granted alone or in connection with an Option, that pursuant to Section 7 is designated
as a Stock Appreciation Right.
(nn)
“Subsidiary” means a “subsidiary corporation,” whether now or hereafter existing, as defined in Section 424(f)
of the Code.
3.
Stock Subject to the Plan.
(a)
Subject to the provisions of Section 15 hereof, the maximum aggregate number of Shares that may be awarded and sold under the Plan is
2,250,000 Shares. The Shares may be authorized, but unissued, or reacquired Common Stock.
(b)
Lapsed Awards. If an Award expires or becomes unexercisable without having been exercised in full, is surrendered pursuant to an Exchange
Program, or, with respect to Restricted Stock, Restricted Stock Units, Performance Shares or Performance Units, is forfeited to or repurchased
by the Company, the unpurchased Shares (or for Awards other than Options and Stock Appreciation Rights, the forfeited or repurchased
Shares) which were subject thereto will become available for future grant or sale under the Plan (unless the Plan has terminated). Upon
exercise of a Stock Appreciation Right settled in Shares, the gross number of Shares covered by the portion of the Award so exercised
will cease to be available under the Plan. Shares that have actually been issued under the Plan under any Award will not be returned
to the Plan and will not become available for future distribution under the Plan; provided, however, that if unvested Shares of
Restricted Stock, Restricted Stock Units, Performance Shares or Performance Units are repurchased by the Company or are forfeited to
the Company, such Shares will become available for future grant under the Plan. Shares used to pay the tax and/or exercise price of an
Award will become available for future grant or sale under the Plan. To the extent an Award under the Plan is paid out in cash rather
than Shares, such cash payment will not result in reducing the number of Shares available for issuance under the Plan. Notwithstanding
the foregoing provisions of this Section 3(b), subject to adjustment provided in Section 15 hereof, the maximum number of Shares that
may be issued upon the exercise of Incentive Stock Options will equal the aggregate Share number stated in Section 3(a) above, plus,
to the extent allowable under Section 422 of the Code, any Shares that become available for issuance under the Plan under this Section
3(b).
(c)
Share Reserve. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as will
be sufficient to satisfy the requirements of the Plan.
(d)
Limitation on Number of Shares Subject to Awards. Notwithstanding any provision in the Plan to the contrary, the maximum aggregate amount
of cash that may be paid in cash during any calendar year (measured from the date of any payment) with respect to one or more Awards
payable in cash shall be $100,000.
4.
Administration of the Plan.
(a)
Procedure.
(i)
Multiple Administrative Bodies. Different Committees with respect to different groups of Service Providers may administer the Plan.
(ii)
Rule 16b-3. To the extent desirable to qualify transactions hereunder as exempt under Rule 16b-3, the transactions contemplated hereunder
will be structured to satisfy the requirements for exemption under Rule 16b-3.
(iii)
Other Administration. Other than as provided above, the Plan will be administered by (A) the Board or (B) a Committee, which committee
will be constituted to satisfy Applicable Laws.
(b)
Powers of the Administrator. Subject to the provisions of the Plan, and in the case of a Committee, subject to the specific duties delegated
by the Board to such Committee, the Administrator will have the authority, in its discretion:
(i)
to determine the Fair Market Value;
(ii)
to select the Service Providers to whom Awards may be granted hereunder;
(iii)
to determine the number of Shares to be covered by each Award granted hereunder;
(iv)
to approve forms of Award Agreements for use under the Plan;
(v)
to determine the terms and conditions, not inconsistent with the terms of the Plan, of any Award granted hereunder;
(vi)
to institute an Exchange Program and to determine the terms and conditions, not inconsistent with the terms of the Plan, for (1) the
surrender or cancellation of outstanding Awards in exchange for Awards of the same type, Awards of a different type, and/or cash, (2)
the transfer of outstanding Awards to a financial institution or other person or entity, or (3) the reduction of the exercise price of
outstanding Awards;
(vii)
to construe and interpret the terms of the Plan and Awards granted pursuant to the Plan;
(viii)
to prescribe, amend and rescind rules and regulations relating to the Plan, including rules and regulations relating to sub-plans established
for the purpose of satisfying applicable foreign laws or for qualifying for favorable tax treatment under applicable foreign laws;
(ix)
to modify or amend each Award (subject to Section 20(c) hereof), including but not limited to the discretionary authority to extend the
post-termination exercisability period of Awards;
(x)
to allow Participants to satisfy withholding tax obligations in a manner described in Section 16 hereof;
(xi)
to authorize any person to execute on behalf of the Company any instrument required to effect the grant of an Award previously granted
by the Administrator;
(xii)
to allow a Participant to defer the receipt of the payment of cash or the delivery of Shares that would otherwise be due to such Participant
under an Award pursuant to such procedures as the Administrator may determine; and
(xiii)
to make all other determinations deemed necessary or advisable for administering the Plan.
