x
|
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
o
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
Delaware
|
|
55-0856151
|
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
|
Title of each class
|
Trading Symbol(s)
|
Name of each exchange on which registered
|
Common Stock, $0.0001 par value per share
|
AMRS
|
The Nasdaq Stock Market, LLC
|
Large accelerated filer
|
o
|
Accelerated filer
|
x
|
Non-accelerated filer
|
o
|
Smaller reporting company
|
x
|
Emerging growth company
|
o
|
|
|
|
|
Page
|
|
PART I
|
|
Item 1.
|
||
|
||
|
||
|
||
|
||
|
||
|
||
Item 2.
|
||
Item 4.
|
||
|
|
|
|
PART II
|
|
Item 1.
|
||
Item 1A.
|
||
Item 2.
|
||
Item 3.
|
||
Item 5.
|
||
Item 6.
|
||
|
|
(In thousands, except shares and per share amounts)
|
September 30,
2019 |
December 31,
2018 |
||||
Assets
|
|
|
||||
Current assets:
|
|
|
||||
Cash and cash equivalents
|
$
|
1,632
|
|
$
|
45,353
|
|
Restricted cash
|
476
|
|
741
|
|
||
Accounts receivable, net of allowance of $116 and $642
|
17,072
|
|
16,003
|
|
||
Accounts receivable - related party, net of allowance of $21 and $0
|
3,692
|
|
1,349
|
|
||
Contract assets
|
2,567
|
|
—
|
|
||
Accounts receivable, unbilled - related party
|
—
|
|
8,021
|
|
||
Inventories
|
15,944
|
|
9,693
|
|
||
Deferred cost of products sold - related party
|
968
|
|
489
|
|
||
Prepaid expenses and other current assets
|
12,849
|
|
10,566
|
|
||
Total current assets
|
55,200
|
|
92,215
|
|
||
Property, plant and equipment, net
|
24,436
|
|
19,756
|
|
||
Accounts receivable, unbilled, noncurrent - related party
|
1,203
|
|
1,203
|
|
||
Deferred cost of products sold, noncurrent - related party
|
15,894
|
|
2,828
|
|
||
Restricted cash, noncurrent
|
960
|
|
960
|
|
||
Recoverable taxes from Brazilian government entities
|
2,866
|
|
3,005
|
|
||
Right-of-use assets under leases (Note 2)
|
21,936
|
|
—
|
|
||
Other assets
|
5,620
|
|
7,958
|
|
||
Total assets
|
$
|
128,115
|
|
$
|
127,925
|
|
Liabilities, Mezzanine Equity and Stockholders' Deficit
|
|
|
||||
Current liabilities:
|
|
|
||||
Accounts payable
|
$
|
24,925
|
|
$
|
26,844
|
|
Accrued and other current liabilities
|
42,686
|
|
28,979
|
|
||
Lease liabilities (Note 2)
|
7,973
|
|
—
|
|
||
Contract liabilities
|
4,737
|
|
8,236
|
|
||
Debt, current portion (instrument measured at fair value $63,152 and $57,918, respectively)
|
65,495
|
|
124,010
|
|
||
Related party debt, current portion
|
13,221
|
|
23,667
|
|
||
Total current liabilities
|
159,037
|
|
211,736
|
|
||
Long-term debt, net of current portion
|
20,045
|
|
43,331
|
|
||
Related party debt, net of current portion
|
105,482
|
|
18,689
|
|
||
Lease liabilities, net of current portion (Note 2)
|
15,472
|
|
—
|
|
||
Derivative liabilities
|
9,357
|
|
42,796
|
|
||
Other noncurrent liabilities
|
26,801
|
|
23,192
|
|
||
Total liabilities
|
336,194
|
|
339,744
|
|
||
Commitments and contingencies (Note 8)
|
|
|
||||
Mezzanine equity:
|
|
|
||||
Contingently redeemable common stock (Note 5)
|
5,000
|
|
5,000
|
|
||
Stockholders’ deficit:
|
|
|
||||
Preferred stock - $0.0001 par value, 5,000,000 shares authorized as of September 30, 2019 and December 31, 2018, and 14,656 shares issued and outstanding as of September 30, 2019 and December 31, 2018, respectively
|
—
|
|
—
|
|
||
Common stock - $0.0001 par value, 250,000,000 shares authorized as of September 30, 2019 and December 31, 2018; 103,400,207 and 76,564,829 shares issued and outstanding as of September 30, 2019 and December 31, 2018, respectively
|
10
|
|
8
|
|
||
Additional paid-in capital
|
1,507,298
|
|
1,346,996
|
|
||
Accumulated other comprehensive loss
|
(44,545
|
)
|
(43,343
|
)
|
||
Accumulated deficit
|
(1,676,779
|
)
|
(1,521,417
|
)
|
||
Total Amyris, Inc. stockholders’ deficit
|
(214,016
|
)
|
(217,756
|
)
|
||
Noncontrolling interest
|
937
|
|
937
|
|
||
Total stockholders' deficit
|
(213,079
|
)
|
(216,819
|
)
|
||
Total liabilities, mezzanine equity and stockholders' deficit
|
$
|
128,115
|
|
$
|
127,925
|
|
|
Three Months Ended September 30,
|
|
Nine Months Ended September 30,
|
||||||||||
(In thousands, except shares and per share amounts)
|
2019
|
2018
|
|
2019
|
2018
|
||||||||
Revenue:
|
|
|
|
|
|
||||||||
Renewable products (includes related party revenue of $0, $13, $2 and $308, respectively)
|
$
|
17,363
|
|
$
|
9,639
|
|
|
$
|
41,367
|
|
$
|
21,467
|
|
Licenses and royalties (includes related party revenue of $0, ($39), $40,302 and $7,366, respectively)
|
2,305
|
|
142
|
|
|
43,387
|
|
7,584
|
|
||||
Grants and collaborations (includes related party revenue of $844, $1,197, $3,886 and $3,667, respectively)
|
15,285
|
|
4,534
|
|
|
27,267
|
|
18,182
|
|
||||
Total revenue (includes related party revenue of $844, $1,171, $44,190 and $11,341, respectively)
|
34,953
|
|
14,315
|
|
|
112,021
|
|
47,233
|
|
||||
Cost and operating expenses:
|
|
|
|
|
|
||||||||
Cost of products sold
|
20,654
|
|
8,574
|
|
|
53,482
|
|
20,423
|
|
||||
Research and development
|
19,032
|
|
16,445
|
|
|
56,093
|
|
49,939
|
|
||||
Sales, general and administrative
|
33,341
|
|
27,239
|
|
|
92,456
|
|
64,793
|
|
||||
Total cost and operating expenses
|
73,027
|
|
52,258
|
|
|
202,031
|
|
135,155
|
|
||||
Loss from operations
|
(38,074
|
)
|
(37,943
|
)
|
|
(90,010
|
)
|
(87,922
|
)
|
||||
Other income (expense):
|
|
|
|
|
|
||||||||
Loss on divestiture
|
—
|
|
—
|
|
|
—
|
|
(1,778
|
)
|
||||
Interest expense
|
(16,857
|
)
|
(9,180
|
)
|
|
(44,608
|
)
|
(28,738
|
)
|
||||
Loss from change in fair value of derivative instruments
|
(398
|
)
|
(24,797
|
)
|
|
(2,437
|
)
|
(61,164
|
)
|
||||
Loss from change in fair value of debt
|
(2,055
|
)
|
—
|
|
|
(18,629
|
)
|
—
|
|
||||
Loss upon extinguishment of debt
|
(2,721
|
)
|
—
|
|
|
(8,596
|
)
|
(26
|
)
|
||||
Other income (expense), net
|
1,076
|
|
(2,533
|
)
|
|
920
|
|
(2,009
|
)
|
||||
Total other expense, net
|
(20,955
|
)
|
(36,510
|
)
|
|
(73,350
|
)
|
(93,715
|
)
|
||||
Loss before income taxes
|
(59,029
|
)
|
(74,453
|
)
|
|
(163,360
|
)
|
(181,637
|
)
|
||||
Provision for income taxes
|
(533
|
)
|
—
|
|
|
(533
|
)
|
—
|
|
||||
Net loss attributable to Amyris, Inc.
|
(59,562
|
)
|
(74,453
|
)
|
|
(163,893
|
)
|
(181,637
|
)
|
||||
Less: deemed dividend to preferred shareholder on issuance and modification of common stock warrants
|
—
|
|
—
|
|
|
(34,964
|
)
|
—
|
|
||||
Less: deemed dividend related to proceeds discount and issuance costs upon conversion of Series D preferred stock
|
—
|
|
(6,852
|
)
|
|
—
|
|
(6,852
|
)
|
||||
Less: losses allocated to participating securities
|
1,655
|
|
4,491
|
|
|
6,233
|
|
12,824
|
|
||||
Net loss attributable to Amyris, Inc. common stockholders
|
$
|
(57,907
|
)
|
$
|
(76,814
|
)
|
|
$
|
(192,624
|
)
|
$
|
(175,665
|
)
|
|
|
|
|
|
|
||||||||
Loss per share attributable to common stockholders, basic and diluted
|
$
|
(0.56
|
)
|
$
|
(1.26
|
)
|
|
$
|
(2.11
|
)
|
$
|
(3.15
|
)
|
Weighted-average shares of common stock outstanding used in computing loss per share of common stock, basic and diluted
|
103,449,612
|
|
60,966,071
|
|
|
91,344,150
|
|
55,735,571
|
|
|
Three Months Ended September 30,
|
|
Nine Months Ended September 30,
|
||||||||||
(In thousands)
|
2019
|
2018
|
|
2019
|
2018
|
||||||||
Comprehensive loss:
|
|
|
|
|
|
||||||||
Net loss attributable to Amyris, Inc.
|
$
|
(59,562
|
)
|
$
|
(74,453
|
)
|
|
$
|
(163,893
|
)
|
$
|
(181,637
|
)
|
Foreign currency translation adjustment
|
(1,066
|
)
|
(194
|
)
|
|
(1,202
|
)
|
(1,158
|
)
|
||||
Comprehensive loss attributable to Amyris, Inc.
|
$
|
(60,628
|
)
|
$
|
(74,647
|
)
|
|
$
|
(165,095
|
)
|
$
|
(182,795
|
)
|
|
Preferred Stock
|
|
Common Stock
|
|
|
|
|
|
|
||||||||||||||||||||
(In thousands, except number of shares)
|
Shares
|
Amount
|
|
Shares
|
Amount
|
Additional Paid-in Capital
|
Accumulated Other Comprehensive Loss
|
Accumulated Deficit
|
Noncontrolling Interest
|
Total Stockholders' Deficit
|
Mezzanine Equity - Common Stock
|
||||||||||||||||||
Balances at December 31, 2018
|
14,656
|
|
$
|
—
|
|
|
76,564,829
|
|
$
|
8
|
|
$
|
1,346,996
|
|
$
|
(43,343
|
)
|
$
|
(1,521,417
|
)
|
$
|
937
|
|
$
|
(216,819
|
)
|
$
|
5,000
|
|
Cumulative effect of change in accounting principle for ASU 2017-11 (see "Recently Adopted Accounting Pronouncements" in Note 1)
|
—
|
|
—
|
|
|
—
|
|
—
|
|
32,512
|
|
—
|
|
8,531
|
|
—
|
|
41,043
|
|
—
|
|
||||||||
Issuance of common stock upon exercise of warrants
|
—
|
|
—
|
|
|
450,568
|
|
—
|
|
1
|
|
—
|
|
—
|
|
—
|
|
1
|
|
—
|
|
||||||||
Issuance of common stock upon exercise of stock options
|
—
|
|
—
|
|
|
3,612
|
|
—
|
|
13
|
|
—
|
|
—
|
|
—
|
|
13
|
|
—
|
|
||||||||
Issuance of common stock and payment of minimum employee taxes withheld upon net share settlement of restricted stock
|
—
|
|
—
|
|
|
191,672
|
|
—
|
|
(9
|
)
|
—
|
|
—
|
|
—
|
|
(9
|
)
|
—
|
|
||||||||
Stock-based compensation
|
—
|
|
—
|
|
|
—
|
|
—
|
|
3,452
|
|
—
|
|
—
|
|
—
|
|
3,452
|
|
—
|
|
||||||||
Fair value of bifurcated embedded conversion feature in connection with debt modification
|
—
|
|
—
|
|
|
—
|
|
—
|
|
398
|
|
—
|
|
—
|
|
—
|
|
398
|
|
—
|
|
||||||||
Foreign currency translation adjustment
|
—
|
|
—
|
|
|
—
|
|
—
|
|
—
|
|
964
|
|
—
|
|
—
|
|
964
|
|
—
|
|
||||||||
Net loss
|
—
|
|
—
|
|
|
—
|
|
—
|
|
—
|
|
—
|
|
(66,243
|
)
|
—
|
|
(66,243
|
)
|
—
|
|
||||||||
Balances at March 31, 2019
|
14,656
|
|
—
|
|
|
77,210,681
|
|
8
|
|
1,383,363
|
|
(42,379
|
)
|
(1,579,129
|
)
|
937
|
|
(237,200
|
)
|
5,000
|
|
||||||||
Issuance of common stock in private placement, net of issuance costs
|
—
|
|
—
|
|
|
3,610,944
|
|
—
|
|
14,221
|
|
—
|
|
—
|
|
—
|
|
14,221
|
|
—
|
|
||||||||
Issuance of common stock in private placement - related party, net of issuance costs
|
—
|
|
—
|
|
|
10,478,338
|
|
1
|
|
39,499
|
|
—
|
|
—
|
|
—
|
|
39,500
|
|
—
|
|
||||||||
Issuance of common stock upon conversion of debt
|
—
|
|
—
|
|
|
7,101,468
|
|
1
|
|
34,650
|
|
—
|
|
—
|
|
—
|
|
34,651
|
|
—
|
|
||||||||
Issuance of common stock upon ESPP purchase
|
|
|
—
|
|
|
131,460
|
|
—
|
|
464
|
|
—
|
|
—
|
|
—
|
|
464
|
|
—
|
|
||||||||
Issuance of common stock upon exercise of warrants
|
—
|
|
—
|
|
|
2,064,606
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
||||||||
Issuance of common stock and payment of minimum employee taxes withheld upon net share settlement of restricted stock
|
—
|
|
—
|
|
|
589,241
|
|
—
|
|
(347
|
)
|
—
|
|
—
|
|
—
|
|
(347
|
)
|
—
|
|
||||||||
Issuance of warrants in connection with debt accounted for at fair value
|
—
|
|
—
|
|
|
—
|
|
—
|
|
4,428
|
|
—
|
|
—
|
|
—
|
|
4,428
|
|
—
|
|
||||||||
Stock-based compensation
|
—
|
|
—
|
|
|
—
|
|
—
|
|
3,375
|
|
—
|
|
—
|
|
—
|
|
3,375
|
|
—
|
|
||||||||
Other
|
—
|
|
—
|
|
|
—
|
|
—
|
|
(238
|
)
|
—
|
|
—
|
|
—
|
|
(238
|
)
|
—
|
|
||||||||
Foreign currency translation adjustment
|
—
|
|
—
|
|
|
—
|
|
—
|
|
—
|
|
(1,100
|
)
|
—
|
|
—
|
|
(1,100
|
)
|
—
|
|
||||||||
Net loss
|
—
|
|
—
|
|
|
—
|
|
—
|
|
—
|
|
—
|
|
(38,088
|
)
|
—
|
|
(38,088
|
)
|
—
|
|
||||||||
Balances at June 30, 2019
|
14,656
|
|
—
|
|
|
101,186,738
|
|
10
|
|
1,479,415
|
|
(43,479
|
)
|
(1,617,217
