Delaware
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2870
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04-3158289
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(State or other jurisdiction of incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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Megan N. Gates, Esq. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. One Financial Center Boston, Massachusetts 02111 (617) 542-6000
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Michael F. Nertney, Esq. Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas New York, New York 10105 (212) 370-1300
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Large accelerated filer
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o
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Accelerated filer
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o
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Non-accelerated filer
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ý
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Smaller reporting company
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ý
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Emerging growth company
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o
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Title of each class of securities to be registered (1)
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Proposed maximum
aggregate offering price (1)(2) |
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Amount of
registration fee 4 |
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Class A Units consisting of:
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$
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5,200,000.00
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$
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674.96
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(i) Shares of common stock, par value $0.01 per share
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(ii) Warrants to purchase common stock
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Class B Units consisting of:
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$
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4,000,000.00
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$
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519.20
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(i) Shares of Series A Preferred Stock, par value $0.01 per share
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(ii) Shares of common stock issuable on conversion of Series A Preferred Stock (3)
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(iii) Warrants to purchase common stock
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Common stock issuable upon exercise of Warrants
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$
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10,580,000.00
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$
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1,373.28
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Total
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$
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19,780,000.00
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$
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2,567.44
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(1)
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Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the “Securities Act”).
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(2)
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Includes the price of additional shares of common stock and warrants to purchase shares of common stock that the underwriters have the option to purchase to cover over-allotments, if any.
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(3)
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No separate fee is required pursuant to Rule 457(i) under the Securities Act.
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(4)
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$727.20 has been previously paid.
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Per Class A Unit
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Per Class B Unit
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Total
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Public offering price (1)
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$ [●]
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$ [●]
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$ [●]
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Underwriting discounts and commissions (2)(3)(4)
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$ [●]
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$ [●]
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$ [●]
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Proceeds, before expenses, to us
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$ [●]
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$ [●]
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$ [●]
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(1)
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The public offering price and underwriting discount corresponds to (x) in respect of the Class A Units (i) a public offering price per share of common stock of $[●] and (ii) a public offering price per whole warrant of $0.01 and (y) in respect of the Class B Units (i) a public offering price per share of Series A Preferred Stock of $1,000.00 and (ii) a public offering price per whole warrant of $0.01.
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(2)
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We have also agreed to reimburse the representative for certain expenses. See “Underwriting.”
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(3)
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We have granted the representative an option, which is exercisable not later than 45 days after the date of this prospectus, to purchase a number of additional shares of common stock in an amount that is up to 15% of the number of shares of common stock sold in the primary offering (which number includes the number of shares of common stock issuable upon conversion of shares of the Series A Preferred Stock, but excludes any shares of common stock underlying the warrants issued in this offering, and any shares of common stock issued upon any exercise of the over-allotment option). These shares would be sold to the representative at the public offering price per share of common stock sold in the primary offering, less the underwriting discounts and commissions. Further, the option we have granted to the representative is also exercisable not later than 45 days after the date of this prospectus to purchase a number of additional warrants in an amount that is up to 15% of the warrants sold in the primary offering at the public offering price per warrant set forth on the cover page hereto (which is $0.01 per warrant), less the underwriting discounts and commissions. The representative may exercise the option to cover over-allotments, if any, made in connection with this offering. If any additional shares of common stock and/or warrants are purchased from us under this over-allotment option, the representative will offer these shares of common stock and/or warrants on the same terms as those on which the other securities are being offered.
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(4)
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Underwriting discounts and commissions per Unit with respect to the sale of Units to the public will be 8% and underwriting discounts and commissions per Unit with respect to the sale of Units to certain Company investors and insiders will be 3%.
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Prospectus Summary
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The Offering
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Risk Factors
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Special Note Regarding Forward-Looking Statements
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Use of Proceeds
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Market for Our Common Stock
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Dividend Policy
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Business
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Principal Stockholders
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Capitalization
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Dilution
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Description of Our Capital Stock
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Underwriting
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Disclosure of Commission Position on Indemnification for Securities Act Liabilities
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Legal Matters
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Experts
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Where You Can Find More Information
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Incorporation of Certain Documents by Reference
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•
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Licensing of our yield and performance traits for use in major row crops;
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•
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Product sales revenue from niche products produced in our Camelina platform and other oilseeds; and
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•
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R&D revenue for access to our GRAIN trait gene discovery platform.
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•
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We have a history of net losses and our future profitability is uncertain.
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We will be required to raise additional funds to finance our operations and remain a going concern; we may not be able to do so when necessary, and/or the terms of any financings may not be advantageous to us.
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Raising additional funds may cause dilution to our existing stockholders, restrict our operations or require us to relinquish rights to our technologies.
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•
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We have recently changed our corporate strategy to focus on the crop science industry, and our technologies in this area are at a very early stage of development. We may never commercialize a technology or product that will generate meaningful, or any, revenues.
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•
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A portion of our revenue to date has been generated from government grants; continued availability of government grant funding is uncertain and contingent on compliance with the requirements of the grant.
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•
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Our government grants may subject us to government audits, which could expose us to penalties.
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Our crop science product development cycle is lengthy and uncertain and will depend heavily on future collaborative partners.
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•
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Our crop science program may not be successful in developing commercial products.
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•
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Even if we or our collaborators are successful in developing commercial products that incorporate our traits, such products may not achieve commercial success.
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•
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We may not be successful using our Camelina platform to develop and commercialize niche crops to produce specialty oils and/or PHA biomaterials.
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•
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Consumer and government resistance to genetically modified organisms may negatively affect the ability to commercialize crops containing our traits, as well as our public image.
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We may not be able to obtain or maintain the necessary regulatory approvals for our products, which could restrict our ability to sell those products in some markets.
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If ongoing or future field trials conducted by us or our collaborators are unsuccessful, we may be unable to complete the regulatory process for, or commercialize, our products in development on a timely basis.
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Competition in traits and seeds is intense and requires continuous technological development, and, if we are unable to compete effectively, our financial results will suffer.