(c)
Effect of Administrator’s Decision. The Administrator’s decisions, determinations, and interpretations will be final and
binding on all Participants and any other holders of Awards.
5.
Eligibility. Nonstatutory Stock Options, Restricted Stock, Restricted Stock Units, Stock Appreciation Rights, Performance Units, Performance
Shares, and such other cash or stock awards as the Administrator determines may be granted to Service Providers. Incentive Stock Options
may be granted only to Employees.
6.
Stock Options.
(a)
Limitations.
(i)
Each Option will be designated in the Award Agreement as either an Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding
such designation, to the extent that the aggregate Fair Market Value of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by the Participant during any calendar year (under all plans of the Company and any Parent or Subsidiary)
exceeds $100,000 (U.S.), such Options will be treated as Nonstatutory Stock Options. For purposes of this Section 6(a), Incentive Stock
Options will be taken into account in the order in which they were granted. The Fair Market Value of the Shares will be determined as
of the time the Option with respect to such Shares is granted.
(ii)
The Administrator will have complete discretion to determine the number of Shares subject to an Option granted to any Participant.
(b)
Term of Option. The Administrator will determine the term of each Option in its sole discretion; provided, however, that the term
will be no more than ten (10) years from the date of grant thereof. Moreover, in the case of an Incentive Stock Option granted to a Participant
who, at the time the Incentive Stock Option is granted, owns stock representing more than 10% of the total combined voting power of all
classes of stock of the Company or any Parent or Subsidiary, the term of the Incentive Stock Option will be five (5) years from the date
of grant or such shorter term as may be provided in the Award Agreement.
(c)
Option Exercise Price and Consideration.
(i)
Exercise Price. The per share exercise price for the Shares to be issued pursuant to exercise of an Option will be determined by the
Administrator, but will be no less than 100% of the Fair Market Value per Share on the date of grant. In addition, in the case of an
Incentive Stock Option granted to an Employee who, at the time the Incentive Stock Option is granted, owns stock representing more than
10% of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the per Share exercise price will be no less
than 110% of the Fair Market Value per Share on the date of grant. Notwithstanding the foregoing provisions of this Section 6(c), Options
may be granted with a per Share exercise price of less than 100% of the Fair Market Value per Share on the date of grant pursuant to
a transaction described in, and in a manner consistent with, Section 424(a) of the Code.
(ii)
Waiting Period and Exercise Dates. At the time an Option is granted, the Administrator will fix the period within which the Option may
be exercised and will determine any conditions that must be satisfied before the Option may be exercised.
(iii)
Form of Consideration. The Administrator will determine the acceptable form(s) of consideration for exercising an Option, including the
method of payment, to the extent permitted by Applicable Laws. In the case of an Incentive Stock Option, the Administrator will determine
the acceptable form of consideration at the time of grant. Such consideration may consist entirely of: (1) cash; (2) check;
(3) promissory note, to the extent permitted by Applicable Laws, (4) other Shares, provided that such Shares have a Fair Market Value
on the date of surrender equal to the aggregate exercise price of the Shares as to which such Option will be exercised and provided further
that accepting such Shares will not result in any adverse accounting consequences to the Company, as the Administrator determines in
its sole discretion; (5) consideration received by the Company under cashless exercise program (whether through a broker or otherwise)
implemented by the Company in connection with the Plan; (6) by net exercise, (7) such other consideration and method of payment
for the issuance of Shares to the extent permitted by Applicable Laws, or (8) any combination of the foregoing methods of payment. In
making its determination as to the type of consideration to accept, the Administrator will consider if acceptance of such consideration
may be reasonably expected to benefit the Company.
(d)
Exercise of Option.
(i)
Procedure for Exercise; Rights as a Stockholder. Any Option granted hereunder will be exercisable according to the terms of the
Plan and at such times and under such conditions as determined by the Administrator and set forth in the Award Agreement. An Option may
not be exercised for a fraction of a Share.