|
)
|
937
|
|
(180,334
|
)
|
5,000
|
|
||||||||
Issuance of common stock and warrants upon conversion of debt
|
—
|
|
—
|
|
|
1,767,632
|
|
—
|
|
7,829
|
|
—
|
|
—
|
|
—
|
|
7,829
|
|
—
|
|
||||||||
Issuance of common stock and payment of minimum employee taxes withheld upon net share settlement of restricted stock
|
—
|
|
—
|
|
|
445,837
|
|
—
|
|
(271
|
)
|
—
|
|
—
|
|
—
|
|
(271
|
)
|
—
|
|
||||||||
Issuance of warrants in connection with related party debt issuance
|
—
|
|
—
|
|
|
—
|
|
—
|
|
13,279
|
|
—
|
|
—
|
|
—
|
|
13,279
|
|
—
|
|
||||||||
Issuance of warrants in connection with related party debt modification
|
—
|
|
—
|
|
|
—
|
|
—
|
|
2,882
|
|
—
|
|
—
|
|
—
|
|
2,882
|
|
—
|
|
||||||||
Issuance of warrants in connection with debt accounted for at fair value
|
—
|
|
—
|
|
|
—
|
|
—
|
|
930
|
|
—
|
|
—
|
|
—
|
|
930
|
|
—
|
|
||||||||
Stock-based compensation
|
—
|
|
—
|
|
|
—
|
|
—
|
|
3,234
|
|
—
|
|
—
|
|
—
|
|
3,234
|
|
—
|
|
||||||||
Foreign currency translation adjustment
|
—
|
|
—
|
|
|
—
|
|
—
|
|
—
|
|
(1,066
|
)
|
—
|
|
—
|
|
(1,066
|
)
|
—
|
|
||||||||
Net loss
|
—
|
|
—
|
|
|
—
|
|
—
|
|
—
|
|
—
|
|
(59,562
|
)
|
—
|
|
(59,562
|
)
|
—
|
|
||||||||
Balances at September 30, 2019
|
14,656
|
|
$
|
—
|
|
|
103,400,207
|
|
$
|
10
|
|
$
|
1,507,298
|
|
$
|
(44,545
|
)
|
$
|
(1,676,779
|
)
|
$
|
937
|
|
$
|
(213,079
|
)
|
$
|
5,000
|
|
|
Preferred Stock
|
|
Common Stock
|
|
|
|
|
|
|
||||||||||||||||||||
(In thousands, except number of shares)
|
Shares
|
Amount
|
|
Shares
|
Amount
|
Additional Paid-in Capital
|
Accumulated Other Comprehensive Loss
|
Accumulated Deficit
|
Noncontrolling Interest
|
Total Stockholders' Deficit
|
Mezzanine Equity - Common Stock
|
||||||||||||||||||
Balances at December 31, 2017
|
22,171
|
|
$
|
—
|
|
|
45,637,433
|
|
$
|
5
|
|
$
|
1,114,546
|
|
$
|
(42,156
|
)
|
$
|
(1,290,420
|
)
|
$
|
937
|
|
$
|
(217,088
|
)
|
$
|
5,000
|
|
Cumulative effect of change in accounting principle for ASC 606 (see "Significant Accounting Policies" in Note 1)
|
—
|
|
—
|
|
|
—
|
|
—
|
|
|
|
—
|
|
(803
|
)
|
—
|
|
(803
|
)
|
—
|
|
||||||||
Issuance of common stock upon exercise of warrants
|
—
|
|
—
|
|
|
162,392
|
|
—
|
|
835
|
|
—
|
|
—
|
|
—
|
|
835
|
|
—
|
|
||||||||
Issuance of common stock in private placement, net of issuance costs
|
—
|
|
—
|
|
|
13,529
|
|
—
|
|
92
|
|
—
|
|
—
|
|
—
|
|
92
|
|
—
|
|
||||||||
Issuance of common stock upon exercise of stock options
|
—
|
|
—
|
|
|
7,004
|
|
—
|
|
81
|
|
—
|
|
—
|
|
—
|
|
81
|
|
—
|
|
||||||||
Issuance of common stock and payment of minimum employee taxes withheld upon net share settlement of restricted stock
|
—
|
|
—
|
|
|
30,489
|
|
—
|
|
(66
|
)
|
—
|
|
—
|
|
—
|
|
(66
|
)
|
—
|
|
||||||||
Stock-based compensation
|
—
|
|
—
|
|
|
—
|
|
—
|
|
1,278
|
|
—
|
|
—
|
|
—
|
|
1,278
|
|
—
|
|
||||||||
Other
|
—
|
|
—
|
|
|
—
|
|
—
|
|
93
|
|
—
|
|
—
|
|
—
|
|
93
|
|
—
|
|
||||||||
Foreign currency translation adjustment
|
—
|
|
—
|
|
|
—
|
|
—
|
|
—
|
|
(137
|
)
|
—
|
|
—
|
|
(137
|
)
|
—
|
|
||||||||
Net loss
|
—
|
|
—
|
|
|
—
|
|
—
|
|
—
|
|
|
|
(92,802
|
)
|
—
|
|
(92,802
|
)
|
—
|
|
||||||||
Balances at March 31, 2018
|
22,171
|
|
—
|
|
|
45,850,847
|
|
5
|
|
1,116,859
|
|
(42,293
|
)
|
(1,384,025
|
)
|
937
|
|
(308,517
|
)
|
5,000
|
|
||||||||
Issuance of common stock upon exercise of warrants
|
—
|
|
—
|
|
|
3,638,938
|
|
—
|
|
24,788
|
|
—
|
|
—
|
|
—
|
|
24,788
|
|
—
|
|
||||||||
Issuance of warrants
|
—
|
|
—
|
|
|
—
|
|
—
|
|
9,438
|
|
—
|
|
—
|
|
—
|
|
9,438
|
|
—
|
|
||||||||
Issuance of common stock in private placement, net of issuance costs
|
—
|
|
—
|
|
|
191,639
|
|
—
|
|
1,323
|
|
—
|
|
—
|
|
—
|
|
1,323
|
|
—
|
|
||||||||
Issuance of common stock upon conversion of preferred stock
|
(2,837
|
)
|
—
|
|
|
450,307
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
||||||||
Issuance of common stock upon exercise of stock options
|
—
|
|
—
|
|
|
36,051
|
|
—
|
|
195
|
|
—
|
|
—
|
|
—
|
|
195
|
|
—
|
|
||||||||
Issuance of common stock upon ESPP purchase
|
—
|
|
—
|
|
|
87,768
|
|
—
|
|
269
|
|
—
|
|
—
|
|
—
|
|
269
|
|
—
|
|
||||||||
Issuance of common stock and payment of minimum employee taxes withheld upon net share settlement of restricted stock
|
—
|
|
—
|
|
|
85,130
|
|
—
|
|
(147
|
)
|
—
|
|
—
|
|
—
|
|
(147
|
)
|
—
|
|
||||||||
Stock-based compensation
|
—
|
|
—
|
|
|
—
|
|
—
|
|
1,900
|
|
—
|
|
—
|
|
—
|
|
1,900
|
|
—
|
|
||||||||
Foreign currency translation adjustment
|
—
|
|
—
|
|
|
—
|
|
—
|
|
—
|
|
(827
|
)
|
—
|
|
—
|
|
(827
|
)
|
—
|
|
||||||||
Net loss
|
—
|
|
—
|
|
|
—
|
|
—
|
|
—
|
|
—
|
|
(14,382
|
)
|
—
|
|
(14,382
|
)
|
—
|
|
||||||||
Balances at June 30, 2018
|
19,334
|
|
—
|
|
|
50,340,680
|
|
5
|
|
1,154,625
|
|
(43,120
|
)
|
(1,398,407
|
)
|
937
|
|
(285,960
|
)
|
5,000
|
|
||||||||
Issuance of common stock upon exercise of warrants
|
—
|
|
—
|
|
|
12,558,721
|
|
1
|
|
80,978
|
|
—
|
|
—
|
|
—
|
|
80,979
|
|
—
|
|
||||||||
Issuance of warrants
|
—
|
|
—
|
|
|
—
|
|
—
|
|
30,097
|
|
—
|
|
—
|
|
—
|
|
30,097
|
|
—
|
|
||||||||
Stock-based compensation
|
—
|
|
—
|
|
|
—
|
|
—
|
|
2,937
|
|
—
|
|
—
|
|
—
|
|
2,937
|
|
—
|
|
||||||||
Issuance of common stock upon exercise of stock options
|
—
|
|
—
|
|
|
18,695
|
|
—
|
|
53
|
|
|
|
|
|
|
|
53
|
|
—
|
|
||||||||
Issuance of common stock upon conversion of preferred stock
|
(4,678
|
)
|
—
|
|
|
1,098,173
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
||||||||
Issuance of common stock and payment of minimum employee taxes withheld upon net share settlement of restricted stock
|
—
|
|
—
|
|
|
74,176
|
|
—
|
|
(11
|
)
|
—
|
|
—
|
|
—
|
|
(11
|
)
|
—
|
|
||||||||
Foreign currency translation adjustment
|
—
|
|
—
|
|
|
—
|
|
—
|
|
—
|
|
(194
|
)
|
—
|
|
—
|
|
(194
|
)
|
—
|
|
||||||||
Net loss
|
—
|
|
—
|
|
|
—
|
|
—
|
|
—
|
|
—
|
|
(74,453
|
)
|
|
|
(74,453
|
)
|
—
|
|
||||||||
Balances at September 30, 2018
|
14,656
|
|
$
|
—
|
|
|
64,090,445
|
|
$
|
6
|
|
$
|
1,268,679
|
|
$
|
(43,314
|
)
|
$
|
(1,472,860
|
)
|
$
|
937
|
|
$
|
(246,552
|
)
|
$
|
5,000
|
|
|
Nine Months Ended September 30,
|
|||||
(In thousands)
|
2019
|
2018
|
||||
Operating activities
|
|
|
||||
Net loss
|
$
|
(163,893
|
)
|
$
|
(181,637
|
)
|
Adjustments to reconcile net loss to net cash used in operating activities:
|
|
|
||||
Loss from change in fair value of debt
|
18,629
|
|
—
|
|
||
Stock-based compensation
|
10,061
|
|
6,115
|
|
||
Amortization of debt discount
|
9,701
|
|
12,244
|
|
||
Amortization of right-of-use assets under operating leases
|
10,237
|
|
—
|
|
||
Loss upon extinguishment of debt
|
8,596
|
|
26
|
|
||
Expense for warrants issued for covenant waivers
|
5,358
|
|
—
|
|
||
Depreciation and amortization
|
2,691
|
|
3,957
|
|
||
Loss from change in fair value of derivative liability
|
2,437
|
|
61,164
|
|
||
Impairment of property, plant and equipment
|
1,263
|
|
—
|
|
||
Loss on disposal of property, plant and equipment
|
122
|
|
943
|
|
||
Gain on foreign currency exchange rates
|
(361
|
)
|
(1,132
|
)
|
||
Changes in assets and liabilities:
|
|
|
||||
Accounts receivable
|
(3,482
|
)
|
2,226
|
|
||
Contract assets
|
(2,567
|
)
|
—
|
|
||
Accounts receivable, unbilled - related party
|
8,021
|
|
7,457
|
|
||
Inventories
|
(6,609
|
)
|
(890
|
)
|
||
Deferred cost of products sold - related party
|
(13,545
|
)
|
—
|
|
||
Prepaid expenses and other assets
|
(4,445
|
)
|
(2,387
|
)
|
||
Accounts payable
|
(2,050
|
)
|
(4,795
|
)
|
||
Accrued and other liabilities
|
22,310
|
|
8,348
|
|
||
Lease liabilities
|
(12,453
|
)
|
—
|
|
||
Contract liabilities
|
(3,488
|
)
|
(1,086
|
)
|
||
Net cash used in operating activities
|
(113,467
|
)
|
(89,447
|
)
|
||
Investing activities
|
|
|
||||
Purchases of property, plant and equipment
|
(9,013
|
)
|
(6,362
|
)
|
||
Net cash used in investing activities
|
(9,013
|
)
|
(6,362
|
)
|
||
Financing activities
|
|
|
||||
Proceeds from issuance of debt, net of issuance costs
|
89,217
|
|
36,643
|
|
||
Proceeds from issuance of common stock in private placements, net of issuance costs - related party
|
39,500
|
|
—
|
|
||
Proceeds from issuance of common stock in private placements, net of issuance costs
|
14,221
|
|
1,415
|
|
||
Proceeds from issuance of common stock upon ESPP purchase
|
464
|
|
269
|
|
||
Proceeds from exercises of common stock options
|
13
|
|
329
|
|
||
Proceeds from exercises of warrants
|
1
|
|
60,544
|
|
||
Principal payments on debt
|
(63,675
|
)
|
(41,970
|
)
|
||
Payment of minimum employee taxes withheld upon net share settlement of restricted stock units
|
(627
|
)
|
(224
|
)
|
||
Principal payments on financing leases
|
(372
|
)
|
(846
|
)
|
||
Net cash provided by financing activities
|
78,742
|
|
56,160
|
|
||
Effect of exchange rate changes on cash, cash equivalents and restricted cash
|
(248
|
)
|
(101
|
)
|
||
Net decrease in cash, cash equivalents and restricted cash
|
(43,986
|
)
|
(39,750
|
)
|
||
Cash, cash equivalents and restricted cash at beginning of period
|
47,054
|
|
61,012
|
|
||
Cash, cash equivalents and restricted cash at end of the period
|
$
|
3,068
|
|
$
|
21,262
|
|
|
|
|
||||
Reconciliation of cash, cash equivalents and restricted cash to the condensed consolidated balance sheets
|
|
|
||||
Cash and cash equivalents
|
$
|
1,632
|
|
$
|
19,045
|
|
Restricted cash, current
|
476
|
|
1,258
|
|
||
Restricted cash, noncurrent
|
960
|
|
959
|
|
||
Total cash, cash equivalents and restricted cash
|
$
|
3,068
|
|
$
|
21,262
|
|
|
Nine Months Ended September 30,
|
|||||
(In thousands)
|
2019
|
2018
|
||||
Supplemental disclosures of cash flow information:
|
|
|
||||
Cash paid for interest
|
$
|
10,390
|
|
$
|
14,783
|
|
Supplemental disclosures of non-cash investing and financing activities:
|
|
|
||||
Right-of-use assets under operating leases recorded upon adoption of ASC 842 (Note 2)
|
$
|
29,713
|
|
$
|
—
|
|
Lease liabilities recorded upon adoption of ASC 842 (Note 2)
|
$
|
33,552
|
|
$
|
—
|
|
Cumulative effect of change in accounting principle for ASU 2017-11 (Note 2)
|
$
|
41,043
|
|
$
|
—
|
|
Issuance of common stock upon conversion of convertible notes
|
$
|
42,479
|
|
$
|
—
|
|
Fair value of warrants recorded as debt discount in connection with debt issuances - related party
|
$
|
16,155
|
|
$
|
—
|
|
Fair value of warrants recorded as debt discount in connection with debt issuances
|
$
|
8,965
|
|
$
|
—
|
|
Acquisition of right-of-use assets under operating leases
|
$
|
2,361
|
|
$
|
—
|
|
Accrued interest added to debt principal
|
$
|
986
|
|
$
|
2,029
|
|
Fair value of warrants recorded as debt discount in connection with debt modification
|
$
|
398
|
|
$
|
—
|
|
Acquisition of property, plant and equipment under accounts payable, accrued liabilities and notes payable
|
$
|
134
|
|
$
|
783
|
|
Derecognition of derivative liabilities upon exercise of warrants
|
$
|
—
|
|
$
|
85,912
|
|
Financing of equipment
|
$
|
—
|
|
$
|
764
|
|
•
|
ASU 2017-11, Earnings Per Share (Topic 260); Distinguishing Liabilities from Equity (Topic 480); Derivatives and Hedging (Topic 815): Accounting for Certain Financial Instruments with Down Round Features.