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Our business is subject to various government regulations and if we or our collaborators are unable to timely complete the regulatory process for our products in development, our or our collaborators’ ability to market our traits could be delayed, prevented or limited.
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The products of third parties or the environment may be negatively affected by the unintended appearance of our yield trait genes.
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We rely on third parties to conduct, monitor, support, and oversee field trials and, in some cases, to maintain regulatory files for those products in development, and any performance issues by third parties, or our inability to engage third parties on acceptable terms, may impact our or our collaborators’ ability to complete the regulatory process for or commercialize such products.
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If we lose key personnel or are unable to attract and retain necessary talent, we may be unable to develop or commercialize our products under development.
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Patent protection for our technologies is both important and uncertain.
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•
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Third parties may claim that we infringe their intellectual property, and we could suffer significant litigation or licensing expense as a result.
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Portions of our crop science technology are owned by or subject to retained rights of third parties.
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We may not be successful in obtaining necessary rights to additional technologies for the development of our products through acquisitions and in-licenses.
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The intellectual property landscape around genome editing technology, such as CRISPR, is highly dynamic and uncertain, and any resolution of this uncertainty could have a material adverse effect on our business.
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•
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We rely in part on trade secrets to protect our technology, and our failure to obtain or maintain trade secret protection could harm our business.
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A material weakness was identified in our internal control over financial reporting, which could impact our business and financial results.
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Trading volume in our stock is low and an active trading market for our common stock may not be available on a consistent basis to provide stockholders with adequate liquidity. Our stock price may be extremely volatile, and our stockholders could lose a significant part of their investment.
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We may not be able to maintain the listing of our common stock on The Nasdaq Capital Market.
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Provisions in our certificate of incorporation and by-laws and Delaware law might discourage, delay or prevent a change of control of our company or changes in our management and, therefore, depress the trading price of our common stock.
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•
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Concentration of ownership among our existing officers, directors and principal stockholders may prevent other stockholders from influencing significant corporate decisions and depress our stock price.
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THE OFFERING
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Issuer
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Yield10 Bioscience, Inc.
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Class A Units Offered
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We are offering up to 6,557,377 Class A Units. Each Class A Unit consists of one share of common stock and a warrant to purchase one share of our common stock (together with the shares of common stock underlying such warrants).
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Offering Price per Class A Unit
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$[●] combined price for each Class A Unit.
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Class B Units Offered
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We are offering up to 4,000 Class B Units to purchasers who prefer not to beneficially own more than 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding common stock following the consummation of this offering. Each Class B Unit consists of (i) one share of Series A Preferred Stock, par value $0.01 per share, convertible into a number of shares of common stock equal to $1,000.00 divided by $0.61 (the “Conversion Price”) and (ii) a number of warrants to purchase 1,639 shares of our common stock, equal to 100% of the common stock underlying each share of Series A Preferred Stock (together with the shares of common stock underlying such shares of Series A Preferred Stock and such warrants).
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Offering Price per Class B Unit
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$1,000.00 combined price for each Class B Unit.
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Description of warrants
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The warrants will have an initial exercise price per share equal to $[•] per share, subject to appropriate adjustment in the event of recapitalization events, stock dividends, stock splits, stock combinations, reclassifications, reorganizations or similar events affecting our common stock. We do not currently have a sufficient number of authorized shares of common stock to cover shares issuable upon exercise of the warrants being offered by this prospectus. As a result, before any warrants can become exercisable, we will seek stockholder approval of an amendment to our certificate of incorporation to implement an increase in the number of authorized shares of our common stock at a special meeting of stockholders to be called for this purpose. While our board of directors will unanimously recommend that stockholders approve the Charter Amendment, we cannot assure you that we will be able to obtain the requisite stockholder approval of the Charter Amendment. The warrants will be exercisable on any day on or after the date on which we publicly announce, through filing of a Current Report on Form 8-K, that we have sufficient authorized shares of common stock as a result of the Charter Amendment, and will expire five and one-half years after issuance.
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Description of Series A Preferred Stock
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Each share of Series A Preferred Stock is convertible at any time at the holder’s option into a number of shares of common stock equal to $1,000.00 divided by the Conversion Price. Notwithstanding the foregoing, we shall not effect any conversion of Series A Preferred Stock, with certain exceptions, to the extent that, after giving effect to an attempted conversion, the holder of shares of Series A Preferred Stock (together with such holder’s affiliates, and any persons acting as a group together with such holder or any of such holder’s affiliates) would beneficially own a number of shares of our common stock in excess of 4.99% (or, at the election of the purchaser, 9.99%) of the shares of our common stock then outstanding after giving effect to such exercise. For additional information, see “Description of Capital Stock” on page 55 of this prospectus.
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Shares of common stock underlying the warrants
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13,114,754 shares
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Common stock to be outstanding after this offering
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19,052,108 shares
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Series A Preferred Stock to be outstanding after this offering
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4,000 shares
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Over-allotment option
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We have granted to the underwriters an option to purchase a number of additional shares of common stock in an amount that is up to 15% of the number of shares of common stock sold in the primary offering (which number includes the number of shares of common stock issuable upon conversion of shares of the Series A Preferred Stock, but excludes any shares of common stock underlying the warrants issued in this offering, and any shares of common stock issued upon any exercise of the over-allotment option). These shares would be sold to the underwriters at the public offering price per share of common stock sold in the primary offering, less the underwriting discounts and commissions. This option also allows the underwriters to purchase a number of additional warrants in an amount that is up to 15% of the warrants sold in the primary offering at the public offering price per warrant set forth on the cover page hereto (which is $0.01 per warrant), less the underwriting discounts and commissions. This option is exercisable, in whole or in part, for a period of 45 days from the date of this prospectus.
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Use of proceeds
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We estimate that the net proceeds to us from this offering will be approximately $7.1 million, assuming no exercise by the underwriters of their over-allotment option. We intend to use net proceeds from this offering for working capital and general corporate purposes.
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Nasdaq Capital Market symbol
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YTEN
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Risk factors
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Investing in our securities involves a high degree of risk. See “Risk Factors” on page 9 of this prospectus to read about factors that you should consider carefully before buying our securities.