An
Option will be deemed exercised when the Company receives: (i) notice of exercise (in such form as the Administrator specifies from time
to time) from the person entitled to exercise the Option, and (ii) full payment for the Shares with respect to which the Option is exercised
(together with any applicable withholding taxes). Full payment may consist of any consideration and method of payment authorized by the
Administrator and permitted by the Award Agreement and the Plan. Shares issued upon exercise of an Option will be issued in the name
of the Participant or, if requested by the Participant, in the name of the Participant and his or her spouse. Until the Shares are issued
(as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to
vote or receive dividends or any other rights as a stockholder will exist with respect to the Shares subject to an Option, notwithstanding
the exercise of the Option. The Company will issue (or cause to be issued) such Shares promptly after the Option is exercised. No adjustment
will be made for a dividend or other right for which the record date is prior to the date the Shares are issued, except as provided in
Section 15 hereof.
(ii)
Termination of Relationship as a Service Provider. If a Participant ceases to be a Service Provider, other than upon the Participant’s
termination as the result of the Participant’s death or Disability, the Participant may exercise his or her Option within such
period of time as is specified in the Award Agreement to the extent that the Option is vested on the date of termination (but in no event
later than the expiration of the term of such Option as set forth in the Award Agreement). In the absence of a specified time in the
Award Agreement, the Option will remain exercisable for three (3) months following the Participant’s termination. Unless otherwise
provided by the Administrator, if on the date of termination the Participant is not vested as to his or her entire Option, the Shares
covered by the unvested portion of the Option will revert to the Plan. If after termination the Participant does not exercise his or
her Option within the time specified by the Administrator, the Option will terminate, and the Shares covered by such Option will revert
to the Plan.
(iii)
Disability of Participant. If a Participant ceases to be a Service Provider as a result of the Participant’s Disability, the Participant
may exercise his or her Option within such period of time as is specified in the Award Agreement to the extent the Option is vested on
the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Award Agreement). In
the absence of a specified time in the Award Agreement, the Option will remain exercisable for six (6) months following the Participant’s
termination. Unless otherwise provided by the Administrator, if on the date of termination the Participant is not vested as to his or
her entire Option, the Shares covered by the unvested portion of the Option will revert to the Plan. If after termination the Participant
does not exercise his or her Option within the time specified herein, the Option will terminate, and the Shares covered by such Option
will revert to the Plan.
(iv)
Death of Participant. If a Participant dies while a Service Provider, the Option may be exercised within such period of time as is specified
in the Award Agreement to the extent that the Option is vested on the date of death (but in no event may the option be exercised later
than the expiration of the term of such Option as set forth in the Award Agreement), by the Participant’s designated beneficiary,
provided such beneficiary has been designated prior to Participant’s death in a form acceptable to the Administrator. If no such
beneficiary has been designated by the Participant, then such Option may be exercised by the personal representative of the Participant’s
estate or by the person(s) to whom the Option is transferred pursuant to the Participant’s will or in accordance with the laws
of descent and distribution. In the absence of a specified time in the Award Agreement, the Option will remain exercisable for six (6)
months following Participant’s death. Unless otherwise provided by the Administrator, if at the time of death Participant is not
vested as to his or her entire Option, the Shares covered by the unvested portion of the Option will continue to vest in accordance with
the Award Agreement. If the Option is not so exercised within the time specified herein, the Option will terminate, and the Shares covered
by such Option will revert to the Plan.
7.
Stock Appreciation Rights.
(a)
Grant of Stock Appreciation Rights. Subject to the terms and conditions of the Plan, a Stock Appreciation Right may be granted to Service
Providers at any time and from time to time as will be determined by the Administrator, in its sole discretion.
(b)
Number of Shares. The Administrator will have complete discretion to determine the number of Stock Appreciation Rights granted to any
Participant.
(c)
Exercise Price and Other Terms. The Administrator, subject to the provisions of the Plan, will have complete discretion to determine
the terms and conditions of Stock Appreciation Rights granted under the Plan; provided, however, that the exercise price will be
not less than 100% of the Fair Market Value of a Share on the date of grant.
(d)
Stock Appreciation Rights Agreement. Each Stock Appreciation Right grant will be evidenced by an Award Agreement that will specify the
exercise price, the term of the Stock Appreciation Right, the conditions of exercise, and such other terms and conditions as the Administrator,
in its sole discretion, will determine.
(e)
Expiration of Stock Appreciation Rights. A Stock Appreciation Right granted under the Plan will expire upon the date determined by the
Administrator, in its sole discretion, and set forth in the Award Agreement; provided, however, that the term will be no more than
ten (10) years from the date of grant thereof. Notwithstanding the foregoing, the rules of Section 6(d) above also will apply to Stock
Appreciation Rights.
(f)
Payment of Stock Appreciation Right Amount. Upon exercise of a Stock Appreciation Right, a Participant will be entitled to receive payment
from the Company in an amount determined by multiplying:
(i)
The difference between the Fair Market Value of a Share on the date of exercise over the exercise price; times
(ii)
The number of Shares with respect to which the Stock Appreciation Right is exercised.
