8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

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

Date of Report (Date of earliest event reported): June 30, 2016

AEMETIS, INC.

(Exact name of registrant as specified in its charter)

______________

Nevada	001-36475	26-1407544
(State or Other Jurisdiction  of Incorporation)	(Commission  File Number)	(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):

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

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

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

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

ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.

Agreement and Plan of Merger

On June 30, 2016, Aemetis, Inc. (the “Company”), and EdenIQ Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of the Company (“Merger Sub”), entered into a Second Amendment to Agreement and Plan of Merger (the “Amendment”) with EdenIQ, Inc., a Delaware corporation (“EdenIQ”).

Pursuant to the terms of the Amendment, and subject to the conditions thereof, the parties agreed to extend the merger consummation date until July 22, 2016. Additionally, under the terms of the Amendment, EdenIQ may solicit, initiate, encourage, discuss, negotiate or accept any offer or proposal by or from any party regarding (A) any reorganization, recapitalization, or merger of EdenIQ; (B) any acquisition or disposition of an interest in any capital stock of EdenIQ or any securities convertible into any capital stock of EdenIQ; (C) any issuance by EdenIQ of any new indebtedness or refinancing of existing indebtedness; or (D) any similar transaction (collectively, “Alternative Transactions”); provided, however, that EdenIQ may not enter into any binding legal agreement with regards to an Alternative Transaction prior to termination of the Agreement and Plan of Merger.

The Amendment is included as an exhibit to this Current Report on Form 8-K only to provide investors with information regarding the terms of the Amendment, and not to provide investors with any other factual information regarding the Company or its business. Investors should not rely on the representations, warranties, covenants and agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of the Company or any of its subsidiaries or affiliates. In addition, information concerning the subject matter of the representations and warranties may change after the date of the Amendment, which subsequent information may or may not be fully reflected in the Company’s public disclosures.

The foregoing description of the Amendment is only a summary, does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, which is filed as Exhibit 2.1 hereto, and which is incorporated herein by reference.

ITEM 9.01.  FINANCIAL STATEMENTS AND EXHIBITS.

EXHIBIT NO.	DESCRIPTION
2.1	Second Amendment to Agreement and Plan of Merger, dated as of June 30, 2016, by and among Aemetis, Inc., EdenIQ Acquisition Corp., and EdenIQ, Inc.

SIGNATURES

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

	Aemetis, Inc.
June 30, 2016	By:	/s/ Eric A. McAfee
		Eric A. McAfee
		Chief Executive Officer

EX-2.1

Exhibit 2.1

SECOND AMENDMENT TO

AGREEMENT AND PLAN OF MERGER

This Second Amendment (this “Amendment”), is entered into as of June 30, 2016, to the Agreement and Plan of Merger (the “Agreement”) entered into as of April 29, 2016 (as amended by that certain Amendment to Agreement and Plan of Merger dated as June 10, 2016), by and among EdenIQ, Inc., a Delaware corporation (“EdenIQ”), Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as representative of the Holders (“Stockholder Representative”), Aemetis, Inc., a Nevada corporation (“Aemetis”), and EdenIQ Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of Aemetis (“Merger Sub”).

WHEREAS, Section 9.4 of the Agreement permits the parties to amend the Agreement by execution of an instrument in writing signed by all parties to the Agreement; and

WHEREAS, each of EdenIQ, the Stockholder Representative, and Aemetis desires to make the following amendments to the Agreement as provided herein.

NOW, THEREFORE, in consideration of the mutual agreements specified in this Amendment, EdenIQ, the Stockholder Representative, and Aemetis hereby agree as follows:

1.Amendment to Section 4.1 of the Agreement.

(a)Section 4.1 of the Agreement is amended and restated in its entirety to read as follows:

 “4.1 Operation in Ordinary Course. EdenIQ covenants that between the date hereof and the Closing, except as contemplated hereby or with the prior consent of Aemetis, it shall refrain from: (a) entering into any transaction with respect to its business other than in the ordinary course; (b) permitting any encumbrance, mortgage, pledge or lease of or on any material asset, other than in connection with the conduct of EdenIQ’s business in the ordinary course; (c) disposing of any material asset; (d) incurring any material liabilities, other than indebtedness incurred in the ordinary course of business under already established credit facilities or in connection with the Transactions; (e) accelerating the collection of any receivables or delay the payment of liabilities outside the ordinary course; or (f) making any material product or marketing announcement; provided, however, that nothing in this Section 4.1 or any other term or provision of this Agreement shall prevent EdenIQ or its employees, officers, directors or Affiliates from directly or indirectly, soliciting, initiating, encouraging, discussing, negotiating or accepting any offer or proposal by or from any party regarding (A) any reorganization, recapitalization, or merger of EdenIQ; (B) any acquisition or disposition of an interest in any capital stock of EdenIQ or any securities convertible into any capital stock of EdenIQ; (C) any issuance by EdenIQ of any new indebtedness or refinancing of existing indebtedness; or (D) any similar transaction (collectively, an “Alternative Transaction”); provided further, that EdenIQ may not enter into any binding legal agreement with respect to any such Alternative Transaction prior to the termination of this Agreement. All EdenIQ records regarding such an Alternative Transaction shall be exempt from the provision of Section 4.2 and Aemetis shall not be entitled access to such materials.”

2.Amendment to Section 8.1(d) of the Agreement.

(a)Section 8.1(d) of the Agreement is amended and restated in its entirety to read as follows:

“(d) By either EdenIQ or Aemetis, upon written notice, if the transactions contemplated by this Agreement have not been consummated by July 22, 2016, (the “Termination Date”); provided that the right to terminate this Agreement under this Section 8.1(d) shall not be available to a Party if the failure of such transactions to be consummated is due to the willful failure of such Party to perform any of its obligations under this Agreement to the extent required to be performed by it prior to or on the Closing Date.”

3.Defined Terms. Capitalized terms used but not defined herein shall have the meaning assigned to them in the Agreement.

4.No Other Modification. The Agreement shall not be modified by this Amendment in any respect except as expressly set forth herein.

5.Governing Law. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of Delaware.

6.Counterparts and Exchanges by Facsimile Transmission. This Amendment may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Amendment (in counterparts or otherwise) by facsimile transmission shall be sufficient to bind the parties to the terms and conditions of this Amendment

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized respective officers as of the date first written above.

EdenIQ, Inc., a Delaware corporation By: /s/ Brian D. Thome                                                                             Brian D. Thome, President and CEO Shareholder Representative Services LLC, Solely in its capacity as the Stockholder Representative By: /s/ W. Paul Koenig  Name: W. Paul Koenig Title: Managing Director  Aemetis, Inc., a Nevada corporation By: /s/ Eric A. McAfee                                                                         Eric A. McAfee, Chairman/Chief Executive Officer