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•
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2,446,082 shares of common stock issuable upon exercise of options to purchase our common stock outstanding as of June 30, 2019 at a weighted average exercise price of $4.61 per share;
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•
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63,773 shares of common stock reserved as of June 30, 2019 for future issuance under our 2018 Stock Option and Incentive Plan;
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•
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570,784 shares of common stock issuable upon exercise of warrants issued pursuant to the Securities Purchase Agreement we entered into with certain investors on July 3, 2017 (which warrants became exercisable on January 7, 2018 at an exercise price of $5.04 per share and expire on January 7, 2024);
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•
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30,000 shares of common stock issuable upon exercise of immediately vested warrants outstanding as of June 30, 2019 and issued to an investor relations consultant on September 12, 2017 at an exercise price of $2.90 per share and which expire on September 11, 2024; and
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•
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6,439,000 shares of common stock issuable upon exercise of vested Series A warrants outstanding as of June 30, 2019 pursuant to the Securities Purchase Agreement we entered into with certain investors on December 21, 2017 at an exercise price of $2.25 per share and which expire on December 21, 2022.
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•
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lower than expected revenues from grants and licenses related to our technologies;
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•
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changes we may make to the business that affect ongoing operating expenses;
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•
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further changes we may make to our business strategy;
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•
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changes in our research and development spending plans; and
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•
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other items affecting our forecasted level of expenditures and use of cash resources.
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•
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our partners may have significant discretion in determining the efforts and resources that they will apply to the arrangement;
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•
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our partners may not pursue the development and commercialization of our product candidates based on trial results, changes in their strategic focus, competing priorities, availability of funding, or other external factors;
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•
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our partners may delay or abandon field trials, fail to conduct field trials that produce sufficient conclusory data, provide insufficient funding for field trials, or repeat or conduct new field trials;
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•
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partners who have marketing, manufacturing and distribution rights with respect to a product may not commit sufficient resources to, or otherwise not perform satisfactorily in carrying out, these activities;
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•
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to the extent that such arrangements provide for exclusive rights, we may be precluded from collaborating with others;
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•
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our partners may not properly maintain or defend our intellectual property rights, or may use our intellectual property or proprietary information in a way that gives rise to actual or threatened litigation that could jeopardize or invalidate our intellectual property or proprietary information or expose us to potential liability;
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•
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disputes may arise between us and a partner that causes the delay or termination of the research, development or commercialization of our current or future products, or that results in costly litigation or arbitration that diverts management attention and resources;
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•
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such arrangements may be terminated, and, if terminated, may result in a need for additional capital for our independent pursuit of matters previously covered by such arrangement;
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•
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our partners may own or co-own intellectual property that results from our arrangement; and
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•
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a partner’s sales and marketing activities or other operations may not be in compliance with applicable laws resulting in civil or criminal proceedings.
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our traits may not be successfully validated in the target crops;
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our traits may not achieve our targeted yield improvements;
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we may not be able to secure sufficient funding to progress our traits through development and commercial validation;
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our traits may not have the desired effects sought by future collaborators for the relevant crops;
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development and validation of traits, particularly during field trials, may be adversely affected by environmental or other circumstances beyond our control;
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we or our future collaborators may be unable to obtain the requisite regulatory approvals for the seeds containing our traits, to the extent regulatory approvals are required;
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•
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competitors may launch competing or more effective seed traits or seeds;
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a market may not exist for seeds containing our traits or such seeds may not be commercially successful;
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future collaborators may be unable to fully develop and commercialize products containing our seed traits or may decide, for whatever reason, not to commercialize such products;
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we may be unable to patent our traits in the necessary jurisdictions; and
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•
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our efforts to develop niche crop products based on our Camelina platform, including specialty oils and PHB biomaterials are in the early stages and may not be successful.
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•
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products may fail to be effective in particular crops, geographies, or circumstances, limiting their commercialization potential;
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•
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our competitors, or competitors of our collaborators, may launch competing or more effective traits or products;
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significant fluctuations in market prices for agricultural inputs and crops could have an adverse effect on the value of our traits;
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farmers are generally cautious in their adoption of new products and technologies, with conservative initial purchases and proof of product required prior to widespread deployment, and accordingly, it may take several growing seasons for farmers to adopt our or our collaborators’ products on a large scale;
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we may not be able to produce high-quality seeds in sufficient amounts to meet demand; and
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we may not be able to secure the financial or other resources needed to achieve commercial success.
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•
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any change in the status of our Nasdaq listing;
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•
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the need for near-term financing to continue operations;
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reported progress in our efforts to develop crop related technologies, relative to investor expectations;
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changes in earnings estimates, investors’ perceptions, recommendations by securities analysts or our failure to achieve analysts’ earnings estimates;
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•
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quarterly variations in our or our competitors’ results of operations;
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•
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general market conditions and other factors unrelated to our operating performance or the operating performance of our competitors;
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•
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future issuances and/or sales of our securities;
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announcements or the absence of announcements by us, or our competitors, regarding acquisitions, new products, regulatory developments, significant contracts, commercial relationships or capital commitments;
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•
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commencement of, or involvement in, litigation;
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•
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any major change in our board of directors or management;
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•
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changes in governmental regulations or in the status of our regulatory approvals;
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•
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announcements related to patents issued to us or our competitors and to litigation involving our intellectual property;
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•
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a lack of, or limited, or negative industry or security analyst coverage;
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•
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uncertainty regarding our ability to secure additional cash resources with which to operate our business;
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•
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a decision by our significant stockholders to increase or decrease their holdings in our common stock;
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•
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short-selling or similar activities by third parties; and
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•
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other factors described elsewhere in these risk factors.
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(1)
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C3003 and C3011 consist of microbial genes and are likely to be subject to regulation by USDA-APHIS.
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(2)
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These traits are accessible using genome editing or other methods that do not result in the insertion of non-plant DNA. These approaches may be deemed not to be regulated by USDA-APHIS pursuant to 7CFR part 340 based on recent filings by us and other groups.