At
the discretion of the Administrator, the payment upon Stock Appreciation Right exercise may be in cash, in Shares of equivalent value,
or in some combination thereof.
8.
Restricted Stock.
(a)
Grant of Restricted Stock. Subject to the terms and provisions of the Plan, the Administrator, at any time and from time to time, may
grant Shares of Restricted Stock to Service Providers in such amounts as the Administrator, in its sole discretion, will determine.
(b)
Restricted Stock Agreement. Each Award of Restricted Stock will be evidenced by an Award Agreement that will specify the Period of Restriction,
the number of Shares granted, and such other terms and conditions as the Administrator, in its sole discretion, will determine. Unless
the Administrator determines otherwise, the Company as escrow agent will hold Shares of Restricted Stock until the restrictions on such
Shares have lapsed.
(c)
Transferability. Except as provided in this Section 8, Shares of Restricted Stock may not be sold, transferred, pledged, assigned, or
otherwise alienated or hypothecated until the end of the applicable Period of Restriction.
(d)
Other Restrictions. The Administrator, in its sole discretion, may impose such other restrictions on Shares of Restricted Stock as it
may deem advisable or appropriate.
(e)
Removal of Restrictions. Except as otherwise provided in this Section 8, Shares of Restricted Stock covered by each Restricted Stock
grant made under the Plan will be released from escrow as soon as practicable after the last day of the Period of Restriction. The Administrator,
in its discretion, may accelerate the time at which any restrictions will lapse or be removed.
(f)
Voting Rights. During the Period of Restriction, Service Providers holding Shares of Restricted Stock granted hereunder may exercise
full voting rights with respect to those Shares, unless the Administrator determines otherwise.
(g)
Dividends and Other Distributions. During the Period of Restriction, Service Providers holding Shares of Restricted Stock will be entitled
to receive all dividends and other distributions paid with respect to such Shares unless otherwise provided in the Award Agreement. If
any such dividends or distributions are paid in Shares, the Shares will be subject to the same restrictions on transferability and forfeitability
as the Shares of Restricted Stock with respect to which they were paid.
(h)
Return of Restricted Stock to Company. On the date set forth in the Award Agreement, the Restricted Stock for which restrictions have
not lapsed will revert to the Company and again will become available for grant under the Plan.
9.
Restricted Stock Units.
(a)
Grant. Restricted Stock Units may be granted at any time and from time to time as determined by the Administrator. Each Restricted Stock
Unit grant will be evidenced by an Award Agreement that will specify such other terms and conditions as the Administrator, in its sole
discretion, will determine, including all terms, conditions, and restrictions related to the grant, the number of Restricted Stock Units
and the form of payout, which, subject to Section 9(d) hereof, may be left to the discretion of the Administrator.
(b)
Vesting Criteria and Other Terms. The Administrator will set vesting criteria in its discretion, which, depending on the extent to which
the criteria are met, will determine the number of Restricted Stock Units that will be paid out to the Participant. After the grant of
Restricted Stock Units, the Administrator, in its sole discretion, may reduce or waive any restrictions for such Restricted Stock Units.
Each Award of Restricted Stock Units will be evidenced by an Award Agreement that will specify the vesting criteria, and such other terms
and conditions as the Administrator, in its sole discretion will determine. The Administrator, in its discretion, may accelerate the
time at which any restrictions will lapse or be removed.
(c)
Earning Restricted Stock Units. Upon meeting the applicable vesting criteria, the Participant will be entitled to receive a payout as
specified in the Award Agreement.
(d)
Form and Timing of Payment. Payment of earned Restricted Stock Units will be made as soon as practicable after the date(s) set forth
in the Award Agreement. The Administrator, in its sole discretion, may pay earned Restricted Stock Units in cash, Shares, or a combination
thereof. Shares represented by Restricted Stock Units that are fully paid in cash again will be available for grant under the Plan.
(e)
Cancellation. On the date set forth in the Award Agreement, all unearned Restricted Stock Units will be forfeited to the Company.
10.
Performance Units and Performance Shares.
(a)
Grant of Performance Units/Shares. Performance Units and Performance Shares may be granted to Service Providers at any time and from
time to time, as will be determined by the Administrator, in its sole discretion. The Administrator will have complete discretion in
determining the number of Performance Units/Shares granted to each Participant.
(b)
Value of Performance Units/Shares. Each Performance Unit will have an initial value that is established by the Administrator on or before
the date of grant. Each Performance Share will have an initial value equal to the Fair Market Value of a Share on the date of grant.
