UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 8-K
CURRENT REPORT

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

Date of Report (Date of earliest event reported): June 27, 2012
 
AEMETIS , INC.
(Exact name of registrant as specified in its charter)
 
______________
 
         
Nevada
 
000-51354
 
26-1407544
(State or Other Jurisdiction
of Incorporation)
 
(Commission
File Number)
 
(I.R.S. Employer
Identification No.)

20400 Stevens Creek Blvd., Suite 700
Cupertino, California 95014
(Address of Principal Executive Office) (Zip Code)
 
 (408) 213-0940
(Registrant’s telephone number, including area code)
 
N/A
(Former name or former address, if changed since last report)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 
 
 
 
 
 
Item 1.01 Entry into a Material Definitive Agreement; Item 2.03 Creation of a Direct Financial Obligation
 
Note Purchase Agreement
 
 
On June 27, 2012, Aemetis Advanced Fuels Keyes, Inc. (AAFK), a subsidiary of Aemetis, Inc. (Aemetis) entered into Note Purchase Agreement with Third Eye Capital Corporation pursuant to which AAFK sold 15% Subordinated Promissory Notes in the aggregate principal amount of $400,000 (the “Promissory Notes”). The Promissory Notes are guaranteed by Aemetis and are due and payable upon the earlier of (i) July 6, 2012; (ii) completion of an equity financing by AAFK or Aemetis in an amount of not less than $25,000,000; (iii) the completion of an Initial Public Offering by AAFK or Aemetis; (iv) the completion of a revolving credit facility upon the acquisition of an ethanol facility, or (v) after the occurrence of an Event of Default, including failure to pay interest or principal when due; breaches of note covenants; false, incorrect, misleading or incorrect representations and warranties; voluntary bankruptcy or insolvency proceedings not discharged within 60 days.
 
 
This description of the Note Purchase Agreements, and Promissory Notes is not purported to be complete and is qualified in its entirety by reference to the text of the agreements which are attached hereto as Exhibits 10.1 and 10.2 and are incorporated herein by reference.
 
Item 9.01 Financial Statements and Exhibits
 
(d) Exhibits
 
INDEX TO EXHIBITS
       
Incorporated by Reference
 
Filed Herewith
Exhibit No.
 
Description
 
Form
 
File No.
 
Exhibit
 
Filing Date
   
 
Note Purchase Agreement dated as of June 27, 2012 by and among Third Eye Capital Corporation, an Ontario Corporation, Aemetis Advanced Fuels Keyes, Inc., a Delaware Corporation, and Aemetis, Inc., a Nevada Corporation.
                 
X
 
15% Subordinated Promissory Note as of June 27, 2012 by and among Third Eye Capital Corporation, an Ontario Corporation, Aemetis Advanced Fuels Keyes, Inc., a Delaware Corporation, and Aemetis, Inc., a Nevada Corporation.
                 
X
 

 
 
 
 
 
SIGNATURES

     Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
AE Biofuels, Inc.
 
       
Date:  July 3, 2012 
By:
/s/ Eric A. McAfee  
    Eric McAfee  
   
Chief Executive Officer
 
       
 
 
 
 
 
EXHIBIT 10.1
 
AEMETIS ADVANCED FUELS KEYES, INC.
 
NOTE AND WARRANT PURCHASE AGREEMENT
 

 
This NOTE PURCHASE AGREEMENT (“ Agreement ”) is made as of the 27th day of June, 2012 by and between the undersigned purchaser (the “ Purchaser ”) and AEMETIS ADVANCED FUELS KEYES, INC. , a Delaware corporation (the “ Company ”) and AEMETIS, INC. , a Nevada corporation (“ Aemetis ”), both having their principal offices at 20400 Stevens Creek Blvd., Suite 700, Cupertino, CA 95014.  The Company is a wholly-owned subsidiary of Aemetis.
 
WHEREAS , the Company is offering up to $400,000 of its 15% Notes (the “ Notes ” or each is a “ Note ”) pursuant to the terms of the Notes;
 
NOW, THEREFORE , for and in consideration of the premises and covenants herein contained, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
 
1.            Purchase and Sale .
 
(a)            Purchase and Sale of Notes . Subject to the terms and conditions of this Agreement, the Purchaser hereby subscribes for the dollar amount set forth on the Purchaser Signature Page to this Agreement at the face amount of the Note purchased.
 