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(3)
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Traits in this area were developed in our T3 platform and all are potentially deployable through approaches which may be not-regulated by USDA-APHIS pursuant to 7 CFR part 340.
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(4)
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USDA-APHIS does not consider these lines submitted by Yield10 to be regulated pursuant to 7 CFR part 340. Commercial plant or plant lines or plant products derived from these lines may be regulated by the FDA or EPA.
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Examples of our traits and their impact on crop yield in growth chamber and greenhouse studies
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C3003/C3004 traits: 23% - 65% increase in seed yield in oilseed crops (Camelina)
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C3006 advanced synthetic biology trait: 128% increase in oilseed yield (Camelina)
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C4001, C4003 traits: 70% increase in photosynthesis, 150% increase in biomass (switchgrass)
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•
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Licensing of our yield and performance traits for use in major row crops;
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•
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Product sales revenue from niche products produced in our Camelina platform and other oilseeds; and
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•
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R&D revenue for access to our GRAIN trait gene discovery platform.
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Category
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Beneficial Owner
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Shares of Common Stock (1)
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Options Exercisable Within 60 Days (2)
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Warrants Exercisable Within 60 Days (2)
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RSUs Vesting Within 60 Days (2)
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Total Shares Beneficially Owned
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Percentage of Outstanding Shares (3)
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5% Stockholders
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Jack W. Schuler (4)
100 N. Field Drive
Suite 360
Lake Forest, IL 60045
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3,804,885
|
—
|
|
2,067,136
|
|
—
|
|
5,872,021
|
40.1
|
%
|
Directors and Named Executive Officers
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Lynne H. Brum (5)
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31,520
|
96,583
|
|
—
|
|
—
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|
128,103
|
1.0
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%
|
Oliver P. Peoples (6)
|
91,752
|
326,875
|
|
—
|
|
—
|
|
418,627
|
3.2
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%
|
|
Kristi Snell (7)
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28,022
|
181,834
|
|
—
|
|
—
|
|
209,856
|
1.6
|
%
|
|
Richard Hamilton
|
3,041
|
26,431
|
|
—
|
|
—
|
|
29,472
|
0.2
|
%
|
|
Peter Kellogg
|
5,302
|
37,333
|
|
—
|
|
—
|
|
42,635
|
0.3
|
%
|
|
Joseph Shaulson (8)
|
35,295
|
169,030
|
|
—
|
|
—
|
|
204,325
|
1.6
|
%
|
|
Anthony J. Sinskey (9)
|
12,372
|
47,218
|
|
—
|
|
—
|
|
59,590
|
0.5
|
%
|
|
Robert L Van Nostrand
|
11,293
|
67,492
|
|
—
|
|
—
|
|
78,785
|
0.6
|
%
|
|
All directors and executive officers as a group (9 persons)(10)
|
|
243,590
|
1,050,048
|
|
—
|
|
—
|
|
1,293,638
|
9.5
|
%
|
(1)
|
Beneficial ownership, as such term is used herein, is determined in accordance with Rule 13d-3(d)(1) promulgated under the Securities Exchange Act of 1934, as amended, and includes voting and/or investment power with respect to shares of our common stock. Unless otherwise indicated, the named person possesses sole voting and investment power with respect to the shares.
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(2)
|
Consists of shares of common stock subject to stock options and warrants held by the person that are currently vested or will vest within 60 days after October 2, 2019.
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(3)
|
Percentages of ownership are based upon 12,567,582 shares of common stock issued and outstanding as of October 2, 2019. Shares of common stock that may be acquired pursuant to options and warrants that are vested and exercisable within 60 days after October 2, 2019, are deemed outstanding for computing the percentage ownership of the person holding such options, but are not deemed outstanding for the percentage ownership of any other person.
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(4)
|
The reported securities consist of 2,838,128 shares of common stock and 2,067,136 shares of common stock underlying the warrants owned by the JWS Living Trust, 965,914 shares of common stock owned by the Schuler Family Foundation, and 843 shares of common stock owned by the Renate Schuler Trust. Mr. Schuler has sole voting and investment power over the shares issued to the JWS Living Trust, the Schuler Family Foundation and Renate Schuler Trust. Beneficial ownership information for Mr. Schuler has been derived from his historical SEC filings.
|
(5)
|
Includes 23,991 shares held for Ms. Brum in the Company's 401(k) plan.
|
(6)
|
Includes 24,124 shares held for Dr. Peoples in the Company's 401(k) plan.
|
(7)
|
Includes 23,433 shares held for Dr. Snell in the Company's 401(k) plan.
|
(8)
|
Includes 1,470 shares held for Mr. Shaulson in the Company's 401(k) plan.
|
(9)
|
Includes 822 shares owned by Dr. Sinskey's spouse and 166 shares owned by a trust over which Dr. Sinskey may be deemed to share voting and investment power. Dr. Sinskey disclaims beneficial ownership of such shares.
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(10)
|
Includes a total of 95,737 shares held for current executive officers and Mr. Shaulson, our former President and Chief Executive Officer, in the Company's 401(k) plan.
|
•
|
on an actual basis; and
|
•
|
on an as adjusted basis to give effect to the sale of 6,557,377 Class A Units and 4,000 Class B Units in this offering, at an assumed public offering price of $0.61, the application of the net proceeds of this offering and after deducting the underwriting discounts and commissions and estimated offering expenses payable by us.