|
(In thousands)
|
September 30, 2019
|
December 31, 2018
|
||||
Raw materials
|
$
|
5,753
|
|
$
|
3,901
|
|
Work-in-process
|
2,243
|
|
539
|
|
||
Finished goods
|
7,948
|
|
5,253
|
|
||
Inventories
|
$
|
15,944
|
|
$
|
9,693
|
|
(In thousands)
|
September 30, 2019
|
December 31, 2018
|
||||
Deferred cost of products sold - related party
|
$
|
968
|
|
$
|
489
|
|
Deferred cost of products sold, noncurrent - related party
|
15,894
|
|
2,828
|
|
||
Total
|
$
|
16,862
|
|
$
|
3,317
|
|
(In thousands)
|
September 30, 2019
|
December 31, 2018
|
||||
Prepayments, advances and deposits
|
$
|
3,706
|
|
$
|
5,644
|
|
Recoverable taxes from Brazilian government entities
|
3,270
|
|
631
|
|
||
Other
|
5,873
|
|
4,291
|
|
||
Total prepaid expenses and other current assets
|
$
|
12,849
|
|
$
|
10,566
|
|
(In thousands)
|
September 30, 2019
|
December 31, 2018
|
||||
Machinery and equipment
|
$
|
47,960
|
|
$
|
43,713
|
|
Leasehold improvements
|
41,152
|
|
39,922
|
|
||
Computers and software
|
10,305
|
|
9,987
|
|
||
Furniture and office equipment, vehicles and land
|
3,330
|
|
3,016
|
|
||
Construction in progress
|
650
|
|
1,749
|
|
||
|
103,397
|
|
98,387
|
|
||
Less: accumulated depreciation and amortization
|
(78,961
|
)
|
(78,631
|
)
|
||
Property, plant and equipment, net
|
$
|
24,436
|
|
$
|
19,756
|
|
|
Three Months Ended September 30,
|
|
Nine Months Ended September 30,
|
||||||||||
(In thousands)
|
2019
|
2018
|
|
2019
|
2018
|
||||||||
Capitalized internal labor
|
$
|
—
|
|
$
|
501
|
|
|
$
|
320
|
|
$
|
2,083
|
|
|
Three Months Ended September 30,
|
|
Nine Months Ended September 30,
|
||||||||||
(In thousands)
|
2019
|
2018
|
|
2019
|
2018
|
||||||||
Depreciation and amortization expense
|
$
|
969
|
|
$
|
1,013
|
|
|
$
|
2,691
|
|
$
|
3,957
|
|
|
Nine Months Ended September 30, 2019
|
||
Cash paid for operating lease liabilities, in thousands
|
$
|
15,908
|
|
Right-of-use assets obtained in exchange for new operating lease obligations(1)
|
$
|
32,074
|
|
Weighted-average remaining lease term
|
2.6
|
|
|
Weighted-average discount rate
|
17.5
|
%
|
Years ending December 31:
(In thousands) |
Financing
Leases |
Operating
Leases |
Total Leases
|
||||||
2019 (remaining three months)
|
$
|
116
|
|
$
|
3,346
|
|
$
|
3,462
|
|
2020
|
198
|
|
9,652
|
|
9,850
|
|
|||
2021
|
1
|
|
7,220
|
|
7,221
|
|
|||
2022
|
—
|
|
7,392
|
|
7,392
|
|
|||
2023
|
—
|
|
3,033
|
|
3,033
|
|
|||
Thereafter
|
—
|
|
—
|
|
—
|
|
|||
Total lease payments
|
315
|
|
30,643
|
|
30,958
|
|
|||
Less: amount representing interest
|
(8
|
)
|
(7,505
|
)
|
(7,513
|
)
|
|||
Total lease liability
|
$
|
307
|
|
$
|
23,138
|
|
$
|
23,445
|
|
|
|
|
|
|
|
|
|||
Current lease liability
|
$
|
295
|
|
$
|
7,678
|
|
$
|
7,973
|
|
Noncurrent lease liability
|
12
|
|
15,460
|
|
15,472
|
|
|||
Total lease liability
|
$
|
307
|
|
$
|
23,138
|
|
$
|
23,445
|
|
(In thousands)
|
September 30, 2019
|
December 31, 2018
|
||||
Contingent consideration
|
$
|
4,286
|
|
$
|
4,286
|
|
Deposits
|
293
|
|
2,465
|
|
||
Other
|
1,041
|
|
1,207
|
|
||
Total other assets
|
$
|
5,620
|
|
$
|
7,958
|
|
(In thousands)
|
September 30, 2019
|
December 31, 2018
|
||||
Accrued interest
|
$
|
15,297
|
|
$
|
3,853
|
|
Payroll and related expenses
|
7,677
|
|
9,220
|
|
||
Contract termination fees
|
5,241
|
|
4,092
|
|
||
Ginkgo partnership payments obligation
|
3,267
|
|
2,155
|
|
||
Asset retirement obligation
|
2,990
|
|
3,063
|
|
||
Professional services
|
2,854
|
|
1,173
|
|
||
Tax-related liabilities
|
2,402
|
|
2,139
|
|
||
Other
|
2,958
|
|
3,284
|
|
||
Total accrued and other current liabilities
|
$
|
42,686
|
|
$
|
28,979
|
|
(In thousands)
|
September 30, 2019
|
December 31, 2018
|
||||
Refund liability
|
$
|
12,500
|
|
$
|
—
|
|
Liability for unrecognized tax benefit
|
7,115
|
|
6,582
|
|
||
Ginkgo partnership payments obligation, net of current portion
|
4,937
|
|
6,185
|
|
||
Contract liability, net of current portion (Note 9)
|
1,449
|
|
1,587
|
|
||
Deferred rent, net of current portion(1)
|
—
|
|
6,440
|
|
||
Contract termination fees, net of current portion
|
—
|
|
1,530
|
|
||
Other
|
800
|
|
868
|
|
||
Total other noncurrent liabilities
|
$
|
26,801
|
|
$
|
23,192
|
|
(In thousands)
|
September 30, 2019
|
|
December 31, 2018
|
||||||||||||||||||||||
|
Level 1
|
Level 2
|
Level 3
|
Total
|
|
Level 1
|
Level 2
|
Level 3
|
Total
|
||||||||||||||||
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
6% Convertible Notes
|
$
|
—
|
|
$
|
—
|
|
$
|
63,152
|
|
$
|
63,152
|
|
|
$
|
—
|
|
$
|
—
|
|
$
|
57,918
|
|
$
|
57,918
|
|
Freestanding derivative instruments in connection with the issuance of debt and equity instruments
|
—
|
|
—
|
|
8,325
|
|
8,325
|
|
|
—
|
|
—
|
|
42,796
|
|
42,796
|
|
||||||||
Embedded derivative instruments in connection with the issuance of debt instruments
|
—
|
|
—
|
|
1,032
|
|
1,032
|
|
|
—
|
|
—
|
|
—
|
|
—
|
|
||||||||
Total liabilities measured and recorded at fair value
|
$
|
—
|
|
$
|
—
|
|
$
|
72,509
|
|
$
|
72,509
|
|
|
$
|
—
|
|
$
|
—
|
|
$
|
100,714
|
|
$
|
100,714
|
|
In thousands
|
|
||
Fair value at December 31, 2018
|
$
|
57,918
|
|
Less: principal paid
|
(13,395
|
)
|
|
Loss on change in fair value
|
18,629
|
|
|
Fair value at September 30, 2019
|
$
|
63,152
|
|
(In thousands)
|
Equity-related Derivative Liability
|
Debt-related Derivative Liability
|
Total Derivative Liability
|
||||||
Balance at December 31, 2018
|
$
|
41,272
|
|
$
|
1,524
|
|
$
|
42,796
|
|
Derecognition upon adoption of ASU 2017-11
|
(39,513
|
)
|
(1,524
|
)
|
(41,037
|
)
|
|||
Fair value of derivative liabilities issued during the period
|
—
|
|
8,959
|
|
8,959
|
|
|||
Change in fair value of derivative liabilities
|
2,039
|
|
398
|
|
2,437
|
|
|||
Derecognition on extinguishment
|
(3,798
|
)
|
—
|
|
(3,798
|
)
|
|||
Balance at September 30, 2019
|
$
|
—
|
|
$
|
9,357
|
|
$
|
9,357
|
|
|
September 30, 2019
|
|
December 31, 2018
|
||||||||||||||||||||||
(In thousands)
|
Principal
|
Unamortized Debt (Discount) Premium
|
Change in Fair Value
|
Net Balance
|
|
Principal
|
Unamortized Debt (Discount) Premium
|
Change in Fair Value
|
Net Balance
|
||||||||||||||||
Convertible notes payable
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
6% convertible notes
|
$
|
62,825
|
|
$
|
—
|
|
$
|
327
|
|
$
|
63,152
|
|
|
$
|
60,000
|
|
$
|
—
|
|
$
|
(2,082
|
)
|
$
|
57,918
|
|
August 2013 financing convertible note
|
—
|
|
—
|
|
—
|
|
—
|
|
|
4,415
|
|
(70
|
)
|
—
|
|
4,345
|
|
||||||||
2015 Rule 144A convertible notes
|
—
|
|
—
|
|
—
|
|
—
|
|
|
37,887
|
|
(2,413
|
)
|
—
|
|
35,474
|
|
||||||||
2014 Rule 144A convertible notes
|
—
|
|
—
|
|
—
|
|
—
|
|
|
24,004
|
|
(867
|
)
|
—
|
|
23,137
|
|
||||||||
|
62,825
|
|
—
|
|
327
|
|
63,152
|
|
|
126,306
|
|
(3,350
|
)
|
(2,082
|
)
|
120,874
|
|
||||||||
Related party convertible notes payable
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
2014 Rule 144A convertible notes
|
9,705
|
|
—
|
|
—
|
|
9,705
|
|
|
24,705
|
|
(1,038
|
)
|
—
|
|
23,667
|
|
||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
Loans payable and credit facilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
Ginkgo note
|
12,000
|
|
(3,377
|
)
|
—
|
|
8,623
|
|
|
12,000
|
|
(4,047
|
)
|
—
|
|
7,953
|
|
||||||||
Nikko notes
|
9,122
|
|
(938
|
)
|
—
|
|
8,184
|
|
|
4,598
|
|
(1,047
|
)
|
—
|
|
3,551
|
|
||||||||
Schottenfeld notes
|
12,500
|
|
(8,151
|
)
|
|
|
4,349
|
|
|
—
|
|
—
|
|
—
|
|
—
|
|
||||||||
Other loans payable
|
1,280
|
|
—
|
|
—
|
|
1,280
|
|
|
312
|
|
—
|
|
—
|
|
312
|
|
||||||||
GACP secured term loan facility
|
—
|
|
—
|
|
—
|
|
—
|
|
|
36,000
|
|
(1,349
|
)
|
—
|
|
34,651
|
|
||||||||
|
34,902
|
|
(12,466
|
)
|
—
|
|
22,436
|
|
|
52,910
|
|
(6,443
|
)
|
—
|
|
46,467
|
|
||||||||
Related party loans payable
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
Foris secured term loan facility
|
71,041
|
|
(8,829
|
)
|
—
|
|
62,212
|
|
|
—
|
|
—
|
|
—
|
|
—
|
|
||||||||
Foris unsecured note
|
19,000
|
|
(6,681
|
)
|
—
|
|
12,319
|
|
|
—
|
|
—
|
|
—
|
|
—
|
|
||||||||
DSM notes
|
33,000
|
|
(5,135
|
)
|
—
|
|
27,865
|
|
|
25,000
|
|
(6,311
|
)
|
—
|
|
18,689
|
|
||||||||
Naxyris note
|
10,957
|
|
(4,403
|
)
|
—
|
|
6,554
|
|
|
—
|
|
—
|
|
—
|
|
—
|
|
||||||||
|
133,998
|
|
(25,048
|
)
|
—
|
|
108,950
|
|
|
25,000
|
|
(6,311
|
)
|
—
|
|
18,689
|
|
||||||||
Total debt
|
241,430
|
|
(37,514
|
)
|
327
|
|
204,243
|
|
|
228,921
|
|
(17,142
|
)
|
(2,082
|
)
|
209,697
|
|
||||||||
Less: current portion
|
|
|
|
|
|
|
(78,716
|
)
|
|
|
|
|
|
|
|
(147,677
|
)
|
||||||||
Long-term debt, net of current portion
|
|
|
|
|
|
|
$
|
125,527
|
|
|
|
|
|
|
|
|
$
|
62,020
|
|
(In thousands)
|
Convertible Notes
|
Loans
Payable and Credit Facilities |
Related Party Convertible Notes
|
Related Party Loans Payable and Credit Facilities
|
Total
|
||||||||||
2019 (remaining three months)
|
$
|
66,506
|
|
$
|
2,737
|
|
$
|
10,124
|
|
$
|
9,955
|
|
$
|
89,322
|
|
2020
|
—
|
|
9,356
|
|
—
|
|
21,807
|
|
31,163
|
|
|||||
2021
|
—
|
|
3,342
|
|
—
|
|
45,963
|
|
49,305
|
|
|||||
2022
|
—
|
|
15,177
|
|
—
|
|
83,277
|
|
98,454
|
|
|||||
2023
|
—
|
|
12,899
|
|
—
|
|
19,000
|
|
31,899
|
|
|||||
Thereafter
|
—
|
|
2,268
|
|
—
|
|
—
|
|
2,268
|
|
|||||
Total future minimum payments
|
66,506
|
|
45,779
|
|
10,124
|
|
180,002
|
|
302,411
|
|
|||||
Less: amount representing interest
|
(3,681
|
)
|
(10,877
|
)
|
(419
|
)
|
(46,004
|
)
|
(60,981
|
)
|
|||||
Less: future conversion of accrued interest to principal
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
|||||
Present value of minimum debt payments
|
62,825
|
|
34,902
|
|
9,705
|
|
133,998
|
|
241,430
|
|
|||||
Less: current portion of debt principal
|
(62,825
|
)
|
(2,534
|
)
|
(9,705
|
)
|
(6,842
|
)
|
(81,906
|
)
|
|||||
Noncurrent portion of debt principal
|
$
|
—
|
|
$
|
32,368
|
|
$
|
—
|
|
$
|
127,156
|
|
$
|
159,524
|
|
Transaction
|
Outstanding at December 31, 2018
|
Exercises
|
Outstanding at March 31, 2019
|
Additional Warrants Issued
|
Exercises
|
Outstanding at June 30, 2019
|
Additional Warrants Issued
|
Expiration
|
Outstanding at September 30, 2019
|
|||||||||
July 2015 related party debt exchange
|
663,228
|
|
(471,204
|
)
|
192,024
|
|
245,558
|
|
(245,558
|
)
|
192,024
|
|
—
|
|
—
|
|
192,024
|
|
July 2015 private placement
|
81,197
|
|
(8,547
|
)
|
72,650
|
|
—
|
|
—
|
|
72,650
|
|
—
|
|
—
|
|
72,650
|
|
February 2016 related party private placement
|
171,429
|
|
—
|
|
171,429
|
|
—
|
|
—
|
|
171,429
|
|
—
|
|
—
|
|
171,429
|
|
May 2017 cash and dilution warrants
|
6,292,798
|
|
—
|
|
6,292,798
|
|
4,795,924
|
|
(1,924,673
|
)
|
9,164,049
|
|
—
|
|
—
|
|
9,164,049
|
|
August 2017 cash and dilution warrants
|
3,968,116
|
|
—
|
|
3,968,116
|
|
3,028,983
|
|
—
|
|
6,997,099
|
|
—
|
|
—
|
|
6,997,099
|
|
April 2018 warrant exercise agreements
|
3,616,174
|
|
—
|
|
3,616,174
|
|
—
|
|
—
|
|
3,616,174
|
|
—
|
|
(3,616,174
|
)
|
—
|
|
August 2018 warrant exercise agreements
|
12,097,164
|
|
—
|
|
12,097,164
|
|
—
|
|
—
|
|
12,097,164
|
|
—
|
|
—
|
|
12,097,164
|
|
April 2019 PIPE warrants
|
—
|
|
—
|
|
—
|
|
8,084,770
|
|
—
|
|
8,084,770
|
|
—
|
|
—
|
|
8,084,770
|
|
April 2019 Foris warrant
|
—
|
|
—
|
|
—
|
|
5,424,804
|
|
—
|
|
5,424,804
|
|
—
|
|
—
|
|
5,424,804
|
|
May 2019 6.50% Note Exchange Warrants
|
—
|
|
—
|
|
—
|
|
1,744,241
|
|
—
|
|
1,744,241
|
|
—
|
|
—
|
|
1,744,241
|
|
May-June 2019 6% Note Exchange Warrants
|
—
|
|
—
|
|
—
|
|
2,181,818
|
|
—
|
|
2,181,818
|
|
—
|
|
—
|
|
2,181,818
|
|
July 2019 Wolverine warrant
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
1,080,000
|
|
—
|
|
1,080,000
|
|
August 2019 Foris LSA warrant
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
1,438,829
|
|
—
|
|
1,438,829
|
|
August 2019 Foris Credit Agreement warrant
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
4,871,795
|
|
—
|
|
4,871,795
|
|
August 2019 Naxyris LSA warrant
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
2,000,000
|
|
—
|
|
2,000,000
|
|
September 2019 Investor Credit Agreement warrant
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
3,205,128
|
|
—
|
|
3,205,128
|
|
Other
|
1,406
|
|
—
|
|
1,406
|
|
—
|
|
—
|
|
1,406
|
|
—
|
|
—
|
|
1,406
|
|
|
26,891,512
|
|
(479,751
|
)
|
26,411,761
|
|
25,506,098
|
|
(2,170,231
|
)
|
49,747,628
|
|
12,595,752
|
|
(3,616,174
|
)
|
58,727,206
|
|
|
Three Months Ended September 30,
|
|
Nine Months Ended September 30,
|
||||||||||
(In thousands, except shares and per share amounts)
|
2019
|
2018
|
|
2019
|
2018
|
||||||||
Numerator:
|
|
|
|
|
|
||||||||
Net loss attributable to Amyris, Inc.