(b)            Acceptance .  By signing this Agreement and delivering a copy of this Agreement to the Purchaser, the Company hereby accepts the subscription of the Purchaser.
 
(d)            Subscription Irrevocable.   The subscription of the Purchaser is irrevocable.
 
2.             Representations and Warranties of the Company .  The Company hereby represents and warrants to the Purchaser that:
 
(a)            Incorporation .  The Company is a corporation duly organized and validly existing and in good standing under the laws of the Delaware.
 
(b)            Authorization .  All corporate action on the part of the Company, its officers and directors necessary for the authorization, execution, delivery and performance of all obligations of the Company under this Agreement and for the authorization, issuance and delivery of the Note being sold hereunder has been or will be taken prior to acceptance of this Agreement, and this Agreement, when executed and delivered to the Purchaser shall constitute a binding and enforceable obligation of the Company.
 
(c)            Validity of Securities .  The Notes to be purchased and sold under to this Agreement, when issued, sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly issued.
 
 
 
 
 
3.             Representations and Warranties by the Purchaser .  The Purchaser represents and warrants, to the Company as follows:
 
(a)           The Purchaser is acquiring the Notes for the Purchaser’s own account for investment and not with a view to resale or distribution of all or any part of the Notes except in accordance with and as provided for in this Agreement.
 
(b)           Immediately prior to the purchase:
 
(i)           the Purchaser has such knowledge and experience in financial and business matters that the Purchaser is capable of evaluating the risks and merits of investment in the Notes; and
 
(ii)           the Purchaser is able to bear the economic risk of the investment.
 
(c)           The Purchaser has been informed as to, and is familiar with, the business activities of the Company.  The Purchaser acknowledges that he or she or it has made the decision to invest in the Note on the basis of publicly available information about the Company in the Company’s filings with the Securities and Exchange Commission (“ SEC ”), copies of which may be accessed on the website of the SEC at www.SEC.gov (the “ Public Information ”).  The Purchaser acknowledges having been given the opportunity to review all documents material to an investment in the Note that the Company can provide without unreasonable effort or expense.
 
(d)           The Purchaser has had an opportunity to ask questions of, and receive answers from, appropriate representatives of the Company, including its officers, concerning the Company and its business, and the terms and conditions of the Offering, and to obtain such additional information as the Purchaser deems necessary to verify the accuracy and adequacy of the information the Purchaser has obtained.  The Purchaser fully understands that this Offering has not been registered under the Securities Act of 1933, as amended (the “ Securities Act ”) in reliance upon exemptions therefrom, and, accordingly, to the extent that the Purchaser is not supplied with information which would have been contained in a registration statement filed under the Securities Act and the Purchaser must rely on the Purchaser’s own access to such information.
 
(e)           The Purchaser affirms that the Purchaser is an “accredited investor” as that term is defined and construed pursuant to Rule 501 under the Securities Act because the Purchaser is one or more of the following (check all that apply) :
 
 
 
A natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of this purchase exceeds $1,000,000 (excluding the value of the Purchaser’s principal residence);
 
 
 
A natural person who had an individual income in excess of $200,000 in each of the two most recent years (or a joint income with spouse in excess of $300,000 in each of those years) and who reasonably expects to reach the same income level in the current year;
 
 
 
A trust with total assets in excess of $5,000,000, not formed for the specific purpose of purchasing the Notes, and whose purchase is directed by a sophisticated person (as described in applicable regulations promulgated under the Act);
 
 
 
A bank or savings and loan association;
 
 
 
A broker or dealer registered under Section 15 of the Securities Exchange Act of 1934, as amended;
 
 
 
An insurance company;
 
 
 
An investment company registered under the Investment Company Act of 1940 or a business development company (as defined by said Act), or Small Business Investment Company licensed by the Small Business Administration;
 
 
 
An employee benefit plan within the meaning of Title I of ERISA and (A) the investment decision has been made by a plan fiduciary which is either a bank, savings and loan association, insurance company or registered investment advisor, or (B) the plan has total assets in excess of $5,000,000, or (C) the Plan is a self directed plan and its investment decisions are made solely by persons who are accredited investors;
 
 
 
A corporation, Massachusetts or similar business trust, partnership, or organization described in 501(c)(3) of the Internal Revenue Code of 1986, as amended,  and not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000;
 
 
 
A director or executive officer of the Company;
 
X
 
An entity all of the investors in which are “accredited investors.”
 