|
|
|
(unaudited)
|
||||||
|
|
As of June 30, 2019
|
||||||
in thousands
|
Actual
|
|
As Adjusted
|
|||||
Cash, cash equivalents and short-term investments
|
$
|
4,250
|
|
|
$
|
11,364
|
|
|
|
|
|
|
|
||||
Stockholders' Equity
|
|
|
|
|||||
|
Preferred stock ($0.01 par value per share); 5,000,000 shares authorized; no shares issued or outstanding, actual and 4,000 shares issued and outstanding on an adjusted basis
|
–
|
|
|
3,680
|
|
||
|
Common stock ($0.01 par value per share); 60,000,000 shares authorized; 12,494,731 shares issued and outstanding, actual and 19,052,108 shares issued and outstanding, on an adjusted basis
|
125
|
|
|
191
|
|
||
|
Additional paid-in capital
|
360,516
|
|
|
363,884
|
|
||
|
Accumulated other comprehensive loss
|
(118
|
)
|
|
(118
|
)
|
||
|
Accumulated deficit
|
(356,069
|
)
|
|
(356,069
|
)
|
||
|
Total stockholders' equity
|
$
|
4,454
|
|
|
$
|
11,568
|
|
|
Total capitalization
|
$
|
4,454
|
|
|
$
|
11,568
|
|
Assumed public offering price per share
|
$0.61
|
Historical net tangible book value per share as of June 30, 2019
|
$0.36
|
Increase in net tangible book value per share attributable to this offering
|
$0.09
|
Pro forma net tangible book value per share after this offering
|
$0.45
|
Dilution per share to new investors in the offering
|
$0.16
|
•
|
2,446,082 of common stock issuable upon exercise of options to purchase our common stock outstanding as of June 30, 2019 at a weighted average exercise price of $4.61 per share;
|
•
|
63,773 shares of common stock reserved as of June 30, 2019 for future issuance under our 2018 Stock Option and Incentive Plan;
|
•
|
570,784 shares of common stock issuable upon exercise of warrants issued pursuant to the Securities Purchase Agreement we entered into with certain investors on July 3, 2017 (which warrants became exercisable on January 7, 2018 at an exercise price of $5.04 per share and expire on January 7, 2024);
|
•
|
30,000 shares of common stock issuable upon exercise of immediately vested warrants issued to an investor relations consultant on September 12, 2017 at an exercise price of $2.90 per share and which expire on September 11, 2024; and
|
•
|
6,439,000 shares of common stock issuable upon exercise of vested Series A warrants outstanding as of June 30, 2019 pursuant to the Securities Purchase Agreement we entered into with certain investors on December 21, 2017 at an exercise price of $2.25 per share and which expire on December 21, 2022.
|
•
|
60,000,000 shares are designated as common stock; and
|
•
|
5,000,000 shares are designated as undesignated preferred stock.
|
•
|
Issuance of Undesignated Preferred Stock. Our board of directors has the authority, without further action by the stockholders, to issue up to 5,000,000 shares of undesignated preferred stock with rights, preferences and privileges designated from time to time by our board of directors without further action by stockholders. These rights, preferences and privileges could include dividend rights, conversion rights, voting rights, terms of redemption, liquidation preferences and sinking fund terms, any or all of which may be greater than the rights of common stock.
|
•
|
Size of the Board of Directors and Filling Vacancies. The number of directors constituting our board of directors may be set only by resolution adopted by a majority vote of our entire board of directors. Any vacancy on our board of directors, however occurring, including a vacancy resulting from an increase in the size of the board of directors, may only be filled by the affirmative vote of a majority of our directors then in office, even if less than a quorum.
|
•
|
Classified Board. Our board of directors is divided into three classes of directors, with staggered three-year terms. Only one class of directors will be elected at each annual meeting of our stockholders, with the other classes continuing for the remainder of their respective three-year terms.
|
•
|
No Cumulative Voting. Our amended and restated certificate of incorporation, as amended, and amended and restated by-laws do not permit cumulative voting in the election of directors. Cumulative voting allows a stockholder to vote a portion, or all of its shares for one or more candidates. The absence of cumulative voting makes it more difficult for a minority stockholder to gain a seat.
|
•
|
Removal of Directors. Directors can only be removed by our stockholders for cause and removal of a director will require a 75% stockholder vote.
|
•
|
No Written Consent of Stockholders. All stockholder actions are required to be taken by a vote of the stockholders at an annual or special meeting. Stockholders may not take action by written consent in lieu of a meeting. The inability of stockholders to take action by written consent means that a stockholder would need to wait until the next annual or special meeting to bring business before the stockholders for a vote.
|
•
|
Special Meetings of Stockholders. Special meetings of our stockholders may be called only by our board of directors acting pursuant to a resolution approved by the affirmative vote of a majority of the directors then in office. Only those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of our stockholders.
|
•
|
Advance Notice Requirements for Stockholder Proposals and Director Nominations. Our amended and restated by-laws provide advance notice procedures for stockholders seeking to bring business before our annual meeting of stockholders or to nominate candidates for election as directors at our annual meeting of stockholders. These procedures provide that notice must be given in writing not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the first anniversary of the preceding year’s annual meeting. These procedures may have the effect of precluding the conduct of certain business at a meeting if the proper procedures are not followed or may discourage or deter a potential acquirer from conducting a solicitation of proxies to elect its own slate of directors or otherwise attempt to obtain control of us.
|
•
|
Amendment to Amended and Restated Certificate of Incorporation and By-laws. Any amendment, repeal or modification of certain provisions of our amended and restated certificate of incorporation or amended and restated by-laws requires a 75% stockholder vote. Provisions requiring such supermajority vote include, among other things, any amendment, repeal or modification of the provisions relating to the classification of our board of directors, the requirement that stockholder actions be effected at a duly called annual or special meeting of our stockholders and the designated parties entitled to call a special meeting of our stockholders.
|
•
|
the transaction is approved by the board of directors prior to the time that the interested stockholder became an interested stockholder;
|
•
|
upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced; or
|
•
|
at or subsequent to such time that the stockholder became an interested stockholder, the business combination was approved by the board of directors and authorized at an annual or special meeting of stockholders by at least two-thirds of the outstanding voting stock which is not owned by the interested stockholder.
|
•
|
any merger or consolidation involving the corporation and the interested stockholder;
|
•
|
any sale, lease, exchange, mortgage, pledge, transfer or other disposition of the assets of the corporation with an aggregate market value of 10% or more of either the aggregate market value of all assets of the corporation on a consolidated basis or the aggregate market value of all of the outstanding stock of the corporation involving the interested stockholder;
|
•
|
subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;
|
•
|
any transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class or series of the corporation beneficially owned by the interested stockholder; or
|
•
|
the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits by or through the corporation.