(c)
Performance Objectives and Other Terms. The Administrator will set performance objectives which may include vesting provisions (“Performance
Objectives”). The Administrator may set Performance Objectives based upon the achievement of Company-wide, business unit, or individual
goals (including, but not limited to, continued employment), or any other basis determined by the Administrator in its discretion. Each
Award of Performance Units/Shares will be evidenced by an Award Agreement that will specify the Performance Period, and such other terms
and conditions as the Administrator, in its sole discretion, will determine.
(d)
Earning of Performance Units/Shares. After the applicable Performance Period has ended, the holder of Performance Units/Shares will be
entitled to receive a payout of the number of Performance Units/Shares earned by the Participant over the Performance Period, to be determined
as a function of the extent to which the corresponding Performance Objectives have been achieved. After the grant of a Performance Unit/Share,
the Administrator, in its sole discretion, may reduce or waive any Performance Objective for such Performance Unit/Share.
(e)
Form and Timing of Payment of Performance Units/Shares. Payment of earned Performance Units/Shares will be made as soon as practicable
after the expiration of the applicable Performance Period. The Administrator, in its sole discretion, may pay earned Performance Units/Shares
in the form of cash, in Shares (which have an aggregate Fair Market Value equal to the value of the earned Performance Units/Shares at
the close of the applicable Performance Period) or in a combination thereof.
(f)
Cancellation of Performance Units/Shares. On the date set forth in the Award Agreement, all unearned or unvested Performance Units/Shares
will be forfeited to the Company, and again will be available for grant under the Plan.
11.
Intentionally omitted.
12.
Compliance with Code Section 409A. Awards will be designed and operated in such a manner that they are either exempt from the application
of, or comply with, the requirements of Code Section 409A, except as otherwise determined in the sole discretion of the Administrator.
The Plan and each Award Agreement under the Plan is intended to meet the requirements of Code Section 409A and will be construed and
interpreted in accordance with such intent, except as otherwise determined in the sole discretion of the Administrator. To the extent
that an Award or payment, or the settlement or deferral thereof, is subject to Code Section 409A the Award will be granted, paid, settled
or deferred in a manner that will meet the requirements of Code Section 409A, such that the grant, payment, settlement or deferral will
not be subject to the additional tax or interest applicable under Code Section 409A.
13.
Leaves of Absence. Unless the Administrator provides otherwise, vesting of Awards granted hereunder will be suspended during any unpaid
leave of absence. A Service Provider will not cease to be an Employee in the case of (i) any leave of absence approved by the Company,
or (ii) transfers between locations of the Company or between the Company, its Parent, or any Subsidiary. For purposes of Incentive Stock
Options, no such leave may exceed three (3) months, unless reemployment upon expiration of such leave is guaranteed by statute or contract.
If reemployment upon expiration of a leave of absence approved by the Company is not so guaranteed, then six (6) months and one day following
the commencement of such leave any Incentive Stock Option held by the Participant will cease to be treated as an Incentive Stock Option
and will be treated for tax purposes as a Nonstatutory Stock Option.
14.
Transferability of Awards. Unless determined otherwise by the Administrator, an Award may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or by the laws of descent or distribution (including a transfer to a trust
if, under section 671 of the Code and applicable State law, the Participant is considered the sole beneficial owner of the Award while
it is held in the trust), and may be exercised, during the lifetime of the Participant, only by the Participant. If the Administrator
makes an Award transferable, such Award may only be transferred (i) by will, (ii) by the laws of descent and distribution, (iii) to a
revocable trust, or (iii) as permitted by Rule 701 of the Securities Act of 1933, as amended (provided, however, that nothing contained
in this sentence shall expand the circumstances under which an Incentive Stock Option may be transferred under the terms of the previous
sentence)
15.
Adjustments; Dissolution or Liquidation; Merger or Change in Control.
(a)
Adjustments. In the event that any dividend or other distribution (whether in the form of cash, Shares, other securities, or other property),
recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase,
or exchange of Shares or other securities of the Company, or other change in the corporate structure of the Company affecting the Shares
occurs, the Administrator, in order to prevent diminution or enlargement of the benefits or potential benefits intended to be made available
under the Plan, will adjust the number and class of Shares that may be delivered under the Plan and/or the number, class, and price of
Shares covered by each outstanding Award, and the numerical Share limits set forth in Sections 3, 6, 7, 8, 9 and 10 hereof.
(b)
Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, the Administrator will notify each
Participant as soon as practicable prior to the effective date of such proposed transaction. To the extent it has not been previously
exercised, an Award will terminate immediately prior to the consummation of such proposed action.