 
 
 
 
 
(f)           The Purchaser affirms that all information that the Purchaser has provided to the Company either directly or indirectly, concerning the Purchaser, the Purchaser’s financial position and the Purchaser’s knowledge of financial and business matters is accurate and complete as of the date of this Agreement.
 
(g)           The Purchaser fully understands and agrees that the Purchaser must bear the economic risk of the Purchaser’s investment in the Note for an indefinite period of time because, among other reasons, the Note has not been registered under the Securities Act, and, therefore, they cannot be sold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act or, in the opinion of counsel acceptable to the Company, an exemption from such registration is available.
 
(h)           The Purchaser understands that no federal or state agency has passed upon the offering of the Notes or made any finding or determination as to the fairness of the offering the Notes.
 
(i)           The Purchaser recognizes that this investment involves a high degree of risk, and the Purchaser has carefully considered whether an investment in the Note is appropriate for the Purchaser.  The Purchaser understands that the Notes are a suitable investment only for persons who have substantial financial resources and will have no need for liquidity in their investment.
 
(j)           If the subscription is being made by a person acting in a representative or fiduciary capacity, such person has full power and authority to execute and deliver this Agreement in such capacity and on behalf of the subscribing individual, ward, partnership, trust, estate, corporation, or other entity, has full right and power to perform pursuant to this Agreement.  The undersigned, will, upon request of the Company, furnish the Company a true and correct copy of (1) if the Purchaser is a trust, the trust agreement under which it is organized, (2) if the Purchaser is a Partnership, the partnership agreement under which it is organized, and (3) if the Purchaser is a corporation, the Articles of Incorporation and By-laws and a copy (certified by the secretary or other authorized officer) of appropriate corporate resolutions authorizing the specific investment.  If the subscription is being made by a person acting in a representative capacity, the representations and warranties contained in this Agreement, including specifically and without limitation those provided for in paragraph 3(e), shall be deemed to have been made on behalf of the person or persons for whom the undersigned is so purchasing.
 
(k)           All representations and warranties set forth above or in any other written statement or document delivered by the Purchaser in connection with the subscription shall be true and correct in all respects on and as of the date of this Agreement and as of the date of acceptance, and they shall survive acceptance and the closing and delivery of the Notes.
 
4.            Indemnification .
 
(a)            Indemnification by Purchaser for misrepresentations .  The Purchaser hereby agrees to indemnify and hold harmless the Company and the directors, officers and professional advisors of the Company, from and against any and all loss, damage, cost, liability or expense, including reasonable attorney’s fees, due to or arising out of any misrepresentation or  breach of any representation, warranty or covenant of the Purchaser at the time of this Agreement, and from any representation or warranty of the Purchaser becoming false or misleading prior to acceptance of the subscription by the Company unless the Purchaser shall have given written notice to the Company of such change prior to acceptance.
 
5.             Broker Fees and   Legal Fees .   The Company and the Purchaser represent and agree that the transactions contemplated by this Agreement have been carried on by the parties directly and without the intervention of any other person in such manner as to give rise to any valid claim against either party for a finder’s fee, brokerage commission or other similar payment.  Each party shall pay its own legal fees and costs for document preparation and review.
 
6.             Note to be Legended .   A restrictive legend in substantially the following form will be imprinted on the Note, and stop transfer orders or other appropriate instructions to such effect will be maintained against the transfer of the Notes on the transfer records of the Company or its transfer agent:
 
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES OR “BLUE SKY” LAWS, AND MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, OR OTHERWISE DISPOSED OF UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF SUCH ACT AND BLUE SKY LAWS OR AN EXEMPTION THEREFROM IS AVAILABLE AS ESTABLISHED BY A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY.
 
The transfer the Note will only be effected in accordance with the foregoing legend.
 
 
 
 
 
 
7.            Miscellaneous .
 
(a)            Applicable Law .  This Agreement shall be construed in accordance with and governed by the laws of the State of California.
 
(b)            State in which Offered .  The Notes are offered to and will be purchased by the Purchaser in the State of California.
 
(c)            Binding Effect .  Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the parties and their successors, legal representatives and assigns.
 
(d)            Assignments .  The Purchaser agrees that except as provided herein neither the Purchaser nor the Purchaser’s legal representatives will sell, assign, encumber or transfer, in any manner whatsoever, this Agreement or its rights under this Agreement without prior written approval from an authorized officer of the Company.
 