|
$
|
(59,562
|
)
|
$
|
(74,453
|
)
|
|
$
|
(163,893
|
)
|
$
|
(181,637
|
)
|
Less: deemed dividend to preferred shareholder on issuance and modification of common stock warrants
|
—
|
|
—
|
|
|
(34,964
|
)
|
—
|
|
||||
Less: deemed dividend related to proceeds discount and issuance costs upon conversion of Series D preferred stock
|
—
|
|
(6,852
|
)
|
|
—
|
|
(6,852
|
)
|
||||
Less: losses allocated to participating securities
|
1,655
|
|
4,491
|
|
|
6,233
|
|
12,824
|
|
||||
Net loss attributable to Amyris, Inc. common stockholders
|
$
|
(57,907
|
)
|
$
|
(76,814
|
)
|
|
$
|
(192,624
|
)
|
$
|
(175,665
|
)
|
|
—
|
|
—
|
|
|
—
|
|
—
|
|
||||
Denominator:
|
|
|
|
|
|
||||||||
Weighted-average shares of common stock outstanding used in computing net loss per share of common stock, basic and diluted
|
103,449,612
|
|
60,966,071
|
|
|
91,344,150
|
|
55,735,571
|
|
||||
Loss per share attributable to common stockholders, basic and diluted
|
$
|
(0.56
|
)
|
$
|
(1.26
|
)
|
|
$
|
(2.11
|
)
|
$
|
(3.15
|
)
|
|
Three Months Ended September 30,
|
|
Nine Months Ended September 30,
|
||||||
|
2019
|
2018
|
|
2019
|
2018
|
||||
Period-end stock options to purchase common stock
|
5,398,834
|
|
5,449,701
|
|
|
5,398,834
|
|
5,449,701
|
|
Convertible promissory notes(1)
|
14,259,214
|
|
9,397,134
|
|
|
14,259,214
|
|
9,397,134
|
|
Period-end common stock warrants
|
52,612,330
|
|
25,986,432
|
|
|
52,612,330
|
|
25,986,432
|
|
Period-end restricted stock units
|
4,543,190
|
|
5,324,092
|
|
|
4,543,190
|
|
5,324,092
|
|
Period-end preferred stock
|
2,955,732
|
|
2,955,732
|
|
|
2,955,732
|
|
2,955,732
|
|
Total potentially dilutive securities excluded from computation of diluted loss per share
|
79,769,300
|
|
49,113,091
|
|
|
79,769,300
|
|
49,113,091
|
|
(1)
|
The potentially dilutive effect of convertible promissory notes was computed based on conversion ratios in effect as of the respective period end dates. A portion of the convertible promissory notes issued carries a provision for a reduction in conversion price under certain circumstances, which could potentially increase the dilutive shares outstanding. Another portion of the convertible promissory notes issued carries a provision for an increase in the conversion rate under certain circumstances, which could also potentially increase the dilutive shares outstanding.
|
|
Three Months Ended September 30,
|
||||||||||||||||||||||||
(In thousands)
|
2019
|
|
2018
|
||||||||||||||||||||||
|
Renewable Products
|
Licenses and Royalties
|
Grants and Collaborations
|
Total
|
|
Renewable Products
|
Licenses and Royalties
|
Grants and Collaborations
|
Total
|
||||||||||||||||
Europe
|
$
|
2,609
|
|
$
|
2,305
|
|
$
|
1,354
|
|
$
|
6,268
|
|
|
$
|
1,176
|
|
$
|
142
|
|
$
|
3,909
|
|
$
|
5,227
|
|
United States
|
9,927
|
|
—
|
|
9,114
|
|
19,041
|
|
|
4,883
|
|
—
|
|
625
|
|
5,508
|
|
||||||||
Asia
|
2,398
|
|
—
|
|
4,789
|
|
7,187
|
|
|
3,544
|
|
—
|
|
—
|
|
3,544
|
|
||||||||
South America
|
2,272
|
|
—
|
|
28
|
|
2,300
|
|
|
36
|
|
—
|
|
—
|
|
36
|
|
||||||||
Other
|
157
|
|
—
|
|
—
|
|
157
|
|
|
—
|
|
—
|
|
—
|
|
—
|
|
||||||||
|
$
|
17,363
|
|
$
|
2,305
|
|
$
|
15,285
|
|
$
|
34,953
|
|
|
$
|
9,639
|
|
$
|
142
|
|
$
|
4,534
|
|
$
|
14,315
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
|
Nine Months Ended September 30,
|
||||||||||||||||||||||||
(In thousands)
|
2019
|
|
2018
|
||||||||||||||||||||||
|
Renewable Products
|
Licenses and Royalties
|
Grants and Collaborations
|
Total
|
|
Renewable Products
|
Licenses and Royalties
|
Grants and Collaborations
|
Total
|
||||||||||||||||
Europe
|
$
|
7,565
|
|
$
|
43,387
|
|
$
|
6,180
|
|
$
|
57,132
|
|
|
$
|
6,597
|
|
$
|
7,584
|
|
$
|
11,725
|
|
$
|
25,906
|
|
United States
|
22,806
|
|
—
|
|
16,015
|
|
38,821
|
|
|
9,184
|
|
—
|
|
6,457
|
|
15,641
|
|
||||||||
Asia
|
8,015
|
|
—
|
|
5,038
|
|
13,053
|
|
|
5,335
|
|
—
|
|
—
|
|
5,335
|
|
||||||||
South America
|
2,787
|
|
—
|
|
34
|
|
2,821
|
|
|
251
|
|
—
|
|
—
|
|
251
|
|
||||||||
Other
|
194
|
|
—
|
|
—
|
|
194
|
|
|
100
|
|
—
|
|
—
|
|
100
|
|
||||||||
|
$
|
41,367
|
|
$
|
43,387
|
|
$
|
27,267
|
|
$
|
112,021
|
|
|
$
|
21,467
|
|
$
|
7,584
|
|
$
|
18,182
|
|
$
|
47,233
|
|
|
Three Months Ended September 30,
|
||||||||||||||||||||||||
(In thousands)
|
2019
|
|
2018
|
||||||||||||||||||||||
|
Renewable Products
|
Licenses and Royalties
|
Grants and Collaborations
|
Total
|
|
Renewable Products
|
Licenses and Royalties
|
Grants and Collaborations
|
Total
|
||||||||||||||||
DSM - related party
|
$
|
—
|
|
$
|
—
|
|
$
|
844
|
|
$
|
844
|
|
|
$
|
—
|
|
$
|
(39
|
)
|
$
|
1,197
|
|
$
|
1,158
|
|
Givaudan
|
3,312
|
|
—
|
|
—
|
|
3,312
|
|
|
525
|
|
—
|
|
1,500
|
|
2,025
|
|
||||||||
Firmenich
|
4,556
|
|
2,305
|
|
400
|
|
7,261
|
|
|
903
|
|
181
|
|
1,212
|
|
2,296
|
|
||||||||
Lavvan
|
—
|
|
—
|
|
8,238
|
|
8,238
|
|
|
—
|
|
—
|
|
—
|
|
—
|
|
||||||||
Subtotal revenue from significant revenue agreements
|
7,868
|
|
2,305
|
|
9,482
|
|
19,655
|
|
|
1,428
|
|
142
|
|
3,909
|
|
5,479
|
|
||||||||
Revenue from all other customers
|
9,495
|
|
—
|
|
5,803
|
|
15,298
|
|
|
8,211
|
|
—
|
|
625
|
|
8,836
|
|
||||||||
Total revenue from all customers
|
$
|
17,363
|
|
$
|
2,305
|
|
$
|
15,285
|
|
$
|
34,953
|
|
|
$
|
9,639
|
|
$
|
142
|
|
$
|
4,534
|
|
$
|
14,315
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
|
Nine Months Ended September 30,
|
||||||||||||||||||||||||
(In thousands)
|
2019
|
|
2018
|
||||||||||||||||||||||
|
Renewable Products
|
Licenses and Royalties
|
Grants and Collaborations
|
Total
|
|
Renewable Products
|
Licenses and Royalties
|
Grants and Collaborations
|
Total
|
||||||||||||||||
DSM - related party
|
$
|
2
|
|
$
|
40,302
|
|
$
|
3,886
|
|
$
|
44,190
|
|
|
$
|
—
|
|
$
|
7,366
|
|
$
|
3,667
|
|
$
|
11,033
|
|
Givaudan
|
6,127
|
|
—
|
|
—
|
|
6,127
|
|
|
3,710
|
|
—
|
|
4,358
|
|
8,068
|
|
||||||||
Firmenich
|
6,439
|
|
3,085
|
|
1,413
|
|
10,937
|
|
|
1,110
|
|
218
|
|
3,698
|
|
5,026
|
|
||||||||
Lavvan
|
—
|
|
—
|
|
11,742
|
|
11,742
|
|
|
—
|
|
—
|
|
—
|
|
—
|
|
||||||||
Subtotal revenue from significant revenue agreements
|
12,568
|
|
43,387
|
|
17,041
|
|
72,996
|
|
|
4,820
|
|
7,584
|
|
11,723
|
|
24,127
|
|
||||||||
Revenue from all other customers
|
28,799
|
|
—
|
|
10,226
|
|
39,025
|
|
|
16,647
|
|
—
|
|
6,459
|
|
23,106
|
|
||||||||
Total revenue from all customers
|
$
|
41,367
|
|
$
|
43,387
|
|
$
|
27,267
|
|
$
|
112,021
|
|
|
$
|
21,467
|
|
$
|
7,584
|
|
$
|
18,182
|
|
$
|
47,233
|
|
(In thousands)
|
September 30, 2019
|
December 31, 2018
|
||||
Accounts receivable, net
|
$
|
17,072
|
|
$
|
16,003
|
|
Accounts receivable - related party, net
|
$
|
3,692
|
|
$
|
1,349
|
|
Contract assets
|
$
|
2,567
|
|
$
|
—
|
|
Accounts receivable, unbilled - related party
|
$
|
—
|
|
$
|
8,021
|
|
Accounts receivable, unbilled, noncurrent - related party
|
$
|
1,203
|
|
$
|
1,203
|
|
Contract liabilities, current
|
$
|
4,737
|
|
$
|
8,236
|
|
Contract liabilities, noncurrent(1)
|
$
|
1,449
|
|
$
|
1,587
|
|
Refund liability - related party
|
$
|
12,500
|
|
$
|
—
|
|
(In thousands)
|
As of September 30, 2019
|
||
Remaining 2019
|
$
|
12,523
|
|
2020
|
77,029
|
|
|
2021
|
48,354
|
|
|
2022 and thereafter
|
333
|
|
|
Total from all customers
|
$
|
138,239
|
|
(In thousands)
|
September 30, 2019
|
December 31, 2018
|
||||
Related party accounts receivable:
|
|
|
||||
DSM
|
$
|
3,692
|
|
$
|
1,071
|
|
Novvi
|
—
|
|
188
|
|
||
Total
|
—
|
|
90
|
|
||
|
$
|
3,692
|
|
$
|
1,349
|
|
Related party accounts receivable, unbilled, current:
|
|
|
||||
DSM
|
$
|
—
|
|
$
|
8,021
|
|
Related party accounts receivable, unbilled, noncurrent:
|
|
|
||||
DSM
|
$
|
1,203
|
|
$
|
1,203
|
|
|
Quantity of Stock Options
|
Weighted-
average Exercise Price |
Weighted-average
Remaining Contractual Life, in Years |
Aggregate
Intrinsic Value, in Thousands |
|||||
Outstanding - December 31, 2018
|
5,390,270
|
|
$
|
11.55
|
|
8.5
|
$
|
29
|
|
Granted
|
270,633
|
|
$
|
3.67
|
|
|
|
|
|
Exercised
|
(3,612
|
)
|
$
|
5.48
|
|
|
|
|
|
Forfeited or expired
|
(251,557
|
)
|
$
|
18.00
|
|
|
|
|
|
Outstanding - September 30, 2019
|
5,405,734
|
|
$
|
10.57
|
|
8.1
|
$
|
705
|
|
Vested or expected to vest after September 30, 2019
|
4,781,072
|
|
$
|
11.28
|
|
8.0
|
$
|
682
|
|
Exercisable at September 30, 2019
|
1,247,627
|
|
$
|
28.74
|
|
6.3
|
$
|
416
|
|
|
Quantity of Restricted Stock Units
|
Weighted-average Grant-date Fair Value
|
Weighted-average Remaining Contractual Life, in Years
|
|||
Outstanding - December 31, 2018
|
5,294,803
|
|
$
|
5.50
|
|
1.7
|
Awarded
|
1,148,866
|
|
$
|
3.73
|
|
|
RSUs released
|
(1,389,466
|
)
|
$
|
4.98
|
|
|
RSUs forfeited
|
(511,013
|
)
|
$
|
4.91
|
|
|
Outstanding - September 30, 2019
|
4,543,190
|
|
$
|
5.07
|
|
1.5
|
Vested or expected to vest after September 30, 2019
|
4,196,792
|
|
$
|
5.08
|
|
1.4
|
|
Three Months Ended September 30,
|
|
Nine Months Ended September 30,
|
||||||||||
(In thousands)
|
2019
|
2018
|
|
2019
|
2018
|
||||||||
Research and development
|
$
|
663
|
|
$
|
495
|
|
|
$
|
2,002
|
|
$
|
1,191
|
|
Sales, general and administrative
|
2,571
|
|
2,442
|
|
|
8,058
|
|
4,924
|
|
||||
Total stock-based compensation expense
|
$
|
3,234
|
|
$
|
2,937
|
|
|
$
|
10,060
|
|
$
|
6,115
|
|
•
|
Recognition of revenue including arrangements with multiple performance obligations;
|
•
|
Valuation and allocation of fair value to various elements of complex related party transactions;
|
•
|
The identification and valuation of freestanding and embedded derivatives, which impacts gains or losses on such derivatives, the carrying value of debt, preferred stock, interest expense and deemed dividends; and
|
•
|
The valuation of debt for which we have elected fair value accounting.
|
|
Three Months Ended September 30,
|
|
Nine Months Ended September 30,
|
||||||||||
(In thousands)
|
2019
|
2018
|
|
2019
|
2018
|
||||||||
Revenue
|
|
|
|
|
|
|
|
|
|
||||
Renewable products
|
$
|
17,363
|
|
$
|
9,639
|
|
|
$
|
41,367
|
|
$
|
21,467
|
|
Licenses and royalties
|
2,305
|
|
142
|
|
|
43,387
|
|
7,584
|
|
||||
Grants and collaborations
|
15,285
|
|
4,534
|
|
|
27,267
|
|
18,182
|
|
||||
Total revenue
|
$
|
34,953
|
|
$
|
14,315
|
|
|
$
|
112,021
|
|
$
|
47,233
|
|
|
Three Months Ended September 30,
|
|
Nine Months Ended September 30,
|
||||||||||
(In thousands)
|
2019
|
2018
|
|
2019
|
2018
|
||||||||
Cost and operating expenses
|
|
|
|
|
|
|
|
|
|
||||
Cost of products sold
|
$
|
20,654
|
|
$
|
8,574
|
|
|
$
|
53,482
|
|
$
|
20,423
|
|
Research and development
|
19,032
|
|
16,445
|
|
|
56,093
|
|
49,939
|
|
||||
Sales, general and administrative
|
33,341
|
|
27,239
|
|
|
92,456
|
|
64,793
|
|
||||
Total cost and operating expenses
|
$
|
73,027
|
|
$
|
52,258
|
|
|
$
|
202,031
|
|
$
|
135,155
|
|
|
Three Months Ended September 30,
|
|
Nine Months Ended September 30,
|
||||||||||
(In thousands)
|
2019
|
2018
|
|
2019
|
2018
|
||||||||
Other income (expense):
|
|
|
|
|
|
|
|
|
|
||||
Loss on divestiture
|
$
|
—
|
|
$
|
—
|
|
|
$
|
—
|
|
$
|
(1,778
|
)
|
Interest expense
|
(16,857
|
)
|
(9,180
|
)
|
|
(44,608
|
)
|
(28,738
|
)
|
||||
Loss from change in fair value of derivative instruments
|
(398
|
)
|
(24,797
|
)
|
|
(2,437
|
)
|
(61,164
|
)
|
||||
Loss from change in fair value of debt
|
(2,055
|
)
|
—
|
|
|
(18,629
|
)
|
—
|
|
||||
Loss upon extinguishment of debt
|
(2,721
|
)
|
—
|
|
|
(8,596
|
)
|
(26
|
)
|
||||
Other income (expense), net
|
1,076
|
|
(2,533
|
)
|
|
920
|
|
(2,009
|
)
|
||||
Total other expense, net
|
$
|
(20,955
|
)
|
$
|
(36,510
|
)
|
|
$
|
(73,350
|
)
|
$
|
(93,715
|
)
|
(In thousands)
|
September 30,
2019 |
December 31,
2018 |
||||
Working capital deficit
|
$
|
(103,837
|
)
|
$
|
(119,521
|
)
|
Cash and cash equivalents
|
$
|
1,632
|
|
$
|
45,353
|
|
Debt and capital lease obligations
|
$
|
227,688
|
|
$
|
210,376
|
|
Accumulated deficit
|
$
|
(1,676,779
|
)
|
$
|
(1,521,417
|
)
|
|
Nine Months Ended September 30,
|
|||||
(In thousands)
|
2019
|
2018
|
||||
Net cash (used in) provided by:
|
|
|
||||
Operating activities
|
$
|
(113,467
|
)
|
$
|
(89,447
|
)
|
Investing activities
|
$
|
(9,013
|
)
|
$
|
(6,362
|
)
|
Financing activities
|
$
|
78,742
|
|
$
|
56,160
|
|
•
|
Shift focus to existing products and customers with significantly reduced investment in new product and commercial development efforts;
|
•
|
Reduce expenditures for third party contractors, including consultants, professional advisors and other vendors;
|
•
|
Reduce or delay uncommitted capital expenditures, including expenditures related to the construction and commissioning of the new production facility in Brazil, non-essential facility and lab equipment, and information technology projects; and
|
•
|
Closely monitor our working capital position with customers and suppliers, as well as suspend operations at pilot plants and demonstration facilities.