|
Underwriter
|
Class A Units
|
Class B Units
|
Ladenburg Thalmann & Co., Inc.
|
[•]
|
[•]
|
Total
|
[•]
|
[•]
|
|
Per Class A Unit (1)
|
|
Per Class B Unit (1)
|
|
Total
|
|
Total Including Over-Allotment(2)
|
Public offering price
|
$ [•]
|
|
$ [•]
|
|
$ [•]
|
|
$ [•]
|
Underwriting discount and commissions to be paid to the underwriters by us (3)
|
[•]
|
|
[•]
|
|
[•]
|
|
[•]
|
Proceeds to us (before expenses)
|
$ [•]
|
|
$ [•]
|
|
$ [•]
|
|
$ [•]
|
(1)
|
The public offering price and underwriting discount corresponds to (x) in respect of the Class A Units (i) a public offering price per share of common stock of $[•] and (ii) a public offering price per warrant of $ [•] and (y) in respect of the Class B Units (i) a public offering price per share of Series A Preferred Stock of $[•] and (ii) a public offering price per warrant of $[•].
|
|
|
(2)
|
We have granted the representative an option, which is exercisable not later than 45 days after the date of this prospectus, to purchase a number of additional shares of common stock in an amount that is up to 15% of the number of shares of common stock sold in the primary offering (which number includes the number of shares of common stock issuable upon conversion of shares of the Series A Preferred Stock, but excludes any shares of common stock underlying the warrants issued in this offering, and any shares of common stock issued upon any exercise of the over-allotment option). These shares would be sold to the representative at the public offering price per share of common stock sold in the primary offering, less the underwriting discounts and commissions. Further, the option we have granted to the representative is also exercisable not later than 45 days after the date of this prospectus to purchase a number of additional warrants in an amount that is up to 15% of the warrants sold in the primary offering at the public offering price per warrant set forth on the cover page hereto (which is $[•] per warrant), less the underwriting discounts and commissions. The representative may exercise the option to cover over-allotments, if any, made in connection with this offering. If any additional shares of common stock and/or warrants are purchased from us under this over-allotment option, the representative will offer these shares of common stock and/or warrants on the same terms as those on which the other securities are being offered.
|
|
|
(3)
|
Underwriting discounts and commissions per Unit with respect to the sale of Units to the public will be 8% and underwriting discounts and commissions per Unit with respect to the sale of Units to certain Company investors and insiders will be 3%.
|
•
|
our history and our prospects;
|
•
|
the industry in which we operate;
|
•
|
our past and present operating results;
|
•
|
the previous experience of our executive officers; and
|
•
|
the general condition of the securities markets at the time of this offering.
|
•
|
Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specific maximum.
|
•
|
Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate member are purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions.
|
|
•
|
Annual Report on Form 10-K for the year ended December 31, 2018, filed with the SEC on March 28, 2019;
|
|
•
|
The portions of our Definitive Proxy Statement on Schedule 14A that are deemed "filed" with the SEC under the Exchange Act, filed on April 4, 2019;
|
|
•
|
Quarterly Reports on Form 10-Q filed with the SEC on May 15, 2019 and August 12, 2019, as amended where applicable;
|
|
•
|
Current Reports on Form 8-K filed with the SEC on March 15, 2019, March 25, 2019, May 9, 2019, May 23, 2019, July 1, 2019, August 12, 2019, August 19, 2019, and September 9, 2019 (except in each case in which the information contained in such documents is "furnished" and not "filed").
|
|
•
|
The description of our common stock contained in Item 1 of our Registration Statement on Form 8-A filed with the SEC on November 6, 2006, including any amendments or reports filed for the purpose of updating the description.
|
|
Amount to be paid ($)
|
||
SEC registration fee
|
$
|
2,567.44
|
|
Legal fees and expenses
|
150,000.00
|
|
|
Accounting fees and expenses
|
80,000.00
|
|
|
Other
|
15,000.00
|
|
|
Total
|
$
|
247,567.44
|
|
•
|
from any breach of the director’s duty of loyalty to us or our stockholders;
|
•
|
from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
|
•
|
under Section 174 of the DGCL; and
|
•
|
from any transaction from which the director derived an improper personal benefit.
|
Exhibit No.
|
|
Identification of Exhibit
|
*
|
Form of Underwriting Agreement.
|
|
|
Purchase Agreement between Metabolix, Inc. and CJ Research Center LLC, dated September 16, 2016, (incorporated by reference herein to the exhibits to the Company's Report on Form 8-K filed on September 21, 2016 (File No. 001-33133)).
|
|
|
Amended and Restated Certificate of Incorporation of the Company, as amended (incorporated by reference herein to the exhibits to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2018 (File No. 001-33133)).
|
|
|
Amended and Restated By-Laws of the Company (incorporated by reference herein to the exhibits to the Company’s Report on Form 8-K filed on January 6, 2017 (File No. 001-33133)).
|
|
*
|
Form of Certificate of Designation of Series A Preferred Stock.
|
|
|
Specimen Stock Certificate for shares of the Registrant's Common Stock (incorporated by reference herein to the exhibits to the Company's Registration Statement on Form S-1/A filed on September 21, 2006 (File No. 333-135760)).
|
|
*
|
Form of Series A Preferred Stock Certificate.
|
|
|
Form of Investor Warrant to Purchase Common Stock (incorporated by reference herein to the exhibits to the Company's Report on Form 8-K filed on July 5, 2017 (File No. 001-33133)).
|
|
|
Form of Series A Common Warrant to purchase shares of Common Stock (incorporated by reference herein to the exhibits to the Company's Registration Statement on Form S-1/A filed December 15, 2017 (File No. 333-221283)).
|
|
*
|
Form of Common Warrant to purchase shares of Common Stock to be issued in this offering.
|
|
*
|
Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
|
|
|
@
|
2006 Stock Option and Incentive Plan (incorporated by reference herein to the exhibits to the Company's Registration Statement on Form S-1/A filed on October 20, 2006 (File No. 333-135760)).