(c)
Change in Control. In the event of a merger of the Company with or into another corporation or other entity or a Change in Control, each
outstanding Award will be treated as the Administrator determines (subject to the provisions of the preceding paragraph) without a Participant’s
consent, including, without limitation, that (i) Awards will be assumed, or substantially equivalent Awards will be substituted, by the
acquiring or succeeding corporation (the “Successor Corporation”) (or an affiliate thereof) with appropriate adjustments
as to the number and kind of shares and prices; (ii) upon written notice to a Participant, that the Participant’s Awards will
terminate upon or immediately prior to the consummation of such merger or Change in Control; (iii) outstanding Awards will vest
and become exercisable, realizable, or payable, or restrictions applicable to an Award will lapse, in whole or in part prior to or upon
consummation of such merger or Change in Control, and, to the extent the Administrator determines, terminate upon or immediately prior
to the effectiveness of such merger or Change in Control; (iv) (A) the termination of an Award in exchange for an amount of cash
and/or property, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the Participant’s
rights as of the date of the occurrence of the transaction (and, for the avoidance of doubt, if as of the date of the occurrence of the
transaction the Administrator determines in good faith that no amount would have been attained upon the exercise of such Award or realization
of the Participant’s rights, then such Award may be terminated by the Company without payment), or (B) the replacement of such
Award with other rights or property selected by the Administrator in its sole discretion; or (v) any combination of the foregoing.
In taking any of the actions permitted under this subsection (c), the Administrator will not be obligated to treat all Awards, all Awards
held by a Participant, or all Awards of the same type, similarly.
In
the event that the Successor Corporation does not assume or substitute for the Award, the Participant will fully vest in and have the
right to exercise all of his or her outstanding Options and Stock Appreciation Rights, including Shares as to which such Awards would
not otherwise be vested or exercisable, all restrictions on Restricted Stock will lapse, and, with respect to Restricted Stock Units,
Performance Shares and Performance Units, all Performance Objectives will be deemed achieved at target levels and all other terms and
conditions met. In addition, if an Option or Stock Appreciation Right is not assumed or substituted for in the event of a Change in Control,
the Administrator will notify the Participant in writing or electronically that the Option or Stock Appreciation Right will be fully
vested and exercisable for a period of time determined by the Administrator in its sole discretion, and the Option or Stock Appreciation
Right will terminate upon the expiration of such period.
For
the purposes of this subsection (c), an Award will be considered assumed if, following the Change in Control, the Award confers the
right to purchase or receive, for each Share subject to the Award immediately prior to the Change in Control, the consideration
(whether stock, cash, or other securities or property) or, in the case of a Stock Appreciation Right upon the exercise of which the
Administrator determines to pay cash or a Performance Share or Performance Unit which the Administrator can determine to pay in
cash, the fair market value of the consideration received in the merger or Change in Control by holders of Common Stock for each
Share held on the effective date ofthe transaction (and if holders were offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the
Change in Control is not solely common stock of the Successor Corporation, the Administrator may, with the consent of the Successor
Corporation, provide for the consideration to be received upon the exercise of an Option or Stock Appreciation Right or upon the
payout of a Performance Share or Performance Unit, for each Share subject to such Award (or in the case of Performance Units, the
number of implied shares determined by dividing the value of the Performance Units by the per share consideration received by
holders of Common Stock in the Change in Control), to be solely common stock of the Successor Corporation equal in fair market value
to the per share consideration received by holders of Common Stock in the Change in Control.
Notwithstanding
anything in this Section 15(c) to the contrary, an Award that vests, is earned or paid-out upon the satisfaction of one or more Performance
Objectives will not be considered assumed if the Company or its successor modifies any of such Performance Objective without the Participant’s
consent; provided, however, a modification to such Performance Objectives only to reflect the Successor Corporation’s post-Change
in Control corporate structure will not be deemed to invalidate an otherwise valid Award assumption. In the case of an Award providing
for the payment of deferred compensation subject to Section 409A of the Code, any payment of such deferred compensation by reason of
a Change in Control shall be made only if the Change in Control is one described in subsection (a)(2)(A)(v) of Section 409A and the guidance
thereunder and shall be paid consistent with the requirements of Section 409A. If any deferred compensation that would otherwise be payable
by reason of a Change in Control cannot be paid by reason of the immediately preceding sentence, it shall be paid as soon as practicable
thereafter consistent with the requirements of Section 409A, as determined by the Administrator.
16.
Tax Withholding.