|
•
|
Achieve planned production levels;
|
•
|
Develop and commercialize products within planned timelines or at planned scales; and
|
•
|
Continue other core activities.
|
Payable by year ending December 31,
(In thousands) |
Total
|
2019
|
2020
|
2021
|
2022
|
2023
|
Thereafter
|
||||||||||||||
Principal payments on debt
|
$
|
241,430
|
|
$
|
75,658
|
|
$
|
12,918
|
|
$
|
31,297
|
|
$
|
87,803
|
|
$
|
31,793
|
|
$
|
1,961
|
|
Interest payments on debt (1)
|
60,981
|
|
13,664
|
|
18,245
|
|
18,008
|
|
10,651
|
|
106
|
|
307
|
|
|||||||
Financing and operating leases
|
30,958
|
|
3,462
|
|
9,850
|
|
7,221
|
|
7,392
|
|
3,033
|
|
—
|
|
|||||||
Manufacturing reservation fee
|
6,893
|
|
6,893
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
|||||||
Partnership payment obligation
|
11,112
|
|
2,381
|
|
3,175
|
|
3,175
|
|
2,381
|
|
—
|
|
—
|
|
|||||||
Contract termination fee
|
3,670
|
|
1,830
|
|
1,840
|
|
—
|
|
—
|
|
—
|
|
—
|
|
|||||||
Total
|
$
|
355,044
|
|
$
|
103,888
|
|
$
|
46,028
|
|
$
|
59,701
|
|
$
|
108,227
|
|
$
|
34,932
|
|
$
|
2,268
|
|
(1)
|
Does not include any obligations related to make-whole interest or down-round provisions. Fixed and variable interest rates are described in Note 5, "Debt" in Part II, Item 8 of the Annual Report on Form 10-K/A. Future interest payments shown above for variable-rate debt instruments are measured on the basis of interest rates for such instruments as of September 30, 2019. The fixed interest rates are more fully described in Note 5, "Debt" in Part II, Item 8 of the Annual Report on Form 10-K/A.
|
|
AMYRIS, INC.
|
|
|
By:
|
/s/ John G. Melo
|
|
John G. Melo
|
|
President and Chief Executive Officer
(Principal Executive Officer) |
|
November 12, 2019
|
|
|
By:
|
/s/ Jonathan Wolter
|
|
Jonathan Wolter
|
|
Interim Chief Financial Officer
(Principal Financial Officer) |
|
November 12, 2019
|
$8,000,000
|
|
Issuance date: July 10, 2019
|
(a)
|
The Company will maintain or cause to be maintained its corporate or other organizational existence and good standing in its jurisdiction of incorporation and maintain its qualification in each jurisdiction where the failure to so qualify would reasonably be expected to have a Material Adverse Effect.
|
(b)
|
The Company will comply with all applicable statutes, regulation and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property, other than those the noncompliance with which would not have, and which would not reasonably be expected to have, a Material Adverse Effect.
|
(c)
|
The Company will cause the proceeds of the loans evidenced under this Note to be used solely (a) as working capital and (b) to fund the Company’s general business requirements, and not for personal, family or household purposes.
|
(d)
|
The Company will execute any further instruments and take any further action as the Holder reasonably requests to effect the purposes of this Note or the Agreement.
|
(a)
|
“Event of Default”, wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
|
(i)
|
default in the payment of any amount upon this Note when it becomes due and payable;
|
(ii)
|
default in the performance, or breach, of any covenant of the Company herein (other than a default in the performance or breach of which is specifically dealt with elsewhere in this Section 3(a)) and continuance of such default or breach for a period of 10 days;
|
(iii)
|
the commencement against the Company of an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated bankrupt or insolvent and such case or proceeding is not dismissed or stayed within 45 days;
|
(iv)
|
the commencement by the Company of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Company to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against either the Company, or the filing by either the Company of a petition or answer or consent seeking reorganization or similar relief under any applicable Federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by either the Company of an assignment for the benefit of creditors, or the admission by either the Company in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action;
|
(v)
|
The Company or any Person acting for the Company makes any representation, warranty, or other statement now or later in this Note or the Agreement or in any writing delivered to the Holder or to induce the Holder in connection with this Note, the Agreement or any other document entered into in connection with this Note or the Agreement or to enter this Note, the Agreement or any other document entered into in connection with this Note or the Agreement, and such representation, warranty, or other statement is incorrect in any material respect when made; or
|
(vi)
|
at any time, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), shall become, or obtain rights (whether by means of warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of fifty percent (50.0%) or more of the ordinary voting power for the election of directors of the Company (determined on a fully diluted basis).
|
(b)
|
Upon the occurrence and during the continuance of an Event of Default, the Holder may (a) declare all Obligations hereunder immediately due and payable (but if an Event of Default described in Section 3(a)(iv) or 3(a)(v) occurs all Obligations hereunder are immediately due and payable without any action by the Holder) and (b) exercise all rights and remedies available to the Holder under this Note, the Agreement or at law or equity. The Company will give the Holder notice, within five (5) business days of the occurrence thereof, of any Event of Default of which it is or becomes aware. Such notice shall be given in the manner provided in Section 4(b).
|
(a)
|
No provision of this Note shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the times and places herein prescribed or to repay or otherwise satisfy this Note as herein provided.
|
(b)
|
The Company will give prompt written notice to the Holder of any change in the location of the Designated Office. Any notice to the Company or to the Holder shall be given in the manner set forth in the Agreement.
|
(c)
|
The transfer of this Note is registrable on the register maintained by the Company upon surrender of this Note for registration of transfer at the Designated Office, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company duly executed by, the holder hereof or such holder’s attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. Such securities are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. No service charge shall be made for any such registration of transfer, but the Company may require payment of a sum sufficient to recover any tax or other governmental charge payable in connection therewith. Prior to due presentation of this Note for registration of transfer, the Company and any agent of the Company may treat the Person in whose name this Note is registered as the owner thereof for all purposes, whether or not this Note be overdue, and neither the Company nor any such agent shall be affected by notice to the contrary.
|
(d)
|
This Note shall be governed by and construed in accordance with the internal laws of the State of California, without regard to the conflicts of law provisions of the State of California.
|
|
AMYRIS, INC.
|
||
|
By:
|
|
/s/ Kathleen Valiasek
|
|
Name:
|
|
Kathleen Valiasek
|
|
Title:
|
|
Chief Business Officer
|
1.
|
Amendment of Section 2(b) of the Warrant. Section 2(b) of the Warrant is hereby deleted in its entirety and replaced with the following:
|
2.
|
Full Force and Effect. Except as expressly modified by this Amendment, the terms of the Warrant shall remain in full force and effect.
|
3.
|
Integration. This Amendment and the Warrant constitute the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersede all prior understandings and agreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.
|
4.
|
Counterparts; Facsimile. This Amendment may be executed in one (1) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Amendment may be executed and delivered by facsimile, by email in portable document format (.pdf), or by other electronic transmission, and delivery of any signature page by any such method will be deemed to have the same effect as if the original signature had been delivered to the other party.
|
|
Re:
|
Extension of Senior Convertible Note due July 18, 2019
|
|
|
|
If to the Company:
|
|
Amyris, Inc.
5885 Hollis Street, Suite 100
Emeryville, California 94608
Fax:
Attention: General Counsel
|
$8,000,000
|
|
Issuance date: July 26, 2019
|
(a)
|
The Company will maintain or cause to be maintained its corporate or other organizational existence and good standing in its jurisdiction of incorporation and maintain its qualification in each jurisdiction where the failure to so qualify would reasonably be expected to have a Material Adverse Effect.
|
(b)
|
The Company will comply with all applicable statutes, regulation and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property, other than those the noncompliance with which would not have, and which would not reasonably be expected to have, a Material Adverse Effect.
|
(c)
|
The Company will cause the proceeds of the loans evidenced under this Note to be used solely (a) as working capital and (b) to fund the Company’s general business requirements, and not for personal, family or household purposes.
|
(d)
|
The Company will execute any further instruments and take any further action as the Holder reasonably requests to effect the purposes of this Note or the Agreement.
|
(a)
|
“Event of Default”, wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
|
(i)
|
default in the payment of any amount upon this Note when it becomes due and payable;
|
(ii)
|
default in the performance, or breach, of any covenant of the Company herein (other than a default in the performance or breach of which is specifically dealt with elsewhere in this Section 3(a)) and continuance of such default or breach for a period of 10 days;
|
(iii)
|
the commencement against the Company of an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated bankrupt or insolvent and such case or proceeding is not dismissed or stayed within 45 days;
|
(iv)
|
the commencement by the Company of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Company to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against either the Company, or the filing by either the Company of a petition or answer or consent seeking reorganization or similar relief under any applicable Federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by either the Company of an assignment for the benefit of creditors, or the admission by either the Company in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action;
|
(v)
|
The Company or any Person acting for the Company makes any representation, warranty, or other statement now or later in this Note or the Agreement or in any writing delivered to the Holder or to induce the Holder in connection with this Note, the Agreement or any other document entered into in connection with this Note or the Agreement or to enter this Note, the Agreement or any other document entered into in connection with this Note or the Agreement, and such representation, warranty, or other statement is incorrect in any material respect when made; or
|
(vi)
|
at any time, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), shall become, or obtain rights (whether by means of warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of fifty percent (50.0%) or more of the ordinary voting power for the election of directors of the Company (determined on a fully diluted basis).
|
(b)
|
Upon the occurrence and during the continuance of an Event of Default, the Holder may (a) declare all Obligations hereunder immediately due and payable (but if an Event of Default described in Section 3(a)(iv) or 3(a)(v) occurs all Obligations hereunder are immediately due and payable without any action by the Holder) and (b) exercise all rights and remedies available to the Holder under this Note, the Agreement or at law or equity. The Company will give the Holder notice, within five (5) business days of the occurrence thereof, of any Event of Default of which it is or becomes aware. Such notice shall be given in the manner provided in Section 4(b).
|
(a)
|
No provision of this Note shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the times and places herein prescribed or to repay or otherwise satisfy this Note as herein provided.
|
(b)
|
The Company will give prompt written notice to the Holder of any change in the location of the Designated Office. Any notice to the Company or to the Holder shall be given in the manner set forth in the Agreement.
|
(c)
|
The transfer of this Note is registrable on the register maintained by the Company upon surrender of this Note for registration of transfer at the Designated Office, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company duly executed by, the holder hereof or such holder’s attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. Such securities are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. No service charge shall be made for any such registration of transfer, but the Company may require payment of a sum sufficient to recover any tax or other governmental charge payable in connection therewith. Prior to due presentation of this Note for registration of transfer, the Company and any agent of the Company may treat the Person in whose name this Note is registered as the owner thereof for all purposes, whether or not this Note be overdue, and neither the Company nor any such agent shall be affected by notice to the contrary.
|
(d)
|
This Note shall be governed by and construed in accordance with the internal laws of the State of California, without regard to the conflicts of law provisions of the State of California.
|
|
AMYRIS, INC.
|
||
|
By:
|
|
/s/ Kathleen Valiasek
|
|
Name:
|
|
Kathleen Valiasek
|
|
Title:
|
|
Chief Business Officer
|
(A) =
|
as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening
|
(C) =
|
the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise.
|
AMYRIS, INC.
|
By:__/s/ Kathleen Valiasek ___________________
Name: Kathleen Valiasek
Title: Chief Business Officer
[Signature page to Warrant]
|
Name:
|
|
|
(Please Print)
|
Address:
|
|
Phone Number:
Email Address:
|
(Please Print)
______________________________________
______________________________________
|
Dated: _______________ __, ______
|
|
Holder’s Signature:
|
|
Holder’s Address:
|
|
i.
|
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 the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144, 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 the address specified by the Holder in the Notice of Exercise by the date that is the earlier of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise and (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within two (2) Trading following delivery of the Notice of Exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable.
|
AMYRIS, INC.
|
By:__/s/ Kathleen Valiasek ___________________
Name: Kathleen Valiasek
Title: Chief Business Officer
|
Name:
|
|
|
(Please Print)
|
Address:
|
|
Phone Number:
Email Address:
|
(Please Print)
______________________________________
______________________________________
|
Dated: _______________ __, ______
|
|
Holder’s Signature:
|
|
Holder’s Address:
|
|
$19,000,000
|
|
Issuance date: August 28, 2019
|
(a)
|
The Company will maintain or cause to be maintained its corporate or other organizational existence and good standing in its jurisdiction of incorporation and maintain its qualification in each jurisdiction where the failure to so qualify would reasonably be expected to have a Material Adverse Effect.
|
(b)
|
The Company will comply with all applicable statutes, regulation and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property, other than those the noncompliance with which would not have, and which would not reasonably be expected to have, a Material Adverse Effect.
|
(c)
|
The Company will cause the proceeds of the loans evidenced under this Note to be used solely (a) as working capital and (b) to fund the Company’s general business requirements, and not for personal, family or household purposes.
|
(d)
|
The Company will execute any further instruments and take any further action as the Holder reasonably requests to effect the purposes of this Note or the Agreement.
|
(a)
|
“Event of Default”, wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
|
(i)
|
default in the payment of any amount upon this Note when it becomes due and payable;
|
(ii)
|
default in the performance, or breach, of any covenant of the Company herein (other than a default in the performance or breach of which is specifically dealt with elsewhere in this Section 3(a)) and continuance of such default or breach for a period of 10 days;
|
(iii)
|
the commencement against the Company of an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated bankrupt or insolvent and such case or proceeding is not dismissed or stayed within 45 days;
|
(iv)
|
the commencement by the Company of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Company to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against either the Company, or the filing by either the Company of a petition or answer or consent seeking reorganization or similar relief under any applicable Federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by either the Company of an assignment for the benefit of creditors, or the admission by either the Company in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action;
|
(v)
|
The Company or any Person acting for the Company makes any representation, warranty, or other statement now or later in this Note or the Agreement or in any writing delivered to the Holder or to induce the Holder in connection with this Note, the Agreement or any other document entered into in connection with this Note or the Agreement or to enter this Note, the Agreement or any other document entered into in connection with this Note or the Agreement, and such representation, warranty, or other statement is incorrect in any material respect when made; or
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(vi)
|
at any time, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the “Exchange Act”)), shall become, or obtain rights (whether by means of warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of fifty percent (50.0%) or more of the ordinary voting power for the election of directors of the Company (determined on a fully diluted basis).
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(b)
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Upon the occurrence and during the continuance of an Event of Default, the Holder may (a) declare all Obligations hereunder immediately due and payable (but if an Event of Default described in Section 3(a)(iii) or 3(a)(iv) occurs all Obligations hereunder are immediately due and payable without any action by the Holder) and (b) exercise all rights and remedies available to the Holder under this Note, the Agreement or at law or equity. The Company will give the Holder notice, within five (5) business days of the occurrence thereof, of any Event of Default of which it is or becomes aware. Such notice shall be given in the manner provided in Section 4(b).
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(a)
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No provision of this Note shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the times and places herein prescribed or to repay or otherwise satisfy this Note as herein provided.
|
(b)
|
The Company will give prompt written notice to the Holder of any change in the location of the Designated Office. Any notice to the Company or to the Holder shall be given in the manner set forth in the Agreement.
|
(c)
|
The transfer of this Note is registrable on the register maintained by the Company upon surrender of this Note for registration of transfer at the Designated Office, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company duly executed by, the holder hereof or such holder’s attorney duly authorized in writing, and thereupon one or more new notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. Such securities are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. No service charge shall be made for any such registration of transfer, but the Company may require payment of a sum sufficient to recover any tax or other governmental charge payable in connection therewith. Prior to due presentation of this Note for registration of transfer, the Company and any agent of the Company may treat the Person in whose name this Note is registered as the owner thereof for all purposes, whether or not this Note be overdue, and neither the Company nor any such agent shall be affected by notice to the contrary.
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(d)
|
This Note shall be governed by and construed in accordance with the internal laws of the State of California, without regard to the conflicts of law provisions of the State of California.
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AMYRIS, INC.
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||
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By:
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/s/ Kathleen Valiasek
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Name:
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Kathleen Valiasek
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Title:
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Chief Business Officer
|
i.