(e)            Entire Agreement .  This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes any prior understandings, oral or written.
 
 
(f)            Modification . Any terms of this Agreement may be waived or modified only in writing, signed by the Company and holders of each of the Notes issued by the Company in this offering, which waivers or modifications shall equally modify all Note and Warrant Purchase Agreements entered into in connection with the offering.
 
(g)            Notices .  Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery or three (3) days after deposit in the United States Post Office, by registered or certified mail, addressed to a party at its address hereinafter shown below or at such other address as such party may designate by ten (10) days advance written notice to the other party.
 
(h)            Counterparts .  This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one counterpart has been signed by each party and delivered to the other party, it being understood that each of the parties need not sign the same counterpart.
 
 
 
 
 
 
IN WITNESS WHEREOF , the Company has executed this Note and Warrant Purchase Agreement as of the day and year first above written.
 
 
 
AEMETIS ADVANCED FUELS KEYES, INC.
 
       
 
By:
/s/ Eric A. McAfee  
  Name: Eric A. McAfee  
  Title: Chief Executive Officer  
       

IN WITNESS WHEREOF , the undersigned has executed this Note Purchase Agreement for $400,000 of Notes of the Company on the 26th day of June, 2012.
 
   
Purchaser’s (and Joint Purchaser’s) Name(s) and Address      (Please Print or Type)
     
/s/ Arif N. Bhalwani
 
Third Eye Capital Corporation
Arid N. Bhalwani
 
3930 – 161 Bay Street
Managing Director
 
Toronto, ON M5J 2S1
     
   
Telephone:  _416-601-2270_______________
     
Taxpayer ID/Social Security No.
of Purchaser
 
Mailing address
  (if Different)
     
     
Signature of Joint Purchaser (if any)
   
     
   
Telephone:  ________________________
     
   
Purchaser Representative (if any)
Taxpayer ID/Social Security No.
of Joint Purchaser
 
Arif N. Bhalwani
Managing Director
     
     
Please indicate manner in which Notes are to be held:
 
 
Community Property*
 
Subchapter S Corporation**
 
Joint Tenancy*
 
Partnership**
 
Tenancy in Common*
 
Trust
 
Separate Property
x
Corporation**
 
Individual Ownership
 
Other (Please Indicate) ____

 
**           If other than calendar year, please state fiscal year end: _________________________
 
EXHIBIT 10.2
 
 
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.  THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR APPLICABLE STATE SECURITIES LAWS.


AE ADVANCED FUELS KEYES, INC.

15% SUBORDINATED PROMISSORY NOTE
 
$400,000.00   June 26, 2012
 
                                                                                                                     
FOR VALUE RECEIVED, Aemetis Advanced Fuels Keyes, Inc., a Delaware corporation (the “ Company ”) that is a wholly owned subsidiary of Aemetis, Inc. (“ Aemetis ”) promises to pay to Third Eye Capital Corporation (“ Purchaser ”), or his registered assigns, in lawful money of the United States of America the principal sum of Four Hundred Thousand dollars ($400,000), or such lesser amount as shall equal the outstanding principal amount hereof, together with interest from the date first set forth above on the unpaid principal balance at a rate equal to 15.00% per annum, computed on the basis of the actual number of days elapsed and a year of 365 days (the “ Note ”).  This Note is guaranteed by Aemetis, Inc.
 
All unpaid principal, together with any then unpaid and accrued interest and other amounts payable hereunder, shall be due and payable on the earlier of (i) July 6, 2012 (the “ Maturity Date ”); (ii) the completion of an equity private placement by the Company or Aemetis in an amount of not less than Twenty Five Million Dollars ($25 million); (iii) the completion of a Initial Public Offering by the Company or Aemetis; (iv) the completion of a revolving credit facility in connection with the acquisition of an ethanol facility or (v) after the occurrence of an Event of Default (as defined below), if such amounts are declared due and payable by Purchaser in accordance with the terms hereof.
 
The following is a statement of the rights of Purchaser and the conditions to which this Note is subject, and to which Purchaser, by the acceptance of this Note, agrees:
 
1.            Definitions . As used in this Note, the following capitalized terms have the following meanings:
 
(a)           “ Company ” includes the corporation initially executing this Note and any Person which shall succeed to or assume the obligations of the Company under this Note.
 
(b)           “ Event of Default ” has the meaning given in Section 4 hereof.
 