|
|
@
|
2006 Stock Option and Incentive Plan, Form of Incentive Stock Option Agreement (incorporated by reference herein to the exhibits to the Company's Registration Statement on Form S-1/A filed on October 20, 2006 (File No. 333-135760)).
|
|
@
|
2006 Stock Option and Incentive Plan, Form of Non-Qualified Stock Option Agreement (incorporated by reference herein to the exhibits to the Company's Registration Statement on Form S-1/A filed on October 20, 2006 (File No. 333-135760)).
|
|
@
|
2006 Stock Option and Incentive Plan, Form of Director Non-Qualified Stock Option Agreement (incorporated by reference herein to the exhibits to the Company's Registration Statement on Form S-1/A filed on October 20, 2006 (File No. 333-135760)).
|
|
@
|
2014 Stock Option and Incentive Plan, Revised and Restated (incorporated by reference herein to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2015 (File No. 001-33133)).
|
|
@
|
2014 Stock Option and Incentive Plan, Form of Incentive Stock Option Award (incorporated by reference herein to the exhibits to the Company's 2014 Annual Report on Form 10-K filed on March 25, 2015 (File No. 001-33133)).
|
|
@
|
2014 Stock Option and Incentive Plan, Form of Non-Qualified Stock Option Award (incorporated by reference herein to the exhibits to the Company's 2014 Annual Report on Form 10-K filed on March 25, 2015 (File No. 001-33133)).
|
|
@
|
2014 Stock Option and Incentive Plan, Form of Restricted Stock Unit Award (incorporated by reference herein to the exhibits to the Company's 2014 Annual Report on Form 10-K filed on March 25, 2015 (File No. 001-33133)).
|
@
|
2018 Stock Option and Incentive Plan (incorporated by reference herein to the exhibits to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2018 (File No. 001-33133)).
|
|
@
|
2018 Stock Option and Incentive Plan, form of Stock Option Agreement (incorporated by reference herein to the exhibits to the Company's Annual Report on Form 10-K filed on March 28, 2019 (File No. 001-33133)).
|
|
|
@
|
Employment Agreement between the Company and Oliver P. Peoples dated March 28, 2017 (incorporated by reference herein to the exhibits to the Company's 2016 Annual Report on Form 10-K filed on March 30, 2017 (File No. 001-33133)).
|
|
@
|
Employment Agreement between the Company and Charles B. Haaser dated March 28, 2017 (incorporated by reference herein to the exhibits to the Company's 2016 Annual Report on Form 10-K filed on March 30, 2017 (File No. 001-33133)).
|
|
@
|
Employment Agreement between the Company and Lynne H. Brum dated March 28, 2017 (incorporated by reference herein to the exhibits to the Company's 2016 Annual Report on Form 10-K filed on March 30, 2017 (File No. 001-33133)).
|
|
@
|
Employment Agreement between the Company and Kristi Snell dated March 28, 2017 (incorporated by reference herein to the exhibits to the Company's 2016 Annual Report on Form 10-K filed on March 30, 2017 (File No. 001-33133)).
|
|
@
|
Noncompetition, Confidentiality and Inventions Agreement between the Company and each of Oliver Peoples, Charles Haaser, Lynne H. Brum and Kristi Snell, dated March 28, 2017 (incorporated by reference herein to the exhibits to the Company's 2016 Annual Report on Form 10-K filed on March 30, 2017 (File No. 001-33133)).
|
|
@
|
Form of Indemnification Agreement between the Registrant and its Directors and Officers (incorporated by reference herein to the exhibits to the Company's Registration Statement on Form S-1/A filed on October 20, 2006 (File No. 333-135760)).
|
@
|
Non-Qualified Stock Option Agreement between the Company and Joseph Shaulson dated December 19, 2013 (incorporated by reference herein to the exhibits to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2014 (File No. 001-33133)).
|
|
@
|
Restricted Stock Unit Award Agreement between the Registrant and Joseph Shaulson dated March 24, 2014 (incorporated by reference herein to the exhibits to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2014 (File No. 001-33133)).
|
|
@
|
Separation Agreement between the Company and Joseph Shaulson, dated as of November 3, 2016 (incorporated by reference herein to the exhibits to the Company's Annual Report on Form 10-K filed on March 30, 2017 (File No. 001-33133)).
|
|
|
Lease between Fortune Wakefield, LLC and Metabolix, Inc. dated March 30, 2007 (incorporated by reference herein to the exhibits to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2007 (File No. 001-33133)).
|
|
|
|
First Amendment of Lease between Fortune Wakefield, LLC and Metabolix, Inc. dated February 29, 2012 (incorporated by reference herein to the exhibits to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2012 (File No. 001-33133)).
|
|
|
Second Amendment of Lease between Fortune Wakefield, LLC and Metabolix, Inc. dated October 24, 2013 (incorporated by reference herein to the exhibits to the Company's 2013 Annual Report on Form 10-K filed on March 28, 2014 (File No. 001-33133)).
|
|
Securities Purchase Agreement dated June 15, 2015 between the Company and the Investors named therein (incorporated by reference herein to the exhibits to the Company's Report on Form 8-K filed on June 17, 2015 (File No. 001-33133)).
|
|
|
Standstill Agreement dated June 19, 2015 between the Company and Jack W. Schuler, Renate Schuler and the Schuler Family Foundation (incorporated by reference herein to the exhibits to the Company's Report on Form 8-K filed on June 17, 2015 (File No. 001-33133)).
|
|
Lease Agreement between the Company and ARE MA Region No. 20, LLC dated January 20, 2016 for the premises located at 19 Presidential Way, Woburn, MA (incorporated by reference herein to the exhibits to the Company's Report on Form 8-K filed on January 26, 2016 (File No. 001-33133)).
|
|
|
Common Stock Purchase Agreement, dated October 7, 2015 between Metabolix, Inc. and Aspire Capital Fund, LLC (incorporated by reference herein to the exhibits to the Company's Report on Form 8-K filed on October 7, 2015 (File No. 001-33133)).