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Delivery of Warrant Shares Upon Exercise. Warrant Shares purchased hereunder shall be transmitted by the Company’s stock transfer agent (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 the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144 under the Securities Act (“Rule 144”), 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 the address specified by the Holder in the Notice of Exercise by the date that is the earlier of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise and (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within two (2) Trading following delivery of the Notice of Exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable.
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AMYRIS, INC.
|
By:____/s/_ Kathleen Valiasek
Name: Kathleen Valiasek
Title: Chief Business Officer
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Name:
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(Please Print)
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Address:
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Phone Number:
Email Address:
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(Please Print)
______________________________________
______________________________________
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Dated: _______________ __, ______
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Holder’s Signature:
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Holder’s Address:
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THE COMPANY:
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AMYRIS, INC.
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By: /s/ Kathleen Valiasek
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(Signature)
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Name: Kathleen Valiasek
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Title: Chief Business Officer
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HOLDER:
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FORIS VENTURES, LLC
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/s/ Barbara Hager
(Signature)
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Name: Barbara Hager
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Title:
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THE COMPANY:
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AMYRIS, INC.
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By:/s/ Kathleen Valiasek
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(Signature)
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Name: Kathleen Valiasek
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Title: Chief Business Officer
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HOLDER:
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FORIS VENTURES, LLC
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/s/ Barbara Hager
(Signature)
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Name: Barbara Hager
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Title:
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Re:
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Extension of Senior Convertible Note due August 28, 2019
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If to the Company:
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Amyris, Inc.
5885 Hollis Street, Suite 100
Emeryville, California 94608
Fax:
Attention: General Counsel
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(a)
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This Note is subject to redemption, from time to time in whole or in part (in any amount that is an integral multiple of $1,000), upon not less than five (5) days’ prior written notice in the manner provided in Section 5(b) hereof, at the election of the Company, at a redemption price of 100% of the principal amount hereof, together with accrued and unpaid interest through, but excluding, the redemption date.
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(b)
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The Company shall prepay the principal amount outstanding under this Note in an amount equal to the gross cash proceeds received by the Company upon the exercise by the Holder or any of its Affiliates of any of their respective common stock purchase warrants issued by the Company to DSM International B.V., a Netherlands private company with limited liability, on May 11, 2017 and August 7, 2017 and that currently have an exercise price of $2.87 per share (the “DSM Warrants”) within one Business Day of receipt thereof.
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(c)
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The Company shall prepay the Obligations in full in cash upon the request of the Holder at any time following the receipt by the Company of at least $50,000,000 of gross cash proceeds from one or more sales of the Equity Securities of the Company on or prior to June 30, 2020, within one Business Day of receipt thereof.
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(d)
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In connection with any prepayment of principal outstanding under this Note, the Company shall pay all accrued and unpaid interest through, but excluding, the applicable prepayment date.
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(a)
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The Company will, and will cause each of its Subsidiaries to, maintain its corporate or other organizational existence and good standing in its jurisdiction of incorporation and maintain its qualification in each jurisdiction where the failure to so qualify would reasonably be expected to have a Material Adverse Effect.
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(b)
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The Company will, and will cause each of its Subsidiaries to, comply with all applicable statutes, regulation and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property, other than those the noncompliance with which would not have, and which would not reasonably be expected to have, a Material Adverse Effect.
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(c)
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The Company will cause the cash proceeds of the loans evidenced under this Note to be used (i) within one Business Day of receipt thereof, to repay certain obligations of the Company and its Affiliates owing to the Holder and its Affiliates and (ii) not for personal, family or household purposes.
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(d)
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The Company will pay and discharge, and will cause each of its Subsidiaries to pay and discharge, all taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties belonging to it and all lawful claims which, if unpaid, might become a Lien upon any properties of the Company or any of its Subsidiaries; provided that neither the Company nor any of its Subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with GAAP.
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(e)
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The Company will, and will cause each of its Subsidiaries to, (i) maintain insurance coverage by such insurers and in such forms and amounts and against such risks as are customarily carried by persons conducting businesses similar to those of the Company and its Subsidiaries and (ii) promptly upon the Holder’s request, furnish to the Holder such information about such insurance as the Holder may from time to time reasonably request, which information shall be prepared in form and detail satisfactory to the Holder.
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(f)
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The Company shall notify the Holder promptly following the date on which an executive officer of the Company has concluded that an event has occurred that has caused or would reasonably be expected to cause a Material Adverse Effect.
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(g)
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The Company will, and will cause each of its Subsidiaries to, maintain their rights in all HMO Intellectual Property, and take all actions reasonably necessary or appropriate to prevent any lapse, abandonment, cancellation, dedication to the public, forfeiture, finding of unenforceability or any other impairment of the HMO Intellectual Property.
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(h)
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Neither the Company nor any of its Subsidiaries shall (i) pay any dividends or make any distributions on its Equity Securities other than dividends paid on the common stock of the Company paid solely in common stock of the Company; (ii) purchase, redeem, retire, defease or otherwise acquire for value any of its Equity Securities; (iii) return any capital to any holder of its Equity Securities; (iv) make any distribution of assets, Equity Securities, obligations or securities to any holder of its Equity Securities; or (v) set apart any sum for any such purpose; provided that any Subsidiary may pay cash dividends to the Company or any Subsidiary that is wholly-owned by the Company.
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(i)
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Neither the Company nor any of its Subsidiaries shall make any payment or distribution in cash to any stockholder or Affiliate of the Company other than payments or distributions made in the ordinary course of business.
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(j)
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Neither the Company nor any of its Subsidiaries shall voluntarily repay in cash (or voluntarily prepay in advance in cash) (which, for the avoidance of doubt, shall not include any repayments (as a result of an event of default, at maturity or otherwise) or prepayments required by the terms of the relevant indebtedness) any amounts outstanding under, or cancel, forgive, materially amend or otherwise materially modify the terms of, any debt securities or other evidence of indebtedness for borrowed money prior to the repayment in full of the Obligations, in each case without the prior written consent of the Holder; provided that the prohibitions set forth in this Section 2(j) shall not apply to (i) any voluntary repayment or prepayment in cash of any indebtedness with the cash proceeds of one or more exercises of common stock purchase warrants held by the holder of such indebtedness, (ii) any voluntary repayment or prepayment in cash of any indebtedness held by Foris Ventures, LLC (“Foris”) or Naxyris S.A. (“Naxyris”), or any Affiliate thereof; provided that any such voluntary cash repayment or prepayment amount shall be paid to Foris (or such Affiliate), Naxyris (or such Affiliate) and the Holder pro rata based on the respective amounts of indebtedness of the Company held by such holders at the time of such voluntary repayment or prepayment (it being agreed that, as of the Closing Date, the respective amounts of indebtedness held by such holders are, with respect to Foris and its Affiliates, $90,041,000, with respect to Naxyris and its Affiliates, $10,435,000 and, with respect to the Holder and its Affiliates, $28,000,000) and (iii) any amendment or modification to the terms of any agreement or other document relating to any indebtedness held by Foris or Naxyris, or any Affiliate thereof; provided that any such amendment or modification shall (x) not reasonably be expected to be materially adverse to the Holder and (y) if adverse to the Company or any of its Subsidiaries (including, but not limited to, (A) changes to payment provisions to the extent the same would shorten, accelerate or advance the date of any payment (including any amortization or maturity dates) or increase the interest rate or rates per annum, other interest provisions or fees payable with respect to such indebtedness, (B) the imposition of any restrictions on the Company’s or any Subsidiary’s ability to make payments under the Loan Documents, (C) the addition of material rights in favor of Foris, Naxyris or any Affiliate thereof or (D) the making of more restrictive, or the addition of, any financial covenants, affirmative or negative covenants, representations or warranties, or defaults or events of default), not be effective until a corresponding amendment or modification is also made to the corresponding provisions of the Loan Documents. For the avoidance of doubt, the parties agree that the repayment of amounts due under the Senior Convertible Note issued by the Company to CVI Investments, Inc. on July 24, 2019 (the “Heights Note”) on the date or dates required by the Heights Note shall not be deemed to be voluntary repayments or prepayments hereunder.
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(k)
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Except with the prior written consent of the Lender, neither the Company nor any of its Subsidiaries shall create, assume, incur or permit (or suffer) to exist or to be created, assumed or incurred, directly or indirectly, any Lien on any of its property or assets, now owned or hereafter acquired, constituting HMO Intellectual Property, in each case except for Liens securing the Obligations.
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(l)
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The Company will execute any further instruments and take any further action as the Holder reasonably requests to effect the purposes of the Loan Documents. The Company will take such actions and execute and deliver to the Lender such documents as the Lender shall reasonably request to confirm the validity, perfection and priority of the Liens created under the applicable Loan Documents.
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(i)
|
default in the payment of any amount upon this Note when it becomes due and payable;
|
(ii)
|
default in the performance, or breach, of any covenant of the Company herein, in any Loan Document (other than a default in the performance or breach of which is specifically dealt with elsewhere in this Section 3(a)) and continuance of such default or breach for a period of 10 days;
|
(iii)
|
the commencement against the Company or any Significant Subsidiary of an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated bankrupt or insolvent and such case or proceeding is not dismissed or stayed within 45 days;
|
(iv)
|
the commencement by the Company or any Significant Subsidiary of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Company or any Significant Subsidiary to the entry of a decree or order for relief in respect of the Company or such Significant Subsidiary in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against either the Company or any Significant Subsidiary, or the filing by either the Company or any Significant Subsidiary of a petition or answer or consent seeking reorganization or similar relief under any applicable Federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Significant Subsidiary or of any substantial part of its property, or the making by either the Company or any Significant Subsidiary of an assignment for the benefit of creditors, or the admission by either the Company or any Significant Subsidiary in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company or any Significant Subsidiary in furtherance of any such action;
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(v)
|
the Company or any Person acting for the Company makes any representation, warranty, or other statement now or later in any Loan Document or in any writing delivered to the Holder or to induce the Holder in connection with any Loan Document or to enter into any Loan Document, and such representation, warranty, or other statement is incorrect in any material respect when made;
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(vi)
|
a Change of Control occurs;
|
(vii)
|
the Company or any of its Subsidiaries (x) fails to make any payment in respect of any indebtedness (other than indebtedness owing to the Holder pursuant to the Loan Documents) having an aggregate principal amount of more than $10.0 million when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) and such failure continues after the applicable grace or notice period, if any, specified in the document relating thereto on the date of such failure; or (y) fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such indebtedness , if the effect of such failure, event or condition is to cause such indebtedness to be declared to be due and payable (or otherwise required immediately to be prepaid, redeemed, purchased or defeased ) prior to its stated maturity (without regard to any subordination terms with respect thereto ) or cash collateral in respect thereof to be demanded;
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(viii)
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one or more monetary or non-monetary judgments, orders or decrees shall be rendered against any one or more of the Company and its Subsidiaries which has, either individually or in the aggregate, a Material Adverse Effect, and there shall be any period of thirty (30) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
|
(ix)
|
the Company has materially breached any provision of that certain Farnese License Agreement, dated as of November 14, 2017, by and between the Company and DSM Nutritional Products Ltd., and such breach has not been cured within sixty (60) days after such breach;
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(x)
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any material provision of any Loan Document shall for any reason cease to be valid and binding on or enforceable against the Company or the Company shall so state in writing or bring an action to limit its obligations or liabilities under any Loan Document;
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(xi)
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the failure by the Company to comply with Section 6 of the Credit Agreement in any respect;
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(xii)
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any “Event of Default” (as defined in any other Note) shall have occurred and be continuing;
|
(xiii)
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any “Event of Default” (as defined in the Existing DSM Note) shall have occurred and be continuing; or
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(xiv)
|
the failure by one or more Subsidiaries of the Company (x) within three Business Days of receipt by the Company of the cash proceeds of the Closing Date Note, to repay to DSM Brazil the Other Obligations in the amount of $3,000,000, (y) within three Business Days of receipt by the Company of the cash proceeds of the Second Note (or such other time period as the Holder may agree in its sole discretion), to repay to DSM Brazil the Other Obligations in the amount of $3,000,000 (exclusive of clause (x)) or (z) within three Business Days of receipt by the Company of the cash proceeds of the Third Note, to repay to DSM Brazil
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(d)
|
This Note shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to the conflicts of law provisions of the State of New York.
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(a)
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Due Incorporation, Qualification, etc. The Company (i) is a corporation duly organized, validly existing and in good standing under the laws of Delaware; (ii) has the power and authority to own, lease and operate its properties and carry on its business as now conducted; and (iii) is duly qualified, licensed to do business and in good standing as a foreign corporation in each jurisdiction where the failure to be so qualified or licensed could reasonably be expected to have a Material Adverse Effect.
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(b)
|
Authority. The execution, delivery and performance by the Company of this Agreement and each Note and the consummation by the Company of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate actions on the part of the Company.
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(c)
|
Enforceability. This Agreement and each Note have been, or will have been as of the applicable Closing, duly executed and delivered by the Company and constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its respective terms, except in each case as may be limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.
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(d)
|
Non-Contravention. The execution and delivery by the Company of this Agreement and each Note and the performance and consummation by the Company of the transactions contemplated hereby and thereby do not and will not (i) violate the certificate of incorporation or bylaws of the Company or any judgment, order, writ, decree, statute, rule or regulation applicable to the Company; (ii) violate any provision of, or result in the breach or the acceleration of, or entitle any other Person to accelerate (whether after the giving of notice or lapse of time or both), any mortgage, indenture, agreement, instrument or contract to which the Company is a party or by which it is bound except to the extent such violation, breach or acceleration could not reasonably be expected to result in a Material Adverse Effect; or (iii) result in the creation or imposition of any lien upon any property, asset or revenue of the Company or the suspension, revocation, impairment, forfeiture, or nonrenewal of any permit, license, authorization or approval applicable to the Company, its business or operations, or any of its assets or properties except to the extent such suspension, revocation, impairment, forfeiture or nonrenewal could not reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule 2(d), the Company is not in breach of any mortgage, indenture, agreement, instrument or contract to which the Company is a party or by which it is bound except to the extent such breach could not reasonably be expected to result in a Material Adverse Effect.
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(e)
|
Approvals. No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or other Person is required in connection with the execution and delivery by the Company of this Agreement and each Note and the performance and consummation by the Company of the transactions contemplated hereby and thereby, except for those already obtained or those that will be obtained prior to the applicable Closing.
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(f)
|
Tax Returns and Payments. The Company has timely filed all required tax returns and reports, and the Company has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by the Company except to the extent such taxes are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor.
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(g)
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Litigation. There are no actions or proceedings pending or threatened in writing by or against the Company except for such actions or proceedings that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
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(h)
|
Full Disclosure. No written representation, warranty or other statement of the Company in any certificate or written statement given to Lender by the Company in connection with this Agreement or the Notes, as of the date such representation, warranty, or other statement was made, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained in the certificates or written statements not misleading in light of the circumstances under which they were made.
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(a)
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Due Incorporation, Qualification, etc. The Lender (i) is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware; and (ii) has all requisite power to execute and deliver this Agreement and to carry out and perform its obligations under the terms of this Agreement.
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(b)
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Authority. The execution, delivery and performance by the Lender of this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly authorized by all necessary corporate actions on the part of the Lender.
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(c)
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Enforceability. The Lender has full legal capacity, power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement is a valid and binding obligation of the Lender, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.
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(d)
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Securities Law Compliance. The Lender is purchasing the Notes for its own account for investment, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof. Lender has received or has had full access to all of the information necessary and appropriate to make an informed investment decision. The Lender is an accredited investor as such term is defined in Rule 501 of Regulation D under the Securities Act. The Lender acknowledges that it can bear the economic risk of the investment the Notes.
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(e)
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Approvals. No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or other Person is required in connection with the execution and delivery by the Lender of this Agreement and the performance and consummation by the Lender of the transactions contemplated hereby, except for those already obtained.
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(f)
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Non-Contravention. The execution and delivery by the Lender of this Agreement and the performance and consummation by the Lender of the transactions contemplated hereby do not and will not (i) violate the organizational documents of the Lender or any judgment, order, writ, decree, statute, rule or regulation applicable to the Lender; or (ii) violate any agreement to which the Lender is a party or by which it is bound.
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(a)
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Representations and Warranties. The representations and warranties made by the Company in Section 2 hereof shall have been true and correct when made, and shall be true and correct as of the applicable Closing.
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(b)
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Governmental Approvals and Filings. The Company shall have obtained all governmental approvals required in connection with the sale and issuance of the applicable Note.
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(c)
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Legal Requirements. At the applicable Closing, the sale and issuance by the Company, and the purchase by the Lender, of the applicable Note shall be legally permitted by all laws and regulations to which the Lender or the Company is subject.
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(d)
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Transaction Documents. The Company shall have duly executed and delivered to the Lender this Agreement and the applicable Note.