(c)           “ Lien ” shall mean, with respect to any property, any security interest, mortgage, pledge, lien, claim, charge or other encumbrance in, of, or on such property or the income therefrom, including, without limitation, the interest of a vendor or lessor under a conditional sale agreement, capital lease or other title retention agreement, or any agreement to provide any of the foregoing, and the filing of any financing statement or similar instrument under the Uniform Commercial Code or comparable law of any jurisdiction.
 
(d)           “ Note Obligations ” shall mean the debt, liabilities and obligations, owed by the Company to Purchaser, now existing or hereafter arising under or pursuant to the terms of this Note, including, all interest, fees, charges, expenses, attorneys’ fees and costs and accountants’ fees and costs chargeable to and payable by the Company under this Note, in each case, whether direct or indirect, absolute or contingent, due or to become due, and whether or not arising after the commencement of a proceeding under Title 11 of the United States Code (11 U. S. C. Section 101 et seq .), as amended from time to time (including post-petition interest) and whether or not allowed or allowable as a claim in any such proceeding.
 
(e)           “ Obligations ” shall mean and include all of the Note Obligations under all of the Notes issued by the Company, all loans, advances, debts, liabilities and obligations, howsoever arising, owed by the Company to Purchasers of every kind and description (whether or not evidenced by any note or instrument and whether or not for the payment of money), now existing or hereafter arising under or pursuant to the terms of the Notes, including all interest, fees, charges, expenses, attorneys’ fees and costs, and accountants’ fees and costs chargeable to and payable by the Company hereunder and thereunder, in each case, whether direct or indirect, absolute or contingent, due or to become due, and whether or not arising after the commencement of a proceeding under Title 11 of the United States Code (11 U. S. C. Section 101 et seq .), as amended from time to time (including post-petition interest) and whether or not allowed or allowable as a claim in any such proceeding.
 
(f)           “ Operative Documents ” shall mean this Note, the Warrant Agreement and the Note and Warrant Subscription Agreement related hereto.
 
(g)           “ Person ” shall mean and include an individual, a partnership, a corporation (including a business trust), a joint stock company, a limited liability company, an unincorporated association, a joint venture or other entity, or a governmental authority.
 
(h)           “ Purchaser ” shall mean any Person who shall at the time be the registered holder of a Note.
 
(i)           “ Securities   Act ” shall mean the Securities Act of 1933, as amended.
 
 
 
 
 
 
2.            Prepayment; Payment Prorata .  Upon five (5) days prior written notice to Purchaser, the Company may prepay this Note in whole or in part at any time, provided that any prepayment of this Note may only be made in connection with the prorated prepayment of all notes issued by the Company on the same or similar terms as this Note, based on each Purchaser’s pro rata outstanding principal balance at the time of prepayment.
 
3.            Events of Default .  The occurrence of any of the following shall constitute an “ Event   of   Default ” under this Note:
 
(a)            Failure   to   Pay .  The Company shall fail to pay when due and as required to be paid herein, any amount of principal, interest or fee due hereunder within fifteen (15) days after the same becomes due; or
 
(b)            Breaches   of Note   Covenants . The Company shall fail to perform or observe any term, covenant or agreement in the Note, and such breach is not cured within 30 days after receipt of notice from Purchaser of the breach; or
 
(c)            Representations   and   Warranties . Any representation, warranty, certificate, or other statement (financial or otherwise) made or furnished by or on behalf of the Company to Agent in writing in connection with this Note shall be false, incorrect, incomplete or misleading when made or furnished; or
 
(d)            Voluntary   Bankruptcy   or   Insolvency   Proceedings . The Company shall (i) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (ii) make a general assignment for the benefit of its or any of its creditors, (iii) be dissolved or liquidated, (iv) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (v) take any action for the purpose of effecting any of the foregoing, and any such action has not been discharged or rescinded within sixty (60) days of commencement; or
 
(e)            Involuntary   Bankruptcy   or   Insolvency   Proceedings . Proceedings for the appointment of a receiver, trustee, liquidator or custodian of the Company or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to the Company or the debts thereof under any bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and an order for relief entered or such proceeding shall not be dismissed or discharged within sixty (60) days of commencement.
 
4.            Rights of Purchaser upon Default . Upon the occurrence or existence of any Event of Default, Purchaser may, by written notice to the Company, declare all outstanding Obligations payable by the Company hereunder to be immediately due and payable.  In addition to the foregoing remedies, upon the occurrence or existence of any Event of Default, Purchaser may exercise any other right power or remedy granted to it by the Operative Documents or otherwise permitted to it by law, either by suit in equity or by action at law, or both.
 