(a)
Withholding Requirements. Prior to the delivery of any Shares or cash pursuant to an Award (or exercise thereof), the Company will have
the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy federal,
state, local, foreign or other taxes (including the Participant’s FICA obligation) required to be withheld with respect to such
Award (or exercise thereof).
(b)
Withholding Arrangements. The Administrator, in its sole discretion and pursuant to such procedures as it may specify from time to time,
may permit a Participant to satisfy such tax withholding obligation, in whole or in part by (without limitation) (i) paying cash, (ii)
electing to have the Company withhold otherwise deliverable cash or Shares having a Fair Market Value equal to the minimum amount required
to be withheld, (iii) delivering to the Company already- owned Shares having a Fair Market Value equal to the amount required to be withheld,
or (iv) selling a sufficient number of Shares otherwise deliverable to the Participant through such means as the Administrator may determine
in its sole discretion (whether through a broker or otherwise) equal to the amount required to be withheld. The amount of the withholding
requirement will be deemed to include any amount which the Administrator agrees may be withheld at the time the election is made, not
to exceed the amount determined by using the maximum federal, state or local marginal income tax rates applicable to the Participant
with respect to the Award on the date that the amount of tax to be withheld is to be determined. The Fair Market Value of the Shares
to be withheld or delivered will be determined as of the date that the taxes are required to be withheld.
17.
No Effect on Employment or Service. Neither the Plan nor any Award will confer upon a Participant any right with respect to continuing
the Participant’s relationship as a Service Provider with the Company, nor will they interfere in any way with the Participant’s
right or the Company’s right to terminate such relationship at any time, with or without cause, to the extent permitted by Applicable
Laws.
18.
Date of Grant. The date of grant of an Award will be, for all purposes, the date on which the Administrator makes the determination granting
such Award, or such other later date as is determined by the Administrator. Notice of the determination will be provided to each Participant
within a reasonable time after the date of such grant.
19.
Term of Plan. Subject to Section 23 hereof, the Plan will become effective upon its adoption by the Board. It will continue in effect
for a term of ten (10) years unless terminated earlier under Section 20 hereof.
20.
Amendment and Termination of the Plan.
(a)
Amendment and Termination. The Administrator may at any time amend, alter, suspend or terminate the Plan.
(b)
Stockholder Approval. The Company will obtain stockholder approval of any Plan amendment to the extent necessary and desirable to comply
with Applicable Laws.
(c)
Effect of Amendment or Termination. No amendment, alteration, suspension, or termination of the Plan will impair the rights of any Participant,
unless mutually agreed otherwise between the Participant and the Administrator, which agreement must be in writing and signed by the
Participant and the Company. Termination of the Plan will not affect the Administrator’s ability to exercise the powers granted
to it hereunder with respect to Awards granted under the Plan prior to the date of such termination.
21.
Conditions Upon Issuance of Shares.
(a)
Legal Compliance. Shares will not be issued pursuant to the exercise of an Award unless the exercise of such Award and the issuance and
delivery of such Shares will comply with Applicable Laws and will be further subject to the approval of counsel for the Company with
respect to such compliance.
(b)
Investment Representations. As a condition to the exercise of an Award, the Company may require the person exercising such Award to represent
and warrant at the time of any such exercise that the Shares are being purchased only for investment and without any present intention
to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required.
(c)
Restrictive Legends. All Award Agreements and all securities of the Company issued pursuant thereto shall bear such legends regarding
restrictions on transfer and such other legends as the appropriate officer of the Corporation shall determine to be necessary or advisable
to comply with applicable securities and other laws.
22.
Inability to Obtain Authority. The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares hereunder, will relieve the Company
of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority will not have been obtained.
23.
Stockholder Approval. The Plan will be subject to approval by the stockholders of the Company within twelve (12) months after the date
the Plan is adopted by the Board. Such stockholder approval will be obtained in the manner and to the degree required under Applicable
Laws. In the event that stockholder approval is not obtained within twelve (12) months after the date the Plan is adopted by the Board,
the Plan and all Awards granted hereunder shall be void ab initio and of no effect. Notwithstanding any other provisions of the Plan,
no Awards shall be exercisable until the date of such stockholder approval.
23.
Notification of Election Under Section 83(b) of the Code. If any Service Provider shall, in connection with the acquisition of Shares
under the Plan, make the election permitted under Section 83(b) of the Code, such Service Provider shall notify the Company of such election
within ten (10) days of filing notice of the election with the Internal Revenue Service and provide the Company with a copy thereof,
in addition to any filing and a notification required pursuant to regulations issued under the authority of Section 83(b) of the Code.