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(e)
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Material Adverse Effect. No event shall have occurred that could reasonably be expected to result in a Material Adverse Effect.
|
(a)
|
Representations and Warranties. The representations and warranties made by the Lender in Section 3 hereof shall be true and correct when made, and shall be true and correct as of the applicable Closing.
|
(b)
|
Governmental Approvals and Filings. The Lender shall have obtained all governmental approvals required in connection with the sale and issuance of the applicable Note.
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(c)
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Legal Requirements. At the applicable Closing, the sale and issuance by the Company, and the purchase by the Lender, of the applicable Note shall be legally permitted by all laws and regulations to which the Lender or the Company are subject.
|
(d)
|
Purchase Price. The Lender shall have delivered to the Company Eight Million Dollars ($8,000,000) in immediately available funds.
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(a)
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Funding Commitment. The Company covenants and agrees to use its reasonable best efforts to obtain cash financing from existing commercial partners of the Company reasonably acceptable to the Lender in an amount equal to no less than Sixteen Million Dollars ($16,000,000) on or prior to August 16, 2019.
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(b)
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Waivers and Amendments. Any provision of this Agreement may be amended, waived or modified only upon the written consent of the Company and the Lender.
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(c)
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Governing Law. This Agreement and all actions arising out of or in connection with this Agreement 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.
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(d)
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Survival. The representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.
|
(e)
|
Successors and Assigns. Subject to the restrictions on transfer described in Section 7(f) below, the rights and obligations of the Company and the Lender hereunder and under the Notes shall be binding upon and inure to the benefit of the successors, assigns, heirs, administrators and transferees of the parties.
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(f)
|
Assignment by the Company; Assignment by the Lender. Neither this Agreement nor any Note nor any of the rights, interests or obligations hereunder or thereunder may be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of the Lender. The Lender will not assign, by operation of law or otherwise, this Agreement or any Note or any of its rights, interests or obligations hereunder or thereunder without the prior written consent of the Company.
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(g)
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Entire Agreement. This Agreement and the Notes constitute the full and entire understanding and agreement between the parties relating to the subject matter hereof and thereof and supersede any previous written or verbal agreements between the parties with regard to the subject matter hereof and thereof.
|
(h)
|
Notices. Any notice, request or other communication required or permitted hereunder shall be in writing and shall be deemed to have been duly given if delivered personally or by commercial delivery service, or sent via telecopy (receipt confirmed) to the parties at the following addresses or telecopy numbers (or at such other address or telecopy numbers for a party as shall be specified by like notice):
|
(i)
|
Severability of this Agreement. If any provision of this Agreement shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
|
(j)
|
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall be deemed to constitute one instrument.
|
|
|
COMPANY:
|
||
|
|
AMYRIS, INC. |
||
|
|
By:
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|
_/s/ Kathleen Valiasek |
|
|
Name:
|
|
Kathleen Valiasek
|
|
|
Title:
|
|
Chief Business Officer
|
|
|
LENDER:
|
||
|
|
FORIS VENTURES, LLC
|
||
|
|
By:
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|
_/s/ Barbara Hager
|
|
|
Name:
|
|
Barbara Hager
|
|
|
Title:
|
|
_________________________
|
(i)
|
Borrower and CEO of Aprinnova execute a supply agreement described in Section 5.1 of the JV Agreement (“Supply Agreement”) which Mr. Shizuo Ukaji as a representative of Aprinnova, LLC previously executed;
|
(ii)
|
Borrower grants to Lender a first-priority security interest as to 12.8% of Aprinnova, LLC’s shares, and Lender completes the UCC financial statement covering such security interest;
|
(iii)
|
Borrower commits: (X) to transfer Leland employees to Aprinnova, LLC, (Y) to provide, to Borrower and/or its designee, all benefit and other information necessary for Leland employees to join a third-party administrator, and (Z) to commence the preparation of such procedures immediately after the execution of this Agreement; and
|
(iv)
|
Borrower shall discuss with Lender and shall do its best to find a solution
|
(i)
|
Borrower provides, to Borrower and/or its designee, all benefit and other information necessary for Leland employees to join a third-party administrator; and
|
(ii)
|
Borrower executes an Escrow Agreement described in Section 1.5 of the JV Agreement.
|
(a)
|
If borrower fails to pay the principle of an interest on the Loan when due;
|
(b)
|
if any representation, warranty or covenant made by Borrower under this Agreement, or any other agreement(s) made with Lender, shall prove to have been untrue or misleading in any material respect when made; or
|
(c)
|
if Borrower files a petition in bankruptcy or for liquidation or reorganization or for the appointment of an examiner or receiver to Borrower or any of its assets or other similar petition, makes an assignment for the benefit of creditors, consents to the appointment of a receiver, trustee or other custodian for all or a substantial part of its property, is adjudicated at bankrupt, or fails to cause to be vacated, set aside or stayed within 60 days of any court order appointing a receiver, trustee or other custodian for all or a substantial part of its property or ordering relief against it in any involuntary case of bankruptcy.
|
NIKKO CHEMICALS CO., LTD.
|
|
||
By: /s/ Shizuo Ukaji___________________ |
|
||
Name: Shizuo Ukaji
|
|
||
Title: President & Chief Executive Officer
|
|
||
|
|
||
|
|
||
AMYRIS, INC. |
|
||
By:
|
|
_/s/ John Melo_________________ |
|
Name:
|
|
John Melo
|
|
Title:
|
|
President & Chief Executive Officer
|
|
(a)
|
Due Incorporation, Qualification, etc. The Company (i) is a corporation duly organized, validly existing and in good standing under the laws of Delaware; (ii) has the power and authority to own, lease and operate its properties and carry on its business as now conducted; and (iii) is duly qualified, licensed to do business and in good standing as a foreign corporation in each jurisdiction where the failure to be so qualified or licensed could reasonably be expected to have a Material Adverse Effect.
|
(b)
|
Authority. The execution, delivery and performance by the Company of this Agreement and the Note and the consummation by the Company of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate actions on the part of the Company.
|
(c)
|
Enforceability. This Agreement and the Note have been duly executed and delivered by the Company and constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its respective terms, except in each case as may be limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.
|
(d)
|
Non-Contravention. The execution and delivery by the Company of this Agreement and the Note and the performance and consummation by the Company of the transactions contemplated hereby and thereby do not and will not (i) violate the certificate of incorporation or bylaws of the Company or any judgment, order, writ, decree, statute, rule or regulation applicable to the Company; (ii) violate any provision of, or result in the breach or the acceleration of, or entitle any other Person to accelerate (whether after the giving of notice or lapse of time or both), any mortgage, indenture, agreement, instrument or contract to which the Company is a party or by which it is bound except to the extent such violation, breach or acceleration could not reasonably be expected to result in a Material Adverse Effect; or (iii) result in the creation or imposition of any lien upon any property, asset or revenue of the Company or the suspension, revocation, impairment, forfeiture, or nonrenewal of any permit, license, authorization or approval applicable to the Company, its business or operations, or any of its assets or properties except to the extent such suspension, revocation, impairment, forfeiture or nonrenewal could not reasonably be expected to have a Material Adverse Effect. The Company is not in breach of any mortgage, indenture, agreement, instrument or contract to which the Company is a party or by which it is bound except to the extent such breach could not reasonably be expected to result in a Material Adverse Effect.
|
(e)
|
Approvals. No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or other Person is required in connection with the execution and delivery by the Company of this Agreement and the Note and the performance and consummation by the Company of the transactions contemplated hereby and thereby, except for those already obtained or those that will be obtained prior to the Closing.
|
(f)
|
Tax Returns and Payments. The Company has timely filed all required tax returns and reports, and the Company has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by the Company except to the extent such taxes are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor.
|
(g)
|
Litigation. There are no actions or proceedings pending or threatened in writing by or against the Company except for such actions or proceedings that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
|
(h)
|
Full Disclosure. No written representation, warranty or other statement of the Company in any certificate or written statement given to Lender by the Company in connection with this Agreement or the Note, as of the date such representation, warranty, or other statement was made, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained in the certificates or written statements not misleading in light of the circumstances under which they were made.
|
(a)
|
Due Incorporation, Qualification, etc. The Lender (i) is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware; and (ii) has all requisite power to execute and deliver this Agreement and to carry out and perform its obligations under the terms of this Agreement.
|
(b)
|
Authority. The execution, delivery and performance by the Lender of this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly authorized by all necessary corporate actions on the part of the Lender.
|
(c)
|
Enforceability. The Lender has full legal capacity, power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement is a valid and binding obligation of the Lender, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.
|
(d)
|
Securities Law Compliance. The Lender is purchasing the Note for its own account for investment, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof. Lender has received or has had full access to all of the information necessary and appropriate to make an informed investment decision. The Lender is an accredited investor as such term is defined in Rule 501 of Regulation D under the Securities Act of 1933, as amended. The Lender acknowledges that it can bear the economic risk of the investment the Note.
|
(e)
|
Approvals. No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or other Person is required in connection with the execution and delivery by the Lender of this Agreement and the performance and consummation by the Lender of the transactions contemplated hereby, except for those already obtained.
|
(f)
|
Non-Contravention. The execution and delivery by the Lender of this Agreement and the performance and consummation by the Lender of the transactions contemplated hereby do not and will not (i) violate the organizational documents of the Lender or any judgment, order, writ, decree, statute, rule or regulation applicable to the Lender; or (ii) violate any agreement to which the Lender is a party or by which it is bound.
|
(a)
|
Representations and Warranties. The representations and warranties made by the Company in Section 2 hereof shall have been true and correct when made, and shall be true and correct as of the Closing.
|
(b)
|
Governmental Approvals and Filings. The Company shall have obtained all governmental approvals required in connection with the sale and issuance of the Note.
|
(c)
|
Legal Requirements. At the Closing, the sale and issuance by the Company, and the purchase by the Lender, of the Note shall be legally permitted by all laws and regulations to which the Lender or the Company is subject.
|
(d)
|
Transaction Documents. The Company shall have duly executed and delivered to the Lender this Agreement, the Note and the Warrant.
|
(e)
|
Material Adverse Effect. No event shall have occurred that could reasonably be expected to result in a Material Adverse Effect.
|
(a)
|
Representations and Warranties. The representations and warranties made by the Lender in Section 3 hereof shall be true and correct when made, and shall be true and correct as of the Closing.
|
(b)
|
Governmental Approvals and Filings. The Lender shall have obtained all governmental approvals required in connection with the sale and issuance of the Note.
|
(c)
|
Legal Requirements. At the Closing, the sale and issuance by the Company, and the purchase by the Lender, of the Note shall be legally permitted by all laws and regulations to which the Lender or the Company are subject.
|
(d)
|
Purchase Price. The Lender shall have delivered to the Company Nineteen Million Dollars ($19,000,000) in immediately available funds.
|
(a)
|
Waivers and Amendments. Any provision of this Agreement may be amended, waived or modified only upon the written consent of the Company and the Lender.
|
(b)
|
Governing Law. This Agreement and all actions arising out of or in connection with this Agreement 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.
|
(c)
|
Survival. The representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.
|
(d)
|
Successors and Assigns. Subject to the restrictions on transfer described in Section 7(e) below, the rights and obligations of the Company and the Lender hereunder and under the Note shall be binding upon and inure to the benefit of the successors, assigns, heirs, administrators and transferees of the parties.
|
(e)
|
Assignment by the Company; Assignment by the Lender. Neither this Agreement nor the Note nor any of the rights, interests or obligations hereunder or thereunder may be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of the Lender. The Lender will not assign, by operation of law or otherwise, this Agreement or the Note or any of its rights, interests or obligations hereunder or thereunder without the prior written consent of the Company.
|
(f)
|
Entire Agreement. This Agreement and the Note constitute the full and entire understanding and agreement between the parties relating to the subject matter hereof and thereof and supersede any previous written or verbal agreements between the parties with regard to the subject matter hereof and thereof.
|
(g)
|
Notices. Any notice, request or other communication required or permitted hereunder shall be in writing and shall be deemed to have been duly given if delivered personally or by commercial delivery service, or sent via telecopy (receipt confirmed) to the parties at the following addresses or telecopy numbers (or at such other address or telecopy numbers for a party as shall be specified by like notice):
|
(h)
|
Severability of this Agreement. If any provision of this Agreement shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
|
(i)
|
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall be deemed to constitute one instrument.
|
|
|
COMPANY:
|
||
|
|
AMYRIS, INC. |
||
|
|
By:
|
|
/s/ Kathleen Valiasek
|
|
|
Name:
|
|
Kathleen Valiasek
|
|
|
Title:
|
|
Chief Business Officer
|
|
|
LENDER:
|
||
|
|
FORIS VENTURES, LLC
|
||
|
|
By:
|
|
/s/ Barbara Hager
|
|
|
Name:
|
|
Barbara Hager_____________
|
|
|
Title:
|
|
_________________________
|
(a)
|
The sale and purchase of the Note on the Closing Date (such Note, the “Closing Date Note”) shall take place at such place and time on the Closing Date as the Company and the Lender may determine. On the Closing Date, the Company will deliver to the Lender the Closing Date Note against receipt by the Company of an amount, in immediately available funds, equal to Three Million Dollars ($3,000,000.00). The Closing Date Note will be registered in the Lender’s name in the Company’s records. The cash proceeds of the Closing Date Note will be used by the Company as set forth in the Closing Date Note.
|
(b)
|
The sale and purchase of another Note (such Note, the “Second Note”) shall take place at such place and time as the Company and the Lender may determine, but in any event no later than September 24, 2019. On the date of sale and purchase of the Second Note (the “Second Note Purchase Date”), the Company will deliver to the Lender the Second Note against receipt by the Company of an amount, in immediately available funds, equal to Three Million Dollars ($3,000,000.00). The Second Note will be registered in the Lender’s name in the Company’s records. The cash proceeds from the Second Note will be used by the Company as set forth in the Second Note.
|
(c)
|
The sale and purchase of another Note (such Note, the “Third Note”) shall take place at such place and time as the Company and the Lender may determine, but in any event no later than September 24, 2019. On the date of sale and purchase of the Third Note (the “Third Note Purchase Date”), the Company will deliver to the Lender the Third Note against receipt by the Company of an amount (the “Third Note Cash Proceeds Amount”), in immediately available funds, equal to (i) Two Million Dollars ($2,000,000.00) less (ii) the Setoff Amount. The Third Note will be registered in the Lender’s name in the Company’s records. The cash proceeds of the Third Note will be used by the Company as set forth in the Third Note.
|
(a)
|
Due Incorporation, Qualification, etc. Each of the Company and its Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of its state of incorporation; (ii) has the power and authority to own, lease and operate its properties and carry on its business as now conducted; and (iii) is duly qualified, licensed to do business and in good standing as a foreign corporation in each jurisdiction where the failure to be so qualified or licensed could reasonably be expected to have a Material Adverse Effect.
|
(b)
|
Authority. The execution, delivery and performance by the Company of the Loan Documents and the consummation by the Company of the transactions contemplated hereby and thereby (i) are within the power of the Company and (ii) have been duly authorized by all necessary corporate actions on the part of the Company.
|
(c)
|
Enforceability. Each Loan Document has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except in each case as may be limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.
|
(d)
|
Non-Contravention. The execution and delivery by the Company of each Loan Document and the performance and consummation by the Company of the transactions contemplated hereby and thereby do not and will not (i) violate the certificate of incorporation or bylaws of the Company or any judgment, order, writ, decree, statute, rule or regulation applicable to the Company; (ii) violate any provision of, or result in the breach or the acceleration of, or entitle any other Person to accelerate (whether after the giving of notice or lapse of time or both), any mortgage, indenture, agreement, instrument or contract to which the Company is a party or by which it is bound except to the extent such violation, breach or acceleration could not reasonably be expected to result in a Material Adverse Effect; or (iii) other than Liens securing the Obligations, result in the creation or imposition of any Lien upon any property, asset or revenue of the Company or the suspension, revocation, impairment, forfeiture, or nonrenewal of any permit, license, authorization or approval applicable to the Company, its business or operations, or any of its assets or properties except to the extent such suspension, revocation, impairment, forfeiture or nonrenewal could not reasonably be expected to have a Material Adverse Effect.
|
(e)
|
Approvals. No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or other Person is required in connection with the execution and delivery by the Company of any Loan Document and the performance and consummation by the Company of the transactions contemplated hereby and thereby, except for those already obtained.
|
(f)
|
No Violation or Default. None of the Company or any of its Subsidiaries is in violation of or in default with respect to (i) its certificate of incorporation or bylaws or any judgment, order, writ, decree, statute, rule or regulation applicable to such Person; or (ii) any mortgage, indenture, agreement, instrument or contract to which such Person is a party or by which it is bound (nor is there any waiver in effect which, if not in effect, would result
|
(g)
|
Tax Returns and Payments. Each of the Company and its Subsidiaries has timely filed all required tax returns and reports, and each of the Company and its Subsidiaries has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by the Company and its Subsidiaries except to the extent such taxes are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor.