5.            Successors and Assigns .   Subject to the restrictions on transfer described in Sections 8 and 9 below, the rights and obligations of the Company and Purchaser shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.
 
6.            Waiver and Amendment .   Any provision of this Note may be amended, waived or modified only upon the written consent of the Company and the Purchaser.
 
7.            Transfer of this Note .   Purchaser acknowledges that such Purchaser has been informed by the Company of, or is otherwise familiar with, the nature of the limitations imposed by the Act and the rules and regulations thereunder on the transfer of this Note. In particular, such Purchaser agrees that no sale, assignment or transfer of any of the Note acquired by such Purchaser shall be valid or effective, and the Company shall not be required to give any effect to such a sale, assignment or transfer, unless (a) the sale, assignment or transfer of such Note is registered under the Act, it being understood that the Note is not currently registered for sale and that the Company has no obligation to so register the Note; or (b) the Note is sold, assigned or transferred in accordance with all the requirements and limitations of an exemption from registration under the Act. Purchaser further understands that an opinion of counsel satisfactory to the Company and other documents may be required to transfer the Note.  Each Note thus transferred shall bear a legend as to the applicable restrictions on transferability in order to ensure compliance with the Act, unless in the opinion of counsel for the Company such legend is not required in order to ensure compliance with the Act.  Subject to the foregoing, transfers of this Note shall be registered upon registration books maintained for such purpose by or on behalf of the Company.  Prior to presentation of this Note for registration of transfer, the Company shall treat the registered holder hereof as the owner and holder of this Note for the purpose of receiving all payments of principal and interest hereon and for all other purposes whatsoever, whether or not this Note shall be overdue and the Company shall not be affected by notice to the contrary.
 
 
 
 
 
 
8.            Assignment by the Company .   Neither this Note nor any of the rights, interests or obligations hereunder may be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of the Purchaser.
 
9.            Notices .   All notices, requests, demands, consents, instructions or other communications required or permitted hereunder shall in writing and faxed, mailed or delivered to each party at the respective addresses of the parties as set forth in the Purchase Agreement, or at such other address or facsimile number as the Company shall have furnished to Purchaser in writing.  All such notices and communications will be deemed effectively given the earlier of (i) when received, (ii) when delivered personally, (iii) one business day after being delivered by facsimile (with receipt of appropriate confirmation), (iv) one business day after being deposited with an overnight courier service of recognized standing or (v) four days after being deposited in the U.S. mail, first class with postage prepaid.
 
10.            Pari Passu Notes .   Purchaser acknowledges and agrees that the payment of all or any portion of the outstanding principal amount of this Note and all interest hereon shall be pari passu in right of payment and in all other respects to the other Notes issued on the same or similar terms of such Notes.
 
11.            Maximum Interest Rate . Notwithstanding anything to the contrary contained in any Operative Document, the interest paid or agreed to be paid under the Operative Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable law (the “ Maximum Rate ”).  If the Agent or any Purchaser shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Notes on a pro rata basis, based upon the outstanding principal balance of each such Note, or, if it exceeds such unpaid principal, shall be refunded to the Company.
 
12.            Expenses; Waivers .   If action is instituted by Purchaser to collect this Note, the Company promises to pay all reasonable litigation costs and expenses, including attorneys’ fees and costs incurred in connection with such action.
 
13.            Governing Law .   This Note and all actions arising out of or in connection with this Note shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of law provisions of the State of California, or of any other state.
 
The Company has caused this Note to be issued as of the date first written above.
 
  PURCHASER:        AEMETIS ADVANCED FUELS KEYES, INC.,  
  Third Eye Capital Corporation        a Delaware corporation  
             
             
By:
/s/ Arif N. Bhalwani 
    By:
/s/ Eric A. McAfee
 
Name: Arif N. Bhalwani      Name:
Eric A. McAfee
 
Title: Managing Director     Title:
Chief Executive Officer 
 
 
Address: 161 Bay Streeet, Suite 3930,          
  Toronto, ON MSJ 251          
          Acknowledged and Agreed:  
             
        AEMETIS, INC., a Nevada corporation  
             
             
        By: /s/ Eric A. McAfee  
        Name: Eric A. McAfee  
        Title:
Chief Executive Officer