|
|
|
+
|
Exclusive License Agreement, dated as of June 30, 2015, between the Company and the University of Massachusetts (incorporated by reference herein to the exhibits to the Company's 2016 Annual Report on Form 10-K filed on March 30, 2017 (File No. 001-33133)).
|
|
Sublease between CJ Research Center LLC and the Company, dated as of September 16, 2016 (incorporated by reference herein to the exhibits to the Company's 2016 Annual Report on Form 10-K filed on March 30, 2017 (File No. 001-33133)).
|
|
|
Form of Securities Purchase Agreement, dated as of July 3, 2017, by and among the Company and the purchasers named therein (incorporated by reference herein to the exhibits to the Company's Report on Form 8-K filed on July 5, 2017 (File No. 333-33133)).
|
|
+
|
Exclusive License Agreement, dated May 17, 2018, between the Company and the University of Missouri (incorporated by reference herein to the exhibits to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2018 (File No. 001-33133)).
|
|
|
Form of Securities Purchase Agreement, dated as of March 14, 2019, by and among the Company and the purchasers named therein (incorporated by reference herein to the exhibits on Form 8-K filed on March 15, 2019 (File No. 001-33133)).
|
|
|
Yield10 Bioscience, Inc. Code of Business Conduct and Ethics (incorporated by reference herein to the exhibits to the Company's 2018 Annual Report on Form 10-K filed on March 28, 2019)
|
|
|
Subsidiaries of the Registrant (incorporated by reference herein to the exhibits to the Company's 2018 Annual Report on Form 10-K filed on March 28, 2019) (File No. 001-33133)).
|
|
*
|
Consent of RSM US LLP, an independent registered public accounting firm.
|
|
|
Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5.1).
|
|
24.1
|
|
Power of Attorney (included in the signature pages to the Registration Statement).
|
101.1
|
|
The following financial information from the Yield10 Bioscience, Inc. Annual Report on Form 10-K for the year ended December 31, 2018 formatted in XBRL; (i) Consolidated Balance Sheets, December 31, 2018 and December 31, 2017; (ii) Consolidated Statements of Operations, Years Ended December 31, 2018 and 2017; (iii) Consolidated Statements of Comprehensive Income (Loss), Years Ended December 31, 2018 and 2017; (iv) Consolidated Statements of Cash Flows, Years Ended December 31, 2018 and 2017; and (v) Consolidated Statements of Stockholders' Equity for the Years Ended December 31, 2018 and 2017; and (vi) Notes to Consolidated Financial Statements (incorporated by reference herein to the exhibits to the Company's 2018 Annual Report on Form 10-K filed March 30, 2019 (File No. 001-33133)).
|
*
|
Filed herewith.
|
@
|
Indicates a management contract or any compensatory plan, contract or arrangement.
|
+
|
Confidential treatment has been requested for certain portions of this document.
|
|
|
YIELD10 BIOSCIENCE, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By
|
/s/ Oliver P. Peoples
|
|
|
|
Oliver P. Peoples
President and Chief Executive Officer |
Signatures
|
Title
|
Date
|
/s/ Oliver P. Peoples
Oliver P. Peoples |
Director, President and Chief Executive Officer (Principal Executive Officer)
|
October 11, 2019
|
/s/ Charles B. Haaser
Charles B. Haaser |
Chief Accounting Officer (Principal Financial Officer and Principal Accounting Officer)
|
October 11, 2019
|
/s/ *
Joseph Shaulson |
Director
|
October 11, 2019
|
/s/ *
Peter N. Kellogg |
Director
|
October 11, 2019
|
/s/ *
Richard Hamilton |
Director
|
October 11, 2019
|
/s/ *
Anthony J. Sinskey |
Director
|
October 11, 2019
|
/s/ *
Robert L. Van Nostrand |
Director
|
October 11, 2019
|
*By: /s/ Oliver P. Peoples Oliver P. Peoples Attorney-in-Fact
|
|
|
|
By:
|
|
|
|
|
Name:
|
Oliver P. Peoples
|
|
|
Title:
|
President & Chief Executive Officer
|
Underwriters
|
Closing Shares
|
Closing Preferred Shares
|
Closing Warrants
|
Closing Purchase Price
|
Ladenburg Thalmann & Co. Inc.
|
|
|
|
|
Ladenburg Thalmann & Co. Inc. (Securities sold to Company insiders)
|
|
|
|
|
Total
|
|
|
|
|
c)
|
Mechanics of Conversion
|
______________________________________
Name:
Title:
|
______________________________________
Name:
Title:
|
Date to Effect Conversion: _____________________________________________
|
|
Number of shares of Preferred Stock owned prior to Conversion: _______________
|
|
Number of shares of Preferred Stock to be Converted: ________________________
|
|
Stated Value of shares of Preferred Stock to be Converted: ____________________
|
|
Number of shares of Common Stock to be Issued: ___________________________
|
|
Applicable Conversion Price:____________________________________________
|
|
Number of shares of Preferred Stock subsequent to Conversion: ________________
|
|
Address for Delivery: ______________________
or
DWAC Instructions:
Broker no: _________
Account no: ___________
|
|
|
[HOLDER
By:___________________________________
Name:
Title:
|
|
By:
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
i.
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Delivery of Warrant Shares Upon Exercise. Warrant Shares purchased hereunder shall be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to
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YIELD10 BIOSCIENCE, INC.
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By:__________________________________________
Name: Oliver P. Peoples
Title: President & Chief Executive Officer
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Name of Investing Entity:
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Signature of Authorized Signatory of Investing Entity:
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Name of Authorized Signatory:
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Title of Authorized Signatory:
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Date:
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Name:
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(Please Print)
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Address:
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(Please Print)
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Phone Number:
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Email Address:
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Dated: _______________ __, ______
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Holder’s Signature:
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Holder’s Address:
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Exhibit 5.1
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One Financial Center
Boston, MA 02111
617 542 6000
mintz.com
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MINTZ
October 11, 2019
Page 2
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Very truly yours,
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/s/ Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.
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Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.
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/s/ RSM US LLP
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Boston, Massachusetts
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October 11, 2019
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