|
(h)
|
Litigation. There are no actions, proceedings or investigations pending or threatened in writing by or against the Company or any of its Subsidiaries except for such actions, proceedings or investigations that (i) individually or in the aggregate could not reasonably be expected to result in a Material Adverse Effect and (ii) do not seek to enjoin, directly or indirectly, the execution, delivery or performance by the Company of any Loan Document or the transactions contemplated hereby and thereby.
|
(i)
|
Full Disclosure. No written representation, warranty or other statement of the Company in any certificate or written statement given to Lender by the Company in connection with the Loan Documents, as of the date such representation, warranty, or other statement was made, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained in the certificates or written statements not misleading in light of the circumstances under which they were made.
|
(j)
|
Properties. Each of the Company and its Subsidiaries owns or leases all such properties, including lands, buildings, machinery and production equipment, as are necessary to the conduct of its operations as presently conducted. Each of the Company and its Subsidiaries has good, marketable and legal title to, or a good, marketable and valid leasehold interest in, all of its material properties and assets, and all such properties are free of any Liens other than (i) as disclosed in the Company’s public filings and (ii) purchase money Liens in connection with leases of machinery or production equipment. Neither the Company nor any of its Subsidiaries has received any notice of proceedings relating to its properties which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect.
|
(k)
|
Labor. No labor problem or dispute with the employees, including management, of the Company or any of its Subsidiaries exists or is threatened or imminent, except as would not have a Material Adverse Effect.
|
(l)
|
Commission Filings. Except as set forth on Schedule 2(l), the Company has timely filed (subject to 12b-25 filings with respect to certain periodic filings) all reports, schedules, forms, statements and other documents required to be filed by it with the U.S. Securities and Exchange Commission (the “Commission”) pursuant to the reporting requirements of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”) (all of the foregoing filed with the Commission prior to the date hereof and all financial statements and schedules thereto and documents incorporated by reference therein, being hereinafter referred to herein as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act
|
(m)
|
Other Regulations. None of the Company or its Subsidiaries is subject to regulation under the U.S. Investment Company Act of 1940 or to any federal or state statute or regulation limiting its ability to incur indebtedness.
|
(n)
|
No Note Registration. The Company is under no obligation to effect any registration of any Note under the U.S. Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws with respect to any Note or to file for or comply with any exemption from registration.
|
1.
|
Schedule 2(o)(1) sets forth, as of the Closing Date, all HMO Intellectual Property that is owned by (or otherwise subject to the rights and interests of) the Company and its Subsidiaries. The Company and its Subsidiaries wholly own all of the HMO Intellectual Property. The Company and its Subsidiaries have good, marketable and legal title to all HMO Intellectual Property (including all properties and assets set forth on Schedule 2(o)(1)), free and clear from all Liens (other than Liens securing the Obligations). No material claim has been asserted in writing or is pending by any person challenging the use of any HMO Intellectual Property of the Company or any of its Subsidiaries or the validity or effectiveness of any such HMO Intellectual Property. The use of the HMO Intellectual Property by the Company and its Subsidiaries does not infringe upon, misappropriate or otherwise violate the rights of any other person.
|
2.
|
In addition to the foregoing, (x) the Company and each of its Subsidiaries owns, or is licensed to use, all intellectual property necessary to conduct its business as currently conducted except for such intellectual property the failure of which to own or license would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect and (y) to the knowledge of the Company, (i) the conduct and operations of the businesses of the Company and each of its Subsidiaries does not infringe, misappropriate, dilute or violate any intellectual property owned by any other Person and (ii) no other Person has contested any right, title or interest of the Company or any of its Subsidiaries in, or relating to, any intellectual property, other than, in each case, as would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
|
(p)
|
Solvency. On each of the Closing Date, the Second Note Purchase Date and the Third Note Purchase Date, both before and after giving effect to (a) the sale and purchase of the applicable Note on such date, (b) the disbursement of the proceeds of such Note to or as directed by the Company, (c) solely with respect to the Third Note Purchase Date, the consummation of the Setoff Transaction and (d) the payment and accrual of all transaction costs in connection with the foregoing, the Company will not be Insolvent.
|
(q)
|
Material Adverse Effect. Since December 31, 2017, there has been no Material Adverse Effect or any event or circumstance which would reasonably be expected to result in a Material Adverse Effect.
|
(a)
|
Due Incorporation, Qualification, etc. The Lender (i) is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware; and (ii) has all requisite power to execute and deliver the Loan Documents to which it is a party and to carry out and perform its obligations under the terms thereof.
|
(b)
|
Authority. The execution, delivery and performance by the Lender of the Loan Documents to which it is a party and the consummation by the Company of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate actions on the part of the Lender.
|
(c)
|
Enforceability. The Lender has full legal capacity, power and authority to execute and deliver the Loan Documents to which it is a party and to perform its obligations hereunder. Each Loan Document to which the Lender is a party is a valid and binding obligation of the Lender, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.
|
(d)
|
Securities Law Compliance. The Lender is purchasing the applicable Note on such date for its own account for investment, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof. Lender has received or has had full access to all of the information necessary and appropriate to make an informed investment decision. The Lender is an accredited investor as such term is defined in Rule 501 of Regulation D under the Securities Act. The Lender acknowledges that it can bear the economic risk of the investment in such Note.
|
(e)
|
Approvals. No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or other Person is required in connection with the execution and delivery by the Lender of each Loan Document to which it is a party and the performance and consummation by the Lender of the transactions contemplated hereby and thereby, except for those already obtained.
|
(a)
|
The Lender’s obligations to purchase the Closing Date Note on the Closing Date hereunder are subject to the fulfillment, on or prior to the Closing Date, of all of the following conditions, any of which may be waived in whole or in part by the Lender:
|
1.
|
RebM Obligations. The Lender shall have received evidence satisfactory to the Lender in its sole discretion that one or more Subsidiaries of the Company has repaid in full, in immediately available funds and in order of invoice due date, the RebM Obligations.
|
2.
|
Representations and Warranties. The representations and warranties made by the Company in Section 2 hereof shall have been true and correct when made, and shall be true and correct as of the Closing Date.
|
3.
|
Governmental Approvals and Filings. The Company shall have obtained all governmental approvals required in connection with the sale and issuance of the Closing Date Note.
|
4.
|
Legal Requirements. As of the Closing Date, the sale and issuance by the Company, and the purchase by the Lender, of the Closing Date Note shall be legally permitted by all laws and regulations to which the Lender or the Company is subject.
|
6.
|
Lien Perfection. The Lender shall have received evidence satisfactory to it that the Liens granted to the Lender pursuant to the Security Agreement will be first-priority perfected Liens on the Collateral on the Closing Date.
|
7.
|
No Event of Default. After giving effect to the sale and issuance of the Closing Date Note, no Event of Default shall exist.
|
8.
|
Borrowing Notice. The Company shall have delivered to the Lender a borrowing notice, dated as of the Closing Date, duly executed by a responsible officer of the Company (i) requesting the sale and purchase of the Closing Date Note, (ii) providing wire instructions and (iii) certifying as to the satisfaction, on or prior to the Closing Date, of each of the conditions in this Section 4(a).
|
9.
|
Legal Opinion. Fenwick & West LLP, legal counsel to the Company, shall have delivered to the Lender a customary legal opinion in form and substance satisfactory to the Lender.
|
(b)
|
The Lender’s obligations to purchase the Second Note on the Second Note Purchase Date are subject to the fulfillment, on or prior to the Second Note Purchase Date, of all of the following conditions, any of which may be waived in whole or in part by the Lender:
|
1.
|
Other Obligations. The Lender shall have received evidence satisfactory to the Lender in its sole discretion that one or more Subsidiaries of the Company has repaid, in immediately available funds and in order of invoice due date, the Other Obligations in an amount equal to $3,000,000 within three Business Days of receipt by the Company of the cash proceeds of the Closing Date Note.
|
2.
|
Representations and Warranties. The representations and warranties made by the Company in Section 2 hereof shall have been true and correct when made, and shall be true and correct as of the Second Note Purchase Date.
|
3.
|
Governmental Approvals and Filings. The Company shall have obtained all governmental approvals required in connection with the sale and issuance of the Second Note.
|
4.
|
Legal Requirements. As of the Second Note Purchase Date, the sale and issuance by the Company, and the purchase by the Lender, of the Second Note shall be legally permitted by all laws and regulations to which the Lender or the Company is subject.
|
5.
|
Transaction Documents. The Company shall have duly executed and delivered to the Lender the Second Note.
|
6.
|
Lien Perfection. The Lender shall have received evidence satisfactory to it that the Liens granted to the Lender pursuant to the Security Agreement will be first-priority perfected Liens on the Collateral on the Second Note Purchase Date.
|
7.
|
No Event of Default. After giving effect to the sale and issuance of the Second Note, no Event of Default shall exist.
|
8.
|
Borrowing Notice. The Company shall have delivered to the Lender a borrowing notice, dated as of the Second Note Purchase Date, duly executed by a responsible officer of the Company (i) requesting the sale and purchase of the Second Note, (ii) providing wire instructions and (iii) certifying as to the satisfaction, on or prior to the Second Note Purchase Date, of each of the conditions in this Section 4(b).
|
(c)
|
The Lender’s obligations to purchase the Third Note on the Third Note Purchase Date are subject to the fulfillment, on or prior to the Third Note Purchase Date, of all of the following conditions, any of which may be waived in whole or in part by the Lender:
|
1.
|
Other Obligations. The Lender shall have received evidence satisfactory to the Lender in its sole discretion that one or more Subsidiaries of the Company has repaid, in immediately available funds and in order of invoice due date, the Other Obligations in an amount equal to $6,000,000 (which, for the avoidance of doubt, is inclusive of $3,000,000 repaid pursuant to Section 4(b)(1)) within three Business Days of receipt by the Company of the cash proceeds of the Second Note (or such other time period as the Lender may agree in its sole discretion).
|
2.
|
Representations and Warranties. The representations and warranties made by the Company in Section 2 hereof shall have been true and correct when made, and shall be true and correct as of the Third Note Purchase Date.
|
3.
|
Governmental Approvals and Filings. The Company shall have obtained all governmental approvals required in connection with the sale and issuance of the Third Note.
|
4.
|
Legal Requirements. As of the Third Note Purchase Date, the sale and issuance by the Company, and the purchase by the Lender, of the Third Note shall be legally permitted by all laws and regulations to which the Lender or the Company is subject.
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5.
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Transaction Documents. The Company shall have duly executed and delivered to the Lender the Third Note.
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6.
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Lien Perfection. The Lender shall have received evidence satisfactory to it that the Liens granted to the Lender pursuant to the Security Agreement will be first-priority perfected Liens on the Collateral on the Third Note Purchase Date.
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7.
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No Event of Default. After giving effect to the sale and issuance of the Third Note, no Event of Default shall exist.
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8.
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Setoff. The Setoff Transaction shall have occurred or shall occur substantially concurrently with the issuance and sale of the Third Note.
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9.
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Borrowing Notice. The Company shall have delivered to the Lender a borrowing notice, dated as of the Third Note Purchase Date, duly executed by a responsible officer of the Company (i) requesting the sale and purchase of the Third Note, (ii) providing wire instructions and (iii) certifying as to the satisfaction, on or prior to the Third Note Purchase Date, of each of the conditions in this Section 4(c).
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10.
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Legal Expenses. The Company shall have paid in cash all costs and expenses incurred by, or for the benefit of, the Lender (including all reasonable fees and documented costs and expenses of Latham & Watkins LLP) and requested in writing on or prior to the Third Note Purchase Date in connection with (i) preparing, negotiating and documenting the Loan Documents and (ii) all transactions consummated in connection with the Loan Documents; provided that the amounts payable by the Company under this Section 4(c)(10) shall not exceed $130,000 in the aggregate (collectively, the “Legal Fees Obligation”).
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(a)
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Representations and Warranties. The representations and warranties made by the Lender in Section 3 hereof shall be true and correct when made, and shall be true and correct as of the Closing Date, the Second Note Purchase Date or the Third Note Purchase Date, as applicable.
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(b)
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Governmental Approvals and Filings. The Lender shall have obtained all governmental approvals required in connection with the sale and issuance of the applicable Note.
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(c)
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Legal Requirements. On the Closing Date, the Second Note Purchase Date or the Third Note Purchase Date, as applicable, the sale and issuance by the Company, and the purchase by the Lender, of the applicable Note shall be legally permitted by all laws and regulations to which the Lender or the Company are subject.
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(d)
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Purchase Price. The Lender shall have delivered to the Company, in immediately available funds, (i) with respect to the Closing Date Note and the Second Note, $3,000,000 and (ii) with respect to the Third Note, the Third Note Cash Proceeds Amount.
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6.
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Covenant. On or prior to October 31, 2019, the Company shall file its Form 10-K for the fiscal year ended December 31, 2018 with the Commission.
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7.
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[Reserved.]
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8.
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Definitions. As used in this Agreement, the following capitalized terms have the following meanings:
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(a)
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Waivers and Amendments. Any provision of the Loan Documents may be amended, waived or modified only upon the written consent of the Company and the Lender.
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(b)
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Governing Law. This Agreement and the other Loan Documents and all actions arising out of or in connection with this Agreement or any other Loan Document shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflicts of law provisions of the State of New York.
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(c)
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Arbitration. Any dispute, controversy or claim arising out of or relating to any Loan Document or the subject matter hereof or thereof, including, but not limited to, any contractual, pre-contractual or noncontractual rights, obligations or liabilities and any question or dispute regarding the existence, validity, formation, effect, interpretation, performance, breach, termination or invalidity hereof or thereof (a “Dispute”), shall be finally settled by arbitration. Any arbitration initiated in connection with this Section 9(c) shall be conducted by the New York office of the American Arbitration Association (“AAA”) in accordance with AAA Commercial Rules in effect at the time of applying for arbitration (“AAA Rules”), except as the AAA Rules conflict with the provisions of this Section 9(c), in which event the provisions of this Section 9(c) shall control. The arbitration tribunal shall consist of three (3) arbitrators, one (1) to be appointed by the claimant, one (1) to be appointed by the respondent and the two (2) arbitrators so appointed shall jointly appoint the third arbitrator. The tribunal shall decide any dispute submitted by the Parties strictly in accordance with the substantive law of the State of New York and shall not apply any other substantive law. Subject to the agreement of the tribunal, any Dispute(s) which arise subsequent to the commencement of arbitration of any existing Dispute(s) shall be resolved by the tribunal already appointed to hear the existing Dispute(s). The arbitration award shall be final, conclusive and binding on each party as from the date rendered. Judgment upon any arbitration award may be entered and enforced in any court having jurisdiction over a party or any of its assets.
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(d)
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Survival. The representations, warranties, covenants and agreements made herein shall survive the execution and delivery of each Loan Document.
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(e)
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Successors and Assigns. Subject to the restrictions on transfer described in Section 9(g) below, the rights and obligations of the Company and the Lender hereunder and under each Note shall be binding upon and inure to the benefit of the successors, assigns, heirs, administrators and transferees of the parties.
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(f)
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Registration, Transfer and Replacement of the Notes. Each Note issuable under this Agreement shall be issued in registered form. The Company will keep, at its principal executive office, books for the registration and registration of transfer of each Note. Prior to presentation of a Note for registration of transfer, the Company shall treat the Person in
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(g)
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Assignment by the Company; Assignment by the Lender. Neither any Loan Document nor any of the rights, interests or obligations hereunder or thereunder may be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of the Lender. The Lender will not assign, by operation of law or otherwise, any Loan Document or any of its rights, interests or obligations hereunder or thereunder without the prior written consent of the Company, except to an Affiliate of the Lender.
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(h)
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Entire Agreement. The Loan Documents constitute the full and entire understanding and agreement between the parties relating to the subject matter hereof and thereof and supersede any previous written or verbal agreements between the parties with regard to the subject matter hereof and thereof.
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(i)
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Notices. Any notice, request or other communication required or permitted hereunder shall be in writing and shall be deemed to have been duly given if delivered personally or by commercial delivery service, or sent via telecopy (receipt confirmed) or email to the parties at the following addresses, telecopy numbers or emails (or at such other address, telecopy number or email for a party as shall be specified by like notice):
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(j)
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Severability of this Agreement. If any provision of this Agreement shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
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(k)
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Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall be deemed to constitute one instrument.
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Date: November 12, 2019
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/s/ John G. Melo
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John G. Melo
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President and Chief Executive Officer
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Date: November 12, 2019
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/s/ Jonathan Wolter
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|
Jonathan Wolter
|
|
Interim Chief Financial Officer
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Date: November 12, 2019
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/s/ John G. Melo
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|
John G. Melo
|
|
President and Chief Executive Officer
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(Principal Executive Officer)
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Date: November 12, 2019
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/s/ Jonathan Wolter
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|
Jonathan Wolter
|
|
Interim Chief Financial Officer
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|
(Principal Financial Officer)
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