A Service Provider shall not be permitted to make a Section 83(b) election with respect to an Award of a Restricted Stock Unit.
24.
Notification Upon Disqualifying Disposition Under Section 421(b) of the Code. Each Service Provider shall notify the Company of any disposition
of Shares issued pursuant to the exercise of an Incentive Stock Option under the circumstances described in Section 421(b) of the Code
(relating to certain disqualifying dispositions), within ten (10) days of such disposition.
25.
Choice of Law. The Plan and all rules and determinations made and taken pursuant hereto will be governed by the laws of the State of
Nevada, to the extent not preempted by federal law, and construed accordingly.
Exhibit
5.1
February
6, 2024
VIA
ELECTRONIC TRANSMISSION
Securities
and Exchange Commission
100
F Street, N.E.
Washington,
DC 20549
|
Re: |
AmpliTech
Group, Inc. Form S-8 Registration Statement |
Ladies
and Gentlemen:
We
refer to the above-captioned registration statement on Form S-8 (the “Registration Statement”) under the Securities Act of
1933, as amended (the “Act”), filed by AmpliTech Group, Inc., a Nevada corporation (the “Company”), with the
Securities and Exchange Commission.
We
have examined the originals, photocopies, certified copies or other evidence of such records of the Company, certificates of officers
of the Company and public officials, and other documents as we have deemed relevant and necessary as a basis for the opinion hereinafter
expressed. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us
as certified copies or photocopies and the authenticity of the originals of such latter documents.
Based
on our examination mentioned above, we are of the opinion that the securities being issued pursuant to the Registration Statement are
duly authorized and will be, when so issued, legally and validly issued, and fully paid and non-assessable.
We
hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving the foregoing consent, we do not
hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act, or the rules and regulations
of the Securities and Exchange Commission.
Very
truly yours, |
|
|
|
/s/
Sichenzia Ross Ference Carmel LLP |
|
|
|
Sichenzia
Ross Ference Carmel LLP |
|
1185
AVENUE OF THE AMERICAS | 31ST FLOOR | NEW YORK, NY | 10036
T (212) 930-9700 | F (212) 930-9725 | WWW.SRFC.LAW
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
As
independent registered public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form
S-8 pertaining to the 2020 Stock Incentive Plan, as amended, of AmpliTech Group, Inc. of our report dated March 31, 2023, with respect
to the consolidated financial statements of AmpliTech Group, Inc. for the years ended December 31, 2022 and 2021, included in its Annual
Report (Form 10-K) filed with the Securities and Exchange Commission. We also consent to the reference of our firm under the caption
“Experts” in this registration statement.
/s/
Sadler, Gibb & Associates, LLC
Draper,
UT
February
6, 2024
Exhibit
107
Calculation
of Filing Fee Table
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
(Form
Type)
AMPLITECH
GROUP, INC.
(Exact
Name of Registrant As Specified in its Charter)
Table
1: Newly Registered Securities
| |
Security Type | | |
Security Class Title | |
Fee Calculation Rule | | |
Amount Registered(1) | | |
Proposed
Maximum Offering Price Per
Share | | |
Maximum Aggregate Offering Price | | |
Fee
Rate | | |
Amount
of Registration Fee | |
Newly
Registered Securities | |
Fees
to Be Paid | |
| Equity | | |
Common
Stock | |
| 457(c)
and (h) | | |
| 1,000,000 | (2) | |
$ | 2.21 | (3) | |
$ | 2,210,000 | | |
| 0.00014760 | | |
$ | 326.20 | |
| |
| | | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Fees
Previously Paid | |
| - | | |
- | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | | |
| | |
Total
Offering Amounts | | |
$ | 2,210,000 | | |
| - | | |
$ | 326.20 | |
Total
Fees Previously Paid | | |
$ | - | | |
| - | | |
$ | - | |
Total
Fee Offsets | | |
| - | | |
| - | | |
$ | - | |
Net
Fees Due | | |
$ | - | | |
| - | | |
$ | 326.20 | |
(1) |
Pursuant
to Rule 416(a) promulgated under the U.S. Securities Act of 1933, as amended, there are also being registered an indeterminable number
of additional securities as may be issued to prevent dilution resulting from stock splits, stock dividends, or similar transactions. |
|
|
(2) |
Represents
shares of common stock reserved for future issuance under the Company’s Amended and Restated 2020 Equity Incentive Plan. |
|
|
(3) |
Estimated
solely for the purpose of calculating the registration fee under Rule 457(c) and (h) of the Securities Act on the basis of the average
of the high and low sales price per share of common stock on February 1, 2024, as reported on the Nasdaq Capital Market. |
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